Common use of Indemnification by Parent and Sellers Clause in Contracts

Indemnification by Parent and Sellers. Subject to the other terms, conditions and limitations of this Agreement (including the provisions of Sections 13.4 and 13.5), Parent and Sellers agree to jointly and severally indemnify Purchaser and its Subsidiaries (including the Purchased Companies and their Subsidiaries) (the “Purchaser Indemnified Parties”) against, and to hold the Purchaser Indemnified Parties harmless from, all Losses suffered or incurred by any of the Purchaser Indemnified Parties to the extent arising out of or related to: (a) any misrepresentation or breach or failure of any representation or warranty made by Parent in ARTICLE IV of this Agreement or in the Ancillary Agreements or in any certificate delivered pursuant hereto or thereto to be true and correct in all respects as of the date of the Closing (in each case, as such representation or warranty would read if all qualifications as to knowledge and materiality (including any qualifications as to Material Adverse Effect) were deleted therefrom); (b) any misrepresentation or breach or failure of any representation or warranty made by a Seller in ARTICLE V or ARTICLE VI of this Agreement (other than any representation or warranty made in Section 5.8 (Taxes) for which indemnification is set forth in ARTICLE IX) or in the Ancillary Agreements or in any certificate delivered pursuant hereto or thereto to be true and correct in all respects as of the date of the Closing (in each case, as such representation or warranty would read if all qualifications as to knowledge and materiality were deleted therefrom); (c) any Excluded Liabilities; (d) any failure by Sellers or Parent to perform or comply with any covenant or agreement in this Agreement or in the Ancillary Agreements or in any certificate delivered pursuant hereto or thereto.

Indemnification by Parent and Sellers. Subject (a) Parent and Sellers agree, jointly and severally, subject to the other terms, terms and conditions and limitations of this Agreement (including the provisions Agreement, to indemnify Purchaser, Affiliates of Sections 13.4 Purchaser, and 13.5)each of their respective officers, Parent and Sellers agree to jointly and severally indemnify Purchaser and its Subsidiaries (including the Purchased Companies directors, agents or employees, and their Subsidiariesrespective successors and assigns (each a "PURCHASER INDEMNIFIED PARTY") (the “against and hold each Purchaser Indemnified Parties”Party harmless from all Losses (without duplication) against, and to hold the such Purchaser Indemnified Parties harmless from, all Losses suffered or incurred by any of the Purchaser Indemnified Parties to the extent Party arising out of or related to: (ai) any misrepresentation or the breach or failure of any representation or warranty made by Parent in ARTICLE IV of this Agreement Parent, Sellers or in the Ancillary Agreements or in any certificate delivered pursuant hereto or thereto to be true and correct in all respects as of Companies herein (other than the date of the Closing (in each case, as such representation or warranty would read if all qualifications as to knowledge and materiality (including any qualifications as to Material Adverse Effect) were deleted therefrom); (b) any misrepresentation or breach or failure of any representation or warranty made by a Seller set forth in ARTICLE V Section 2.19, which is addressed in Article 10), (ii) the breach of any covenant or ARTICLE VI agreement of this Agreement Parent, Sellers or the Companies herein or (other than iii) the Retained Liabilities. Anything in Section 9.1 to the contrary notwithstanding, no claim may be asserted nor any action commenced against Parent or Sellers for breach of any representation or warranty made contained herein, unless written notice of such claim or action is received by Parent or Sellers describing in Section 5.8 (Taxes) for detail the facts and circumstances with respect to the subject matter of such claim or action on or prior to the date on which indemnification the representation or warranty on which such claim or action is based ceases to survive as set forth in ARTICLE IXSection 9.1, whether or not the subject matter of such claim or action shall have occurred before or after such date. (b) or (i) The indemnification obligations of Parent and Sellers pursuant to Section 9.3(a)(i) shall not be effective until the aggregate dollar amount of all Losses that would otherwise be indemnifiable pursuant to Section 9.3(a)(i) exceeds $15 million (the "SELLER'S THRESHOLD AMOUNT"), at which point such obligations shall be effective only as to the amount of such Losses in the Ancillary Agreements or in any certificate delivered pursuant hereto or thereto to be true and correct in all respects as excess of the date Seller's Threshold Amount, subject to the limitation in Section 9.3(b)(ii); and (ii) the indemnification obligations of Parent and Sellers pursuant to Section 9.3(a)(i) shall be effective only until the dollar amount paid in respect of the Closing (Losses indemnified against under Section 9.3(a)(i) aggregates to an amount equal to $400 