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

Seller’s Agreement to Indemnify. Subject to Section 7.1, upon the terms and subject to conditions of this Section 7.2, from and after the Closing, Seller shall indemnify, defend and hold harmless Purchaser, its Affiliates, the Company and their respective officers, directors, shareholders and successors and assigns from and against any and all losses, damages, demands, claims, actions or causes of action, assessments, awards, penalties, fines, costs, expenses and liabilities (including reasonable attorneys' fees and expenses but excluding punitive or exemplary damages, except in the case of fraud or to the extent actually awarded to a Governmental Entity or other third party) (collectively, "Damages") incurred or to be incurred by any of them to the extent resulting from or arising out of: (i) any breach by Seller of any representation or warranty contained in this Agreement, the schedules hereto, or other certificate or document delivered by Seller pursuant to this Agreement; (ii) any breach by Seller of any covenant, agreement or obligation contained in this Agreement or other document delivered by Seller pursuant to this Agreement; (iii) [Litigation]; and (iv) all and any Taxes affecting, and to be borne by, the Company for the time up to (and including) the Closing Date if and to the extent the specific Tax in question has not been paid on or prior to the date hereof, or has not been provided for in the annual accounts, or has not been fully disclosed by Seller to Purchaser. Such indemnity or hold-harmless shall apply irrespective and regardless of whether or not on the Closing Date the Seller had knowledge or should have had knowledge of such obligation to pay Taxes. For the avoidance of doubt, it is the intention of the parties that, in the case of any such Taxes for any period in which the determination of the amount of such Taxes due for such period does not coincide with or end on the Closing Date, the amount of such Taxes deemed a liability of the Company for the time up to (and including) the Closing Date shall be determined as if a separate Tax Return was due for a period ending on the Closing Date and the amount of such Taxes due on that separate Tax Return is determined based on actual events occurring up through and including the Closing Date. In the event that any Taxes are assessed once annually, for example, property taxes, then in lieu of the rules for proration in the previous sentence, if such Tax is not yet been paid for the annual period that includes the Closing Date, then liability of the Company for such Tax under this section shall be equal to the amount of such Tax times a ratio of the days in such period before and including the Closing date divided by 365.

Seller’s Agreement to Indemnify. Subject to Section 7.1, upon the terms and subject to conditions of this Section 7.2, from From and after the Closing, Seller shall indemnify, defend and hold harmless Purchaser, its Affiliates, the Company and their respective officers, directors, shareholders and successors and assigns from and against any and all losses, damages, demands, claims, actions or causes of action, assessments, awards, penalties, fines, costs, expenses and liabilities (including reasonable attorneys' fees and expenses but excluding punitive or exemplary damages, except in the case of fraud or to the extent actually awarded to a Governmental Entity or other third party) (collectively, "Damages") incurred or to be incurred by any of them to the extent resulting from or arising out of: (i) any breach by Seller of any representation or warranty contained in this Agreement, the schedules hereto, or other certificate or document delivered by Seller pursuant to this Agreement; (ii) any breach by Seller of any covenant, agreement or obligation contained in this Agreement or other document delivered by Seller pursuant to this Agreement; (iii) [Litigation]any Litigation against Seller or the Company; and (iv) all and any Taxes affecting, and to be borne by, the Company for the time up to (and including) the Closing Date if and to the extent the specific Tax in question has not been paid on or prior to the date hereof, or has not been provided for in the annual accounts, or has not been fully disclosed by Seller to Purchaser. Such indemnity or hold-harmless shall apply irrespective and regardless of whether or not on the Closing Date the Seller had knowledge or should have had knowledge of such obligation to pay Taxes. For the avoidance of doubt, it is the intention of the parties that, in the case of any such Taxes for any period in which the determination of the amount of such Taxes due for such period does not coincide with or end on the Closing Date, the amount of such Taxes deemed a liability of the Company for the time up to (and including) the Closing Date shall be determined as if a separate Tax Return was due for a period ending on the Closing Date and the amount of such Taxes due on that separate Tax Return is determined based on actual events occurring up through and including the Closing Date. In the event that any Taxes are assessed once annually, for example, property taxes, then in lieu of the rules for proration in the previous sentence, if such Tax is not yet been paid for the annual period that includes the Closing Date, then liability of the Company for such Tax under this section shall be equal to the amount of such Tax times a ratio of the days in such period before and including the Closing date divided by 365.

