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

Seller’s Agreement to Indemnify. (a) Subject to the terms of this Article IX, from and after the Closing, Seller shall indemnify and hold harmless Buyer, Parent and each of their respective Affiliates (other than Seller), directors, officers and successors (to the extent set forth in Section 10.9) (each, a "Buyer Indemnified Party") from and against all out of pocket liabilities, claims, assessments, losses, judgments, settlements, fines, penalties, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) (collectively, the "Buyer Damages") incurred by a Buyer Indemnified Party as a result of or arising out of (i) the Excluded Liabilities or the Retained Assets (other then Consigned Inventory), (ii) a breach of any representation or warranty contained in Article IV of this Agreement, in each case, when made, and it being understood that such representations and warranties shall be interpreted without giving effect to any limitations or qualifications as to "materiality" (including the word "material") or Material Adverse Effect set forth therein (other than Section 4.10 and Section 4.14 which shall be governed by Section 6.9 and Sections 9.5, 9.8 and 9.9 respectively) or (iii) a breach in any material respect of any agreement or covenant of Seller in this Agreement (other than agreements and covenants relating to Taxes and environmental matters, which shall be governed by Section 6.9 and Sections 9.5, 9.8 and 9.9 respectively). Buyer agrees that, except as contemplated by the immediately preceding sentence, from and after the Closing, the indemnification provided in this Section 9.2 is the exclusive remedy for a breach by Seller of any representation, warranty, agreement or covenant contained in this Agreement.

Seller’s Agreement to Indemnify. (a) Subject to the terms of this Article IX, from and after the Closing, Seller shall indemnify and hold harmless Buyer, Parent and each of their respective Affiliates (other than Seller), directors, officers and successors (to the extent set forth in Section 10.9) (each, a "“Buyer Indemnified Party"”) from and against all out of pocket liabilities, claims, assessments, losses, judgments, settlements, fines, penalties, damages, costs and expenses (including, without limitation, reasonable attorneys' ’ fees and expenses) (collectively, the "“Buyer Damages"”) incurred by a Buyer Indemnified Party as a result of or arising out of (i) the Excluded Liabilities or the Retained Assets (other then Consigned Inventory), (ii) a breach of any representation or warranty contained in Article IV of this Agreement, in each case, when made, and it being understood that such representations and warranties shall be interpreted without giving effect to any limitations or qualifications as to "“materiality" ” (including the word "“material"”) or Material Adverse Effect set forth therein (other than Section 4.10 and Section 4.14 which shall be governed by Section 6.9 and Sections 9.5, 9.8 and 9.9 respectively) or (iii) a breach in any material respect of any agreement or covenant of Seller in this Agreement (other than agreements and covenants relating to Taxes and environmental matters, which shall be governed by Section 6.9 and Sections 9.5, 9.8 and 9.9 respectively). Buyer agrees that, except as contemplated by the immediately preceding sentence, from and after the Closing, the indemnification provided in this Section 9.2 is the exclusive remedy for a breach by Seller of any representation, warranty, agreement or covenant contained in this Agreement.

Seller’s Agreement to Indemnify. (a) Subject to the terms of and conditions set forth in this Article IXAgreement, from and after the Closing, Seller shall indemnify and hold harmless Buyer, Parent Purchaser and each of their respective Affiliates (other than Seller), its directors, officers officers, employees, Affiliates, controlling persons, agents and representatives and their successors and assigns (to collectively, the extent set forth in Section 10.9) (each, a "Buyer Indemnified Party"“Purchaser Indemnitees”) from and against all out of pocket liabilitiesliability, demands, claims, actions or causes of action, assessments, losses, judgments, settlements, fines, penalties, damages, costs and expenses (including, without limitation, including reasonable attorneys' ’ fees and expenses) (collectively, the "Buyer “Purchaser Damages"”) asserted against or incurred by a Buyer Indemnified Party any Purchaser Indemnitee as a result of or arising out of (i) the Excluded Liabilities or the Retained Assets (other then Consigned Inventory), (ii) a breach of any representation or warranty contained in Article IV ARTICLE II of this Agreement (other than a representation or warranty contained in SECTION 2.12(r) the indemnification for which shall be solely and exclusively governed by SECTION 4.08) (each of which, for purposes of this SECTION 7.02(a), shall be deemed to have been made as of the date hereof and as of the Closing Date, except for those which expressly relate to an earlier date, each of which shall be deemed to have been made as of such earlier date) or (ii) any breach of any of the covenants and agreements of Seller or the Company contained in this Agreement, in each case, when made, and it being understood that such representations and warranties shall be interpreted without giving effect to any limitations or qualifications as to "materiality" (including the word "material") or Material Adverse Effect set forth therein (other than Section 4.10 and Section 4.14 which shall be governed by Section 6.9 and Sections 9.5, 9.8 and 9.9 respectively) or (iii) a breach in any material respect of any agreement or covenant of Seller to indemnify Purchaser with respect to specific matters contained elsewhere in this Agreement (other than agreements and covenants a covenant or agreement relating to Taxes and environmental matters, set forth in SECTION 4.08 the indemnification for which shall be solely and exclusively governed by Section 6.9 and Sections 9.5, 9.8 and 9.9 respectivelySECTION 4.08). Buyer agrees that, except as contemplated by the immediately preceding sentence, from and after the Closing, the indemnification provided in this Section 9.2 is the exclusive remedy for a breach by Seller of any representation, warranty, agreement or covenant contained in this Agreement.

