Common use of Seller’s Agreement to Indemnify Clause in Contracts

Seller’s Agreement to Indemnify. (a) Subject to the terms and conditions set forth herein, from and after the Closing, Seller shall indemnify and hold harmless Buyer and its directors, officers and employees and their successors and assigns (collectively, the “Buyer Indemnitees”) from and against all liability, demands, allegations of infringement, claims, actions or causes of action, assessments, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses, and whether or not arising from a third party claim) (collectively, the “Buyer Damages”) incurred by any Buyer Indemnitee as a result of or arising out of (i) the Excluded Liabilities (including, but not limited to the Retained Claim Liability and the Retained Specified Liability), the Excluded Assets or the operation of the Business prior to Closing to the extent not included among the Assumed Liabilities, (ii) a breach of any representation or warranty contained in Article III of this Agreement, (iii) a breach of any agreement or covenant of Seller in this Agreement, or (iv) any failure of Seller to comply with applicable bulk sales laws, except that this clause (iv) shall not affect the obligation of Buyer to pay and discharge the Assumed Liabilities notwithstanding Buyer’s right to make an indemnification claim hereunder. For the avoidance of doubt, Seller shall not have any obligation to indemnify for Liabilities relating to operation of the Business after the Closing Date. For avoidance of doubt, Seller’s obligation to indemnify Buyer Indemnitees for Buyer Damages under this Section 7.2 with respect to the Retained Claim Liability and the Retained Specified Liability shall include, without limitation, actual or enhanced damages, settlement amounts and reasonable attorneys’ fees and expenses.

Seller’s Agreement to Indemnify. (a) Subject to Upon the terms and subject to conditions set forth hereinof this Article XI, from and after the ClosingClosing Date, Seller shall indemnify indemnify, defend and hold harmless Buyer Buyer, its Affiliates (including the Company and its Subsidiaries) and their respective officers, directors, officers and employees and their successors and assigns (collectively"Buyer Indemnified Parties"), the “Buyer Indemnitees”) from and against all liability, demands, allegations of infringement, claims, actions or causes of action, assessments, losses, damages, liabilities, costs and expenses, including reasonable attorneys' fees and expenses (including, without limitation, reasonable attorneys’ fees and expenses, and whether or not arising from a third party claim) (collectively, the “Buyer "Damages”) "), asserted against, resulting to, imposed upon, or suffered or incurred by any Buyer Indemnitee as a result Indemnified Parties by reason of or arising out of from: (i) the Excluded Liabilities (including, but not limited to the Retained Claim Liability and the Retained Specified Liability), the Excluded Assets or the operation of the Business prior to Closing to the extent not included among the Assumed Liabilities, (iia) a breach of any representation or warranty of Seller contained in Article III of this Agreement, Agreement or any certificate delivered hereunder; (iiib) a breach of any covenant or agreement or covenant of Seller contained in this Agreement, Agreement or any certificate delivered hereunder; (ivc) Unrelated Liabilities (as hereinafter defined); (d) the Retained Litigation; (e) any failure of Seller to comply with applicable bulk sales laws, except that this clause (iv) shall not affect the obligation of Buyer to pay and discharge the Assumed Liabilities notwithstanding Buyer’s right to make an indemnification claim hereunder. For the avoidance of doubt, Seller shall not have any obligation to indemnify liability for Liabilities relating to operation Indebtedness of the Business after Company or any Division Entity (other than any Capitalized Lease Indebtedness or Earn-Out Indebtedness) outstanding as of the Closing Date. For avoidance of doubtClosing; (f) any Retained Liabilities; (g) any Health Care Related Liabilities; (h) the failure to obtain Consent to a Required Consent Lease such that it becomes a Consented Lease unless, Seller’s obligation at the time that such Damages are incurred, the 90% Lease Condition is satisfied; (i) the failure to indemnify Buyer Indemnitees for Buyer obtain Consent to a Required Consent Third Party Payor Contract such that it becomes a Consented Third Party Payor Contract unless, at the time that such Damages under this Section 7.2 are incurred, the 90% Payor Contract Condition is satisfied; (j) any escheat law with respect to unclaimed property; or (k) the Retained Claim Liability and the Retained Specified Liability shall includecosts of enforcing any Buyer Indemnified Party's rights hereunder (collectively, without limitation, actual or enhanced damages, settlement amounts and reasonable attorneys’ fees and expenses"Buyer Claims").

