Common use of Indemnification of Buyer Indemnified Parties Clause in Contracts

Indemnification of Buyer Indemnified Parties. Subject to the applicable provisions of Section 7.1 and Section 7.5, Seller covenants and agrees to indemnify each of Buyer and its directors, officers, employees, affiliates, controlling persons, agents and representatives and their successors and assigns (collectively, the “Buyer Indemnified Parties”) against, and hold each Buyer Indemnified Party harmless from and in respect of, all liability, demands, claims, Actions or causes of action, assessments, losses, damages (including any consequential, exemplary, punitive or treble damages), costs and expenses (including reasonable fees and actual disbursements by attorneys, consultants, experts or other representatives and litigation costs) (collectively, “Damages”) to any Buyer Indemnified Party that arise from, are based on or relate or otherwise are attributable to (i) any breach of the representations and warranties of Seller set forth in this Agreement or in certificates or other documents delivered in connection with this Agreement, in each case giving effect to any dollar amounts expressly set forth therein, but without giving any effect to any materiality qualifiers with respect thereto, (ii) the ownership, management, operation or use by Seller of the Acquired Assets or the conduct of the Business by Seller prior to the Closing, (iii) any nonfulfillment of any covenant or agreement on the part of Seller under this Agreement, and (iv) the Excluded Assets and the Retained Liabilities (each such liability, demand, claim, Action or cause of action, assessment, loss, damage, cost and expense being a “Buyer Indemnified Loss”).

Indemnification of Buyer Indemnified Parties. Subject to (a) Following the applicable provisions of Section 7.1 and Section 7.5Closing, Seller covenants will indemnify, defend, and agrees to indemnify each of Buyer hold harmless Buyer, the NOARK Group and its their officers, members, partners, directors, officers, employees, affiliates, controlling persons, agents Subsidiaries and representatives and their successors and assigns Affiliates (collectively, the “Buyer Indemnified Parties”) againstfrom any and all damages, and hold each Buyer Indemnified Party harmless from and in respect ofloss, all liabilityLiability, demands, claims, Actions claim or causes of action, assessments, losses, damages (including any consequential, exemplary, punitive or treble damages), costs and expenses expense (including reasonable fees and actual disbursements by attorneys, consultants, experts or other representatives and litigation costs’ fees) (collectively, “Damages”) to any Buyer Indemnified Party that arise fromarising, are based on directly or relate or otherwise are attributable to indirectly (i) from or in connection with any breach failure of the representations and warranties of any representation or warranty made by Seller set forth in this Agreement or in certificates or other documents any closing certificate delivered in connection with pursuant to this AgreementAgreement to be true and correct as of the Closing (as if made anew at and as of the Closing, in each case giving effect to any dollar amounts expressly set forth therein, but without giving any effect to any materiality qualifiers with respect thereto, and (ii) the ownership, management, operation or use by Seller of the Acquired Assets or the conduct of the Business by Seller prior to the Closing, (iii) any nonfulfillment breach of any covenant or agreement on the part of made or to be performed by Seller under pursuant to this Agreement, provided, however, that with regard to breaches resulting from or in connection with failure of any representation or warranty made by Seller in this Agreement (x) Seller shall only be liable under this Section 7.3(a) to the extent that the aggregate amount of Damages exceed 0.7% of the Final Purchase Price (the “Deductible Amount”), and then only to the extent of such excess, and (ivy) in no event shall Seller’s aggregate liability to the Buyer Indemnified Parties under this Section 7.3(a) exceed 20% of the Final Purchase Price (the “Cap Amount”). Notwithstanding the foregoing, (A) the Excluded Assets Deductible Amount shall not apply to breaches of the Seller Fundamental Representations or the representations and warranties contained in Section 3.8(a) (No Undisclosed Liabilities, No Adverse Changes) with respect to indebtedness for borrowed money only, or Section 3.14 (Taxes) and (B) the Retained Liabilities Cap Amount shall not apply to breaches of the Seller Fundamental Representations or the representations and warranties contained in Section 3.8(a) (each such liabilityNo Undisclosed Liabilities, demandNo Adverse Changes) with respect to indebtedness for borrowed money only, claimor Section 3.14 (Taxes); provided, Action or cause of actionhowever, assessment, loss, damage, cost and expense being a “that in no event shall Seller’s liability to the Buyer Indemnified Loss”)Parties for breach of any of the Seller Fundamental Representations exceed the amount of the Final Purchase Price. (b) Following the Closing, Seller will indemnify, defend, and hold harmless the Buyer Indemnified Parties against any and all Damages arising, directly or indirectly, from (i) NOARK’s ownership of NES or otherwise arising from NES or its business, operations, activities, assets or liabilities or (ii) any member of the NOARK Group having been a member of an affiliated, consolidated, combined or unitary group (other than the NOARK Group) for any period prior to Closing, including pursuant to Treasury Regulations 1.1502-6 or any analogous or similar state, local or foreign law.