Seller’s Agreement to Indemnify. (a) Subject to the terms of and conditions set forth in this Article IXAgreement, from and after the Closing, Seller shall indemnify and hold harmless Buyer, Parent Purchaser and each of their respective Affiliates (other than Seller), its directors, officers officers, employees, Affiliates, controlling persons, agents and representatives and their successors and assigns (to collectively, the extent set forth in Section 10.9) (each, a "Buyer Indemnified PartyPurchaser Indemnitees") from and against all out of pocket liabilitiesliability, demands, claims, actions or causes of action, assessments, losses, judgments, settlements, fines, penalties, damages, costs and expenses (including, without limitation, including reasonable attorneys' fees and expenses) (collectively, the "Buyer Purchaser Damages") asserted against or incurred by a Buyer Indemnified Party any Purchaser Indemnitee as a result of or arising out of (i) the Excluded Liabilities or the Retained Assets (other then Consigned Inventory), (ii) a breach of any representation or warranty contained in Article IV ARTICLE II of this Agreement (other than a representation or warranty contained in SECTION 2.12(r) the indemnification for which shall be solely and exclusively governed by SECTION 4.08) (each of which, for purposes of this SECTION 7.02(a), shall be deemed to have been made as of the date hereof and as of the Closing Date, except for those which expressly relate to an earlier date, each of which shall be deemed to have been made as of such earlier date) or (ii) any breach of any of the covenants and agreements of Seller or the Company contained in this Agreement, in each case, when made, and it being understood that such representations and warranties shall be interpreted without giving effect to any limitations or qualifications as to "materiality" (including the word "material") or Material Adverse Effect set forth therein (other than Section 4.10 and Section 4.14 which shall be governed by Section 6.9 and Sections 9.5, 9.8 and 9.9 respectively) or (iii) a breach in any material respect of any agreement or covenant of Seller to indemnify Purchaser with respect to specific matters contained elsewhere in this Agreement (other than agreements and covenants a covenant or agreement relating to Taxes and environmental matters, set forth in SECTION 4.08 the indemnification for which shall be solely and exclusively governed by Section 6.9 and Sections 9.5, 9.8 and 9.9 respectivelySECTION 4.08). Buyer agrees that, except as contemplated by the immediately preceding sentence, from and after the Closing, the indemnification provided in this Section 9.2 is the exclusive remedy for a breach by Seller of any representation, warranty, agreement or covenant contained in this Agreement.