Seller’s Agreement to Indemnify. (a) Subject to If the terms Closing occurs and conditions Purchaser makes a written claim for indemnification against Seller or DTI in accordance with the procedures set forth hereinin this Article 12, from and after the Closing, then Seller shall or DTI, as appropriate, agrees to indemnify and hold harmless Buyer and its directors, officers and employees and their successors and assigns (collectively, the “Buyer Indemnitees”) Purchaser from and against all liability, demands, allegations of infringementout- of-pocket liabilities, claims, actions or causes of action, assessments, losses, judgments, settlements, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses, and whether or not arising from a third party claim) (collectively, the “Buyer "Purchaser Damages”") incurred by any Buyer Indemnitee Purchaser as a result of or arising out of of: (i) the Excluded Liabilities (including, but not limited to the Retained Claim Liability and the Retained Specified Liability), the Excluded Assets or the operation of the Business prior to Closing to the extent not included among that the Assumed LiabilitiesSale Approval Order, the Bankruptcy Code and other applicable Laws fail to discharge liability with respect to any claims brought by a third party against Purchaser relating thereto, those Retained Liabilities and those Excluded Assets that are retained at Closing by Seller or DTI; (ii) of a breach of any representation or warranty contained in Article III of this Agreement, Agreement (other than Inventory representations for which an adjustment is made in the Purchase Price Adjustment); (iii) a breach of any agreement covenant to be performed by Seller or covenant of Seller in DTI under this Agreement, ; or (iv) any failure of by Seller to comply with applicable bulk sales laws, except that this clause (iv) shall not affect the obligation of Buyer to pay and discharge the Assumed Liabilities notwithstanding Buyer’s right to make an indemnification claim hereunder. For the avoidance of doubt, Seller shall not have any obligation to indemnify for Liabilities relating to operation of the Business after the Closing Date. For avoidance of doubt, Seller’s obligation to indemnify Buyer Indemnitees for Buyer Damages under this Section 7.2 amount owed with respect to a purchase money security interest under the Retained Claim Liability Permitted Liens. The sole source to satisfy any remedy with respect to (ii) above shall be the Indemnity Escrow Amount. As soon as possible after the Expiration Date, the Indemnity Escrow Amount, including all cash, interest accrued thereon and other property retained by the Retained Specified Liability shall includeIndemnity Escrow Agent, without limitationwill be delivered to Seller by the Indemnity Escrow Agent, actual less an estimated amount, if any, reasonably sufficient to satisfy the amount of all then outstanding claims, if any, by Purchaser for Purchaser Damages in accordance with the terms of the Indemnity Escrow Agreement provided such claims exceed or enhanced damages, settlement amounts and reasonable attorneys’ fees and expenseshave already exceeded the amount set forth in Section 12.3.5.

Seller’s Agreement to Indemnify. (a) Subject to Upon the terms and subject to the conditions set forth hereinof this Article IX, Sellers shall indemnify, defend and hold harmless Buyer and its officers, directors, employees, agents and affiliates (including the Company, from and after the Closing) at any time after the Closing, Seller shall indemnify and hold harmless Buyer and its directors, officers and employees and their successors and assigns (collectively, the “Buyer Indemnitees”) from and against all liability, demands, allegations of infringement, claims, actions or causes of action, assessments, lossesdamages, damagesliabilities, costs and expenses (expenses, including, without limitation, interest, penalties and reasonable attorneys’ fees and expenses, and whether or not arising from a third party claim) expenses (collectively, the “Buyer Damages”) asserted against, resulting to, imposed upon or incurred by any Buyer Indemnitee as a result or such affiliates by reason of or arising out of resulting from (i) the Excluded Liabilities (including, but not limited to the Retained Claim Liability and the Retained Specified Liability), the Excluded Assets or the operation of the Business prior to Closing to the extent not included among the Assumed Liabilities, (iia) a breach of any representation or warranty of Sellers contained in Article III of or made pursuant to this Agreement, ; (iiib) a breach non-fulfillment of any agreement or covenant of Seller Sellers contained in or made pursuant to this Agreement, or ; (ivc) the Company’s breach of any agreements with third parties prior to the Closing; (d) liabilities of the Company arising prior to the Closing Date except to the extent such liabilities are accrued for on the Closing Working Capital Statement; (e) any Taxes imposed on Company to be paid by Sellers with respect to Pre-Closing Tax Periods and Straddle Periods to the extent set forth in Section 6.9; (f) liabilities relating to the Excluded Assets and the Excluded Liabilities to the extent such liabilities are not accrued for on the Closing Working Capital Statement; and (g) liabilities relating to the bonus payments to be made