Indemnification of Buyer Indemnified Parties. Subject Effective at and after the Closing, subject to the applicable provisions limitations set forth in this ARTICLE 12, each Equityholder severally, but not jointly, in accordance with the terms of this Agreement, including Section 7.1 12.03 below, hereby indemnifies Buyer, the Company Parties, their respective Affiliates and Section 7.5their respective officers, Seller covenants and agrees to indemnify each of Buyer and its directors, officersmanagers, employees, affiliatesagents, controlling persons, agents and representatives and their successors and assigns assignees (collectively, the “Buyer Indemnified Parties”) against, and agrees to hold each of them harmless from, any and all Damages (whether involving a Third Party Claim or a claim solely between the parties hereto), incurred or suffered by the Buyer Indemnified Party harmless from and in respect Parties to the extent arising out of, all liabilitywith respect to or by reason of: (a) any inaccuracy in or misrepresentation or breach of any representation or warranty (each, demandsa “Warranty Breach”) of (i) Yucatan in ARTICLE 3 of this Agreement or in any certificate delivered by Yucatan at Closing pursuant hereto, claims(ii) Camden in ARTICLE 4 of this Agreement or in any certificate delivered by Camden at Closing pursuant hereto or (iii) any Equityholder in ARTICLE 6 of this Agreement or in the Mexico Equity Interest Purchase Agreement or in any certificate delivered by such Equityholder at Closing pursuant hereto; (b) any non-fulfillment or breach of any covenant or agreement in this Agreement or any Transaction Document (each, Actions a “Covenant Breach”) by an Equityholder or causes the Equityholders’ Representative; (c) any Transaction Costs or Closing Indebtedness that is not taken into account in determining the Aggregate Acquisition Consideration hereunder; (d) Taxes of action, assessments, losses, damages any Company Party (including any consequential, exemplary, punitive or treble damages), costs and expenses (including reasonable fees and actual disbursements by attorneys, consultants, experts or other representatives and litigation costsTaxes of an Equityholder for which a Company Party is held liable) (collectively, “Damages”) to any Buyer Indemnified Party that arise from, are based on or relate or otherwise are attributable relating to (i) any breach taxable period of the representations and warranties Company Parties (or any of Seller set forth in this Agreement their predecessors) ending on or in certificates or other documents delivered in connection with this Agreement, in each case giving effect to any dollar amounts expressly set forth therein, but without giving any effect to any materiality qualifiers with respect theretobefore the Closing Date, (ii) the ownership, management, operation portion on or use by Seller before the Closing Date of the Acquired Assets or the conduct of the Business by Seller prior to the Closingany Straddle Period, (iii) any nonfulfillment of any covenant or agreement on transaction that occurred prior to the part of Seller under this AgreementClosing Date, and (iv) the Excluded Assets resolution of any pre-Closing Tax issue and/or proceeding, and/or (v) the Closing of the transactions herein contemplated, including any and all withholding or other Taxes with respect to any payments made by Buyer to the Retained Liabilities Equityholders pursuant to or in accordance with this Agreement; (each e) Any Environmental Claim (regardless of, and notwithstanding any, disclosure of any items that are the subject of an Environmental Claim in the Company Disclosure Schedules or the Camden Disclosure Schedules); (f) Any non-compliance with Applicable Law determined as a result of any audit, review or investigation by Governmental Authorities as to import and export support documentation or procedures, inventory controls, including Mexico’s Annex 24 and Annex 31 requirements, and assets located in Mexico and relating to the activities or period prior to the Closing (regardless of, and notwithstanding any, disclosure of any items that are the subject of such liability, demand, claim, Action indemnity claim in the Company Disclosure Schedules or cause of action, assessment, loss, damage, cost and expense being a “Buyer Indemnified Loss”the Camden Disclosure Schedules); and (g) Any reduction in the Aggregate Acquisition Consideration under Section 2.06(g) hereof.