Seller’s Agreement to Indemnify. (a) Subject to the terms of this Article IX, from Section 7.3 and after the Closingexcept as provided in Section 7.4, Seller shall indemnify and hold harmless Buyer, Parent Buyer and each officer, director, manager, member, and Affiliate of their respective Affiliates (other than Seller)Buyer harmless against and in respect of any and all Actions, directors, officers and successors (to the extent set forth in Section 10.9) (each, a "Buyer Indemnified Party") from and against all out of pocket liabilities, claims, assessments, losses, judgments, settlements, fines, penalties, damages, costs and deficiencies, costs, or expenses (including, including without limitation, the reasonable attorneys' fees and expenses) expenses of counsel), (collectively, the "“Losses”) resulting from (a) any breach of or inaccuracy in any representation or warranty made by Seller in this Agreement or the Transaction Documents; (b) any breach of or failure by Seller to perform any of its respective covenants set out in this Agreement or any Transaction Document, or (c) any Excluded Obligations. Notwithstanding any other provision in this Article VII, no claim shall be made by Buyer Damages"under Section 7.1(a) incurred unless and until any and all Losses exceed Twenty Thousand ($20,000) (the “Basket”) in the aggregate (in which event Seller shall be responsible for all Losses), and all indemnification obligations shall be limited to the total amount of One Hundred Thousand Dollars ($100,000) (the “Indemnification Cap”); provided, however, that the Basket and the Indemnification Cap shall not apply (i) to Losses arising out of any fraud, intentional misrepresentation or intentional breach of this Agreement, or (ii) any claim for Losses made by a Buyer Indemnified Party party to an Assigned Contract for a breach of such Assigned Contract prior to the Closing as a result of the gross negligence of Seller or Seller’s employees; provided, further, that all indemnification obligations arising out of (i) the Excluded Liabilities or the Retained Assets (other then Consigned Inventory), under clause (ii) a breach of any representation or warranty contained in Article IV of this Agreement, in each case, when made, and it being understood that such representations and warranties shall be interpreted without giving effect limited to any limitations or qualifications as to "materiality" (including the word "material") or Material Adverse Effect set forth therein (other than Section 4.10 and Section 4.14 which shall be governed by Section 6.9 and Sections 9.5, 9.8 and 9.9 respectively) or (iii) a breach in any material respect of any agreement or covenant of Seller in this Agreement (other than agreements and covenants relating to Taxes and environmental matters, which shall be governed by Section 6.9 and Sections 9.5, 9.8 and 9.9 respectively). Buyer agrees that, except as contemplated by the immediately preceding sentence, from and after the Closing, the indemnification provided in this Section 9.2 is the exclusive remedy for a breach by Seller of any representation, warranty, agreement or covenant contained in this AgreementPurchase Price.

Seller’s Agreement to Indemnify. (a) Subject to the terms and conditions of this Article IX, from the Sellers hereby agree to jointly and after the Closingseverally indemnify, Seller shall indemnify defend and hold harmless Buyer, Parent Buyer and each of their respective Affiliates (other than Seller)its officers, directors, officers employees, Affiliates, successors and successors permitted assigns (to the extent set forth in Section 10.9) (each, a "Buyer Indemnified PartyGroup") ), from and against against, and pay and/or reimburse them for, any and all out claims, whether or not the result of pocket liabilitiesa Third Party Claim, and any and all losses, claims, assessments, losses, judgments, settlements, fines, penalties, liabilities and damages (but excluding indirect damages, lost profits or punitive damages), and reasonable and documented costs and expenses (including, without limitation, including reasonable attorneys' fees and expensesreasonable costs of collection hereunder) (collectively, the "Buyer Damages") ), incurred by a any of the Buyer Indemnified Party as a result of Group to the extent arising from or arising out of attributable to (i) the Excluded Liabilities or the Retained Assets (other then Consigned Inventory), (ii) a breach of any representation or warranty of the Sellers contained in Article IV of this AgreementAgreement or the Other Agreements (other than those that have expired as provided herein or therein); provided, however, that in each casedetermining whether any such breach exists, when made, and it being understood that such representations and warranties shall be interpreted without giving effect deemed also to have been made as of the Closing Date and irrespective of any limitations supplemented or qualifications amended disclosure made pursuant to Section 5.18 hereof; provided, further, that if the Sellers shall become aware prior to the Closing that any representation or warranty made by the Sellers that is subject to a knowledge standard would not be true and correct as to "materiality" (including of the word "material") or Material Adverse Effect set forth therein (other than Section 4.10 date hereof were such knowledge standard removed, such representation and Section 4.14 which warranty shall be governed by deemed to have been breached for purposes of this Section 6.9 and Sections 9.5, 9.8 and 9.9 respectively9.02(a)(i); (ii) any breach of any covenant or agreement of the Sellers contained in this Agreement or the Other Agreements; (iii) a breach the Retained Liabilities (including any liability imposed, by operation of law or otherwise, on Buyer (as successor to or transferee of the U.S. Business) directly in any material respect of pre-Closing actions or omissions of the Sellers or conditions existing as of the Closing at the Facility, but in each case, only to the extent such liabilities are not Assumed Liabilities); or (iv) any agreement breach or covenant non-compliance with applicable bulk sales or similar laws in connection with the transactions contemplated hereby. Claims by any of Seller the Buyer Group under this Section 9.02 are referred to individually as a "Buyer Claim" or collectively, as "Buyer Claims." Notwithstanding the foregoing or anything to the contrary contained in this Agreement (other than agreements and covenants relating to Taxes and environmental matters, which shall be governed by Section 6.9 and Sections 9.5, 9.8 and 9.9 respectively). Buyer agrees that, except as contemplated by the immediately preceding sentence, from and after the Closing, the indemnification provided in this Section 9.2 is the exclusive remedy for a breach by Seller of or any representation, warranty, agreement or covenant contained in this Other Agreement.: