Common use of Indemnification; Recourse to the Escrow Fund Clause in Contracts

Indemnification; Recourse to the Escrow Fund. Seller agrees to indemnify and hold harmless Buyer and Buyer Parent and their officers, directors, employees, agents, affiliates and associates (collectively, the "Buyer Indemnitees") against any and all Losses (whether or not involving a Third Party Claim), incurred or sustained by Buyer, Buyer Parent or any other Buyer Indemnitee, directly or indirectly, as a result of (i) any inaccuracy in or breach (or any claim by any third party alleging, constituting or involving an inaccuracy or breach) of any representation, warranty (it being understood that, for purposes of determining the accuracy of such representations and warranties any update of or modification to the Seller Disclosure Schedule made or purported to have been made after the date of this Agreement shall be disregarded), covenant or agreement of Seller contained herein or in any instrument or agreement delivered by Seller pursuant to this Agreement, (ii) any Excluded Liability or Excluded Asset or (iii) any failure to comply with laws relating to bulk transfers or bulk sales with respect to the transactions contemplated by this Agreement (notwithstanding the waiver in Section 5.10), (collectively, the "Indemnifiable Matters") provided, however, except as specified in clauses (w), (x), (y) and (z) below, Seller shall not be obligated pursuant to clause (i) of this sentence unless the aggregate Losses incurred or sustained exceed $50,000 (at which such xxxx Xxxxxx shall be obligated for all Losses incurred or sustained). Buyer Parent and Seller each acknowledge that such Losses, if any, would relate to unresolved contingencies existing at the Closing Date, which if resolved at the Closing Date would have led to a reduction in the aggregate Purchase Price. Seller shall not have any liability to Buyer or Buyer Parent for Indemnifiable Matters under this Agreement of any sort whatsoever in excess of the Escrow Amount, except in the case of Losses (w) related to the Excluded Assets, (x) incurred pursuant to clause (iii) above, (y) resulting from a breach or violation of Article 1 or Sections 2.12, 2.33 or 5.15, and (z) in the event of fraud or willful misconduct by Seller. In any such case or event, Buyer and Buyer Parent shall have all remedies available at law or in equity (including for tort) with respect to such case. The Escrow Fund shall be available to compensate the Buyer Indemnitees for any and all Losses incurred or sustained by the Buyer Indemnitees, or any of them, directly or indirectly as a result of any Indemnifiable Matter.

Indemnification; Recourse to the Escrow Fund. (i) Seller agrees to indemnify and hold harmless Buyer Parent shall jointly and Buyer Parent severally, indemnify, Purchaser and their its officers, directors, employees, agents, affiliates agents and associates Affiliates (collectively, the "Buyer IndemniteesPURCHASER INDEMNIFIED PARTIES") against for any and all Losses under this ARTICLE IX or ARTICLE VII (whether or not involving a Third Party Claim), ) and incurred or sustained by Buyer, Buyer Parent or any other Buyer Indemniteethe Purchaser's Indemnified Parties, directly or indirectly, (A) as a result of (i) any inaccuracy in or breach (or any claim by any third party alleging, constituting or involving an inaccuracy or breach) of any representation, warranty (it being understood that, for purposes of determining the accuracy of such representations and warranties any update of or modification to the Seller Disclosure Schedule made or purported to have been made after the date of this Agreement