Common use of Indemnification Obligation of Buyer Clause in Contracts

Indemnification Obligation of Buyer. Except to the extent the Seller has agreed to be liable to a Buyer Indemnified Party, the Buyer will indemnify and hold harmless the Seller, and its officers, directors, and shareholders, (each such person is referred to herein as a “Buyer Indemnified Party”) against and in respect of: (a) any and all actions, suits, claims or legal, administrative, arbitration, governmental or other proceedings or investigations, against any Buyer Indemnified Party that relate to the Buyer, the Mine or the Assets and which result from or arise out of any event, occurrence, action, inaction or transaction occurring after the Closing Date; (b) any and all damages, losses, settlement payments, deficiencies, liabilities, costs and expenses suffered, sustained, incurred or required to be paid by any Buyer Indemnified Party because of or that result from, relate to or arise out of the material untruth, inaccuracy or breach of, or the failure to fulfill, any representation, warranty, agreement, covenant or statement (i) of the Buyer contained in this Agreement or (ii) contained in any certificate, schedule, statement, document or instrument furnished to the Buyer Indemnified Party by or on behalf of the Buyer at the Closing; and (c) any and all actions, suits, claims, proceedings, investigation, demands, assessments, audits, fines, judgments, costs and other expenses (including, without limitation, reasonable legal fees and expenses) incident to any of the foregoing or to the enforcement of this Section 10.2 to the extent the Buyer Indemnified Party prevails in such action. The Buyer Indemnified Party shall promptly notify the Buyer of the existence of any matter to which the obligations set forth in this paragraph shall apply, and shall give the Buyer reasonable opportunity to defend any claim or litigation at its own expense, with counsel of its own selection approved by the Buyer Indemnified Party; provided that the Buyer Indemnified Party shall also at all times have the right fully to participate in such defense at its own expense. If the Buyer shall fail, within a reasonable time after such notice, to defend such claim or litigation, the Buyer Indemnified Party, or any successor to the business and assets of the Buyer, shall have the right, but not the obligation, to defend, compromise or settle any such claim or litigation.

Indemnification Obligation of Buyer. Except to the extent the Seller has agreed to be liable to a Buyer Indemnified Party, the (a) Buyer will indemnify and hold harmless the Seller, Seller and its Affiliates, stockholders, officers, managers, directors, employees, agents, representatives and shareholderssuccessors and assigns (collectively, (each such person is referred to herein as a “Buyer Indemnified Party”the "Seller Indemnitees") against and in respect of, and save and hold each Seller Indemnitee harmless against any Losses which such Seller Indemnitee suffers, sustains or becomes subject to as a result of or by virtue of, without duplication: (ai) any and all actions, suits, claims facts or legal, administrative, arbitration, governmental circumstances which constitute a misrepresentation or other proceedings or investigations, against any breach of by Buyer Indemnified Party that relate to the Buyer, the Mine or the Assets and which result from or arise out of any event, occurrence, action, inaction representation or transaction occurring after warranty set forth in this Agreement or any certificate delivered by Buyer pursuant to this Agreement as each such representation or warranty would read if all qualifications as to materiality (including without limitation the Closing Date;defined term "Material Adverse Effect") were deleted therefrom (provided that Buyer is given written notice of such misrepresentation or breach during the applicable survival period specified in Section 9.1 above); or (ii) any nonfulfillment or breach of any covenant or agreement of the Buyer set forth in this Agreement. (b) any and all damagesNotwithstanding the foregoing, losses, settlement payments, deficiencies, liabilities, costs and expenses suffered, sustained, incurred or the Buyer shall not be required to be paid by indemnify the Seller Indemnitees in respect of any Buyer Indemnified Party because Losses which the Seller Indemnitees suffer, sustain or become subject to as a result of or that result from, relate to or arise out by virtue of the material untruth, inaccuracy or breach of, or the failure to fulfill, any representation, warranty, agreement, covenant or statement (i) of the Buyer contained in this Agreement or (ii) contained in any certificate, schedule, statement, document or instrument furnished to the Buyer Indemnified Party by or on behalf of the Buyer at the Closing; and (c) any and all actions, suits, claims, proceedings, investigation, demands, assessments, audits, fines, judgments, costs and other expenses (including, without limitation, reasonable legal fees and expenses) incident to any of the foregoing or occurrences referred to in Section 9.3(a)(i) above unless the enforcement aggregate amount of this Section 10.2 to all such Losses exceeds $125,000; provided, that in such event, Buyer shall be responsible for the extent amount of all such Losses in excess of $125,000. In no event shall the Buyer Indemnified Party prevails be obligated to indemnify the Seller Indemnities under this Article 9 in such action. The Buyer Indemnified Party shall promptly notify the Buyer respect of any Losses any Seller Indemnitee suffers, sustains, or becomes subject to, as result of or by virtue of any of the existence of any matter occurrences referred to which the obligations set forth in this paragraph shall apply, and shall give the Buyer reasonable opportunity to defend any claim or litigation at its own expense, with counsel of its own selection approved by the Buyer Indemnified Party; provided that the Buyer Indemnified Party shall also at all times have the right fully to participate in such defense at its own expense. If the Buyer shall fail, within a reasonable time after such notice, to defend such claim or litigation, the Buyer Indemnified Party, or any successor to the business and assets of the Buyer, shall have the right, but not the obligation, to defend, compromise or settle any such claim or litigationSection 9.3(a)(i) above $7,500,000.

Indemnification Obligation of Buyer. Except to the extent the (a) Buyer shall indemnify Seller has agreed to be liable to a Buyer Indemnified Partyand its successors and permitted assigns (collectively, the Buyer will indemnify “Seller Indemnitees”) in respect of, and save and hold any Seller Indemnitee harmless the Seller, and against any Losses which such Seller Indemnitee or any of its Affiliates or any of their respective officers, directors, and shareholdersemployees, (each such person is referred agents or representatives or their respective successors or assigns suffers, sustains or becomes subject to herein as a “Buyer Indemnified Party”) against and in respect result of or by virtue of, without duplication: (ai) any and all actions, suits, claims facts or legal, administrative, arbitration, governmental circumstances which constitute a misrepresentation or other proceedings or investigations, against any Buyer Indemnified Party that relate to the Buyer, the Mine or the Assets and which result from or arise out breach of any eventrepresentation or warranty made by Buyer set forth in this Agreement (disregarding, occurrencefor purposes of such determination, action, inaction any qualification or transaction occurring after exception with respect to materiality contained therein); *** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Closing Date;Commission. (ii) any nonfulfillment or breach of any covenant or agreement of Buyer set forth in this Agreement; or (iii) any Assumed Liabilities. (b) any and all damagesNotwithstanding the foregoing, losses, settlement payments, deficiencies, liabilities, costs and expenses suffered, sustained, incurred or required to be paid by any Buyer Indemnified Party because of or that result from, relate to or arise out of the material untruth, inaccuracy or breach of, or the failure to fulfill, any representation, warranty, agreement, covenant or statement (i) Buyer shall not be required to indemnify Seller Indemnitees in respect of any Losses any Seller Indemnitee suffers, sustains or becomes subject to as a result of or by virtue of any of the occurrences referred to in Section 9.3(a)(i) above unless and until the aggregate of all such Losses exceeds the Minimum Threshold, at which point Buyer contained in this Agreement or will be obligated to indemnify Seller for all such Losses, from and including the first Dollar thereof and (ii) contained in no event shall Buyer be obligated to indemnify Seller Indemnitees in respect of any certificateLosses any Seller Indemnitee suffers, schedulesustains, statementor becomes subject to, document as a result of or instrument furnished by virtue of any of the occurrences referred to in Section 9.3(a)(i) in excess of the Indemnification Cap. Notwithstanding any other provision of this Section 9.3, (A) the Minimum Threshold and the Indemnification Cap shall not apply with respect to any Loss any Seller Indemnitee suffers, sustains or becomes subject to as a result of or by virtue of (x) any breach of Sections 5.1, 5.2, or 5.5 or (y) the fraud or the willful misconduct on the part of Buyer and (B) Buyer shall not be liable for any particular Loss unless the amount thereof exceeds the De Minimus Amount and all Losses in respect of any claim less than the De Minimus Amount shall be excluded from calculations with respect to the Buyer Indemnified Party by or on behalf of Minimum Threshold and the Buyer at the Closing; andIndemnification Cap. (c) any and all actions, suits, claims, proceedings, investigation, demands, assessments, audits, fines, judgments, costs and other expenses Except (including, without limitation, reasonable legal fees and expensesi) incident to any of the foregoing or to the enforcement of this Section 10.2 to the extent the Buyer Indemnified Party prevails in such action. The Buyer Indemnified Party shall promptly notify the Buyer of the existence of any matter to which the obligations as set forth in this paragraph shall apply, Section 10.5 and shall give the Buyer reasonable opportunity (ii) with respect to defend any claim claims based on fraud or litigation at its own expense, with counsel willful misconduct of its own selection approved by the Buyer Indemnified Party; provided that the Buyer Indemnified Party shall also at all times have the right fully to participate in such defense at its own expense. If the Buyer shall fail, within a reasonable time after such notice, to defend such claim or litigationBuyer, the Buyer Indemnified Party, rights of Seller Indemnitees under this Article 9 shall be the sole and exclusive remedies of Seller Indemnitees with respect to claims for which they are entitled to indemnification under this Agreement or any successor otherwise relating to the business and assets transactions that are the subject of the Buyer, shall have the right, but not the obligation, to defend, compromise or settle any such claim or litigationthis Agreement.

Indemnification Obligation of Buyer. Except (a) Buyer will indemnify each of Parent and Seller and their respective Affiliates, stockholders, officers, managers, directors, employees, agents, representatives and successors and assigns (collectively, the "Seller Indemnitees") in respect of, and save and hold each Seller Indemnitee harmless against any Losses which such Seller Indemnitee suffers, sustains or becomes subject to as a result of or by virtue of, without duplication: (i) any facts or circumstances which constitute a misrepresentation or breach by Buyer of any representation of warranty set forth in this Agreement or in any certificate delivered by Buyer pursuant to this Agreement, in each case determined without regard for any materiality qualifier contained in such representation and warranty; (ii) any non-fulfillment or breach of any covenant or agreement of the Buyer set forth in this Agreement; (iii) any Assumed Liability; (iv) any liability to the extent the Seller has agreed related to be liable to a Buyer Indemnified Party, the Buyer will indemnify and hold harmless the Seller, and its officers, directors, and shareholders, (each such person is referred to herein as a “Buyer Indemnified Party”) against and in respect of: (a) any and all actions, suits, claims or legal, administrative, arbitration, governmental or other proceedings or investigations, against any Buyer Indemnified Party that relate to the arising from Buyer, the Mine or 's ownership of the Assets and which result from or arise out operation of any event, occurrence, action, inaction or transaction occurring the Business after the Closing Date; (v) any liability or obligation with respect to the Real Property relating to or arising out of any Environmental, Health and Safety Requirement to the extent caused by the actions of any employee of Buyer and its Affiliates in connection with the operation of the Business after the Closing Date; or (vi) any facts or circumstances which constitute a misrepresentation or breach by Buyer of any representation of warranty set forth in the Transition Services Agreement or any non-fulfillment or breach of any covenant or agreement of Buyer set forth in the Transition Services Agreement. (b) any and all damagesNotwithstanding the foregoing, losses, settlement payments, deficiencies, liabilities, costs and expenses suffered, sustained, incurred or Buyer shall not be required to be paid by indemnify the Seller Indemnitees in respect of any Buyer Indemnified Party because Losses any Seller Indemnitee suffers, sustains or becomes subject to as a result of or that result from, relate to or arise out by virtue of the material untruth, inaccuracy or breach of, or the failure to fulfill, any representation, warranty, agreement, covenant or statement (i) of the Buyer contained in this Agreement or (ii) contained in any certificate, schedule, statement, document or instrument furnished to the Buyer Indemnified Party by or on behalf of the Buyer at the Closing; and (c) any and all actions, suits, claims, proceedings, investigation, demands, assessments, audits, fines, judgments, costs and other expenses (including, without limitation, reasonable legal fees and expenses) incident to any of the foregoing or occurrences referred to in Section 10.3(a)(i) above unless the enforcement aggregate of this Section 10.2 to the extent the Buyer Indemnified Party prevails all such Losses exceeds $50,000; provided, that in such action. The Buyer Indemnified Party shall promptly notify the Buyer of the existence of any matter to which the obligations set forth in this paragraph shall applyevent, and shall give the Buyer reasonable opportunity to defend any claim or litigation at its own expense, with counsel of its own selection approved by the Buyer Indemnified Party; provided that the Buyer Indemnified Party shall also at all times have the right fully to participate in such defense at its own expense. If the Buyer shall fail, within a reasonable time after be responsible for the amount of all such notice, to defend such claim or litigation, the Buyer Indemnified Party, or any successor to the business and assets of the Buyer, shall have the right, but not the obligation, to defend, compromise or settle any such claim or litigationLosses.