Common use of SELLERS Clause in Contracts

SELLERS. Each of the Sellers is an entity duly organized or incorporated, validly existing and, where applicable, in good standing under the laws of its respective jurisdiction of organization and is duly qualified to conduct business under the laws of each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities, in each case as they relate to the Business, makes such qualification necessary, except for any such failures to be qualified that would not reasonably be expected to result in a Business Material Adverse Effect (as defined below). Each of the Sellers has all requisite corporate or partnership (as applicable) power and authority, where such concepts are applicable, to carry on the business in which it is now engaged and to own and use the properties now owned and used by it. For purposes of this Agreement, “Business Material Adverse Effect” means any change, effect or circumstance that, individually or in the aggregate, is a materially adverse effect on the business, financial condition or results of operations of the Business, taken as a whole; provided, however, that a “Business Material Adverse Effect” shall not include any adverse change, effect or circumstance directly or indirectly resulting from or arising out of (i) actions taken by the Parties in connection with and required by this Agreement or by either Party at the request or with the written consent of the other Party, or the failure to take any action prohibited by this Agreement, (ii) the negotiation, execution, announcement, pendency or performance of this Agreement or the transactions contemplated hereby, the consummation of the transactions contemplated by this Agreement or any communications with a third party by either Party (whether or not intentional) regarding this Agreement or the transactions contemplated hereby, including, in any such case, the impact thereof on relationships, contractual or otherwise, with customers, suppliers, vendors, investors or employees and the identity of Buyer and its Affiliates (it being understood that this clause (ii) shall not apply with respect to the negotiation, execution, announcement, pendency or performance of this Agreement or the transactions contemplated hereby to the extent resulting from an inaccuracy of the representation or warranty contained in Section 2.4 and such representation and warranty addresses the consequences resulting from the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby or the performance of obligations hereunder), (iii) changes in the Business’ industry or in markets generally and not specifically relating to the Business, (iv) changes in economic conditions or financial markets in any country or region or globally, including changes in interest or exchange rates and changes in currency and credit markets, (v) changes in general legal, tax, regulatory, political or business conditions in any country or region, (vi) acts of war, armed hostilities, sabotage or terrorism, or any escalation or worsening of any such acts of war, armed hostilities, sabotage or terrorism threatened or underway as of the date of this Agreement, (vii) any failure by the Business to meet any projections, guidance, estimates, forecasts or milestones for or during any period ending on or after the date hereof, provided that in the case of this clause (vii), the underlying cause of, or facts giving rise or contributing to, such changes or failure may be taken into account in determining whether a Business Material Adverse Effect has occurred if not otherwise excepted from this definition, (viii) earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other natural disasters, weather conditions and other force majeure events in any country or region, (ix) changes in law or other legal or regulatory conditions (or the interpretation thereof) or changes in accounting standards (or the interpretation thereof) or (x) any fees or expenses incurred in connection with the transactions contemplated by this Agreement, except to the extent any such change, effect or circumstance resulting from, arising out of or attributable to the matters described in clauses (iii), (iv), (v), (vi), (viii) and (ix) above has a materially disproportionate adverse effect on the Business, taken as a whole, as compared to other similarly situated companies that conduct business in the countries and regions in the world and in the industries and markets in which the Acquired Companies, PKI and the Asset Sellers conduct the Business (in which case, such change, effect or circumstance shall be taken into account only to the extent it is materially disproportionate when determining whether a Business Material Adverse Effect has occurred or may, would or could, or would reasonably be expected to, occur).

