Common use of INDEMNIFICATION BY MAGNETEK Clause in Contracts

INDEMNIFICATION BY MAGNETEK. Subject to all of the terms and conditions of this Article IX, MagneTek shall indemnify and hold harmless each Indemnified Buyer Affiliate from any Losses suffered or incurred by any such Indemnified Buyer Affiliate ("Buyer Losses") to the extent any such Buyer Losses arise from, (a) any breach of any representation or warranty of MagneTek contained in this Agreement (other than those set forth in Section 2.7(b) and the seventh and eighth sentences of Section 2.7(a)) or in any certificate, instrument or other document delivered pursuant hereto, (b) any breach of any covenant of MagneTek contained in this Agreement requiring performance after the Closing Date, or (c) any liability in respect of (x) any Taxes of the Mexican Companies that is incurred in, or that is attributable to, the Pre-Closing Tax Period, other than Taxes included as liabilities in the calculation of Closing Working Capital pursuant to the Asset Purchase Agreement and Taxes incurred on or after the Closing Date as a result of actions taken by Buyer or the Mexican Companies following the Closing or (y) a breach of the representation and warranty in Section 2.7(b) or in the seventh or eighth sentences of Section 2.7(a); provided, however, that MagneTek shall not have any obligation to indemnify any Indemnified Buyer Affiliate from and against any remediation or abatement Liability arising as a result of the presence of asbestos in or upon any of the improvements located on any Company Property at any time. MagneTek shall not have any liability under clause 9.1(a) above unless the aggregate of all Losses for which MagneTek would, but for this proviso, be liable pursuant to Section 9.1(a), and the analogous provisions under the Other Agreements, exceeds One Million Dollars ($1,000,000) on a cumulative basis (and then only to the extent of any such excess). Notwithstanding the foregoing, in the event Buyer establishes in respect of the breach of a representation and warranty that the facts or circumstances constituting such breach were known to MagneTek, the foregoing minimum amount limitation and the maximum amount limitation set forth below will not be applicable to MagneTek's indemnification obligation with respect to the Losses resulting from such breach. MagneTek's aggregate liability under Section 9.1(a) of this Agreement, together with the analogous provisions of the Other Agreements, shall in no event exceed 25% of the Aggregate Purchase Price (as adjusted), provided that only the first Five Million Dollars ($5,000,000) of Losses resulting from a breach by MagneTek of the representation and warranty in Section 3.21 (Absence of Certain Liabilities) of the Asset Purchase Agreement will be included in determining whether this amount has been exceeded.

INDEMNIFICATION BY MAGNETEK. Subject to all of the terms and conditions of this Article IXX, MagneTek shall indemnify Buyer and each of its officers, directors, employees and agents (each, a "Buyer Indemnified Person") against, and hold them harmless each Indemnified Buyer Affiliate from from, any Losses Loss suffered or incurred by any such Buyer Indemnified Buyer Affiliate ("Buyer Losses") Person to the extent any such Buyer Losses arise from, arising from (a) if the Closing occurs, any breach of any representation or warranty of MagneTek contained in this Agreement (other than those set forth in Section 2.7(b) and which survives the seventh and eighth sentences of Section 2.7(a)) Closing or in any certificate, instrument or other document delivered pursuant hereto, (b) any breach of any covenant of MagneTek contained in this Agreement requiring performance after the Closing Date, Date or (c) if the Closing occurs, (i) the existence of, or the failure of MagneTek to pay, perform and discharge when due, any liability in respect of (x) any Taxes of the Mexican Companies that is incurred inExcluded Liabilities (including, or that is attributable towithout limitation, the Pre-Closing Tax Period, other than Taxes included as liabilities in the calculation of Closing Working Capital pursuant to the Asset Purchase Agreement and Taxes incurred on or after the Closing Date any Losses as a result of actions taken by Buyer or the Mexican Companies following failure of MagneTek to comply with any bulk sales laws referred to in Section 7.3) and (ii) the Closing or (y) a breach existence of liabilities of MagneTek Belgium that comprise Excluded