shall be disregarded)warranty, covenant or agreement of Seller contained herein or in any instrument delivered pursuant to this Agreement (B) any and all Losses suffered or agreement delivered incurred by Purchaser by reason of or in connection with any claim or cause of action of any third party to the extent arising out of any action, inaction, event, condition, liability or obligation of Seller occurring or existing prior to the Closing which are Excluded Liabilities; (C) Liabilities, whether arising before or after the Closing Date, that are not expressly assumed by Purchaser pursuant to this Agreement, including, without limitation, the Excluded Liabilities; or (iiD) any Excluded Liability or Excluded Asset or (iii) any failure to comply with laws relating to bulk transfers or bulk sales with respect to the transactions contemplated by this Agreement (notwithstanding the waiver adjustment in Section 5.10), (collectively, the "Indemnifiable Matters") provided, however, except as specified in clauses (w), (x), (y) and (z) below, Seller shall not be obligated consideration pursuant to clause SECTION 2; PROVIDED, HOWEVER, Purchaser may not make any claims against Seller or Parent (iexcept for the adjustments in consideration pursuant to SECTION 2) of this sentence unless the aggregate Losses incurred or sustained exceed $50,000 175,000 (at which such xxxx Xxxxxx the "SELLER DEDUCTIBLE AMOUNT"), and then only for the amount in excess of $175,000; PROVIDED, FURTHER, that any claims pursuant to any adjustment in consideration pursuant to SECTION 2 shall not be subject to the Seller Deductible Amount, but shall be obligated recoverable from the first dollar. The Purchaser shall only be entitled to assert individual claims in the amount of One Thousand Dollars ($1,000) or more, it being intended that individual claims in an amount less than One Thousand Dollars ($1,000) shall be disregarded for such purposes including for the purpose of limiting the Seller Deductible Amount. The Escrow Fund shall be available to compensate Purchaser Indemnified Parties for any and all Losses incurred to be indemnified by Seller or sustainedParent through this SECTION 9.02(b)(i). Buyer Neither Seller nor Parent and Seller each acknowledge that such Losses, if any, would relate to unresolved contingencies existing at the Closing Date, which if resolved at the Closing Date would have led to a reduction in the aggregate Purchase Price. Seller shall not have any liability to Buyer or Buyer Parent for Indemnifiable Matters under their respective indemnification obligations under this Agreement of any sort whatsoever ARTICLE VII or IX to Purchaser in excess of the Escrow Amount, except Purchase Price in the case aggregate. (ii) The Escrow Fund shall be the first form of recourse available to Purchaser against Seller or Parent with respect to any Losses (w) related to the Excluded Assets, (x) incurred pursuant to clause (iii) above, (y) resulting from a breach or violation of Article 1 or Sections 2.12, 2.33 or 5.15, and (z) in the event of fraud or willful misconduct by Seller. In but shall not limit any such case or event, Buyer and Buyer Parent shall have all other remedies available at law or in equity (including for tort) with respect to such case. The Purchaser. (iii) Any amount which becomes due and payable to Purchaser under this ARTICLE IX shall first be paid or otherwise satisfied out of the Escrow Fund shall be available to compensate until the Buyer Indemnitees for any and all Losses incurred or sustained by the Buyer Indemnitees, or any of them, directly or indirectly as a result of any Indemnifiable Mattersame has been exhausted.