Seller’s Agreement to Indemnify. Subject to Section 7.1, upon the terms and subject to conditions of this Section 7.2Article IX, from the Sellers hereby agree to jointly and after the Closing, Seller shall severally indemnify, defend and hold harmless Purchaser, Buyer and its Affiliates, the Company and their respective officers, directors, shareholders and employees, Affiliates, successors and permitted assigns (the "Buyer Group"), from and against against, and pay and/or reimburse them for, any and all claims, whether or not the result of a Third Party Claim, and any and all losses, claims, liabilities and damages (but excluding indirect damages, demandslost profits or punitive damages), claims, actions or causes of action, assessments, awards, penalties, fines, costs, and reasonable and documented costs and expenses and liabilities (including reasonable attorneys' fees and expenses but excluding punitive or exemplary damages, except in the case reasonable costs of fraud or to the extent actually awarded to a Governmental Entity or other third partycollection hereunder) (collectively, "Damages") incurred or to be ), incurred by any of them the Buyer Group to the extent resulting arising from or arising out of: attributable to (i) any the breach by Seller of any representation or warranty of the Sellers contained in this AgreementAgreement or the Other Agreements (other than those that have expired as provided herein or therein); provided, however, that in determining whether any such breach exists, such representations and warranties shall be deemed also to have been made as of the schedules hereto, Closing Date and irrespective of any supplemented or other certificate or document delivered by Seller 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 of the date hereof were such knowledge standard removed, such representation and warranty shall be deemed to have been breached for purposes of this Agreement; Section 9.02(a)(i); (ii) any breach by Seller of any covenant, covenant or agreement or obligation of the Sellers contained in this Agreement or other document delivered by Seller pursuant to this Agreement; the Other Agreements; (iii) [Litigation]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 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); and or (iv) all and any Taxes affectingbreach or non-compliance with applicable bulk sales or similar laws in connection with the transactions contemplated hereby. Claims by any of the Buyer Group under this Section 9.02 are referred to individually as a "Buyer Claim" or collectively, and to be borne by, as "Buyer Claims." Notwithstanding the Company for the time up to (and including) the Closing Date if and foregoing or anything to the extent the specific Tax contrary contained in question has not been paid on this Agreement or prior to the date hereof, any Other Agreement: (A) Buyer's sole remedy in respect of any actual or has not been provided for in the annual accounts, or has not been fully disclosed by Seller to Purchaser. Such indemnity or hold-harmless shall apply irrespective and regardless of whether or not on the Closing Date the Seller had knowledge or should have had knowledge of such obligation to pay Taxes. For the avoidance of doubt, it is the intention alleged breach of the parties that, representations set forth in Section 3.05(d) (other than the case of any such Taxes for any period in which the determination of the amount of such Taxes due for such period does not coincide with first and second sentences thereof) or end on the Closing Date, the amount of such Taxes deemed a liability of the Company for the time up to (and including) the Closing Date shall be determined as if a separate Tax Return was due for a period ending on the Closing Date and the amount of such Taxes due on that separate Tax Return is determined based on actual events occurring up through and including the Closing Date. In the event that any Taxes are assessed once annually, for example, property taxes, then in lieu of the rules for proration in the previous sentence, if such Tax is not yet been paid for the annual period that includes the Closing Date, then liability of the Company for such Tax under this section shall be equal to the amount of such Tax times a ratio of the days in such period before and including the Closing date divided by 365.Section

