Common use of Indemnification of Seller Clause in Contracts

Indemnification of Seller. Parent, LuxCo and BHN, jointly and severally, hereby agree to indemnify and hold harmless Seller, each of its Affiliates, and each of their members, managers, partners, directors, officers, employees, attorneys and agents and permitted assignees (the “Seller Indemnitees”) against and in respect of any Losses incurred or sustained by any Seller Indemnitee as a result of any breach, inaccuracy or nonfulfillment or the alleged breach, of any of the representations, warranties and covenants of LuxCo contained herein. The total payments made by Parent, LuxCo or BHN to Seller Indemnitees with respect to Losses shall not exceed the Indemnifiable Loss Limit; provided, however, Seller Indemnitees shall not be entitled to indemnification pursuant to this Section 10.2 unless and until the aggregate amount of Losses to Seller Indemnitees equals at least the Basket, at which time, subject to the Indemnifiable Loss Limit, the Seller Indemnitees shall be entitled to indemnification for the total amount of such Losses. Notwithstanding anything set forth in this Section 10.2, any Losses incurred by any Seller Indemnitee arising out of the failure of Parent, LuxCo or BHN to perform any covenant or obligation to be performed by it at or after the Closing Date including payment of the Purchase Price, shall not be subject to or applied against the Indemnifiable Loss Limit or the Basket, respectively.

Indemnification of Seller. Parent, LuxCo and BHN, jointly and severally, hereby agree to Acquirer shall indemnify and hold harmless Seller, defend each of its Affiliates, and each of their members, managers, partners, directors, officers, employees, attorneys and agents and permitted assignees Seller Indemnified Person (the “Seller Indemnitees”as such term is defined below) against and in respect of hold each harmless from any and all Losses suffered or incurred or sustained by any Seller Indemnitee thereby to the extent arising as a result of or in connection with or attributable to or relating to any breachof the following, inaccuracy or nonfulfillment or the alleged breach, third party allegations of any of the representationsfollowing: (i) any breach of any representation or warranty of Acquirer contained in this Agreement or any of the Ancillary Documents (provided that, warranties and covenants for the purposes of LuxCo contained herein. The total payments made by Parent, LuxCo determining whether such a breach or BHN to Seller Indemnitees with respect to Losses shall not exceed inaccuracy has occurred for the Indemnifiable Loss Limit; provided, however, Seller Indemnitees shall not be entitled to indemnification pursuant to purposes of this Section 10.2 unless and until the aggregate amount of Losses to Seller Indemnitees equals at least the Basket8.2(i), at which timeany materiality qualifier or materiality exception - including, subject to the Indemnifiable Loss Limitbut not limited to, the Seller Indemnitees “Acquirer Material Adverse Effect”, “all material respects”, “material adverse change”, “in all material respects”, “in any material respect”, “result in any material liability” or “material default or violation” -included in any such representation or warranty shall be entitled to indemnification for the total amount disregarded and given no effect as if such qualifier or exception were not included in, and did not qualify or create an exception to, such representation or warranty), (ii) any breach of such Losses. Notwithstanding anything set forth any covenant of Acquirer contained in this Section 10.2Agreement, any Losses incurred by any Seller Indemnitee arising out (iii) the business and operations of the failure of Parent, LuxCo or BHN to perform any covenant or obligation to be performed by it at or Company after the Closing Date including payment but only to the extent such business and operations are wholly independent of and not effected by the business and operations of the Purchase Company prior to the Closing Date, or (iv) the Guarantee and any payments made or performance thereunder. As used herein, “Seller Indemnified Person” means any of Seller, any Affiliate thereof, any successor of any of them, or any of their respective officers, directors, employees, stockholders, agents or representatives. Any indemnity payment under this Section 8.2, except as otherwise provided in Section 6.11, shall be satisfied with Preferred Stock, at a valuation based upon the Preferred Stock Share Price, shall not be subject to or applied against the Indemnifiable Loss Limit or extent necessary to preserve the Basket, respectivelystatus of the transaction contemplated by this Agreement as a reorganization within the meaning of Section 368(a) of the Code.