Indemnification; Recourse to the Escrow Fund. (i) Seller agrees to indemnify and hold harmless Buyer Parent shall jointly and Buyer Parent severally, indemnify, Purchaser and their its officers, directors, employees, agents, affiliates agents and associates Affiliates (collectively, the "Buyer IndemniteesPurchaser Indemnified Parties") against for any and all Losses under this Article IX or Article VII (whether or not involving a Third Party Claim), ) and incurred or sustained by Buyer, Buyer Parent or any other Buyer Indemniteethe Purchaser's Indemnified Parties, directly or indirectly, (A) as a result of (i) any inaccuracy in or breach (or any claim by any third party alleging, constituting or involving an inaccuracy or breach) of any representation, warranty (it being understood that, for purposes of determining the accuracy of such representations and warranties any update of or modification to the Seller Disclosure Schedule made or purported to have been made after the date of this Agreement shall be disregarded)warranty, covenant or agreement of Seller contained herein or in any instrument delivered pursuant to this Agreement (B) any and all Losses suffered or agreement delivered incurred by Purchaser by reason of or in connection with any claim or cause of action of any third party to the extent arising out of any action, inaction, event, condition, liability or obligation of Seller occurring or existing prior to the Closing which are Excluded Liabilities; (C) Liabilities, whether arising before or after the Closing Date, that are not expressly assumed by Purchaser pursuant to this Agreement, including, without limitation, the Excluded Liabilities; or (iiD) any Excluded Liability or Excluded Asset or (iii) any failure adjustment in consideration pursuant to comply with laws relating to bulk transfers or bulk sales with respect to the transactions contemplated by this Agreement (notwithstanding the waiver in Section 5.10), (collectively, the "Indemnifiable Matters") 2; provided, however, Purchaser may not make any claims against Seller or Parent (except as specified for the adjustments in clauses (w), (x), (y) and (z) below, Seller shall not be obligated consideration pursuant to clause (iSection 2) of this sentence unless the aggregate Losses incurred or sustained exceed $50,000 175,000 (at which such xxxx Xxxxxx the "Seller Deductible Amount"), and then only for the amount in excess of $175,000; provided, further, that any claims pursuant to any adjustment in consideration pursuant to Section 2 shall not be subject to the Seller Deductible Amount, but shall be obligated recoverable from the first dollar. The Purchaser shall only be entitled to assert individual claims in the amount of One Thousand Dollars ($1,000) or more, it being intended that individual claims in an amount less than One Thousand Dollars ($1,000) shall be disregarded for such purposes including for the purpose of limiting the Seller Deductible Amount. The Escrow Fund shall be available to compensate Purchaser Indemnified Parties for any and all Losses incurred to be indemnified by Seller or sustainedParent through this Section 9.02(b)(i). Buyer Neither Seller nor Parent and Seller each acknowledge that such Losses, if any, would relate to unresolved contingencies existing at the Closing Date, which if resolved at the Closing Date would have led to a reduction in the aggregate Purchase Price. Seller shall not have any liability to Buyer or Buyer Parent for Indemnifiable Matters under their respective indemnification obligations under this Agreement of any sort whatsoever Article VII or IX to Purchaser in excess of the Escrow Amount, except Purchase Price in the case aggregate. (ii) The Escrow Fund shall be the first form of recourse available to Purchaser against Seller or Parent with respect to any Losses (w) related to the Excluded Assets, (x) incurred pursuant to clause (iii) above, (y) resulting from a breach or violation of Article 1 or Sections 2.12, 2.33 or 5.15, and (z) in the event of fraud or willful misconduct by Seller. In but shall not limit any such case or event, Buyer and Buyer Parent shall have all other remedies available at law or in equity (including for tort) with respect to such case. The Purchaser. (iii) Any amount which becomes due and payable to Purchaser under this Article IX shall first be paid or otherwise satisfied out of the Escrow Fund shall be available to compensate until the Buyer Indemnitees for any and all Losses incurred or sustained by the Buyer Indemnitees, or any of them, directly or indirectly as a result of any Indemnifiable Mattersame has been exhausted.

