Common use of Indemnification of Buyer Indemnified Parties Clause in Contracts

Indemnification of Buyer Indemnified Parties. (a) Following the Closing, Seller will indemnify, defend, and hold harmless Buyer, the NOARK Group and their officers, members, partners, directors, employees, Subsidiaries and Affiliates (the “Buyer Indemnified Parties”) from any and all damages, loss, Liability, claim or expense (including reasonable attorneys’ fees) (“Damages”) arising, directly or indirectly (i) from or in connection with any failure of any representation or warranty made by Seller in this Agreement or any closing certificate delivered pursuant to this Agreement to be true and correct as of the Closing (as if made anew at and as of the Closing, and (ii) the breach of any covenant or agreement made or to be performed by Seller 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 (y) 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 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 Cap 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); provided, however, that in no event shall Seller’s liability to the Buyer Indemnified Parties for breach of any of the Seller Fundamental Representations exceed the amount of the Final Purchase Price.

Indemnification of Buyer Indemnified Parties. (a) Following the Closing, Seller will indemnify, defend, and hold harmless Buyer, the NOARK Group Rangeland Entities and their respective officers, members, partners, directors, employees, Subsidiaries and Affiliates (the “Buyer Indemnified Parties”) from and against any and all damages, losslosses, LiabilityLiabilities, claim or expense claims and expenses (including reasonable attorneys’ fees) (collectively, “Damages”) arising, directly or indirectly (i) indirectly, from or in connection with any failure one or more of the following: (i) the breach of any representation or warranty made by Seller in this Agreement as of the date hereof or as of the Closing Date as if made as of the Closing Date (other than any representation or warranty made as of a specific date), or in any closing certificate delivered pursuant to this Agreement to be true and correct as of the Closing (as if made anew at and as of the Closing, and Agreement; (ii) the breach of any covenant or agreement made or to be performed by Seller pursuant to this Agreement, ; and (iii) any Seller Taxes; 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 from all such breaches exceeds $3,750,000 (the “Deductible Amount”) (and only a breach that individually exceeds $50,000 shall be included in such aggregate calculation), and then only to the extent of such excess, and (y) 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 $42,500,000 (the “Cap Amount”). Notwithstanding the foregoing, (A) the 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 Cap Amount shall not apply to (A) breaches of the Seller Fundamental Representations Representations, (B) breaches of any covenants or the representations and warranties contained in Section 3.8(aagreements made by or to be performed by Seller pursuant to this Agreement or (C) (No Undisclosed Liabilities, No Adverse Changes) with respect to indebtedness for borrowed money only, or Section 3.14 (any Seller Taxes); provided, however, that in no event shall Seller’s aggregate liability to the Buyer Indemnified Parties for breach of any of the Seller Fundamental Representations or breach of any covenant or agreement made or to be performed by Seller pursuant to this Agreement exceed the amount of the Final Purchase Price.