Indemnification of Seller. ParentSubject to the terms and conditions of this Article VII, LuxCo the Seller and BHN, jointly and severally, hereby agree to indemnify and hold harmless Seller, each of its Affiliates, and each of their members, managers, partnersofficers, directors, officers, employees, attorneys agents, successors and agents assigns (for purposes of the Article VII, the "Seller Indemnified Parties") shall be indemnified and permitted assignees (held harmless by the “Seller Indemnitees”) against and in respect Purchaser, for the amount of any Losses and all liabilities, losses, damages, claims, costs and expenses, awards, judgments and penalties actually suffered or incurred by such Seller Indemnified Party (including, without limitation, any Action brought or sustained otherwise initiated by such Seller) (hereinafter a "Seller Loss"), arising out of or resulting from any Seller Indemnitee as a result misrepresentation or breach of representation or covenant made or to be performed by the Purchaser pursuant to this Agreement or any breach, inaccuracy or nonfulfillment or the alleged breach, of any of the representations, warranties and covenants of LuxCo contained herein. The total payments made by Parent, LuxCo or BHN to Seller Indemnitees with respect to Losses shall not exceed the Indemnifiable Loss Limitother Transaction Document; provided, however, Seller Indemnitees that Purchaser shall not be entitled to indemnification pursuant to have no liability under this Section 10.2 (b) unless and until the aggregate amount of all Seller Losses exceeds $1,000,000, in which event the Purchaser shall be liable for all Seller Losses to the extent that such Seller Indemnitees equals at least Losses exceed $1,000,000. To the Basket, at which time, subject to extent that the Indemnifiable Loss Limit, the Seller Indemnitees shall be entitled to indemnification for the total amount of such Losses. Notwithstanding anything Purchaser's undertakings set forth in this Section 10.27.02 may be unenforceable, any the Purchaser shall, collectively, contribute the maximum amount that it is permitted to contribute under applicable law to the payment and satisfaction of all Losses incurred by any Seller Indemnitee arising out of the failure of ParentPurchaser. Notwithstanding the foregoing, LuxCo or BHN to perform any covenant or Purchaser's obligation to indemnify and hold the Seller Indemnified Parties from and against Seller Losses shall be performed limited to and shall not, in the aggregate, exceed $13,500,000.00. Notwithstanding the foregoing, the limitations contained in this Section 7.02(b) shall not be applicable to any failure by it at Purchaser to pay all or after the Closing Date including payment any portion of the Purchase PricePrice when due or to any Seller Losses resulting from any breach of the lease between B&W Leasing. LLC and Corvus Nodular Interests II, shall not be subject LLC (for the lease of the premises occupied by B&W of Michigan, Inc., located in Saginaw, Michigan) ) (the "Saginaw Lease") by the Purchaser or its successors or assigns. Further, Purchaser covenants and agrees that, for so long as Seller or any of its Affiliates has a guaranty obligation outstanding with respect to or applied against the Indemnifiable Loss Limit or Saginaw Lease, neither Purchaser nor its Affiliates will assign the Basket, respectivelySaginaw Lease to any Person unless such Person assumes the indemnity obligation of Purchaser relating thereto.