million; PROVIDED, that the foregoing limitations shall not apply with respect to any breach of the representations and warranties set forth in each caseSections 2.1, as such representation 2.2, 2.3, 2.4, 2.5 or warranty would read if all qualifications as to knowledge and materiality were deleted therefrom);2.23. (c) Purchaser agrees to give, and to cause each Purchaser Indemnified Party to give, Parent written notice of any Excluded Liabilities; (d) any failure claim, assertion, event or proceeding by Sellers or Parent to perform or comply with any covenant or agreement in this Agreement or in the Ancillary Agreements respect of a third party as to which it may request indemnification hereunder or as to which Seller's Threshold Amount may be applied as soon as is practicable and in any certificate delivered event within 30 days of the time that such Purchaser Indemnified Party learns of such claim, assertion, event or proceeding; PROVIDED, HOWEVER, that the failure to so notify Parent shall not affect rights to indemnification hereunder except to the extent that Parent is actually prejudiced by such failure. Within 30 days after receipt of such notification, Parent may elect to direct, through counsel of its own choosing reasonably acceptable to the Purchaser Indemnified Party, the defense or settlement of any such claim or proceeding at their own expense; PROVIDED, that no settlement will be made without the consent of the Purchaser Indemnified Party (not to be unreasonably withheld or delayed). If Parent elects to assume the defense of any such claim or proceeding, the Purchaser Indemnified Party may participate in such defense, but in such case the expenses of the Purchaser Indemnified Party shall be paid by such Purchaser Indemnified Party. Purchaser shall provide, or cause the Purchaser Indemnified Party to provide, Parent with access to its records and personnel relating to any such claim, assertion, event or proceeding during normal business hours and shall otherwise cooperate with Parent in the defense or settlement thereof, and Parent shall reimburse Purchaser or the Purchaser Indemnified Party for all its reasonable out-of-pocket expenses in connection therewith. If Parent elects to direct the defense of any such claim or proceeding, the Purchaser Indemnified Party shall not pay, or permit to be paid, any part of any claim or demand arising from such asserted liability unless Parent consents (which consent is not to be unreasonably withheld) in writing to such payment or unless Parent, subject to the last sentence of this Section 9.3(c), withdraws from the defense of such asserted liability or unless a final judgment from which no appeal may be taken by or on behalf of Parent is entered against the Purchaser Indemnified Party for such liability. If Parent shall not be entitled to direct the defense, or fails to defend, or, if after commencing or undertaking any such defense, Parent fails to prosecute or withdraw from such defense, the Purchaser Indemnified Party shall have the right to undertake the defense or settlement thereof, at the expense of Parent. If the Purchaser Indemnified Party assumes the defense of any such claim or proceeding pursuant hereto to this Section 9.3(c) and proposes to settle such claim or proceeding prior to a final judgment thereon or to forego any appeal with respect thereto, then the Purchaser Indemnified Party shall give Parent prompt written notice thereof and Parent shall have the right to participate in the settlement or assume or reassume the defense of such claim or proceeding.

Indemnification by Parent and Sellers. Subject (a) Parent and Sellers agree, jointly and severally, subject to the other terms, terms and conditions and limitations of this Agreement (including the provisions Agreement, to indemnify Purchaser, Affiliates of Sections 13.4 Purchaser, and 13.5)each of their respective officers, Parent and Sellers agree to jointly and severally indemnify Purchaser and its Subsidiaries (including the Purchased Companies directors, agents or employees, and their Subsidiaries) respective successors and assigns (the “each a "Purchaser Indemnified Parties”Party") against, against and to hold the each Purchaser Indemnified Parties Party harmless from, from all Losses suffered or incurred by any of the (without duplication) to such Purchaser Indemnified Parties to the extent Party arising out of or related to: (ai) any misrepresentation or the breach or failure of any representation or warranty made by Parent in ARTICLE IV of this Agreement Parent, Sellers or in the Ancillary Agreements or in any certificate delivered pursuant hereto or thereto to be true and correct in all respects as of Companies herein (other than the date of the Closing (in each case, as such representation or warranty would read if all qualifications as to knowledge and materiality (including any qualifications as to Material Adverse Effect) were deleted therefrom); (b) any misrepresentation or breach or failure of any representation or warranty made by a Seller set forth in ARTICLE V Section 2.19, which is addressed in Article 10), (ii) the breach of any covenant or ARTICLE VI agreement of this Agreement Parent, Sellers