Indemnification of Buyer Indemnified Parties. (a) Following Subject to this Section 6.3 from and after the ClosingClosing Date, Seller will Sellers shall, jointly and severally, indemnify, defend, defend and hold harmless Buyer, Buyer and the NOARK Group Company and their officers, members, partnersrespective managers, directors, officers, employees, Subsidiaries representatives, successor and Affiliates assigns (the collectively “Buyer Indemnified Parties”) in respect of, and Buyer Indemnified Parties shall be entitled to payment and reimbursement, jointly and severally, from any and all damages, loss, Liability, claim or expense Sellers (including reasonable attorneys’ fees) (collectively the “DamagesSeller Indemnifying Parties”) arisingof the amount of, directly all Losses suffered or indirectly (i) from incurred by any Buyer Indemnified Party, by reason of, in whole or in connection with part, or arising from, in whole or in part, (a) any failure breach by any Seller or Sellers’ Representative of any covenant, agreement or obligation in this Agreement (whether to be performed before, on or after the Closing Date) or by the Company of any material covenant, agreement or obligation in this Agreement to be performed by the Closing Date, (b) in respect of any DCAA Claim, (c) any misrepresentation or inaccuracy in, or breach of, any representation or warranty made by the Company, any Seller or Sellers’ Representative in this Agreement or any closing certificate delivered pursuant to this Agreement to be true and correct as Article 7, or (d) in respect of the Closing Davidson Agreement. Notwithstanding anything herein to the contrary, in determining (a) if there is a misrepresentation or inaccuracy in, or a breach of, a representation or warranty in Article 3 or a certificate given pursuant to Section 7.2.1 and (b) the amount of related Losses, each representation or warranty referenced in clause (c) of the immediately preceding sentence shall read as if made anew at by such Seller Indemnifying Party and all Materiality Qualifications and qualifications as of the Closing, to Company’s Knowledge and (ii) the breach of Sellers’ Knowledge contained in any covenant or agreement made or to be performed by Seller pursuant to this Agreement, provided, however, that with regard to breaches resulting from or in connection with failure of any such 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 (y) 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 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 Cap 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); provided, however, that in no event shall Seller’s liability to the Buyer Indemnified Parties for breach of any of the Seller Fundamental Representations exceed the amount of the Final Purchase Priceignored.

Indemnification of Buyer Indemnified Parties. (a) Following From and after the Closing, Seller will indemnifysubject to the limitations set forth in ARTICLE IX or this ARTICLE X, defendBuyer, Parent, and hold harmless Buyertheir directors, the NOARK Group and their officers, members, partners, directorsmanagers, employees, Subsidiaries agents, Affiliates, successors and Affiliates assigns (each a “Buyer Indemnified Party” and, collectively, the “Buyer Indemnified Parties”) shall be indemnified and held harmless, solely from the Escrow Amount pursuant to the Escrow Agreement, from and against, any and all damagesliabilities, lossobligations, Liabilitydeficiencies, claim demands, claims, suits, actions, causes of action, assessments, losses, costs, settlement payments, defense costs, interest, awards, judgments, fines, penalties, damages or expense other charges and expenses (including reasonable attorneys’ fees) (hereinafter, a “DamagesLoss” or the “Losses”) arising), directly sustained or indirectly incurred by any Buyer Indemnified Party, resulting from (i) from or in connection with any failure breach of any a representation or warranty made in ARTICLE IIIA or ARTICLE IIIB of this Agreement, (ii) any breach of a covenant made by Seller the Stockholder or the Company in this Agreement or any closing certificate delivered pursuant occurring prior to this Agreement to be true and correct as of the Closing (as if made anew at and as of the Closing, and or (iiiii) the any breach of Section 9.2(b). The Buyer Indemnified Parties also shall be indemnified and held harmless from and against any covenant and all Losses sustained or agreement made or to be performed incurred by Seller pursuant to this Agreement, provided, however, that with regard to breaches any Buyer Indemnified Party resulting from any costs or other liability 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% payment and termination of the Final Purchase Price Subsidiary’s 2004 Long Term Incentive Plan (the “Deductible AmountLTIP Liability”) and resulting from Stockholder’s failure to fulfill its obligations under the first sentence of Section 5.10 (“Phantom Liability”). In addition, the Buyer Indemnified Parties shall be indemnified and held harmless from and against any and all Losses sustained or incurred by any Buyer Indemnified Party resulting from any claim for indemnification made by Xxxxxx Xxxxxxxx & Co. against the Company or any of its Affiliates in connection with that certain letter agreement, dated as of October 7, 2010, between Xxxxxx Xxxxxxxx & Co. and the Subsidiary (“HW&Co. Liability”), and then only to the extent of any such excess, and (y) in no event shall Seller’s aggregate liability to the Buyer Indemnified Parties under this Section 7.3(a) exceed 20% of Party may seek indemnification from the Final Purchase Price (Escrow Amount or from the “Cap Amount”)Stockholder. Notwithstanding the foregoing, the Stockholder shall have (Ax) unlimited liability to Buyer for the Deductible Amount LTIP Liability, the Phantom Liability, and the HW&Co. Liability and such liability 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) survive indefinitely and (By) the Cap 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); provided, however, that in no event shall Seller’s aggregate liability to the Buyer Indemnified Parties for breach of any of the Seller Fundamental Representations exceed up to the amount of the Final Purchase PriceTransaction Consideration for Losses resulting from a breach of Fundamental Representations.

