Common use of Indemnities of Seller Clause in Contracts

Indemnities of Seller. (a) Subject to the provisions of this Article VIII, from and after the Closing, Seller shall indemnify, defend and hold harmless Buyer, its Affiliates (including the Target Group), and their respective directors, officers, partners, members, equityholders, employees, agents, consultants, attorneys, representatives, successors, transferees and assignees (collectively, the “Buyer Indemnified Parties”) from, against and in respect of any Losses or Claims that arise out of, relate to or result from any of the following described matters (herein collectively referred to as the “Seller Indemnified Liabilities”): (i) (A) any representation or warranty made by Seller in this Agreement (other than the representations and warranties in Section 4.13) or (B) the representations and warranties in Section 4.13, in each case, not having been true and correct as of the Closing Date (in the case of clauses (i)(A) and (i)(B), disregarding for all purposes, including for (I) purposes of determining whether such representation and warranty is true and correct and (II) purposes of determining the amount of any Losses or Claims resulting from any failure of any such representation or warranty to be so true and correct, any qualifications or limitations as to materiality, Target Material Adverse Effect or words of similar import (in each case, except for such qualifications or limitations in the Fundamental Representations and in Section 4.11(a), which shall not be disregarded)); (ii) any breach by or on behalf of Seller of any covenant or obligation of Seller in this Agreement or the Transaction Documents; (iii) any and all (A) Taxes of the Target Group with respect to any Pre-Closing Tax Period, (B) Taxes (other than Transfer Taxes) of Seller and its Affiliates (other than the Target Group), (C) Taxes for which the Target Group has any liability under Treasury Regulations Section 1.1502-6 or under any comparable or similar provision of state, local or foreign Laws as a result of being a member of an affiliated, consolidated, combined, unitary or similar group on or prior to the Closing Date,

Indemnities of Seller. (a) Subject Seller shall, to the provisions of this Article VIIIfullest extent permitted by law, from and after the Closingprotect, Seller shall defend, indemnify, defend and hold harmless BuyerBuyer and its affiliates, including its Affiliates (including the Target Group), and their respective directors, officers, partners, members, equityholders, employees, agents, consultantsand representatives of each of them, attorneys, representatives, successors, transferees harmless from and assignees (collectively, the “Buyer Indemnified Parties”) from, against any and in respect of any Losses or all Claims that arise out of, relate attributable to or result from any arising out of the following described matters (herein collectively referred to as the “Seller Indemnified Liabilities”): (i) (A) any representation act or warranty made omission by Seller involving or related to the Interests occurring before the Effective Time, except as limited in this Agreement (other than the representations and warranties in Section 4.13) or x), (B) the representations and warranties in Section 4.13, in each case, not having been true and correct as of the Closing Date (in the case of clauses (i)(Ay) and (i)(B)z) below, disregarding for all purposes, including for (I) purposes of determining whether such representation and warranty is true and correct and (II) purposes of determining the amount of any Losses or Claims resulting from any failure of any such representation or warranty to be so true and correct, any qualifications or limitations as to materiality, Target Material Adverse Effect or words of similar import (in each case, except for such qualifications or limitations in the Fundamental Representations and in Section 4.11(a), which shall not be disregarded)); (ii) any breach by or the matters set forth on behalf of Seller of any covenant or obligation of Seller in this Agreement or the Transaction Documents; Exhibit "E" hereto, and (iii) any and all (A) Taxes the breach by Seller of the Target Group representations contained in Section 7 hereof; provided, however, this indemnity is limited and shall not cover or include (x) matters pertaining to title to the Interests, all of which will