pursuant to Section 6.6 of the Disclosure Schedule (other than the payment obligations as set forth in Section 6.6 and liabilities relating to the failure of Seller to comply with applicable bulk sales laws, except that this clause (iv) shall not affect by the obligation of Buyer to pay and discharge the Assumed Liabilities notwithstanding Buyer’s right Company to make an indemnification claim hereunderthe required bonus payments or relating to the post-closing administration of the bonus plan)(collectively, "Buyer Claims"). For the avoidance of doubt, Seller shall not have any obligation to indemnify the indemnification provided under Section 9.2(g) includes the indemnification for Liabilities liabilities relating to operation the selection criteria used in identifying initial participants in the bonus plan, as well as liabilities relating to the amounts of any bonus payments for any initial participant or the relative amounts of the Business after the Closing Datebonus payments to be made to any initial participants compared to any other participants. For avoidance Any amount owing to Buyer as a result of doubt, Seller’s obligation any Buyer Claim pursuant to indemnify Buyer Indemnitees for Buyer Damages under this Section 7.2 with respect 9.2 shall, to the Retained extent available, first be set-off against the Holdback Amount; provided further that Buyer shall only set-off any Buyer Claim Liability to the extent (i) there is a final order, decree or judgment of a court of competent jurisdiction in the United States of America (the time for appeal having expired with no appeal having been taken) resolving such Buyer Claim in favor of Buyer or (ii) Sellers and Buyer have agreed in writing that such Buyer Claim shall be set-off against the Retained Specified Liability shall include, without limitation, actual or enhanced damages, settlement amounts and reasonable attorneys’ fees and expensesHoldback Amount.

Seller’s Agreement to Indemnify. (a) Subject to the terms and conditions limitations set forth hereinin this Article X, from and after the ClosingClosing Date until the Final Date, each Seller shall will indemnify and hold harmless Buyer Purchasers and its respective officers, directors, officers agents and employees employees, and their successors each person, if any, who controls or may control Purchasers within the meaning of the Securities Act (hereinafter referred to individually as a "Company Indemnified Person" and assigns (collectively, the “Buyer Indemnitees”collectively as "Company Indemnified Persons") from and against any and all liabilityclaims, demands, allegations of infringementactions, claims, actions or causes of action, assessmentslosses, lossescosts, damages, costs liabilities and expenses (including, without limitation, reasonable attorneys’ fees legal fees, (net of: (i) any recoveries under insurance policies; (ii) recoveries from third parties; and expenses, and whether (iii) tax savings known to Company Indemnified Persons at the time of making of claims hereunder) made against or not arising from a third party claim) (collectively, the “Buyer Damages”) incurred by any Buyer Indemnitee Company Indemnified Persons (hereafter in this Section 10.1 referred to as a result of or "Purchasers Damages"), arising out of (i) the Excluded Liabilities (including, but not limited to the Retained Claim Liability and the Retained Specified Liability), the Excluded Assets any misrepresentation or the operation breach of or default under any of the Business prior to Closing to the extent not included among the Assumed Liabilitiesrepresentations, (ii) a breach warranties, covenants or agreements given or made in this Agreement or any certificate or exhibit delivered by or on behalf of any representation or warranty contained in Article III of this Agreement, (iii) a breach of any agreement or covenant of Seller pursuant hereto. The indemnification provided for in this AgreementSection 10.1 will not apply unless and until the aggregate Purchasers Damages for which one or more Company Indemnified Persons seeks indemnification exceeds $75,000 in the aggregate, in which event the indemnification provided for will include all Purchasers Damages (a "Franchise Deductible"). The aggregate liability of the Sellers for indemnification under this Agreement shall not exceed the Purchase Price. The Company Indemnified Persons are only entitled to be reimbursed for the actual indemnified expenditures or damages incurred by them for the above described losses. Such Company Indemnified Persons are not entitled to consequential, special, or (iv) any failure other speculative or punitive categories of Seller to comply with applicable bulk sales laws, except that this clause (iv) shall not affect the obligation of Buyer to pay and discharge the Assumed Liabilities notwithstanding Buyer’s right to make an indemnification claim hereunder. For the avoidance of doubt, Seller shall not have any obligation to indemnify for Liabilities relating to operation of the Business after the Closing Date. For avoidance of doubt, Seller’s obligation to indemnify Buyer Indemnitees for Buyer Damages under this Section 7.2 with respect to the Retained Claim Liability and the Retained Specified Liability shall include, without limitation, actual or enhanced damages, settlement amounts and reasonable attorneys’ fees and expenses.