Indemnification of Buyer Indemnified Parties. (a) Following Subject to this Section 6.3, from and after the ClosingClosing Date, Seller will Sellers shall indemnify, defend, defend and hold harmless Buyer, Buyer Cdn, Buyer's Parent and the NOARK Group Companies and their officers, members, partnersrespective managers, directors, officers, employees, Subsidiaries representatives, successors and Affiliates permitted assigns (the “collectively "Buyer Indemnified Parties”") in respect of, and Buyer Indemnified Parties shall be entitled to payment and reimbursement from Sellers (collectively the "Seller Indemnifying Parties") of the amount of, all Losses suffered, incurred or paid by any and all damagesBuyer Indemnified Party, lossby reason of, Liability, claim or expense (including reasonable attorneys’ fees) (“Damages”) arising, directly or indirectly (i) from in whole or in connection with part, or arising from, in whole or in part, (a) any failure breach by any Seller or Sellers' Representative of any covenant, agreement or obligation in this Agreement (whether to be performed before, on or after the Closing Date) or by any Company of any covenant, agreement or obligation in this Agreement to be performed by the Closing Date, (b) any misrepresentation or inaccuracy in, or breach of, any representation or warranty made by any Company, any Seller or Sellers' Representative in this Agreement or any closing certificate delivered by any Company or Seller pursuant to this Agreement to be true Section 7.2 (individually, "Seller Rep" and correct as collectively, "Seller Reps"), or (c) any Liability, whether arising before, on or after the Closing Date, of any Company under or otherwise in respect of the Closing CTA/KAL Sale Agreement. Notwithstanding anything herein to the contrary, in determining (a) if there is a misrepresentation or inaccuracy in, or a breach of, any Seller Rep and (b) the amount of related Losses, (i) each Seller Rep shall read as if made anew at and as of the Closing, by such Indemnifying Party and (ii) the breach of any covenant or agreement made or to be performed by Seller 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 (y) 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 Deductible Amount shall not apply to breaches of the Seller Fundamental Representations or the representations and warranties all Materiality Qualifications contained in Section 3.8(a) (No Undisclosed Liabilities, No Adverse Changes) with respect to indebtedness for borrowed money onlyany such Seller Rep shall be ignored and in determining if there is a misrepresentation or inaccuracy in, or a breach of, Section 3.14 (Taxes) and (B) the Cap Amount 3.15, Schedule 3.15, including all information therein, 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); provided, however, that in no event shall Seller’s liability to the Buyer Indemnified Parties for breach of any of the Seller Fundamental Representations exceed the amount of the Final Purchase Pricebe ignored.

Indemnification of Buyer Indemnified Parties. (a) Following the Closing, Seller will indemnify, defend, and hold harmless Buyer, the NOARK Group Elk City Entities and their officers, members, partners, directors, employees, Subsidiaries and Affiliates (the “Buyer Indemnified Parties”) from and against any and all damages, losslosses, LiabilityLiabilities, claim or expense claims and expenses (including reasonable attorneys’ fees) (collectively, “Damages”) arising, directly or indirectly (i) indirectly, from or in connection with any failure one or more of the following: (i) the breach of any representation or warranty made by Seller in this Agreement or in any closing certificate delivered pursuant to this Agreement (without giving effect to any Materiality Qualifier, which shall be true and correct as disregarded for purposes of the Closing (as if made anew at and as of the Closing, and this Section 7.3(a)(i)); (ii) the breach of any covenant or agreement made or to be performed by Seller pursuant to this Agreement; (iii) fines, penalties and sanctions asserted, imposed or levied by any Governmental Authority arising out of or related to the ownership, use, maintenance or operation of the Elk City Entities, Elk City Business or the Assets prior to the Closing Date, (iv) the Excluded Assets; (v) the Employee Liabilities; or (vi) the matters set forth in Item 1 of Schedule 3.8; 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(a7.3(a)(i) to the extent that the aggregate amount of Damages exceed 0.7% of the Final Purchase Price exceeds $13,640,000 (the “Deductible Amount”), and then only to the extent of such excess, and (y) in no event shall Seller’s aggregate liability to the Buyer Indemnified Parties under this Section 7.3(a7.3(a)(i) exceed 20% of the Final Purchase Price $161,027,778 (the “Cap Amount”). Notwithstanding the foregoing, (A) the 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 Cap Amount shall not apply to (A) breaches of the Seller Fundamental Representations Representations, (B) breaches of any covenants or agreements made or to be performed by Seller pursuant to this Agreement or (C) breaches of the representations and warranties contained of Seller set forth in Section 3.8(a) (No Undisclosed Liabilities, No Adverse Changes) with respect to indebtedness for borrowed money only, or Section 3.14 3.13 (Taxes); provided, however, that in no event shall Seller’s aggregate liability to the Buyer Indemnified Parties for breach of any of the Seller Fundamental Representations or breach of any covenant or agreement made or to be performed by Seller pursuant to this Agreement exceed the amount of the Final Purchase Price.

Indemnification of Buyer Indemnified Parties. (a) Following Upon the Closing, Seller will indemnify, defend, shall indemnify and hold harmless Buyer, the NOARK Group Buyer and their its officers, members, partners, directors, Affiliates, employees, Subsidiaries agents and Affiliates representatives (each, a “Buyer Indemnified Party” and collectively, the “Buyer Indemnified Parties”) from and against, and shall reimburse any and Buyer’s Indemnified Persons for, all claims (including without limitation Third Party Claims), losses, liabilities, damages, lossdiminutions in value, Liabilitydeficiencies, claim or expense (costs, interest, awards, amounts paid in settlement, judgments, penalties, and expenses, including reasonable attorneys’ fees) and consultants’ fees and expenses and including any such expenses incurred in connection with investigating, defending against or settling any of the foregoing (hereinafter individually a “DamagesLoss” and collectively “Losses”) arising), incurred or sustained by the Buyer Indemnified Parties, or any of them, directly or indirectly (i) indirectly, arising out of, related to, or resulting from or in connection with based upon (a) any failure breach or inaccuracy of any representation or warranty made by of Seller contained in this Agreement, any Related Agreement or in any closing certificate or other instrument delivered pursuant to this Agreement Agreement; (b) any failure by Seller to be true and correct as of the Closing (as if made anew at and as of the Closing, and (ii) the breach of perform or comply with any covenant or agreement made contained in this Agreement, any Related Agreement or to be performed by Seller in any certificate or other instrument delivered pursuant to this Agreement, provided, however, that with regard to breaches resulting from ; (c) an Excluded Liability or in connection with failure an Excluded Asset; (d) any Taxes of Seller; (e) 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 (y) 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 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) Liabilities with respect to indebtedness for borrowed money onlyany Seller Employee Plan(s), or Section 3.14 (Taxes) and (B) the Cap 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) including Liabilities with respect to indebtedness for borrowed money onlySeller contributions required by the terms of such Seller Employee Plan(s); (f) any infringement claims with respect to Seller or the Intellectual Property; (g) any claims by any holders of Seller Membership Equity, employees or independent contractors of Seller that relates to Seller Membership Equity, the allocation of the Purchase Price to such holder of Seller Membership Equity, or Section 3.14 (Taxes); providedany facts, howeverevents, that in no event shall Seller’s liability transactions, occurrences or actions or inactions of Seller arising on or prior to the Buyer Indemnified Parties for breach of Closing Date; (h) any of the failure by Seller Fundamental Representations exceed the amount of the Final Purchase Priceto obtain a Required Consent; (i) failure by Seller to qualify or be licensed as a foreign corporation in any jurisdiction; and (j) any Reserved Liability.