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, the Seller shall indemnify and hold harmless the Buyer and its directors, officers, employees, affiliates, controlling persons, agents and representatives and their successors and assigns (collectively, the "Buyer Indemnitees") from and against all liability, demands, claims, actions or causes of action, assessments, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) (collectively, the "Buyer Damages") asserted against or incurred by any Buyer Indemnitee as a result of or arising out of (i) a breach of any representation or warranty of the Seller contained in this Agreement when made or at and as of the Closing Date (or at and as of such different date or period specified for such representation or warranty) as though such representation and warranty were made at and as of the Closing Date (or such different date or period) (without giving effect to (x) any "materiality" or Company Material Adverse Effect qualification or exception therein (other than with respect to the representations and warranties contained in Sections 2.5(b)(y), 2.13(a), (b) and (c), 2.14(a)(iv) and 2.15(b)); provided, however, that with respect to a breach under Section 2.12 hereof, Buyer Damages shall not include any Buyer damages which result from the Company or any of its Subsidiaries not having Tax attributes (including, basis in assets, net operating losses or credits) or (y) any "knowledge" qualification or exception contained in Sections 2.9, 2.15(b)(vii), 2.15(b)(viii), 2.15(b)(ix), the first sentence of Section 2.16(c), and 2.16(f)); (ii) a breach of any covenant or agreement (other than as contained in Section 4.5, 4.6 and 4.13) on the part of the Seller under this Agreement; (iii) any of the Retained Liabilities; (iv) any Liability as to which the Seller has liability or indemnification obligations under Section 4.8 or 4.9.; or (v) any Liability arising out of the matters described in Section 2.10(c) of the Seller Disclosure Schedule. The Seller's obligation to indemnify the Buyer Indemnitees pursuant to clause 7.2(a)(i) hereof is subject to the following limitations: (i) No indemnification shall be made by the Seller unless the aggregate amount of Buyer Damages exceeds $16 million, each individual amount of Buyer Damages alleged exceeds $100,000, and, in such event, indemnification shall be made by the Seller only to the extent that the aggregate amount of the Buyer Damages exceeds $8 million. It is acknowledged that the Buyer shall not have the right to indemnification for individual amounts below $100,000 and that such amounts shall not count towards the $8 million or $16 million amounts referred to in this Section 7.2(b)(i); (ii) In no event shall the Seller's aggregate obligation to indemnify the Buyer Indemnitees exceed $250,000,000; (iii) No indemnification shall be made with respect to any Buyer Damages if such Buyer Damages were the subject of the Dispute Notice, if any, or the EBITDA Dispute Notice, if any, except to the extent such claim for indemnification is based upon facts or information of which the Buyer did not have knowledge as of the end of each of the Review Period and the EBITDA Review Period, respectively; (iv) Seller shall be obligated to indemnify the Buyer Indemnitees only for those claims giving rise to Buyer Damages as to which the Buyer Indemnitees have given the Seller written notice thereof prior to the end of the applicable survival period (as provided for in Section 7.1

Seller’s Agreement to Indemnify. (a) Subject The Seller hereby agrees to the terms and conditions set forth herein, from and after the Closing, the Seller shall indemnify and hold harmless save the Buyer Buyer, and its directorsshareholders, officers, employees, affiliates, controlling persons, agents officers and representatives and their successors and assigns directors (collectively, the each a "Buyer IndemniteesIndemnified Party") harmless from or against any and against all liabilitydamages, demandslosses, obligations, settlement payments pursuant to Section 8.7 hereof, liabilities, claims, actions or causes of action, assessmentsencumbrances, lossescosts, damages, costs and expenses (includingincluding all reasonable attorney's fees, without limitation, reasonable attorneys' fees interest and expensespenalties) (collectively, the "Buyer DamagesLosses") asserted against suffered, sustained, reasonably incurred or incurred required to be paid by any a Buyer Indemnitee as a result Indemnified Party resulting from each of the following: (a) the untruth, inaccuracy or arising out of (i) a breach or nonfulfillment of any representation representation, warranty, covenant or warranty agreement of the Seller contained in this Agreement when made or at and as of Agreement, the Closing Date (Documents or at and as of such different date in any Exhibit or period specified for such representation Schedule hereto or warranty) as though such representation and warranty were made at and as of the Closing Date (or such different date or period) (without giving effect to (x) any "materiality" or Company Material Adverse Effect qualification or exception therein (other than with respect to the representations and warranties Disclosure Letter. No materiality or Seller's Knowledge qualification contained in Sections 2.5(b)(y), 2.13(a), (b) and (c), 2.14(a)(iv) and 2.15(b)); provided, however, that with respect to a breach under Section 2.12 hereof, Buyer Damages shall not include any Buyer damages which result from the Company or any of its Subsidiaries not having Tax attributes (including, basis in assets, net operating losses or credits) or (y) any "knowledge" qualification or exception contained in Sections 2.9, 2.15(b)(vii), 2.15(b)(viii), 2.15(b)(ix), the first sentence of Section 2.16(c), and 2.16(f)); (ii) a breach of any covenant or agreement (other than as contained in Section 4.5, 4.6 and 4.13) on the part of the Seller under this Agreement; (iii) any of the Retained Liabilities; (iv) any Liability as to which the Seller has liability or indemnification obligations under Section 4.8 or 4.9.; or (v) any Liability arising out of the matters described in Section 2.10(c) of the Seller Disclosure Schedule. The Seller's obligation to indemnify the Buyer Indemnitees pursuant to clause 7.2(a)(i) hereof is subject to the following limitations: (i) No indemnification foregoing documents delivered hereunder shall be made by the Seller unless the aggregate amount of Buyer Damages exceeds $16 million, each individual amount of Buyer Damages alleged exceeds $100,000, and, taken into account in such event, indemnification shall be made by the Seller only to the extent that determining the aggregate amount of the Buyer Damages exceeds $8 million. It is acknowledged that Indemnified Parties' Losses, except for the Buyer shall not have the right to indemnification for individual amounts below $100,000 Seller's Knowledge qualifications set forth in Sections 3.8 (Litigation), 3.13(d), (e), (f), (g) and that such amounts shall not count towards the $8 million or $16 million amounts referred to in this Section 7.2(b)(i(h) (Intellectual Property Assets), 3.14 (Computer Systems), 3.21 (Customers and Vendors), 3.24(b)(iv) (Solvency), 3.25(b) (Environmental), 3.26 (Assigned Contracts) and 3.30(b) (Commitments); (iib) In no event shall the Seller's aggregate assertion against a Buyer Indemnified Party, or the Purchased Assets of any liability or obligation to indemnify of the Seller or its affiliates, shareholders, officers and directors not expressly assumed by the Buyer Indemnitees exceed $250,000,000pursuant to this Agreement, (whether or not disclosed to the Buyer), including but not limited to the Excluded Liabilities under Section 1.5 hereof; (iiic) No indemnification shall be made with respect to except as otherwise specifically provided in Sections 9.4, 9.5 and 9.6 hereof, any Buyer Damages if such Buyer Damages were the subject of the Dispute Notice, if anyproduct or component thereof manufactured by or shipped, or any services provided by the EBITDA Dispute NoticeSeller, if anyin whole or in part, except to the extent such claim for indemnification is based upon facts or information of which the Buyer did not have knowledge as of the end of each of the Review Period and the EBITDA Review Period, respectively; (iv) Seller shall be obligated to indemnify the Buyer Indemnitees only for those claims giving rise to Buyer Damages as to which the Buyer Indemnitees have given the Seller written notice thereof prior to the end of the applicable survival period (as provided for in Section 7.1Closing Date.