Indemnification of Buyer Indemnified Parties. Subject to From and after the applicable provisions of Section 7.1 Closing, each Member (severally and Section 7.5not jointly, Seller covenants in accordance with its Pro Rata Portion) shall indemnify and agrees to indemnify each of hold harmless Buyer and its respective officers, directors, employees, agents and Affiliates (including, from and after the Closing, the Company), and their respective direct and indirect partners, members, shareholders, directors, officers, employees, affiliates, controlling persons, employees and agents and representatives and their successors and assigns (collectively, the “Buyer Indemnified Parties”) againstfrom and against any and all Losses directly or indirectly arising out of, related to, accrued or incurred in connection with: (i) any breach of or inaccuracies in any representation or warranty made by the Company, TopCo, or the Members in this Agreement or in any certificate delivered to Buyer at the Closing (other than Losses arising out of, related to, accrued or incurred in connection with any breach of or inaccuracies in any representation or warranties in Article II, for which only the applicable Member responsible for such breach shall indemnify and hold each harmless the Buyer Indemnified Party harmless from and Parties); (ii) any breach or nonperformance of any covenant or obligation in respect this Agreement to be performed by the Members, TopCo, or the Company hereunder (other than Losses arising out of, all liabilityrelated to, demandsaccrued or incurred in connection with any breach or nonperformance of any covenant or obligation in this Agreement to be performed by a Member in his, claimsher, Actions or causes its capacity as a Member, for which only the applicable Member responsible for such breach or nonperformance shall indemnify and hold harmless the Buyer Indemnified Parties); (iii) regardless of actionthe disclosure of any matter set forth in the Disclosure Schedule, assessmentsany inaccuracy in any information, lossesor breach of any representation or warranty, damages (set forth in a Consideration Spreadsheet, including any consequentialfailure to properly calculate the Company Cash, exemplaryCompany Cash Deficiency, punitive Company Transaction Expenses, the Closing Indebtedness Amount, the Purchase Price, the Purchase Price Escrow Pro Rata Portion, or treble damages), costs and expenses the Pro Rata Portion; (including reasonable fees and actual disbursements by attorneys, consultants, experts or other representatives and litigation costsiv) (collectivelyA) any fraud or intentional misrepresentation committed by the Company, “Damages”the Members, TopCo, or any of its or their Representatives or Affiliates in connection with the Transactions or (B) any willful breach of this Agreement or any Transaction Documents committed by the Company, the Members, TopCo, or any of its or their Representatives or Affiliates; (v) without duplication of any amounts treated as Indebtedness that reduced the Purchase Price, any Pre-Closing Taxes; (vi) any Member-Related Claims; (vii) the PPP Loan, including any obligation to repay the PPP Loan in whole or in part when due; (viii) without duplication of any Buyer Indemnified Party that arise fromindemnifiable loss of the Company satisfied in full pursuant to the Pearl Acquisition Agreement, are based on any indemnifiable loss of the Company under the Pearl Acquisition Agreement, including as a result of or relate or otherwise are attributable to arising from (iA) any breach of the representations and warranties of Seller Pearl set forth in this Agreement therein or in the other Transaction Documents, Schedules or certificates or other documents delivered in connection with this therewith (each capitalized term as defined in the Pearl Acquisition Agreement, in each case giving effect to any dollar amounts expressly set forth therein, but without giving any effect to any materiality qualifiers with respect thereto), (ii) the ownership, management, operation or use by Seller of the Acquired Assets or the conduct of the Business by Seller prior to the Closing, (iiiB) any breach or nonfulfillment of any covenant or agreement on the part of Seller Pearl under this the Pearl Acquisition Agreement or the other Transaction Documents (as defined in the Pearl Acquisition Agreement), and (ivC) the Excluded Assets and the Retained Liabilities (each such liabilityas defined in the Pearl Acquisition Agreement), demandor (D) all Taxes arising from the transactions contemplated by the Pearl Acquisition Agreement; (ix) the matters set forth on Schedule 10.2(a)(ix) (collectively, claim, Action or cause of action, assessment, loss, damage, cost and expense being a “Buyer Indemnified LossSpecified Matters”). (x) any costs and expenses of enforcement to recover Losses due to any Buyer Indemnified Party under this Article X.