Seller’s Agreement to Indemnify. (a) Subject to Section 7.1, upon the terms and subject to conditions of set forth in this Section 7.2Agreement, from and after the Closing, Seller shall indemnifySellers agree, defend jointly and severally, to indemnify and hold harmless PurchaserBuyer, its Affiliates, the each Company and Subsidiary and their respective directors, officers, directorsemployees, shareholders affiliates, controlling persons, agents and representatives and their successors and assigns (collectively, the “Buyer Indemnitees”) from and against any and all liabilities, assessments, losses, damages, demandscosts and expenses whether or not arising out of third party claims (including, claimswithout limitation, actions or causes of action, assessments, awardsinterest, penalties, fines, costs, expenses and liabilities (including reasonable attorneys' ’ fees and expenses but excluding punitive and all reasonable amounts paid in investigation, defense or exemplary damages, except in settlement of any of the case of fraud or to the extent actually awarded to a Governmental Entity or other third partyforegoing) (collectively, "but in all events, subject to Section 8.2(a)(iv) hereof, excluding any punitive, special, incidental, consequential, diminution of value, lost profits or like damages or claims, “Buyer Damages"”) incurred asserted against or to be incurred by any Buyer Indemnitee as a result of them to the extent resulting from or arising out of: of (i) any breach by Seller a breach, misrepresentation or inaccuracy of any representation or warranty contained in this AgreementAgreement or in the Seller Disclosure Letter or any exhibits, the schedules hereto, or other certificate or document certificates delivered by Seller or on behalf of Sellers pursuant to this Agreement; , provided, that, Sellers hereby acknowledge that notwithstanding any disclosure in Section 2.17 of the Seller Disclosure Letter, any Buyer Damages arising out of the matters disclosed on Section 2.17 of the Seller Disclosure Letter (other than those described in clause (v) of this subsection) shall be subject to the indemnification terms of this Article VIII as if not disclosed on Section 2.17 of the Seller Disclosure Letter, provided, further, that Sellers shall be liable on an individual basis for Buyer Damages in respect of the breach, misrepresentation or inaccuracy of any representation or warranty contained in Article III of this Agreement, (ii) any breach product sold, manufactured or licensed by Seller any Company or any Subsidiary prior to the Closing Date (including products manufactured by or for the account of any covenantCompany or Subsidiary prior to the Closing, agreement regardless of their inclusion in inventory of a Company or obligation Subsidiary as of the Closing and their eventual sale by a Company or Subsidiary or by Buyer or its affiliates after the Closing), (iii) any breach of any of the covenants and agreements of any Seller contained in this Agreement or other document delivered by Seller pursuant (including those covenants and agreements set forth in the Environmental Remediation Agreement), including without limitation any agreement of Sellers to indemnify Buyer with respect to specific matters contained elsewhere in this Agreement; (iii) [Litigation]; and , (iv) all liabilities and obligations (including, but only with respect to this clause (iv), punitive, special, incidental and consequential damages or claims, to the extent such damages or claims are payable by Buyer or any Taxes affectingSubsidiary of Buyer (including any of the Companies after Closing) to any third party)) arising out of the Selected Litigation Matters, and (v) all liabilities and obligations (including, but only with respect to this clause (v), punitive, special, incidental and consequential damages or claims, to the extent such damages or claims are payable by Buyer or any Subsidiary of Buyer (including any of the Companies after Closing) to any third party)) for Claims arising out of the matters described in Item 1 (3163 East Xxxxxx ESA), Item 2 (3049 East Vernon ESA), Item 22 (Casmalia Superfund Site) or Item 23 (OII Superfund Site) set forth on Section 2.17 of the Seller Disclosure Letter, provided that no Buyer Indemnitee initiates any contact or inquiry of any governmental entity or other third party with respect to such matters. Subject to the limitations set forth in Section 8.2(b) hereof, Buyer Indemnitees shall be borne byrequired to recover any Buyer Damages for which Sellers are obligated to indemnify under this Section 8.2, (i) first, from the Company for the time up Escrow Agent, an amount equal to any Buyer Damages any such Buyer Indemnitee may suffer hereunder pursuant to Section 8.7 hereof and (and includingii) the Closing Date second, if and to the extent that the specific Tax Indemnification Escrow Amount is not sufficient to cover such Buyer Damages, from Sellers. Notwithstanding anything to the contrary contained in question this Agreement, for purposes of determining whether Sellers are obligated to provide indemnification under Section 8.2(a)(i) of this Agreement and for purposes of determining the amount of any Buyer Damages to which such indemnification applies, each representation and warranty in this Agreement and each certificate delivered pursuant hereto shall be read without regard and without giving effect to the term “material” or “material adverse effect” or similar phrases contained in such representation or warranty which has the effect of making such representation and warranty less restrictive (as if such word were deleted from such representation and warranty). (b) Sellers’ obligation to indemnify the Buyer Indemnitees for Buyer Damages under Section 8.2(a) of this Agreement is subject to the following limitations: (i) No indemnification shall be made by Sellers under Sections 8.2(a)(i) or 8.2(a)(ii) unless (i) the aggregate amount of all Buyer Damages arising out of a single breach or liability exceeds $5,000 and (ii) the aggregate amount of all Buyer Damages exceeds $750,000 (the “Basket”) and, in such event, indemnification shall be made by Sellers for the aggregate amount of Buyer Damages in excess of the Basket; provided, however, that the Basket shall not been paid apply to Buyer Damages resulting from the Selected Litigation Matters or a breach of (A) Sections 2.1, 2.2, 2.4, 2.13, 2.25, 3.1 or 3.2 hereof, or (B) the representations and warranties in Section 2.16 hereof that relate to the “Xxxxxx Xxxx” trademark, trade name, domain name and related logos listed on Section 2.16 of the Seller Disclosure Letter. (ii) In no event shall Sellers’ aggregate obligation to indemnify the Buyer Indemnitees under Sections 8.2(a)(i) or 8.2(a)(ii) exceed $25,000,000 (the “Cap Amount”), except in the event that such obligation to indemnify arises from the fraud of any Seller; provided, that the Cap Amount shall not apply to Buyer Damages resulting from a breach of (A) Sections 2.1, 2.2, 2.4, 2.13, 2.25, 3.1 or 3.2 hereof or, (B) the representations and warranties in Section 2.16 hereof that relate to the “Xxxxxx Xxxx” trademark, trade name, domain name and related logos listed on Section 2.16 of the Seller Disclosure Letter. (iii) Sellers shall be obligated to indemnify the Buyer Indemnitees under Section 8.2(a)(i) only for those claims giving rise to Buyer Damages as to which the Buyer has given Sellers’ Representative written notice, with a copy to the Escrow Agent (if applicable), prior to the date end of the Survival Period (to the extent the Survival Period is applicable to such claim) or applicable survival period set forth in Section 8.1 of this Agreement. Any written notice delivered by a Buyer to Sellers’ Representative with respect to Buyer Damages shall set forth with reasonable specificity the basis of the claim for Buyer Damages if reasonably determinable at such time and it may state the amount of the Buyer Damages claimed. Subject to the procedures with respect to Claims under Section 8.4 hereof, if such written notice (or has an amended notice) states the amount of Buyer Damages claimed and the Sellers’ Representative notifies the Buyer Indemnitee that Sellers’ Representative does not been provided for dispute the claim described in such notice or fails to notify the Buyer, with a copy to the Escrow Agent (if applicable), within 30 business days after delivery of such notice by the Buyer whether Sellers’ Representative disputes the claim described in such notice, Buyer Damages in the annual accountsamount specified in such notice will be admitted by Sellers, or and Sellers shall be responsible for the payment of such Buyer Damages to the Buyer Indemnitee, unless Buyer Damages in respect of such claim, once determined, are less than the amount specified in the notice, in which event Buyer shall be entitled to recover such lesser amount. If Sellers’ Representative has timely disputed Sellers’ liability with respect to such claim by delivery of notice in accordance with this Section 8.2, Buyer and Sellers’ Representative will proceed in good faith to negotiate a resolution of such dispute in accordance with Section 8.5 hereof. Any written notice delivered by Sellers’ Representative to Buyer for purposes of disputing a claim for Buyer’s Damages shall provide in reasonable detail the basis for any objection to the matters set forth in Buyer’s notice and the portion of the claim (if less than all) which is the subject of the dispute notice). If a written notice does not been fully disclosed by Seller state the amount of Buyer Damages claimed, such omission will not preclude the Buyer Indemnitee from recovering from Sellers the amount of Buyer Damages with respect to Purchaser. Such indemnity or hold-harmless the