be governed by Section 4 hereof, (y) any Claims with respect to any Pre-Closing Tax Periodand all gas balancing liabilities and obligations or alleged or threatened liabilities and obligations, all of which will be governed by Section 14 hereof, or (Bz) Taxes any Claims with respect to any violation of Environmental Laws (other than Transfer Taxesregardless of the dollar amount in issue) waived pursuant to Section 13 hereof or by agreement. (b) After Closing, any assertion by Buyer that Seller is liable under the terms of the indemnities provided by Section 10(a)(i) or 10(a)(iii) must be made by Buyer in writing and must be given to Seller and its Affiliates (other than the Target Group), (C) Taxes for which the Target Group has any liability under Treasury Regulations Section 1.1502-6 or under any comparable or similar provision of state, local or foreign Laws as a result of being a member of an affiliated, consolidated, combined, unitary or similar group on or prior to May 31, 2003, except that such time limitation shall not be applicable to any financial obligation of Seller created by operation of either the Closing Date,Leases or any contract or other agreement relating to the Interests and accruing prior to the Effective Time, which obligation shall remain the responsibility of Seller. Any notice to Seller shall state the facts known to Buyer that give rise to such notice in sufficient detail to allow Seller to evaluate the assertion. All claims by Buyer for a breach of any of Seller's representations in Section 7 shall be asserted by Buyer under Section 10(a)(iii). (c) If a Claim arises for which Buyer intends to seek indemnity with respect thereto under Section 10(a)(i) or 10(a)(iii), Buyer shall notify Seller of such Claim within thirty (30) days after the date on which Buyer becomes aware of such Claim. Seller shall have thirty (30) days after receipt of such notice to undertake, conduct and control, through counsel of its own choosing and at its own expense, the settlement or defense thereof, and Buyer shall cooperate with Seller in connection therewith. So long as Seller has undertaken the defense of, and responsibility for, any such Claim and is reasonably contesting any such Claim in good faith, by appropriate proceedings (including the filing or posting of appeal bonds, supersedeas bonds and similar bonds), Buyer shall not pay or settle any such Claim. Buyer shall have the right to pay or settle any such Claim, provided that in such event it shall waive any right to indemnity by Seller for such Claim. If Seller does not notify Buyer within thirty (30) days after the receipt of Buyer's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, then Buyer shall have the right to contest, settle or compromise the Claim, but shall not thereby waive any right to indemnity therefor pursuant to this Section 10. (d) In the event of any notice of a Claim which is an Environmental Claim given by Buyer to Seller pursuant to this Section 10, Seller's total liability hereunder for any and all such Environmental Claims shall be limited to SEVEN MILLION FIVE HUNDRED THOUSAND DOLLARS ($7,500,000).

Indemnities of Seller. (a) Subject Seller shall, to the provisions of fullest extent permitted by law and subject to the limitations provided in this Article VIIIAgreement, from and after the Closingprotect, Seller shall defend, indemnify, defend and hold harmless BuyerBuyer and its Affiliates, including its Affiliates (including the Target Group), and their respective directors, officers, members, partners, membersand representatives of each of them (the "Buyer Parties"), equityholdersharmless from and against any and all Claims attributable to or arising out of (i) the breach by Seller of the representations or warranties contained in Section 7 hereof, employees(ii) the breach by Seller of any of its agreements or covenants contained in this Agreement, agents(iii) any Claim by any of Seller's or its Affiliate's officers, consultantsdirectors, attorneysemployees or shareholders, representatives, successors, transferees and assignees (collectively, the “Buyer Indemnified Parties”) frommade in such capacity, against Seller or any of its Affiliates relating to the Interests or the Business attributable to the period prior to the Closing (excluding Claims relating to environmental matters) and any Claims relating to the Employee Benefit Plans (excluding any matters which have been expressly assumed by Buyer in respect the Employee Matters Agreement), (iv) any Taxes of Seller relating to the conduct of the Business prior to the Closing, including Seller's proportionate amount of those Taxes described in Section 24, (v) the fuel and losses allocation to shipper under the December 17, 1990 Gathering and Treating Contract between Seller and Vastar Resources that relates to the time period prior to the Effective Time, (vi) Punitive Damages Claims, (vii) Personal Injury and Property Damage Claims, (viii) Unscheduled Offsite Disposal Site Claims, (ix) Criminal Fines and Penalties and (x) the Excluded Assets; provided, however, that Seller shall, except as otherwise provided herein, not be obligated under this Agreement to protect, defend, indemnify or hold Buyer Parties harmless from and against any Losses or Claims that arise out of, relate attributable to or result from arising out of any of the Transaction Agreements, recourse with respect to any matters under or in connection a Transaction Agreement being under the terms of such Transaction Agreement. (b) After Closing, any assertion by Buyer that Seller is liable under the terms of the indemnities provided under Section 10(a) must be made by Buyer in writing and (1), in the case of a Claim based on a breach of a representation and warranty in Section 7 of this Agreement, must be given to Seller on or prior to one year after Closing (except with respect to the representations and warranties in Sections 7(a), (b), (c), (f), (n), (p), (q), (r), (s), (u) and (w)); (2) in the case of a Claim based on a breach of the representations and warranties contained in Sections 7(n), (p), (q), (r) and (s) of this Agreement must be given to Seller on or prior to six months after Closing); (3) in the case of a Claim based upon a breach of the representative and warranty in Section 7(u) or based upon Sections 10(a)(v) or 10(a)(vii), must be given to Seller on or prior to two years after Closing; (4) in the case of a Claim under Section 10(a)(vi) or 10(a)(viii) must be given to Seller on or before 3 years following described matters Closing, (herein collectively referred 5) in the case of a Claim based upon a breach of the representations and warranties in Sections 7(a), (b), (c) or (f) or based upon Sections 10(a)(iii), 10(a)(iv), 10(a)(ix) and 10(a)(x) shall not be limited as to time as between Buyer Parties and Seller Parties and (6) in the “case of a claim based upon Section 10(a)(ii) shall not be limited as to time between Buyer Parties and Seller Indemnified Liabilities”): Parties unless otherwise specifically provided in the Agreement. Any notice to Seller shall state the facts known to Buyer that give rise to such notice in sufficient detail to allow Seller to evaluate the assertion. If such notice is timely given, all Claims attributable to or arising out of the event, breach, occurrence or other circumstance of which notice is given in such notice shall not be barred by the time limitations in this subsection. (ic) Solely for purposes of indemnification in this Section 10, the representations and warranties of Seller made in this Section 7 of Agreement (other than Seller's representation set forth in Section 7(w)) shall be deemed to have been made without regard to any materiality qualifications, provided that none of the Buyer Indemnitees shall be entitled to assert any right to indemnification under Section 10(a) of this Agreement unless the individual claim or series of related claims which arise out of substantially the same facts and circumstances exceeds $50,000; provided that any claim for a breach of the representations and warranties in Sections 7(a), (b), (c) (Af) and (s) and any representation claim for indemnification under Sections 10(a)(ii), 10(a)(iii), 10(a)(iv), 10(a)(v), 10(a)(ix) and 10(a)(x) shall not be subject to such $50,000 threshold. (d) Buyer shall not be entitled to assert any right to indemnification with respect to any Claims under Section 10(a) hereof, Schedule 14(e) or warranty made by Seller in otherwise under this Agreement (other than Sections 1(b), 3 and 4) unless such claims exceed $5.0 million in the aggregate, and then only to the extent that all such Claims exceed such amount; provided that such deductible basket shall not be applicable to Seller's indemnification obligations (1) under Sections 10(a)(ii), 10(a)(iii), 10(a)(iv), 10(a)(v), 10(a)(ix) or 10(a)(x) and (2) under Section 10(a)(i) to the extent arising out of any breach or violation of the representations and warranties contained in Section 4.13Sections 7(a), (b), (c), (f) or (Bs) of this Agreement. (e) In no event shall Seller ever be required to indemnify Buyer under this Section 10 or to pay other amounts in connection with or with respect to the representations transactions contemplated by this Agreement in an amount exceeding in the aggregate $50,000,000 provided that Seller's obligations in Sections 10(a)(ix) or 10(a)(x) will not be subject to the $50,000,000 ceiling. (f) If a claim arises for which Buyer intends to seek indemnity under this Section 10, Buyer shall promptly notify Seller of such claim. Seller shall have thirty (30) days after receipt of such notice to undertake, conduct and warranties control, through counsel of its own choosing and at its own expense, the settlement or defense thereof, and Buyer shall cooperate with Seller in Section 4.13connection therewith. Buyer shall have the right to pay or settle any such claim, provided that in each casesuch event it shall waive any right to indemnity by Seller for such claim; and provided further, that Buyer shall not having been true and correct as enter into any settlement agreement (or settle or compromise any such claim in a manner) which provides for or results in any payment by or liability of any of the Closing Date Seller Parties of or for any damages or other amount, any lien, charge or encumbrance on any property of any of the Seller Parties, any finding of responsibility or liability on the part of any of the Seller Parties or any sanction or restriction upon the conduct of any business by any of the Seller Parties without such Seller Party's express written consent, which consent shall not be unreasonably withheld. If Seller does not notify Buyer within thirty (in 30) days after the case receipt of clauses Buyer's notice of a claim of indemnity hereunder that it elects to undertake the defense thereof, then Buyer shall have the right to contest, settle or compromise the claim, but shall not thereby waive any right to indemnity therefor pursuant to this Section 10. (i)(Ag) and (i)(B), disregarding for all purposes, including for (I) purposes of determining whether such representation and warranty is true and correct and (II) purposes of determining the The amount of any Losses or Claims resulting from any failure of any such representation or warranty to Claim for which Buyer claims indemnity shall be so true and correct, any qualifications or limitations as to materiality, Target Material Adverse Effect or words of similar import reduced by (in each case, except for such qualifications or limitations in the Fundamental Representations and in Section 4.11(a), which shall not be disregarded)); (iia) any breach net insurance proceeds actually received by or on behalf of Seller of any covenant or obligation of Seller in this Agreement or the Transaction Documents; (iii) any and all (A) Taxes of the Target Group Buyer from a non-Affiliated third party with respect to a Claim, after deducting all costs incurred by Buyer or its Affiliates in recovering such proceeds and the present value of reasonably expected increases in Buyer's or any Pre-Closing Tax Periodof its Affiliate's insurance premiums resulting from such Claims, and (Bb) Taxes indemnity payments which Buyer receives from any Person (other than Transfer TaxesSeller or any Affiliate, successor or assign of Buyer). (h) of Seller and its Affiliates THE INDEMNIFICATION AND ASSUMPTION PROVISIONS PROVIDED FOR IN THIS AGREEMENT (other than the Target Group)EXCLUDING, (CHOWEVER, ANY TRANSACTION AGREEMENT, EACH OF WHICH SHALL BE GOVERNED BY ITS RESPECTIVE TERMS AND CONDITIONS) Taxes for which the Target Group has any liability under Treasury Regulations Section 1.1502-6 or under any comparable or similar provision of stateSHALL BE APPLICABLE WHETHER OR NOT THE LOSSES, local or foreign Laws as a result of being a member of an affiliatedCOSTS, consolidatedEXPENSES AND DAMAGES IN QUESTION AROSE SOLELY OR IN PART FROM THE ACTIVE, combinedPASSIVE, unitary or similar group on or prior to the Closing Date,COMPARATIVE, OR CONCURRENT NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT OF BUYER PARTIES, BUT ONLY TO THE EXTENT NOT ATTRIBUTABLE TO FUTURE ACTS OR OMISSIONS OF BUYER PARTIES.

Indemnities of Seller. (a) Subject to the provisions Effective as of this Article VIII, from and after the Closing, subject to the limitations set forth in Sections 13.4 and 13.8 or otherwise in this Agreement, Seller shall indemnifybe responsible for, defend shall pay on a current basis and hereby agrees to defend, indemnify and hold harmless BuyerBuyer and its Affiliates, and all of its Affiliates (including the Target Group), and their respective directors, officersequity holders, partners, members, equityholdersdirectors, officers, managers, employees, agents, consultants, attorneys, representatives, successors, transferees agents and assignees representatives (collectively, the “Buyer Indemnified Parties”) from and against any and all Liabilities, arising from, against and in respect of any Losses or Claims that arise out ofbased upon, relate related to or result from associated with: (a) any Environmental Defects (i) of which Buyer did not have knowledge prior to the Environmental Claim Date, (ii) that Buyer did not assert as an Environmental Defect pursuant to an Environmental Defect Notice received by Seller on or before the Environmental Claim Date and (iii) that are not related to any of the following matters described matters on Schedule 6.1(a) (herein collectively referred to as any such Environmental Defect satisfying the “Seller Indemnified Liabilities”): requirements set forth in the foregoing clauses (i) through (Aiii), a “Post-Closing Environmental Defect”) and that Buyer asserts as an Environmental Defect pursuant to a written notice (satisfying the requirements of an “Environmental Defect Notice” set forth in Section 6.1(a)) delivered to Seller on or before the date that is nine (9) months after the Closing Date; (b) any breach by Seller of any of its representations or warranties contained in Article VII; provided that, notwithstanding anything to the contrary set forth herein, Seller shall not have any indemnity obligations pursuant to the provisions of this Section 13.2(b) (i) with respect to any breach of any representation or warranty made by of Seller set forth in this Agreement Article VII to the extent that (other than and only to the representations and warranties extent that), as of the date hereof, Buyer (or any of its Affiliates) has any knowledge thereof or (ii) with respect to any breach of the representation or warranty of Seller set forth in Section 4.137.11 to the extent (and only to the extent) that such breach relates solely to (A) the outcome of any minimum royalty litigation or (B) any changes in Law after the representations and warranties in Section 4.13Effective Time; (c) any breach by Seller of any of its covenants or agreements under this Agreement; (d) any Environmental Indemnity Agreement or Title Indemnity Agreement, in each case, not having been true subject to the terms and correct as of the Closing Date (in the case of clauses (i)(A) conditions thereof and (i)(B), disregarding for all purposes, including for (I) purposes of determining whether such representation and warranty is true and correct and (II) purposes of determining the amount without duplication of any Losses or Claims resulting from any failure of any such representation or warranty to be so true and correct, any qualifications or limitations as to materiality, Target Material Adverse Effect or words of similar import amount recovered pursuant thereto; (in each case, except for such qualifications or limitations in the Fundamental Representations and in Section 4.11(a), which shall not be disregarded)); (iie) any breach by or on behalf of Seller of any covenant or obligation of Seller in this Agreement audit (related to the Assets or the Transaction Documents; (iiiApplicable Contracts) any and all (A) Taxes of the Target Group working interest revenues or Operating Expenses incurred with respect to any Pre-Closing Tax Period, (B) Taxes (other than Transfer Taxes) of Seller and its Affiliates (other than the Target Group), (C) Taxes for which the Target Group has any liability under Treasury Regulations Section 1.1502-6 or under any comparable or similar provision of state, local or foreign Laws as a result of being a member of an affiliated, consolidated, combined, unitary or similar group on or Assets prior to the Closing Date,Effective Time; (f) the liabilities and obligations arising with respect to any Continued Employee and described as Seller’s responsibility in Section 9.8(e) or 13.1(ii); and (g) any of the Excluded Assets.