Seller’s Agreement to Indemnify. (a) Subject The Seller hereby agrees to the terms and conditions set forth herein, from and after the Closing, the Seller shall indemnify and hold harmless save the Buyer Buyer, and its directorsshareholders, officers, employees, affiliates, controlling persons, agents officers and representatives and their successors and assigns directors (collectively, the each a "Buyer IndemniteesIndemnified Party") harmless from or against any and against all liabilitydamages, demandslosses, obligations, settlement payments pursuant to Section 8.7 hereof, liabilities, claims, actions or causes of action, assessmentsencumbrances, lossescosts, damages, costs and expenses (includingincluding all reasonable legal fees, without limitation, reasonable attorneys' fees interest and expensespenalties) (collectively, the collectively "Buyer DamagesLosses") asserted against suffered, sustained, reasonably incurred or incurred required to be paid by any a Buyer Indemnitee as a result Indemnified Party resulting from each of the following: (a) the untruth, inaccuracy or arising out of (i) a breach or nonfulfillment of any representation representation, warranty, covenant or warranty agreement of the Seller contained in this Agreement when made or at and as of Agreement, the Closing Date (Documents or at and as of such different date in any Exhibit or period specified for such representation Schedule hereto or warranty) as though such representation and warranty were made at and as of the Closing Date (or such different date or period) (without giving effect to (x) any "materiality" or Company Material Adverse Effect qualification or exception therein (other than with respect to the representations and warranties Disclosure Letter. No materiality or Seller's Knowledge qualification contained in Sections 2.5(b)(y), 2.13(a), (b) and (c), 2.14(a)(iv) and 2.15(b)); provided, however, that with respect to a breach under Section 2.12 hereof, Buyer Damages shall not include any Buyer damages which result from the Company or any of its Subsidiaries not having Tax attributes (including, basis in assets, net operating losses or credits) or (y) any "knowledge" qualification or exception contained in Sections 2.9, 2.15(b)(vii), 2.15(b)(viii), 2.15(b)(ix), the first sentence of Section 2.16(c), and 2.16(f)); (ii) a breach of any covenant or agreement (other than as contained in Section 4.5, 4.6 and 4.13) on the part of the Seller under this Agreement; (iii) any of the Retained Liabilities; (iv) any Liability as to which the Seller has liability or indemnification obligations under Section 4.8 or 4.9.; or (v) any Liability arising out of the matters described in Section 2.10(c) of the Seller Disclosure Schedule. The Seller's obligation to indemnify the Buyer Indemnitees pursuant to clause 7.2(a)(i) hereof is subject to the following limitations: (i) No indemnification foregoing documents delivered hereunder shall be made by the Seller unless the aggregate amount of Buyer Damages exceeds $16 million, each individual amount of Buyer Damages alleged exceeds $100,000, and, taken into account in such event, indemnification shall be made by the Seller only to the extent that determining the aggregate amount of the Buyer Damages exceeds $8 million. It is acknowledged that Indemnified Parties' Losses except for the Knowledge qualifications set forth in sections 3.8 (Litigation), 3.12(d), (e) and (f) (Intellectual Property Assets), 3.13 (Computer Systems), 3.19 (Customers and Suppliers), 3.22(b)(iv) (Solvency), 3.23(b) (Environmental), 3.24 (Assigned Contracts) and 3.28(b) (Commitments). (b) the assertion against a Buyer Indemnified Party, or the Purchased Assets of any liability or obligation of the Seller or their affiliates, shareholders, officers and directors not expressly assumed by the Buyer shall pursuant to this Agreement (whether or not have disclosed to the right Buyer), including but not limited to indemnification for individual amounts below $100,000 and that such amounts shall not count towards the $8 million or $16 million amounts referred to in this Excluded Liabilities under Section 7.2(b)(i)1.5 hereof; (iic) In no event shall except as otherwise specifically provided in Sections 9.4, 9.5 and 9.6 hereof , any product or component thereof manufactured by or shipped, or any services provided by the Seller's aggregate obligation to indemnify the Buyer Indemnitees exceed $250,000,000; (iii) No indemnification shall be made with respect to any Buyer Damages if such Buyer Damages were the subject of the Dispute Notice, if anyin whole or in part, or the EBITDA Dispute Notice, if any, except to the extent such claim for indemnification is based upon facts or information of which the Buyer did not have knowledge as of the end of each of the Review Period and the EBITDA Review Period, respectively; (iv) Seller shall be obligated to indemnify the Buyer Indemnitees only for those claims giving rise to Buyer Damages as to which the Buyer Indemnitees have given the Seller written notice thereof prior to the end of the applicable survival period (as provided for in Section 7.1Closing Date.