Liabilities, notwithstanding the structure of the representation and warranty in Section 2.7(b) or in the seventh or eighth sentences of Section 2.7(a)Transactions being a stock purchase as to MagneTek Belgium; providedPROVIDED, howeverHOWEVER, that MagneTek shall not have any obligation to indemnify any Indemnified Buyer Affiliate from and against any remediation or abatement Liability arising as a result of the presence of asbestos in or upon any of the improvements located on any Company Property at any time. MagneTek shall not have any liability under clause 9.1(a) above this Section 10.1 unless the aggregate of all Losses relating thereto for which MagneTek would, but for this proviso, be liable pursuant to Section 9.1(a), and the analogous provisions under the Other Agreements, exceeds One Million Dollars ($1,000,000) on a cumulative basis basis, an amount equal to $50,000 (and then only to the extent of any such excess). Notwithstanding the foregoing; and PROVIDED FURTHER, in the event Buyer establishes in respect of the breach of a representation and warranty HOWEVER, that the facts or circumstances constituting such breach were known to MagneTek, the foregoing minimum amount limitation and the maximum amount limitation set forth below will not be applicable to MagneTek's indemnification obligation with respect to the Losses resulting from such breach. (x) MagneTek's aggregate liability under Section 9.1(aclauses (a) and (b) of this AgreementSection 10.1 shall in no event exceed the lesser of $500,000 or the aggregate, together adjusted cash purchase price paid to Seller (including payments actually made under the Promissory Note), (y) MagneTek shall in addition be obligated to reimburse Buyer for up to $1,200,000 in respect of the claims referred to in Section 2.3(b) and (z) MagneTek's liability under clause (c) of this Section 10.1, on a cumulative basis with the analogous provisions of the Other Agreementsliability referred to in clause (x) preceding, shall in no event exceed 25% of the Aggregate Purchase Price aggregate, adjusted cash purchase price paid to Seller (as adjustedincluding payments actually made under the Promissory Note), provided except that only the first Five Million Dollars ($5,000,000) liability of Losses resulting from a breach by MagneTek in respect of the representation and warranty Excluded Liabilities described in Section 3.21 (Absence of Certain Liabilities2.3(c) of the Asset Purchase Agreement will be included in determining whether this amount has been exceededshall have no limit.

INDEMNIFICATION BY MAGNETEK. Subject to all of the terms and conditions of this Article IXX, MagneTek shall indemnify Buyer and each of its officers, directors, employees and agents (each, a "Buyer Indemnified Person") against, and hold them harmless each Indemnified Buyer Affiliate from from, any Losses Loss suffered or incurred by any such Buyer Indemnified Buyer Affiliate Person ("Buyer Losses"other than any Loss relating to environmental matters, for which indemnification provisions are set forth in Section 10.3) to the extent any such Buyer Losses arise from, arising from (a) if the Closing occurs, any breach of any representation or warranty of MagneTek contained in this Agreement (other than those set forth in Section 2.7(b) and which survives the seventh and eighth sentences of Section 2.7(a)) Closing or in any certificate, instrument or other document delivered pursuant heretohereto or in connection herewith which by its terms survives the Closing, (b) any breach of any covenant of MagneTek contained in this Agreement requiring performance after the Closing Date, or (c) if the Closing occurs, the existence of, or the failure of Sellers to pay, perform and discharge when due, any liability in respect of (x) any Taxes of the Mexican Companies that is incurred inExcluded Liabilities (including, or that is attributable towithout limitation, the Pre-Closing Tax Period, other than Taxes included as liabilities in the calculation of Closing Working Capital pursuant to the Asset Purchase Agreement and Taxes incurred on or after the Closing Date any Losses as a result of actions taken the failure to comply with any bulk sales laws referred to in Section 7.3), (d) if the Closing occurs, any litigation pertaining to the Mexico Business as to which a complaint has been filed and notice thereof duly provided to Glasmex or Coil Company prior to the Closing Date, or (e) if the Closing occurs, any claims or demands made by any Governmental Authority or