claim described in such notice if any such amount is promptly provided once determined. (iv) Sellers’ indemnification obligation pursuant to Section 8.2(a)(v), and pursuant to Section 8.2(a)(iii) (as such provision relates to the Environmental Remediation Agreement) shall apply irrespective and regardless survive for a period of whether or not on five years after the Closing Date the Seller had knowledge or should have had knowledge of such Date. (c) Subject to a Buyer Indemnitee’s right and obligation to recover for Buyer Damages first from the Indemnification Escrow Amount in accordance with Section 8.7, Sellers will pay Taxes. For the avoidance of doubt, it is the intention of the parties that, in the case amount of any such Taxes for any period in which Buyer Damages to the Buyer Indemnitee within 10 days following the determination of the amount of such Taxes due Sellers’ liability for such period does not coincide with or end on the Closing Date, the amount of such Taxes deemed a liability of the Company for the time up to (and including) the Closing Date shall be determined as if a separate Tax Return was due for a period ending on the Closing Date and the amount of such Taxes due on that separate Tax Return Buyer Damages (whether such determination is determined based on actual events occurring up through made pursuant to the procedures set forth in this Article VIII, by agreement between Buyer and including Sellers, by arbitration award or by final adjudication in accordance with the Closing Dateterms of this Agreement). In the event The Sellers hereby acknowledge and agree that any Taxes are assessed once annually, for example, property taxes, then in lieu of the rules for proration in the previous sentence, if such Tax is not yet been paid for the annual period that includes the Closing Date, then liability of the Company for such Tax under this section shall be equal to the amount of such Tax times a ratio Buyer Damages that are not recovered from the Indemnification Escrow Amount shall be payable by the applicable Seller or Sellers, or jointly and severally by all Sellers, as the case may be, and further acknowledge and agree that the Indemnification Escrow Amount is not the exclusive source of recovery of Buyer Damages incurred by Buyer pursuant to this Agreement. Each of the days Sellers agrees that if, following the Closing, any payment is made by such Seller in respect of any Buyer Damages, such period before Seller shall have no rights against Xxxxxx Xxxx, or any director, officer or employee thereof (in their capacity as such), whether by reason of contribution, indemnification, subrogation or otherwise, in respect of any such payment, and including shall not take any action against Xxxxxx Xxxx or any such person with respect thereto. Any rights with respect to any such payments that any of the Closing date divided Sellers may, by 365operation of law or otherwise, have against Xxxxxx Xxxx or any such person shall, effective at the time of the Closing, be deemed hereby to be expressly and knowingly waived.

Seller’s Agreement to Indemnify. Subject to Section 7.1, upon the terms and subject to conditions of this Section 7.2, from and after the ClosingArticle 11, Seller shall hereby agrees to indemnify, defend and hold harmless Purchaser, Buyer and its Affiliates, the Company and their respective officers, directors, shareholders and employees, stockholders, representatives, agents, successors and assigns from and against any and all losses, damages, demands, claims, actions or causes of action, assessments, awardsactions, Taxes, penalties, finesinterest, costs, expenses and liabilities (including reasonable attorneys' fees and accountants' fees, settlement costs and other costs and expenses but excluding punitive or exemplary damages, except in the case of fraud or to the extent actually awarded to a Governmental Entity or other third party) (collectively, "DamagesIndemnified Losses") incurred or to be incurred by any of them to the extent resulting from or arising out of, or incident to, any of the following: (ia) any breach by Seller of any representation or warranty contained made by Seller herein or in this Agreement, the schedules any certificate or other instrument delivered pursuant hereto, or other certificate or document delivered by Seller pursuant except that Buyer shall not assert a claim under Section 4.7(b) to this Agreementthe extent of any Material Adverse Effect arising solely out of changes in general economic conditions; (iib) any breach or failure by Seller to perform or fulfill any of any covenantits covenants or agreements set forth herein (including, agreement or obligation contained in this Agreement or other