Seller’s Agreement to Indemnify. (a) Subject If the Closing occurs and Purchaser makes a written claim for indemnification against Seller in accordance with the procedures set forth in this Article 12 prior to the Expiration Date, then Seller agrees to indemnify and hold harmless Purchaser subject to the terms and conditions set forth hereinof this Article 12, from and after the Closing, Seller shall indemnify and hold harmless Buyer and its directors, officers and employees and their successors and assigns (collectively, the “Buyer Indemnitees”) from and against all liability, demands, allegations of infringementout-of-pocket liabilities, claims, actions or causes of action, assessments, losses, judgments, settlements, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses, and whether or not arising from a third party claim) (collectively, the “Buyer Purchaser Damages”) incurred by any Buyer Indemnitee Purchaser as a result of or arising out of of: (i) the Excluded those Retained Liabilities (including, but not limited to the Retained Claim Liability and the Retained Specified Liability), the those Excluded Assets or the operation of the Business prior to that are retained at Closing to the extent not included among the Assumed Liabilities, by Seller; (ii) a breach of any representation or warranty contained in Article III of this Agreement, ; (iii) any covenant to be performed on or before Closing; or (iv) a breach of any agreement or covenant of Seller in this AgreementAgreement to be performed after Closing; and the sole source to satisfy any remedy with respect to (i) and (ii) above shall be the Escrow Amount, or and the limit of Seller’s obligation with respect to clauses (ivi) and (ii) above, shall be $975,000.00. Notwithstanding the foregoing, any failure of Seller to comply with applicable bulk sales laws, except that this claim based on clause (iviii) shall not affect the obligation of Buyer to pay and discharge the Assumed Liabilities notwithstanding Buyer’s right to make an indemnification claim hereunder. For the avoidance of doubt, Seller shall not have any obligation to indemnify for Liabilities relating to operation of the Business must be made within one hundred eighty (180) days after the Closing Date. For avoidance As soon as possible after the Expiration Date, the Escrow Amount, including all cash, interest accrued thereon and other property retained by the Escrow Agent, will be delivered to Seller by the Escrow Agent, less an amount necessary to satisfy the amount of doubt, Seller’s obligation to indemnify Buyer Indemnitees all then outstanding claims by Purchaser for Buyer Purchaser Damages under this Section 7.2 in accordance with respect to the Retained Claim Liability and terms of the Retained Specified Liability shall include, without limitation, actual or enhanced damages, settlement amounts and reasonable attorneys’ fees and expensesEscrow Agreement.