any third party which is unrelated to Buyer or its Affiliates arising from deficiencies relating to Coil Company or Glasmex set forth on Schedule 5.4 (PROVIDED that Buyer shall have afforded Sellers the Mexican Companies following the Closing or (y) a breach of the representation and warranty in Section 2.7(b) or opportunity to mitigate any such Loss by cooperating with Buyer in the seventh or eighth sentences cure of such deficiencies pursuant to Section 2.7(a8.2); providedPROVIDED, howeverHOWEVER, that MagneTek shall not have any obligation to indemnify any Indemnified Buyer Affiliate from and against any remediation or abatement Liability arising as a result of the presence of asbestos in or upon any of the improvements located on any Company Property at any time. MagneTek shall not have any liability under clause 9.1(a) above this Section 10.1 unless the aggregate of all Losses relating thereto for which MagneTek would, but for this proviso, be liable pursuant to Section 9.1(a), and the analogous provisions under the Other Agreements, exceeds One Million Dollars ($1,000,000) on a cumulative basis with Losses for which Buyer is indemnified under Section 10.3, an amount equal to $50,000 (and then only to the extent of any such excess). Notwithstanding the foregoing; and PROVIDED FURTHER, in the event Buyer establishes in respect of the breach of a representation and warranty HOWEVER, that the facts or circumstances constituting such breach were known to MagneTek, the foregoing minimum amount limitation and the maximum amount limitation set forth below will not be applicable to MagneTek's indemnification obligation with respect to the Losses resulting from such breach. MagneTek's aggregate liability under this Section 9.1(a) of this Agreement, together with the analogous provisions of the Other Agreements, 10.1 and Section 10.3 shall in no event exceed 25% of the Aggregate Purchase Price (as adjusted), provided that only the first Five Million Dollars ($5,000,000) of Losses resulting from a breach by MagneTek of the representation and warranty in Section 3.21 (Absence of Certain Liabilities) of the Asset Purchase Agreement will be included in determining whether this amount has been exceeded2,000,000.

INDEMNIFICATION BY MAGNETEK. Subject to all of the terms and conditions of this Article IXX, MagneTek shall indemnify Buyer and each of its officers, directors, employees and agents (each, a "Buyer Indemnified Person") against, and hold them harmless each Indemnified Buyer Affiliate from from, any Losses Loss suffered or incurred by any such Buyer Indemnified Buyer Affiliate Person ("Buyer Losses"other than any Loss relating to environmental matters, for which indemnification provisions are set forth in Section 10.3) to the extent any such Buyer Losses arise from, arising from (a) if the Closing occurs, any breach of any representation or warranty of MagneTek contained in this Agreement (other than those set forth in Section 2.7(b) and the seventh and eighth sentences of Section 2.7(a)) or in any certificate, instrument or other document delivered pursuant heretohereto or in connection herewith which by its terms survives the Closing, (b) any breach of any covenant of MagneTek contained in this Agreement requiring performance after the Closing Date, Date or (c) if the Closing occurs, the existence of, or the failure of Sellers to pay, perform and discharge when due, any liability in respect of (x) any Taxes of the Mexican Companies that is incurred inExcluded Liabilities (including, or that is attributable towithout limitation, the Pre-Closing Tax Period, other than Taxes included as liabilities in the calculation of Closing Working Capital pursuant to the Asset Purchase Agreement and Taxes incurred on or after the Closing Date any Losses as a result of actions taken by Buyer or the Mexican Companies following the Closing or (y) a breach failure of the representation and warranty NEC to comply with any bulk sales laws referred to in Section 2.7(b) or in the seventh or eighth sentences of Section 2.7(a7.3); providedPROVIDED, howeverHOWEVER, that MagneTek shall not have any obligation to indemnify any Indemnified Buyer Affiliate from and against any remediation or abatement Liability arising as a result of the presence of asbestos in or upon any of the improvements located on any Company Property at any time. MagneTek shall not have any liability under clause 9.1(a) above this Section 10.1 unless the aggregate of all Losses relating thereto for which