Indemnities of Seller. (a) Subject to 15.1 Notwithstanding the provisions Cap, the Threshold, any other limitation or exclusion of liability set forth in this Agreement, the contents of the Disclosed Documents or any other aspect of this Article VIIIAgreement, Seller shall indemnify fully, hold harmless and defend Purchaser, Purchaser's Affiliates or any of the Group Companies, as the case may be, from and against any and all damages incurred by the relevant entity, arising out of, relating to, or based upon, any of the following: - any non-compliance, whether full or partial, of Seller, Seller's Affiliate and/or the Company, with the carve out obligations set forth above in Article 6; - any breach of representation and warranty contained above in Articles 12.1 to 12.5 and 12.21; - German Newco's liabilities not forming part of the German Business; For the avoidance of doubt it shall be understood that any payment made by Seller to Purchaser under this Article 15.1 shall not count towards either the Threshold or towards the Cap. 15.2 Notwithstanding any limitation or exclusion of liability set forth in this Agreement other than the Cap and the Threshold, and notwithstanding the contents of the Disclosed Documents or any other aspect of this Agreement, Seller shall indemnify fully, hold harmless and defend Purchaser, Purchaser's Affiliates or the Group Companies, as the case may be, from and against any and all damages incurred by the relevant entity, arising out of, relating to or based upon any of the matters listed in Schedule 15.2 hereto, it being specified that, for any such matters, the amount of Loss to be taken into consideration shall be the amount of the Loss suffered by the Company, the relevant Group Company, the Purchaser, or the relevant Purchaser's Affiliate as the case may be after deduction of the Closingamount of the provisions existing in the Closing Transferred Business Account with respect to such relevant matter. 15.3 Notwithstanding the Cap, the Threshold or any limitation or exclusion of liability set forth in this Agreement, the contents of the Disclosed Documents or any other aspect of this Agreement, Seller shall indemnify fully, hold harmless and defend Purchaser, Purchaser's Affiliates or the Group Companies as the case may be from and against any and all damages incurred by the relevant entity arising out of, relating to, or based upon, any environmental matters, including without limitations items listed in Schedule 15.3, provided, however, that Pur- 39 / 54 chaser or the Group Companies, as the case may be, shall bear a total deductible of CHF 2,000,000 (two million Swiss francs) prior to this indemnity becoming applicable. For the avoidance of doubt it shall be understood that any payment made by Seller to Purchaser under this Article 15.3 shall not count towards either the Cap or towards the Threshold. 15.4 Notwithstanding the Cap, the Threshold, any limitation or exclusion of liability set forth in this Agreement, the contents of the Disclosed Documents or any other aspect of this Agreement, Seller shall indemnify, defend and hold harmless Buyerand defend Purchaser, Purchaser's Affiliates or the Company, as the case may be, from and against all damages incurred by the relevant entity arising out of, relating to, or based upon, (i) the failure of Ebel Belgium, promptly after the termination or expiration of its Affiliates distributorship agreement with the Company, and/or Ebel Canada, promptly after Closing, to cease all use of the name Ebel or any name confusingly similar thereto, as a corporate name, or, in connection with the sale of watches and jewelry, as a trade name or domain name, or (including ii) the Target Group)purported assignment, and their respective directorslicense or grant by either Ebel Belgium or Ebel Canada of any rights in the name Ebel to any other Person, officersprovided, partnershowever, members, equityholders, employees, agents, consultants, attorneys, representatives, successors, transferees and assignees (collectively, the “Buyer Indemnified Parties”) from, against and that Seller's liability in respect of any Losses such damages shall in no event exceed, in aggregate, the amounts set forth in Schedule 15.4: Purchaser shall have the exclusive right to negotiate with or Claims that arise out of, relate to or result from any claim against Ebel Belgium and Ebel Canada in respect of the following described subject matter hereof, provided that such subject matters (herein collectively referred to as the “Seller Indemnified Liabilities”): (i) (A) any representation or warranty made by Seller in this Agreement (other than the representations and warranties in Section 4.13) or (B) the representations and warranties in Section 4.13, in each case, not having been true and correct as of the Closing Date (in the case of clauses (i)(A) and (i)(B), disregarding for all purposes, including for (I) purposes of determining whether such representation and warranty is true and correct and (II) purposes of determining the amount of any Losses or Claims resulting from any failure of any such representation or warranty to be so true and correct, any qualifications or limitations as to materiality, Target Material Adverse Effect or words of similar import (in each case, except for such qualifications or limitations in the Fundamental Representations and in Section 4.11(a), which shall not be disregarded)); (ii) any breach settled by or on behalf of Seller of any covenant or obligation of Seller in this Agreement or the Transaction Documents; (iii) any and all (A) Taxes of the Target Group with respect to any Pre-Closing Tax PeriodPurchaser without Seller's consent, (B) Taxes (other than Transfer Taxes) of Seller and its Affiliates (other than the Target Group), (C) Taxes for which the Target Group has any liability under Treasury Regulations Section 1.1502-6 or under any comparable or similar provision of state, local or foreign Laws as a result of being a member of an affiliated, consolidated, combined, unitary or similar group on or prior to the Closing Date,consent shall not be unreasonably withheld.