Seller’s Agreement to Indemnify. (a) Subject to the terms and conditions set forth hereinof this Article IX, from and after the Closing, the Seller shall indemnify and hold harmless the Buyer Buyer, Parent and its each of their respective Affiliates (other than Seller), directors, officersofficers and successors (to the extent set forth in Section 10.9) (each, employees, affiliates, controlling persons, agents and representatives and their successors and assigns (collectively, the "a “Buyer Indemnitees"Indemnified Party”) from and against all liability, demandsout of pocket liabilities, claims, actions or causes of action, assessments, losses, judgments, settlements, fines, penalties, damages, costs and expenses (including, without limitation, reasonable attorneys' ’ fees and expenses) (collectively, the "“Buyer Damages"”) asserted against or incurred by any a Buyer Indemnitee 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 of the Seller contained in Article IV of this Agreement Agreement, in each case, when made or at made, and as of the Closing Date (or at it being understood that such representations and as of such different date or period specified for such representation or warranty) as though such representation and warranty were made at and as of the Closing Date (or such different date or period) (warranties shall be interpreted without giving effect to any limitations or qualifications as to “materiality” (xincluding the word “material”) any "materiality" or Company Material Adverse Effect qualification or exception set forth therein (other than with 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 representations immediately preceding sentence, from and warranties 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 Sections 2.5(b)(y), 2.13(a), this Agreement. (b) and (c), 2.14(a)(ivSeller’s obligations to indemnify Buyer Indemnified Parties pursuant to Sections 9.2(a) and 2.15(b)); provided, however, that with respect 9.5 hereof are subject to a breach under Section 2.12 hereof, Buyer Damages shall not include any Buyer damages which result from the Company or any of its Subsidiaries not having Tax attributes (including, basis in assets, net operating losses or credits) or (y) any "knowledge" qualification or exception contained in Sections 2.9, 2.15(b)(vii), 2.15(b)(viii), 2.15(b)(ix), the first sentence of Section 2.16(c), and 2.16(f)); (ii) a breach of any covenant or agreement following limitations (other than as contained specifically set forth in Section 4.5, 4.6 and 4.13) on the part of the Seller under this Agreement; (iii) any of the Retained Liabilities; (iv) any Liability as to which the Seller has liability or indemnification obligations under Section 4.8 or 4.9.; or (v) any Liability arising out of the matters described in Section 2.10(c) of the Seller Disclosure Schedule. The Seller's obligation to indemnify the Buyer Indemnitees pursuant to clause 7.2(a)(i) hereof is subject to the following limitations:9.5): (i) No indemnification shall be made by the Seller with respect to any claim for breach of any representation or warranty pursuant to Sections 9.2(a)(ii) or 9.5 (“Buyer Claim”) unless (a) the aggregate amount of Buyer Damages incurred by a Buyer Indemnified Party with respect to such Buyer Claim exceeds $16 million, each individual 100,000 (the “Minimum Claim Amount”) and (b) the amount of (1) aggregate Buyer Damages alleged Damages, under all Buyer Claims, and (2) payments made by Buyer pursuant to Section 9.9(b) exceeds an amount equal to $100,000, 20,000,000 (twenty million dollars) (the “Basket Amount”) and, in such event, indemnification shall be made by the Seller only to for the extent that the aggregate amount of the by which such Buyer Damages exceeds $8 million. It is acknowledged that exceed, in the Buyer shall not have aggregate, the right to indemnification for individual amounts below $100,000 and that such amounts shall not count towards the $8 million or $16 million amounts referred to in this Section 7.2(b)(i)Basket Amount; (ii) In no event shall the Seller's ’s aggregate obligation to indemnify the Buyer Indemnitees Indemnified Parties with respect to any claim for breach of representation or warranty pursuant to Section 9.2(a)(ii), together with any indemnification pursuant