MagneTek would, but for this proviso, be liable pursuant to Section 9.1(a)exceeds, and the analogous provisions under the Other Agreements, exceeds One Million Dollars ($1,000,000) on a cumulative basis with Losses for which Buyer is indemnified under Section 10.3, an amount equal to $50,000 (and then only to the extent of any such excess); and PROVIDED FURTHER, HOWEVER, that MagneTek's aggregate liability under this Section 10.1 and Section 10.3 shall in no event exceed $3,000,000. Notwithstanding the foregoing, in the event MagneTek shall have no obligation to indemnify Buyer establishes in respect of the breach of a representation and warranty that the facts or circumstances constituting such breach were known to MagneTek, the foregoing minimum amount limitation and the maximum amount limitation set forth below will not be applicable to MagneTek's indemnification obligation with respect to the Losses resulting from such breach. MagneTek's aggregate liability under Section 9.1(a) of this Agreementany Loss, together with the analogous provisions including, but not limited to, any breach of the Other Agreementsrepresentations set forth in Section 4.5, shall in no event exceed 25% which are within the scope of the Aggregate Purchase Price (as adjusted)Title Commitment, provided and Buyer agrees that only its sole recourse with respect to such matters shall be against the first Five Million Dollars ($5,000,000) of Losses resulting from a breach by MagneTek issuer of the representation and warranty in Section 3.21 (Absence of Certain Liabilities) of the Asset Purchase Agreement will be included in determining whether this amount has been exceededTitle Commitment.

INDEMNIFICATION BY MAGNETEK. Subject to all of the terms and conditions of this Article IX, MagneTek shall indemnify and hold harmless each Indemnified Buyer Affiliate from any Losses suffered or incurred by any such Indemnified Buyer Affiliate ("Buyer Losses") to the extent any such Buyer Losses arise from, (a) if the Closing occurs, any breach of any representation or warranty of MagneTek contained in this Agreement (other than those set forth in Section 2.7(b) and the seventh and eighth sentences of Section 2.7(a)) or in any certificate, instrument or other document delivered pursuant hereto, (b) any breach of any covenant of MagneTek contained in this Agreement requiring performance after the Closing Date, Date or (c) any liability in respect of (x) any Taxes of the Mexican Asian Companies that is incurred in, or that is attributable to, the Pre-Closing Tax Period, other than Taxes included as liabilities in the calculation of Closing Working Capital pursuant to the Asset Purchase Agreement and Taxes incurred on or after the Closing Date as a result of actions taken by Buyer or the Mexican Asian Companies following the Closing or (y) a breach of the representation and warranty in Section 2.7(b) or in the seventh or eighth sentences of Section 2.7(a)Closing; provided, however, that MagneTek shall not have any obligation to indemnify any Indemnified Buyer Affiliate from and against any remediation or abatement Liability arising as a result of the presence of asbestos in or upon any of the improvements located on any Company Property at any time. MagneTek shall not have any liability under clause 9.1(a) above unless the aggregate of all Losses for which MagneTek would, but for this proviso, be liable pursuant to Section 9.1(a), and the analogous provisions under the Other Agreements, exceeds One Million Dollars ($1,000,000) on a cumulative basis (and then only to the extent of any such excess). Notwithstanding the foregoing, in the event Buyer establishes in respect of the breach of a representation and warranty that the facts or circumstances constituting such breach were known to MagneTek, the foregoing minimum amount limitation and the maximum amount limitation set forth below will not be applicable to MagneTek's indemnification obligation with respect to the Losses resulting from such breach. MagneTek's aggregate liability under Section 9.1(a) of this Agreement, together with the analogous provisions of the Other Agreements, shall in no event exceed 25% of the Aggregate Purchase Price (as adjusted), provided that only the first Five Million Dollars ($5,000,000) of Losses resulting from a breach by MagneTek of the representation and warranty in Section 3.21 (Absence of Certain Liabilities) of the Asset Purchase Agreement will be included in determining whether this amount has been exceeded.