Indemnification; Recourse to the Escrow Fund. Subject to the limitations set forth elsewhere in this Article 7, Seller agrees to shall indemnify and hold harmless Buyer Purchaser and Buyer Parent and their each of its officers, directors, employees, agentsagents and Affiliates, affiliates and associates including each Subsidiary of Purchaser that purchases Purchased Assets pursuant to this Agreement (collectively, the "Buyer “Purchaser Indemnitees") against ”), and the Escrow Fund shall be available to compensate Purchaser and each of the other Purchaser Indemnitees, for any and all Losses (whether or not involving a Third Third-Party Claim)) paid, incurred incurred, sustained or sustained accrued by Buyer, Buyer Parent Purchaser or any other Buyer Indemnitee, directly or indirectly, Purchaser Indemnitee as a result of (i) any breach or violation of, or inaccuracy in, any representation or warranty (either as made on the date hereof or as if made on and as of the Closing Date, other [****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions. than representations and warranties that by their express terms are made solely as of a specified earlier date, as to which indemnification shall only be available for breaches, violations or inaccuracies as of such specified earlier date), or any breach or violation of any covenant or agreement, made by (or on behalf of) Seller or any of its Subsidiaries in this Agreement or any of the Ancillary Agreements or any certificate, agreement or instrument delivered in connection herewith or therewith or any claim by any third party alleging, constituting or involving an inaccuracy such a breach, violation or breach) of any representation, warranty (it being understood that, for purposes of determining the accuracy of such representations and warranties any update of or modification to the Seller Disclosure Schedule made or purported to have been made after the date of this Agreement shall be disregarded), covenant or agreement of Seller contained herein or in any instrument or agreement delivered by Seller pursuant to this Agreementinaccuracy, (ii) any of the Excluded Liability Assets or Excluded Asset or Retained Liabilities, (iii) any failure matter for which Purchaser or any other Purchaser Indemnitee is entitled to comply with laws relating indemnification pursuant to bulk transfers Sections 1.8, 5.5, 5.6, or bulk sales with respect 5.7, or (iv) any matter referred to the transactions contemplated by this Agreement (notwithstanding the waiver in Section 5.10Schedule 7.2(b)(iv); and Purchaser shall indemnify and hold harmless Seller and each of its officers, directors, employees, agents and Affiliates (collectively, the "Indemnifiable Matters"“Seller Indemnitees”) providedfor any and all Losses (whether or not involving a Third-Party Claim) paid, howeverincurred, except sustained or accrued by Seller or any other Seller Indemnitee as a result of (x) any breach or violation of, or inaccuracy in, any representation or warranty (either as made on the date hereof or as if made on and as of the Closing Date, other than representations and warranties that by their express terms are made solely as of a specified in clauses (wearlier date, as to which indemnification shall only be available for breaches, violations or inaccuracies as of such specified earlier date), or any breach or violation of any covenant or agreement, made by (x)or on behalf of) Purchaser in this Agreement or any of the Ancillary Agreements or any certificate, agreement or instrument delivered in connection herewith or therewith or any claim by any third party alleging, constituting or involving such a breach, violation or inaccuracy, or (y) and (z) below, Seller shall not be obligated pursuant to clause (i) any of this sentence unless the aggregate Losses incurred or sustained exceed $50,000 (at which such xxxx Xxxxxx shall be obligated for all Losses incurred or sustained)Assumed Liabilities. Buyer Parent Purchaser and Seller each acknowledge that such Losses, if any, would relate to unresolved contingencies existing at the Closing DateClosing, which if resolved at the Closing Date would have led to a reduction in the aggregate Purchase Price. Seller shall not have any liability to Buyer or Buyer Parent for Indemnifiable Matters under this Agreement of any sort whatsoever in excess of the Escrow Amount, except in the case of Losses (w) related to the Excluded Assets, (x) incurred pursuant to clause (iii) above, (y) resulting from a breach or violation of Article 1 or Sections 2.12, 2.33 or 5.15, and (z) in the event of fraud or willful misconduct by Seller. In any such case or event, Buyer and Buyer Parent shall have all remedies available at law or in equity (including for tort) with respect to such case. The Escrow Fund shall be available to compensate the Buyer Indemnitees for any and all Losses incurred or sustained by the Buyer Indemnitees, or any of them, directly or indirectly as a result of any Indemnifiable Matter.