Indemnification of Buyer Indemnified Parties. Subject From and following the Closing and subject to the applicable provisions of Section 7.1 and Section 7.5limitations contained in this Article VIII, Seller covenants and agrees to indemnify each of Buyer Buyer, the Surviving Company and its their respective officers, directors, officers, employees, affiliatesagents, controlling personsAffiliates, agents and representatives and their successors and assigns (collectivelyeach a “Buyer Indemnified Party” and, together, the “Buyer Indemnified Parties”) againstshall be indemnified and held harmless by the Securityholders, severally and hold each Buyer Indemnified Party harmless not jointly, from and in respect of, against all liability, demands, claims, Actions or causes of action, assessments, losses, damages (including any consequentialliabilities, exemplarydamages, punitive or treble damages)deficiencies, costs and expenses, including reasonable attorneys’ fees and expenses (including reasonable fees and actual disbursements by attorneysindividually a “Loss” and, consultants, experts or other representatives and litigation costs) (collectively, “DamagesLosses”) to any incurred by the Buyer Indemnified Party that arise Parties arising out of or resulting from, are based on or relate or otherwise are attributable to : (ia) any breach of any representation or warranty of the representations and warranties Company contained in Article IV or any certificate, agreement or other document delivered pursuant hereto or made by any Securityholder in any Joinder Agreement (provided that such indemnification in respect of Seller set forth such Joinder Agreement may only be recovered against the Securityholder that is a party thereto, including the portion of the Escrow Fund attributable to such Securityholder); (b) any breach of any covenant of the Company contained in this Agreement or contained in certificates or other documents delivered any Joinder Agreement (provided that such indemnification in connection with this Agreement, in each case giving effect to any dollar amounts expressly set forth therein, but without giving any effect to any materiality qualifiers with respect of such Joinder Agreement may only be recovered against the Securityholder that is a party thereto, including the portion of the Escrow Fund attributable to such Securityholder); (c) any (i) Taxes of the Company or any of its Subsidiaries for all Pre-Closing Tax Periods and for the portion of any Straddle Period ending on the Closing Date as determined pursuant to Section 6.8(c), except solely to the extent the amount of such Taxes was included in the calculation of the Net Closing Working Capital or Transaction Expenses; (ii) any Transfer Taxes, (iii) Taxes of another Person (other than the ownershipCompany or any of its Subsidiaries) imposed on the Company or any of its Subsidiaries (or any successor thereto), management(A) as a transferee or successor, operation or use by Seller of the Acquired Assets or the conduct of the Business by Seller (B) pursuant to any Contract existing at any time prior to the Closing; (iv) Taxes of any member of an affiliated, consolidated, combined or unitary group of which the Company or any Subsidiary is or was a member on or prior to the Closing Date as a result of the provisions of Treasury Regulation Section 1.1502-6 or the analogous provisions of any state, local or foreign Laws; (iiiv) Taxes related to any nonfulfillment untaxed foreign earnings pursuant to Section 965 of the Code; (vi) Taxes attributable to the failure by the Company, any of the Company’s Subsidiaries, or any Securityholder to perform any covenant or agreement in this Agreement relating to Taxes or any inaccuracy in any certificate, instrument