INDEMNIFICATION BY MAGNETEK. Subject to all of the terms and conditions of this Article IXX, MagneTek shall indemnify Buyer and each of its officers, directors, employees and agents (each, a "Buyer Indemnified Person") against, and hold them harmless each Indemnified Buyer Affiliate from from, any Losses Loss suffered or incurred by any such Buyer Indemnified Buyer Affiliate Person ("Buyer Losses"other than any Loss relating to environmental matters, for which indemnification provisions are set forth in Section 10.3) to the extent any such Buyer Losses arise from, arising from (a) if the Closing occurs, any breach of any representation or warranty of MagneTek contained in this Agreement (other than those set forth in Section 2.7(b) and which survives the seventh and eighth sentences of Section 2.7(a)) Closing or in any certificate, instrument or other document delivered pursuant hereto, (b) any breach of any covenant of MagneTek contained in this Agreement or the Services Agreement requiring performance after the Closing Date, Date or (c) if the Closing occurs, the existence of, or the failure of Sellers to pay, perform and discharge when due, any liability in respect of (x) any Taxes of the Mexican Companies that is incurred inExcluded Liabilities (including, or that is attributable towithout limitation, the Pre-Closing Tax Period, other than Taxes included as liabilities in the calculation of Closing Working Capital pursuant to the Asset Purchase Agreement and Taxes incurred on or after the Closing Date any Losses as a result of actions taken by Buyer or the Mexican Companies following the Closing or (y) a breach failure of the representation and warranty NEC to comply with any bulk sales laws referred to in Section 2.7(b) or in the seventh or eighth sentences of Section 2.7(a7.3); providedPROVIDED, howeverHOWEVER, that MagneTek shall not have any obligation to indemnify any Indemnified Buyer Affiliate from and against any remediation or abatement Liability arising as a result of the presence of asbestos in or upon any of the improvements located on any Company Property at any time. MagneTek shall not have any liability under clause 9.1(a) above this Section 10.1 unless the aggregate of all Losses relating thereto for which MagneTek would, but for this proviso, be liable pursuant to Section 9.1(a), and the analogous provisions under the Other Agreements, exceeds One Million Dollars ($1,000,000) on a cumulative basis with Losses for which Buyer is indemnified under Section 10.3, an amount equal to $50,000 (and then only to the extent of any such excess); and PROVIDED FURTHER, HOWEVER, that MagneTek's aggregate liability under this Section 10.1 and Section 10.3 shall in no event exceed $6,000,000. Notwithstanding the foregoing, MagneTek shall have no obligation to indemnify Buyer with respect to any Loss, including but not limited to, any breach of the representations set forth in Section 4.5, which are within the event scope of the Title Commitment, and Buyer establishes agrees that its sole recourse with respect to such matters shall be against the issuer of the Title Commitment. Moreover, for avoidance of doubt, the parties agree that the indemnification provided for in this Section 10.1 in respect of the a breach of a representation the Services Agreement includes an indemnification (subject to all of the terms and warranty that the facts or circumstances constituting such breach were known to MagneTek, the foregoing minimum amount limitation and the maximum amount limitation set forth below will not be applicable to MagneTek's indemnification obligation with respect to the Losses resulting from such breach. MagneTek's aggregate liability under Section 9.1(a) conditions of this AgreementArticle X) for any Loss incurred as a result of any legal claim, together action, proceeding or demand that may be made or asserted against Buyer by the Dublin Road Partnership, its successors or assigns, or a mortgagee thereof in connection with the analogous provisions of Services Agreement or which may frustrate the Other Agreementsperformance by either party thereof, shall in no event exceed 25% of the Aggregate Purchase Price (as adjusted)whether or not such claim, provided that only the first Five Million Dollars ($5,000,000) of Losses resulting from a action, proceeding or demand can be attributed to any direct or indirect breach by MagneTek of the representation and warranty in Section 3.21 (Absence of Certain Liabilities) of the Asset Purchase Agreement will be included in determining whether this amount has been exceededsuch Services Agreement.