Seller’s Agreement to Indemnify. (a) Subject to Upon the terms and subject to conditions set forth hereinof this Article XI, from and after the ClosingClosing Date, Seller shall indemnify indemnify, defend and hold harmless Buyer Buyer, its Affiliates (including the Company and its Subsidiaries) and their respective officers, directors, officers and employees and their successors and assigns (collectively, the “Buyer IndemniteesIndemnified Parties”) ), from and against all liability, demands, allegations of infringement, claims, actions or causes of action, assessments, losses, damages, liabilities, costs and expenses (includingexpenses, without limitation, including reasonable attorneys’ fees and expenses, and whether or not arising from a third party claim) expenses (collectively, the “Buyer Damages”) ), asserted against, resulting to, imposed upon, or suffered or incurred by any Buyer Indemnitee as a result Indemnified Parties by reason of or arising out of from: (i) the Excluded Liabilities (including, but not limited to the Retained Claim Liability and the Retained Specified Liability), the Excluded Assets or the operation of the Business prior to Closing to the extent not included among the Assumed Liabilities, (iia) a breach of any representation or warranty of Seller contained in Article III of this Agreement, Agreement or any certificate delivered hereunder; (iiib) a breach of any covenant or agreement or covenant of Seller contained in this Agreement, Agreement or any certificate delivered hereunder; (ivc) Unrelated Liabilities (as hereinafter defined); (d) the Retained Litigation; (e) any failure of Seller to comply with applicable bulk sales laws, except that this clause (iv) shall not affect the obligation of Buyer to pay and discharge the Assumed Liabilities notwithstanding Buyer’s right to make an indemnification claim hereunder. For the avoidance of doubt, Seller shall not have any obligation to indemnify liability for Liabilities relating to operation Indebtedness of the Business after Company or any Division Entity (other than any Capitalized Lease Indebtedness or Earn-Out Indebtedness) outstanding as of the Closing Date. For avoidance of doubtClosing; (f) any Retained Liabilities; (g) any Health Care Related Liabilities; (h) the failure to obtain Consent to a Required Consent Lease such that it becomes a Consented Lease unless, Seller’s obligation at the time that such Damages are incurred, the 90% Lease Condition is satisfied; (i) the failure to indemnify Buyer Indemnitees for Buyer obtain Consent to a Required Consent Third Party Payor Contract such that it becomes a Consented Third Party Payor Contract unless, at the time that such Damages under this Section 7.2 are incurred, the 90% Payor Contract Condition is satisfied; (j) any escheat law with respect to unclaimed property; or (k) the Retained Claim Liability and the Retained Specified Liability shall includecosts of enforcing any Buyer Indemnified Party’s rights hereunder (collectively, without limitation, actual or enhanced damages, settlement amounts and reasonable attorneys’ fees and expenses“Buyer Claims”).

Seller’s Agreement to Indemnify. (a) Subject to the terms and conditions set forth hereinin this Agreement, from and after the Closing, Seller shall, and shall cause all of its subsidiaries to (except to the extent the ownership of any such subsidiary is sold or transferred after the date hereof) indemnify and hold harmless Buyer Buyer, the Company (as long as it remains an affiliate of Buyer) and its their respective directors, officers officers, employees, affiliates, controlling persons, agents and employees representatives and their successors and assigns (collectively, the “Buyer Indemnitees”) from and against all liability, demands, allegations of infringement, claims, actions or causes of action, assessments, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses, and whether or not arising from a third party claim) (collectively, the “Buyer Damages”) asserted against or incurred by any Buyer Indemnitee as a result of or arising out of (i) the Excluded Liabilities (including, but not limited to the Retained Claim Liability and the Retained Specified Liability), the Excluded Assets or the operation of the Business prior to Closing to the extent not included among the Assumed Liabilities, (ii) a breach of any representation or warranty contained in Article III II or in the Seller Disclosure Letter or any closing certificate delivered by or on behalf of Seller pursuant to this Agreement, Agreement or (iiiii) a any breach of any agreement or covenant of the covenants and agreements of Seller contained in this Agreement, or (iv) including without limitation any failure agreement of Seller to comply indemnify Buyer with applicable bulk sales laws, except respect to specific matters contained elsewhere in this Agreement. It is specifically agreed by Seller and Buyer that this clause (iv) shall not affect the obligation for a period of Buyer to pay and discharge the Assumed Liabilities notwithstanding Buyer’s right to make an indemnification claim hereunder. For the avoidance of doubt, Seller shall not have any obligation to indemnify for Liabilities relating to operation of the Business ten years after the Closing Date. For avoidance Date Buyer Damages shall include all costs of doubtRemedial Action in excess of $2,000,000 (plus the then remaining balance, if any, of the Basket Amount (as defined herein)) taken by Buyer or the Company with respect to any Release or other condition on the Property, notwithstanding any disclosure thereof by Seller or that Seller’s obligation representations in Section 2.17 relative to any such environmental matters is to Seller’s knowledge, subject to the provisions of Section 4.13. Buyer Indemnitees shall be entitled to recover any Buyer Damages for which Seller is obligated to indemnify Buyer Indemnitees for Buyer Damages under this Section 7.2 with respect 7.2, (i) first, from the Escrow Agent, an amount equal to any Buyer Damages any such Buyer Indemnitee may suffer hereunder pursuant to Section 7.10 and (ii) second, if and to the Retained Claim Liability and extent that the Retained Specified Liability shall includeEscrow Amount is not sufficient to cover such Buyer Damages, without limitation, actual or enhanced damages, settlement amounts and reasonable attorneys’ fees and expensesfrom Seller.