or the Companies herein or (other than iii) the Retained Liabilities. Anything in Section 9.1 to the contrary notwithstanding, no claim may be asserted nor any action commenced against Parent or Sellers for breach of any representation or warranty made contained herein, unless written notice of such claim or action is received by Parent or Sellers describing in Section 5.8 (Taxes) for detail the facts and circumstances with respect to the subject matter of such claim or action on or prior to the date on which indemnification the representation or warranty on which such claim or action is based ceases to survive as set forth in ARTICLE IXSection 9.1, whether or not the subject matter of such claim or action shall have occurred before or after such date. (b) or (i) The indemnification obligations of Parent and Sellers pursuant to Section 9.3(a)(i) shall not be effective until the aggregate dollar amount of all Losses that would otherwise be indemnifiable pursuant to Section 9.3(a)(i) exceeds $15 million (the "Seller's 44 49 Threshold Amount"), at which point such obligations shall be effective only as to the amount of such Losses in the Ancillary Agreements or in any certificate delivered pursuant hereto or thereto to be true and correct in all respects as excess of the date Seller's Threshold Amount, subject to the limitation in Section 9.3(b)(ii); and (ii) the indemnification obligations of Parent and Sellers pursuant to Section 9.3(a)(i) shall be effective only until the dollar amount paid in respect of the Closing (Losses indemnified against under Section 9.3(a)(i) aggregates to an amount equal to $400 million; provided, that the foregoing limitations shall not apply with respect to any breach of the representations and warranties set forth in each caseSections 2.1, as such representation 2.2, 2.3, 2.4, 2.5 or warranty would read if all qualifications as to knowledge and materiality were deleted therefrom);2.23. (c) Purchaser agrees to give, and to cause each Purchaser Indemnified Party to give, Parent written notice of any Excluded Liabilities; (d) any failure claim, assertion, event or proceeding by Sellers or Parent to perform or comply with any covenant or agreement in this Agreement or in the Ancillary Agreements respect of a third party as to which it may request indemnification hereunder or as to which Seller's Threshold Amount may be applied as soon as is practicable and in any certificate delivered event within 30 days of the time that such Purchaser Indemnified Party learns of such claim, assertion, event or proceeding; provided, however, that the failure to so notify Parent shall not affect rights to indemnification hereunder except to the extent that Parent is actually prejudiced by such failure. Within 30 days after receipt of such notification, Parent may elect to direct, through counsel of its own choosing reasonably acceptable to the Purchaser Indemnified Party, the defense or settlement of any such claim or proceeding at their own expense; provided, that no settlement will be made without the consent of the Purchaser Indemnified Party (not to be unreasonably withheld or delayed). If Parent elects to assume the defense of any such claim or proceeding, the Purchaser Indemnified Party may participate in such defense, but in such case the expenses of the Purchaser Indemnified Party shall be paid by such Purchaser Indemnified Party. Purchaser shall provide, or cause the Purchaser Indemnified Party to provide, Parent with access to its records and personnel relating to any such claim, assertion, event or proceeding during normal business hours and shall otherwise cooperate with Parent in the defense or settlement thereof, and Parent shall reimburse Purchaser or the Purchaser Indemnified Party for all its reasonable out-of-pocket expenses in connection therewith. If Parent elects to direct the defense of any such claim or proceeding, the Purchaser Indemnified Party shall not pay, or permit to be paid, any part of any claim or demand arising from such asserted liability unless Parent consents (which consent is not to be unreasonably withheld) in writing to such payment or unless Parent, subject to the last sentence of this Section 9.3(c), withdraws from the defense of such asserted liability or unless a final judgment from which no appeal may be taken by or on behalf of Parent is entered against the Purchaser Indemnified Party for such liability. If Parent shall not be entitled to direct the defense, or fails to defend, or, if after commencing or undertaking any such defense, Parent fails to prosecute or withdraw from such defense, the Purchaser Indemnified Party shall have the right to undertake the defense or settlement thereof, at the expense of Parent. If the Purchaser Indemnified Party assumes the defense of any such claim or proceeding pursuant hereto to this Section 9.3(c) and proposes to settle such claim or proceeding prior to a final judgment thereon or to forego any appeal with respect thereto, then the Purchaser Indemnified Party shall give Parent prompt written notice thereof and Parent shall have the right to participate in the settlement or assume or reassume the defense of such claim or proceeding.