or agreement delivered by or on behalf of the Company, any of the Subsidiaries, or any Securityholder pursuant to this Agreement relating to Taxes (provided that such indemnification in respect of a failure by any Securityholder to perform any such covenant or agreement, or any * Omitted information is the subject of a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934 and has been filed separately with the Securities and Exchange Commission. inaccuracy in any such certificate, instrument or agreement delivered by or on behalf of any Securityholder, may only be recovered against such Securityholder, including the portion of the Escrow Fund attributable to such Securityholder); and (vii) withholding Taxes attributable to payments made to Securityholders under this Agreement (for which the applicable Securityholder shall indemnify the Buyer Indemnified Parties); (d) any Transaction Expenses or Closing Indebtedness to the extent not taken into account in determining the Adjustment Amount pursuant to Section 3.3, provided that in any case the amount of the employer’s share of any employment or payroll (including, for avoidance of doubt, Medicare and social security) Taxes with respect to any Earn-Out Payments, payment of the Final Aggregate Merger Consideration or any payments from the Escrow Fund shall be considered a Loss hereunder and shall be offset against such Earn-Out Payment, payment of the Final Aggregate Merger Consideration or payment from the Escrow Fund; (e) any amount paid by Buyer, the Company or the Surviving Company to any Stockholder with respect to Dissenting Shares in excess of the Per Common Share Merger Consideration paid by Buyer pursuant to this Agreement as of the date such amount is paid multiplied by the number of Dissenting Shares held by such Stockholder, and all Losses incurred by Buyer, the Company or the Surviving Company in connection with the exercise (and/or attempted exercise) of all dissenters’ rights; (f) any claims or threatened claims by or purportedly on behalf of any holder or former holder of shares of capital stock of the Company or rights to acquire capital stock of the Company in such holder’s or former holder’s capacity as such relating to matters arising at or before the Effective Time, including claims related to distributions, dividends, stock splits, stock dividends, conversions or preemptive rights; (g) any claims by any current or former Securityholders (or any of their Affiliates, successors or assigns), any holders of Options being canceled pursuant to Section 3.1(b)(ii) or any Persons contingently promised Options that the distribution of payments hereunder to such Person as set forth on the part Capital Structure Certificate was less than the amount owed to such Person in respect of Seller under this Agreementhis, her or its Shares, Options, Ungranted Options or other options or promised options or equity as a result of any inaccuracy in the calculations and determinations set forth on the Capital Structure Certificate or with respect to any claims regarding promised options or equity, or vesting or acceleration of vesting; or (ivh) any claim against the Excluded Assets and Surviving Company, Buyer or any of their Affiliates by a Securityholder based on any act or failure to act, or any alleged act or failure to act, of the Retained Liabilities Stockholders’ Representative (each such liabilityincluding Actual Fraud, demandgross negligence, claimwillful misconduct or bad faith) in breach of its obligations hereunder, Action including any failure or cause alleged failure to distribute properly all or any portion of action, assessment, loss, damage, cost and expense being a “Buyer Indemnified Loss”)the consideration payable hereunder.