Indemnification of Seller. ParentSubject to the terms and conditions of this Article VII, LuxCo the Seller and BHN, jointly and severally, hereby agree to indemnify and hold harmless Seller, each of its Affiliates, and each of their members, managers, partnersofficers, directors, officers, employees, attorneys agents, successors and agents assigns (for purposes of the Article VII, the "Seller Indemnified Parties") shall be indemnified and permitted assignees (held harmless by the “Seller Indemnitees”) against and in respect Purchaser, for the amount of any Losses and all liabilities, losses, damages, claims, costs and expenses, awards, judgments and penalties actually suffered or incurred by such Seller Indemnified Party (including, without limitation, any Action brought or sustained otherwise initiated by such Seller) (hereinafter a "Seller Loss"), arising out of or resulting from any Seller Indemnitee as a result misrepresentation or breach of representation or covenant made or to be performed by the Purchaser pursuant to this Agreement or any breach, inaccuracy or nonfulfillment or the alleged breach, of any of the representations, warranties and covenants of LuxCo contained herein. The total payments made by Parent, LuxCo or BHN to Seller Indemnitees with respect to Losses shall not exceed the Indemnifiable Loss Limitother Transaction Document; provided, however, Seller Indemnitees that Purchaser shall not be entitled to indemnification pursuant to have no liability under this Section 10.2 (b) unless and until the aggregate amount of all 40 <PAGE> Seller Losses exceeds $1,000,000, in which event the Purchaser shall be liable for all Seller Losses to the extent that such Seller Indemnitees equals at least Losses exceed $1,000,000. To the Basket, at which time, subject to extent that the Indemnifiable Loss Limit, the Seller Indemnitees shall be entitled to indemnification for the total amount of such Losses. Notwithstanding anything Purchaser's undertakings set forth in this Section 10.27.02 may be unenforceable, any the Purchaser shall, collectively, contribute the maximum amount that it is permitted to contribute under applicable law to the payment and satisfaction of all Losses incurred by any Seller Indemnitee arising out of the failure of ParentPurchaser. Notwithstanding the foregoing, LuxCo or BHN to perform any covenant or Purchaser's obligation to indemnify and hold the Seller Indemnified Parties from and against Seller Losses shall be performed limited to and shall not, in the aggregate, exceed $13,500,000.00. Notwithstanding the foregoing, the limitations contained in this Section 7.02(b) shall not be applicable to any failure by it at Purchaser to pay all or after the Closing Date including payment any portion of the Purchase PricePrice when due or to any Seller Losses resulting from any breach of the lease between B&W Leasing. LLC and Corvus Nodular Interests II, shall not be subject LLC (for the lease of the premises occupied by B&W of Michigan, Inc., located in Saginaw, Michigan) ) (the "Saginaw Lease") by the Purchaser or its successors or assigns. Further, Purchaser covenants and agrees that, for so long as Seller or any of its Affiliates has a guaranty obligation outstanding with respect to or applied against the Indemnifiable Loss Limit or Saginaw Lease, neither Purchaser nor its Affiliates will assign the Basket, respectively.Saginaw Lease to any Person unless such Person assumes the indemnity obligation of Purchaser relating thereto. (c)

Indemnification of Seller. ParentSubject to this ARTICLE 8, LuxCo and BHNPurchaser shall indemnify, jointly and severally, hereby agree to indemnify defend and hold harmless Seller, each of its Affiliates, affiliates and each of its and their members, managers, partners, respective directors, officers, employees, attorneys and agents and permitted assignees (the “Seller Indemnitees”) against from and in respect of any Losses incurred or sustained by any Seller Indemnitee as a result of any breachagainst, inaccuracy or nonfulfillment or the alleged breach, of any of the representations, warranties and covenants of LuxCo contained herein. The total payments made by Parent, LuxCo or BHN to Seller Indemnitees with respect to Losses shall not exceed the Indemnifiable Loss Limit; provided, however, Seller Indemnitees shall not be entitled to indemnification pursuant to this Section 10.2 unless compensate and until the aggregate amount of Losses to Seller Indemnitees equals at least the Basket, at which time, subject to the Indemnifiable Loss Limit, reimburse the Seller Indemnitees shall be entitled to indemnification for the total amount of such Losses. Notwithstanding anything set forth in this Section 10.2for, any Losses and all losses, damages, fines, penalties and amounts paid in settlement, and reasonable Third Party costs and expenses incurred in connection therewith, including reasonable Third Party legal fees and expenses in connection with any Proceeding (collectively, “Losses”) incurred by any Seller Indemnitee in connection with any suits, investigations, claims or demands of Third Parties (collectively, “Third Party Claims”) arising out from or occurring as a result of: (a) any breach of this Agreement or the Quality Agreement by Purchaser, including any breach by Purchaser of its representations or warranties or a failure by Purchaser to comply with or perform any of its covenants hereunder or thereunder, (b) the