document delivered without limitation, failure by Seller pursuant to this Agreementpay, discharge or perform any of its obligations and liabilities other than the Assumed Liabilities); (iiic) [Litigation]; and whether or not disclosed on any Schedule hereto, (i) all Taxes of or with respect to Seller or any of its shareholders (except as set forth in clause (iv) of Section 1.5) and (ii) all and Taxes of EES with respect to any Taxes affecting, and to be borne by, the Company for the time up to period (and includingor portion thereof) the Closing Date if and to the extent the specific Tax in question has not been paid ending on or prior to the date hereofClosing Date, to the extent such Taxes in clause (ii) of this Section 11.1(c) are in excess of the amount reflected as an accrual or reserve (without regard to deferred Tax assets and liabilities) for income tax liabilities payable of EES on the Closing Balance Sheet as appropriately reduced for any Tax items (including, without limitation, any payment of Taxes (whether pursuant to Section 8.5 or otherwise)) and/or by the amount of any payment made by Buyer to Seller pursuant to the final sentence of Section 8.5(b); (d) any liabilities resulting from Seller's failure to comply with the provisions of any state's laws with respect to bulk transfers, or has not been provided for in acts of similar nature, as such laws may be applicable to the annual accounts, or has not been fully disclosed by Seller to Purchaser. Such indemnity or hold-harmless shall apply irrespective and regardless of Purchased Assets; (e) whether or not disclosed on the Closing Date the Seller had knowledge any Schedule hereto, any liability or should have had knowledge obligation of such obligation EES for (i) Taxes with respect to pay Taxes. For the avoidance of doubt, it is the intention of the parties that, in the case of any such Taxes for any period in which the determination of the amount of such Taxes due for such period does not coincide with (or end portion thereof) ending on or prior to the Closing Date, to the extent such Taxes are in excess of the amount reflected as an accrual or reserve (without regard to deferred Tax assets and liabilities) for income tax liabilities payable of EES set forth on the Closing Balance Sheet as appropriately reduced for any Tax items (including, without limitation, any payment of Taxes (whether pursuant to Section 8.5 or otherwise)) and/or by the amount of such Taxes deemed a liability any payment made by Buyer to Seller pursuant to the final sentence of Section 8.5(b), (ii) any indebtedness of EES to Seller for borrowed money (other than the Company indebtedness evidenced by EES's Promissory Note dated January 21, 1997), (iii) any other indebtedness of EES for borrowed money or any guaranty by EES of indebtedness for borrowed money, (iv) any fees and expenses of Seller relating to the Contemplated Transactions, (v) any liabilities or obligations of EES in respect of any agreement, contract, lease or commitment other than the EES Agreements or any other agreements under which the other party or parties thereto continue to do business with EES (or with Seller for the time up to (and includingexclusive benefit of EES) following the Closing Date shall be determined as if a separate Tax Return was due for a period ending closing on the Closing Date and the amount of such Taxes due on that separate Tax Return is determined based on actual events occurring up through and including the Closing Date. In the event that any Taxes are assessed once annually, for example, property taxes, then in lieu of the rules for proration terms specified in the previous sentenceagreement, if such Tax is not yet been paid for (vi) any liability or obligation under the annual period that includes Worker Adjustment and Retraining Notification Act with respect to EES arising prior to the Closing Date, then liability (vii) any liabilities or obligations relating to the Excluded Assets or not arising out of the Company for such Tax business of EES, or (viii) subject to clause, or (v) of Section 1.5 (but with the understanding that Buyer will not assume sponsorship of any Plan in whole or in part), any liability or obligation under this section shall be equal or related to the amount of such Tax times a ratio any Plan; or (f) any of the days Assumed Liabilities described in such period before clauses (vi) and including (vii) of Section 1.5 hereof and any liability or obligation of EES of the Closing date divided by 365type described in clauses (vi) and (vii) of Section 1.5 hereof; or (g) any and all claims, actions, suits, proceedings, investigations, demands, assessments and judgments incident to any of the foregoing.