Indemnification of Buyer Indemnified Parties. Subject From and following the Closing and subject to the applicable provisions of Section 7.1 procedures and Section 7.5limitations contained in this Article IX, Seller covenants and agrees to indemnify each of Buyer Buyer, the Surviving Company and its their respective officers, managers, directors, officerspartners and Affiliates (each a “Buyer Indemnified Party” and, employees, affiliates, controlling persons, agents and representatives and their successors and assigns (collectivelytogether, the “Buyer Indemnified Parties”) againstshall be indemnified and held harmless in accordance with this Article IX, and hold each Buyer Indemnified Party harmless from and in respect of, against all liability, demands, claims, Actions or causes of action, assessments, losses, damages liabilities, damages, deficiencies, costs, amounts paid in settlement, penalties and expenses, including reasonable attorneys’ fees and expenses (individually a “Loss” and, collectively, “Losses”) incurred by the Buyer Indemnified Parties to the extent arising out of or resulting from: (a) any breach of any representation or warranty of the Company contained in this Agreement without regard, for purposes of this clause (a), to any qualifications as to materiality or Company Material Adverse Effect (or any correlative terms); (b) any breach of any covenant of the Company contained in this Agreement prior to the Closing; (c) any Pre-Closing Taxes; (d) the portion of Transfer Taxes for which the Preferred Stockholders are responsible pursuant to Section 7.1; (e) any and all claims by any Stockholder, holder of Company Options, or other equityholder of the Company (or any other Person who claims such Person was granted equity interests in the Company prior to the Closing) relating to or arising out of the transactions contemplated hereby, including the allocation of the Aggregate Merger Consideration; (f) any claim or right asserted or held by any Person who is or at any time was an officer, director, employee or agent of the Company or any of its Subsidiaries (against the Company, Buyer, Merger Sub or any of their Affiliates (including the Surviving Company) or any consequentialother Person) involving a right or entitlement or an alleged right or entitlement to indemnification, exemplaryreimbursement of expenses or any other relief or remedy; (g) any payment in respect of any Dissenting Shares in excess of the consideration that otherwise would have been payable in respect of such shares in accordance with this Agreement, punitive and any other Losses paid, incurred, suffered or treble damages)sustained in respect of any Dissenting Shares, including any fees, costs and expenses (including reasonable fees and actual disbursements by attorneys, consultants, experts or other representatives and litigation costs) (collectively, “Damages”) to any Buyer Indemnified Party that arise from, are based on or relate or otherwise are attributable to (i) any breach of the representations and warranties of Seller set forth in this Agreement or in certificates or other documents delivered incurred in connection with this Agreementinvestigating, defending against or settling any action or proceeding in each case giving effect to respect of Dissenting Shares; and (h) any dollar amounts expressly set forth therein, but without giving any effect to any materiality qualifiers payment obligation in respect of a withdrawal liability assessment by the Specified Plan with respect theretoto a complete or partial withdrawal within the meaning of ERISA Section 4203 or 4205 (as modified by ERISA Section 4208(d)(1), (iias applicable) the ownership, management, operation or use by Seller of the Acquired Assets or the conduct of the Business by Seller that occurred prior to the Closing, Closing (iii) any nonfulfillment of any covenant or agreement on the part of Seller under this Agreement, and (iv) the Excluded Assets and the Retained Liabilities (each such liability, demand, claim, Action or cause of action, assessment, loss, damage, cost and expense being a “Buyer Indemnified LossSpecified Withdrawal Losses”).

Indemnification of Buyer Indemnified Parties. Subject to the applicable provisions of Section 7.1 and Section 7.5, Seller covenants Sellers, jointly and agrees severally, covenant and agree to indemnify each of Buyer and its directors, officers, employees, affiliates, controlling persons, agents and representatives and their successors and assigns (collectively, the “Buyer Indemnified Parties”) against, and hold each Buyer Indemnified Party harmless from and in respect of, all liability, demands, claims, Actions or causes of action, assessments, losses, damages (including any consequential, exemplary, punitive or treble damages), costs and expenses (including reasonable fees and actual disbursements by attorneys, consultants, experts or other representatives and litigation costs) (collectively, “Damages”) to any Buyer Indemnified Party that arise from, are based on or relate or otherwise are attributable to (i) any breach of the representations and warranties of Seller Sellers set forth in this Agreement herein or in certificates or other documents document delivered in connection with this Agreementherewith, in each case giving effect to any dollar amounts expressly set forth therein, but without giving any effect to any materiality qualifiers with respect thereto, (ii) the ownership, management, operation or use by Seller Sellers of the Acquired Assets or the conduct of the Business by Seller Sellers prior to the Closing, (iii) any nonfulfillment of any covenant or agreement on the part of Seller Sellers under this Agreement, and (iv) the Excluded Assets and the Retained Liabilities (each such liability, demand, claim, Action or cause of action, assessment, loss, damage, cost and expense being a “Buyer Indemnified Loss”).