Exploitation of the Finished Product in the Territory after Delivery to Purchaser, (c) Purchaser’s failure of Parent, LuxCo or BHN to perform a recall or market withdrawal of the Finished Product requested by Seller under Section 5.1.2, or (d) any covenant claim by a Third Party that Manufacture or supply of the Finished Product in accordance with the terms of this Agreement infringes, misappropriates or otherwise violates the Intellectual Property of such Third Party to the extent such infringement, misappropriation or violation is due to any change in the Specifications or Manufacturing process for the Finished Product requested by Purchaser and implemented by Seller, in each case ((a) through (d)) except for those Losses arising from Third Party Claims for which Seller has an obligation to indemnify Purchaser or any Purchaser Indemnitee pursuant to Section 8.2, as to which Losses each Party shall indemnify the other Party and the Seller Indemnitees or the Purchaser Indemnitees, as applicable, to the extent of its liability for such Losses. Notwithstanding the foregoing, Purchaser’s obligation to indemnify and hold harmless Seller or the Seller Indemnitees pursuant to Section 8.1(c) shall be performed by it at without regard to Seller’s indemnification obligations under Section 8.2 and Seller shall have no obligation under Section 8.2 to indemnify or after the Closing Date including payment hold harmless Purchaser or any Purchaser Indemnitee with respect to Third Party Claims arising from or occurring as a result of Purchaser’s failure to perform a recall or market withdrawal of the Purchase Price, shall not be subject to or applied against the Indemnifiable Loss Limit or the Basket, respectivelyFinished Product requested by Seller under Section 5.1.2.

Indemnification of Seller. Parent(i) Notwithstanding anything to the contrary contained herein, LuxCo Purchaser, to the maximum extent permitted by law, shall be solely responsible for, and BHNshall indemnify, jointly and severally, hereby agree to indemnify and hold harmless Sellerand defend with counsel acceptable to Seller in its reasonable discretion, each the Seller Indemnified Parties from and against any and all Losses arising out of, or resulting from or claimed to arise out of its Affiliatesor result from, in whole or in part, but only to the extent of, any of the following (collectively, the "INDEMNIFIED ACTS"): (i) any violation of, noncompliance with, or enforcement of, any Hazardous Substances Laws with respect to the Property; or (ii) the release, discharge, disposal, or presence of Hazardous Materials, on, under or about the Property. The Losses referred to herein shall include, without limitation, all foreseeable consequential damages and the cost of any required or necessary repair, cleanup, or detoxification of the Property or any property in the vicinity of the Property, and each of their members, managers, partners, directors, officers, employees, attorneys the preparation and agents and permitted assignees (the “Seller Indemnitees”) against and in respect implementation of any Losses incurred closure, remedial, or sustained by other required plans in connection therewith. (ii) In the event that any suit or other proceeding is brought against any of the Seller Indemnitee as a result of Indemnified Parties at any breach, inaccuracy or nonfulfillment or the alleged breach, time on account of any of the representationsLosses, warranties Purchaser shall, upon the request of Seller and covenants the Seller Indemnified Parties: (i) assume the defense of LuxCo contained herein. The total payments made by ParentSeller and the Seller Indemnified Parties, LuxCo or BHN as the case may be; (ii) defend Seller and the Seller Indemnified Parties, at Purchaser's own expense with counsel acceptable to Seller Indemnitees or the Seller Indemnified Parties, as applicable, in their reasonable discretion; and (iii) pay all judgments, fines, penalties and other fees and expenses in connection therewith. 11 <PAGE> (iii) In the event that: (i) a final adjudication determines that Seller took one of the Indemnified Acts prior to the Closing Date that directly and proximately caused the Losses, and (ii) Seller failed to inform Purchaser of such Indemnified Act prior to the Closing Date, then Seller shall reimburse Purchaser for all amounts previously paid by Purchaser pursuant to Section 16(C)(ii), and Purchaser's obligation to indemnify Seller with respect to Losses shall not exceed the Indemnifiable Loss Limit; provided, however, Seller Indemnitees shall not be entitled to indemnification such Indemnified Act pursuant to this Section 10.2 unless 16(C)(iii) shall terminate. D. Survival of Indemnity and until Release. The obligations of Purchaser pursuant to Section 16(B) and Section 16(C) shall survive the aggregate amount of Losses to Seller Indemnitees equals at least the Basket, at which time, subject to the Indemnifiable Loss Limit, the Seller Indemnitees shall be entitled to indemnification for the total amount of such LossesClosing. Notwithstanding anything set forth in this Section 10.2, any Losses incurred by any Seller Indemnitee arising out of the failure of Parent, LuxCo or BHN to perform any covenant or obligation to be performed by it at or after the Closing Date including payment of the Purchase Price, shall not be subject to or applied against the Indemnifiable Loss Limit or the Basket, respectively17.

Indemnification of Seller. ParentBuyer agrees to indemnify, LuxCo and BHN, jointly and severally, hereby agree to indemnify defend and hold harmless Seller, each of Seller and its Affiliates, and each of their members, managers, partners, directors, officers, employees, attorneys successors, agents, representatives and agents and permitted assignees assigns (the each, a “Seller IndemniteesIndemnified Party”) from and against any and in respect all Losses which arise out of, or result from, or relate to (i) any breach or inaccuracy of any Losses incurred representation, warranty, covenant or sustained agreement of Buyer contained in this Agreement or in any Ancillary Agreement or certificate delivered by Buyer hereunder or (ii) any Seller Indemnitee as a result of any breach, inaccuracy or nonfulfillment or the alleged breach, of any of the representations, warranties and covenants of LuxCo contained hereinAssumed Liability. The total payments made Any indemnification by Parent, LuxCo or BHN to Seller Indemnitees with respect to Losses shall not exceed the Indemnifiable Loss Limit; provided, however, Seller Indemnitees shall not be entitled to indemnification Buyer pursuant to this Section 10.2 7.3 shall not be required unless and until the aggregate amount of all such Losses to Seller Indemnitees equals at least exceeds the BasketThreshold Amount; provided, at which timehowever, subject to that (x) once such Losses exceed the Indemnifiable Loss LimitThreshold Amount, Buyer shall indemnify the Seller Indemnitees Indemnified Parties for all Losses and not merely for Losses in excess of the Threshold Amount and (y) the foregoing Threshold Amount shall be entitled not apply to indemnification for the total amount of such Losses. Notwithstanding anything set forth in this Section 10.2, any Losses incurred by any Loss owed to a Seller Indemnitee Indemnified Party arising out of any Assumed Liability. Notwithstanding the failure of Parentforegoing, LuxCo or BHN in no event shall Buyer be liable to perform any covenant or obligation Seller Indemnified Party for Losses pursuant to be performed this Article VII which, when added to all Losses paid by it at or after Buyer in the Closing Date including payment of aggregate exceed $1,000,000 (“CAP”); provided, however, that the Purchase Price, foregoing Cap and Threshold Amount shall not be subject apply to or applied against amounts owed by Buyer under the Indemnifiable Loss Limit or the Basket, respectivelyNote.

Indemnification of Seller. ParentSeller shall defend, LuxCo and BHN, jointly and severally, hereby agree to indemnify and hold harmless Seller, each of Buyer and its Affiliates, and each of their members, managers, partnersofficers, directors, officersand affiliates (collectively, employees, attorneys and agents and permitted assignees (the “Seller IndemniteesBuyer’s Indemnified Parties”) against harmless from any and all Third Party Claims and Losses resulting from (a) any material breach or material inaccuracy of a representation or warranty of Seller contained in respect of this Agreement, the documents identified in Exhibit A or Exhibit B; or (b) any Losses incurred failure by Seller to perform or sustained by comply with any covenant applicable to it contained in this Agreement. Seller’s liability under this indemnification provision shall be specifically limited to the amount that Buyer has paid to the Seller Indemnitee under this Agreement as a result of any breach, inaccuracy or nonfulfillment or the alleged breach, of any of the representationstime the claim arose (“Seller’s Liability Limit”). To the extent Buyer may have insurance coverage for the claim, warranties and covenants Buyer will use its best efforts to seek to recover insurance proceeds. If Buyer receives notice from its insurer that the claim is denied, Buyer will proceed to exhaust the insurer’s appeals process. If, at the conclusion of LuxCo contained hereinthe appeals process, the claim is still denied the Buyer will have no further obligation to seek to recover insurance proceeds. The total payments made by ParentIf the claim is accepted, LuxCo whether initially or BHN to Seller Indemnitees with respect to Losses shall not exceed on appeal, the Indemnifiable Loss Limit; provided, however, Seller Indemnitees shall not be entitled to indemnification pursuant to this Section 10.2 unless and until the aggregate amount of Losses the insurance proceeds determined to Seller Indemnitees equals at least be due will then be applied toward the Basketclaim. Any difference between the amount of the claim and any insurance proceeds determined to be due applied toward the claim shall be paid by Seller, at which time, subject as limited to the Indemnifiable Loss aforementioned Seller’s Liability Limit, . Seller’s indemnification obligation shall terminate upon the Seller Indemnitees shall be entitled to indemnification for earlier of either (i) the total amount date two (2) years from Closing; or (ii) the date of such Losses. Notwithstanding anything set forth Buyer’s payment in this Section 10.2, any Losses incurred by any Seller Indemnitee arising out full of the failure of Parent, LuxCo or BHN to perform any covenant or obligation to be performed by it at or after the Closing Date including payment of the Total Purchase Price, shall not be subject to or applied against the Indemnifiable Loss Limit or the Basket, respectively.

Indemnification of Seller. ParentFrom and after the Closing and subject to the limitations contained in this Article IX, LuxCo US Buyer and BHNUK Buyer will, jointly and severally, hereby agree to indemnify and hold harmless Seller, each of its Affiliates, Affiliates and each of their members, managers, partnersrespective officers, directors, officersand Affiliates (collectively, employees, attorneys and agents and permitted assignees (the “Seller IndemniteesIndemnified Parties”) and hold the Seller Indemnified Parties harmless against any Damages that the Seller Indemnified Parties have incurred by reason of (i) the inaccuracy or breach by Buyer of any representation or warranty of Buyer contained in Article V of this Agreement or (ii) by reason of a breach by Buyer, any covenant of Buyer contained in this Agreement (“Seller Breach Claims”). All such calculations of Damages shall take into account any insurance proceeds received by the Seller Indemnified Parties (net of all reasonable costs, charges and expenses incurred by the Seller Indemnified Party in obtaining such recovery, and any increase in insurance premiums resulting from such claim) in connection with the matter out of which such Damages shall arise. The Seller Indemnified Parties agree to use commercially reasonable efforts to obtain such insurance proceeds. If an indemnification payment is received by any Seller Indemnified Party, and such Seller Indemnified Party later receives insurance proceeds or other third party recoveries in respect of the related Damages, such Seller Indemnified Party shall promptly pay to Buyer such amount. Nothing in this Section 9.2 shall permit any Losses incurred or sustained by Buyer to delay making any payment owing to a Seller Indemnitee as a result Indemnified Party under this Section 9.2. Seller shall be deemed to have waived any claim for Damages arising out of Seller Breach Claims if, prior to the Closing, Seller was aware of any fact, matters or circumstances underlying such misrepresentation or breach, inaccuracy or nonfulfillment or the alleged breach, of any of the representations, warranties and covenants of LuxCo contained herein. The total payments made by Parent, LuxCo or BHN to Seller Indemnitees with respect to Losses shall not exceed the Indemnifiable Loss Limit; provided, however, Seller Indemnitees Buyer shall not be entitled to indemnification pursuant to this Section 10.2 unless and until the aggregate amount of Losses to Seller Indemnitees equals at least the Basketliable for any punitive, at which timespecial, subject to the Indemnifiable Loss Limitconsequential, the Seller Indemnitees shall be entitled to indemnification for the total amount of such Losses. Notwithstanding anything set forth in this Section 10.2, any Losses incurred by any Seller Indemnitee arising out of the failure of Parent, LuxCo exemplary or BHN to perform any covenant or obligation to be performed by it at or after the Closing Date including payment of the Purchase Price, shall not be subject to or applied against the Indemnifiable Loss Limit or the Basket, respectivelyincidental Damages.