to Sections 9.5, exceed $250,000,000an amount equal to twenty percent (20%) of the Cash Purchase Price (the “Cap”); (iii) No indemnification In calculating amounts payable to a Buyer Indemnified Party, the amount of any indemnified Buyer Damages shall be determined without duplication of any other Buyer Damages for which a Buyer Claim has been made or could be made under any other representation, warranty, covenant, or agreement included herein; (iv) The amount of any Buyer Damages with respect to any Buyer Damages if such Buyer Damages were the subject claim for breach of representation or warranty pursuant to Section 9.2(a)(ii) shall be reduced by any amount (A) that is reserved for sums held in reserve in respect of the Dispute Noticeindemnifiable event on the balance sheet of the Business as of December 31, if any, 2005 or reflected in the EBITDA Dispute Notice, if any, except statement of Net Working Capital used to determine the extent such Final Net Working Capital Amount or (B) actually received by a Buyer Indemnified Party with respect thereto under any third party insurance coverage or from any other party alleged to be responsible therefor. If a Buyer Indemnified Party makes a claim for indemnification is based upon facts under Sections 9.2(a)(ii) or information of which 9.5, the Buyer did not Indemnified Party shall use its reasonable best efforts to collect any amounts available under such insurance coverage and from such other party alleged to have knowledge as responsibility. If a Buyer Indemnified Party receives an amount under insurance coverage or from such other party with respect to Buyer Damages at any time subsequent to any indemnification provided by Seller pursuant to Sections 9.2(a)(ii) or 9.5, then such Buyer Indemnified Party shall promptly reimburse Seller for any payment made or expense incurred by Seller in connection with providing such indemnification up to such amount received by the Buyer Indemnified Party, but net of any expenses incurred by the Buyer Indemnified Party in collecting such amount. To the extent Seller makes any indemnification payment pursuant to Sections 9.2(a)(ii) or 9.5 in respect of Buyer Damages for which a Buyer Indemnified Party has a right to recover against a third party (including an insurance company), Seller shall be subrogated to the right of the end Buyer Indemnified Party to seek and obtain recovery from such third party; provided, however, that if Seller shall be prohibited from such subrogation, the Buyer Indemnified Party shall seek recovery from such third party on Seller’s behalf and pay any such recovery to Seller net of each of the Review Period and the EBITDA Review Period, respectivelyexpenses; (ivv) Seller shall be obligated to indemnify indemnify, subject to the terms and conditions of this Article IX, a Buyer Indemnitees Indemnified Party for breach of representation or warranty only for those claims giving rise to Buyer Damages Claims as to which the Buyer Indemnitees have Indemnified Party has given the Seller written notice thereof prior to the end of the applicable survival period Indemnity Period; (vi) Any written notice delivered by a Buyer Indemnified Party to Seller seeking indemnification pursuant to this Agreement with respect to Buyer Damages shall set forth, with as provided much specificity as is reasonably practicable, the basis of the Buyer Claim, the sections of this Agreement which form the basis for the Claim, copies of material written materials relating to such Claim and, to the extent reasonably practicable, a reasonable estimate of the amount of the Buyer Damages that have been or may be sustained by the Buyer Indemnified Party; (vii) Any indemnity amounts payable by Seller to or on behalf of the Buyer Indemnified Parties pursuant to this Agreement (including, without limitation, any indemnity payment made under this Article IX) shall be reduced by any Tax Benefit arising from the claim, loss or damage actually received in Section 7.1cash in the current year for which the indemnity is being paid; and (viii) Notwithstanding any other provision of this Agreement, in no event shall Buyer be entitled to indemnification pursuant to this Agreement to the extent of the Buyer Damages attributable to Buyer’s own gross negligence or willful misconduct.