Indemnification; Recourse to the Escrow Fund. Subject to the limitations set forth elsewhere in this Article 7, Seller agrees to shall indemnify and hold harmless Buyer Purchaser and Buyer Parent and their each of its officers, directors, employees, agentsagents and Affiliates, affiliates and associates including each Subsidiary of Purchaser that purchases Purchased Assets pursuant to this Agreement (collectively, the "Buyer “Purchaser Indemnitees") against ”), and the Escrow Fund shall be available to compensate Purchaser and each of the other Purchaser Indemnitees, for any and all Losses (whether or not involving a Third Third-Party Claim)) paid, incurred incurred, sustained or sustained accrued by Buyer, Buyer Parent Purchaser or any other Buyer Indemnitee, directly or indirectly, Purchaser Indemnitee as a result of (i) any breach or violation of, or inaccuracy in, any representation or warranty (either as made on the date hereof or as if made on and as of the Closing Date, other than representations and warranties that by their express terms are made solely as of a specified earlier date, as to which indemnification shall only be available for breaches, violations or inaccuracies as of such specified earlier date), or any breach or violation of any covenant or agreement, made by (or on behalf of) Seller or any of its Subsidiaries in this Agreement or breach (any of the Ancillary Agreements or any certificate, agreement or instrument delivered in connection herewith or therewith or any claim by any third party alleging, constituting or involving an inaccuracy such a breach, violation or breach) of any representation, warranty (it being understood that, for purposes of determining the accuracy of such representations and warranties any update of or modification to the Seller Disclosure Schedule made or purported to have been made after the date of this Agreement shall be disregarded), covenant or agreement of Seller contained herein or in any instrument or agreement delivered by Seller pursuant to this Agreementinaccuracy, (ii) any of the Excluded Liability Assets or Excluded Asset or Retained Liabilities, (iii) any failure matter for which Purchaser or any other Purchaser Indemnitee is entitled to comply with laws relating indemnification pursuant to bulk transfers Sections 1.8, 5.5, 5.6, or bulk sales with respect 5.7, or (iv) any matter referred to the transactions contemplated by this Agreement (notwithstanding the waiver in Section 5.10Schedule 7.2(b)(iv); and Purchaser shall indemnify and hold harmless Seller and each of its officers, directors, employees, agents and Affiliates (collectively, the "Indemnifiable Matters"“Seller Indemnitees”) providedfor any and all Losses (whether or not involving a Third-Party Claim) paid, howeverincurred, except sustained or accrued by Seller or any other Seller Indemnitee as a result of (x) any breach or violation of, or inaccuracy in, any representation or warranty (either as made on the date hereof or as if made on and as of the Closing Date, other than representations and warranties that by their express terms are made solely as of a specified in clauses (wearlier date, as to which indemnification shall only be available for breaches, violations or inaccuracies as of such specified earlier date), or any breach or violation of any covenant or agreement, made by (x)or on behalf of) Purchaser in this Agreement or any of the Ancillary Agreements or any certificate, agreement or instrument delivered in connection herewith or therewith or any claim by any third party alleging, constituting or involving such a breach, violation or inaccuracy, or (y) and (z) below, Seller shall not be obligated pursuant to clause (i) any of this sentence unless the aggregate Losses incurred or sustained exceed $50,000 (at which such xxxx Xxxxxx shall be obligated for all Losses incurred or sustained)Assumed Liabilities. Buyer Parent Purchaser and Seller each acknowledge that such Losses, if any, would relate to unresolved contingencies existing at the Closing DateClosing, which if resolved at the Closing Date would have led to a reduction in the aggregate Purchase Price. Seller shall not have any liability to Buyer or Buyer Parent for Indemnifiable Matters under this Agreement of any sort whatsoever in excess of the Escrow Amount, except in the case of Losses (w) related to the Excluded Assets, (x) incurred pursuant to clause (iii) above, (y) resulting from a breach or violation of Article 1 or Sections 2.12, 2.33 or 5.15, and (z) in the event of fraud or willful misconduct by Seller. In any such case or event, Buyer and Buyer Parent shall have all remedies available at law or in equity (including for tort) with respect to such case. The Escrow Fund shall be available to compensate the Buyer Indemnitees for any and all Losses incurred or sustained by the Buyer Indemnitees, or any of them, directly or indirectly as a result of any Indemnifiable Matter.