SELLERS. (i) Each Party hereby agrees, on its own behalf and on behalf of its directors, managers, officers, owners, employees and Affiliates and each of their successors and assigns (all such parties, the Sellers is an entity duly organized “Waiving Parties”), that Xxxxxxxx & Xxxxx LLP (or incorporatedany successor thereto) (“K&E”) may represent any RSI Company or any direct or indirect director, validly existing andmanager, where applicableofficer, owner, employee or Affiliate thereof, in good standing under the laws connection with any dispute, claim, Proceeding or Liability arising out of its respective jurisdiction of organization and is duly qualified or relating to conduct business under the laws of each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities, in each case as they relate to the Business, makes such qualification necessary, except for any such failures to be qualified that would not reasonably be expected to result in a Business Material Adverse Effect (as defined below). Each of the Sellers has all requisite corporate or partnership (as applicable) power and authority, where such concepts are applicable, to carry on the business in which it is now engaged and to own and use the properties now owned and used by it. For purposes of this Agreement, “Business Material Adverse Effect” means any change, effect or circumstance that, individually or in the aggregate, is a materially adverse effect on the business, financial condition or results of operations of the Business, taken as a whole; provided, however, that a “Business Material Adverse Effect” shall not include any adverse change, effect or circumstance directly or indirectly resulting from or arising out of (i) actions taken by the Parties in connection with and required by this Agreement or by either Party at the request or with the written consent of the other Party, or the failure to take any action prohibited by this Agreement, (ii) the negotiation, execution, announcement, pendency or performance of this Agreement or the transactions contemplated hereby, the consummation of the transactions contemplated by this Agreement or any communications with a third party by either Party (whether or not intentional) regarding this Agreement or the transactions contemplated hereby, including, in any such case, the impact thereof on relationships, contractual or otherwise, with customers, suppliers, vendors, investors or employees and the identity of Buyer and its Affiliates (it being understood that this clause (ii) shall not apply with respect to the negotiation, execution, announcement, pendency or performance of this Ancillary Agreement or the transactions contemplated hereby to or thereby (any such representation, the extent resulting from an inaccuracy “Company Post-Closing Representation”) notwithstanding its representation (or any continued representation) of the representation or warranty contained in Section 2.4 and such representation and warranty addresses the consequences resulting from the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby or the performance of obligations hereunder), (iii) changes in the Business’ industry or in markets generally and not specifically relating to the Business, (iv) changes in economic conditions or financial markets in any country or region or globally, including changes in interest or exchange rates and changes in currency and credit markets, (v) changes in general legal, tax, regulatory, political or business conditions in any country or region, (vi) acts of war, armed hostilities, sabotage or terrorism, or any escalation or worsening of any such acts of war, armed hostilities, sabotage or terrorism threatened or underway as of the date of this Agreement, (vii) any failure by the Business to meet any projections, guidance, estimates, forecasts or milestones for or during any period ending on or after the date hereof, provided that in the case of this clause (vii), the underlying cause of, or facts giving rise or contributing to, such changes or failure may be taken into account in determining whether a Business Material Adverse Effect has occurred if not otherwise excepted from this definition, (viii) earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other natural disasters, weather conditions and other force majeure events in any country or region, (ix) changes in law or other legal or regulatory conditions (or the interpretation thereof) or changes in accounting standards (or the interpretation thereof) or (x) any fees or expenses incurred RSI Companies in connection with the transactions contemplated by this Agreement, except and each Party on behalf of itself and the Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest or any objection arising therefrom or relating thereto, even though the interests of the Company Post-Closing Representation may be directly adverse to the extent Waiving Parties. (ii) Each of the Sellers, the Buyer, the Sponsor and the Company acknowledges that the foregoing provision applies whether or not K&E provides legal services to the RSI Companies after the Closing Date. Each of the Sellers, the Buyer, the Sponsor and the Company, for itself and the Waiving Parties, hereby irrevocably acknowledges and agrees that all communications among K&E, the RSI Companies and/or any such changedirector, effect manager, officer, owner, employee or circumstance resulting fromrepresentative of any of the foregoing made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute, claim, Proceeding or Liability arising out of or attributable relating to, this Agreement, any Ancillary Agreement or the transactions contemplated hereby or thereby or any matter relating to any of the foregoing, are privileged communications and the attorney-client privilege and the expectation of client confidence belongs solely to the matters described RSI Companies and is exclusively controlled by the RSI Companies and shall not pass to or be claimed by the Sellers, the Sellers’ Representative, Buyer or the Sponsor. From and after the Closing, none of the Buyer, the Sponsor, any Seller or any Person purporting to act on behalf of or through the Buyer, the Sponsor, any Seller or any of the Waiving Parties, will seek to obtain the same by any process. From and after the Closing, each of the Buyer, the Sponsor and the Sellers, on behalf of itself and the Waiving Parties, irrevocably waives and will not assert any attorney-client privilege with respect to any communication among K&E, any RSI Company and/or any director, manager, officer, owner, employee or representative of any of the foregoing occurring prior to the Closing in clauses (iii)connection with any Company Post-Closing Representation. Notwithstanding the foregoing, (iv)in the event that a dispute arises between the Buyer, (v)the Sponsor or any Seller, (vi), (viii) and (ix) above has a materially disproportionate adverse effect on the Businessone hand, taken as and a wholethird party other than an RSI Company, as compared on the other hand, the Buyer, the Sponsor and any Seller may assert the attorney-client privilege to other similarly situated companies prevent disclosure of confidential communications to such third party; provided, however, that conduct business in neither the countries and regions in Buyer nor the world and in Sponsor nor any Seller may waive such privilege without the industries and markets in which the Acquired Companies, PKI and the Asset Sellers conduct the Business (in which case, such change, effect or circumstance shall be taken into account only to the extent it is materially disproportionate when determining whether a Business Material Adverse Effect has occurred or may, would or could, or would reasonably be expected to, occur)prior written consent of an RSI Company.

SELLERS. Each General Partner's and Xxxxxxx'x Indemnity. Seller, General Partner and Xxxxxxx agree to pay on behalf of, indemnify fully, hold harmless and defend Buffton, Cabo, and their officers, directors, and employees (collectively the "Indemnified Parties"), from and against all demands, claims, actions or causes of action, assessments, losses, damages, costs and other liabilities including without limitation reasonable attorneys' and accountants' fees, expenses, court costs, and all other out-of-pocket expenses (collectively "Losses"), asserted against or incurred by the Sellers is an entity duly organized or incorporated, validly existing and, where applicable, in good standing under the laws of its respective jurisdiction of organization and is duly qualified to conduct business under the laws of each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities, in each case as they relate to the Business, makes such qualification necessary, except for any such failures to be qualified that would not reasonably be expected to result in a Business Material Adverse Effect (as defined below). Each of the Sellers has all requisite corporate or partnership (as applicable) power and authority, where such concepts are applicable, to carry on the business in which it is now engaged and to own and use the properties now owned and used by it. For purposes of this Agreement, “Business Material Adverse Effect” means any change, effect or circumstance that, individually or in the aggregate, is a materially adverse effect on the business, financial condition or results of operations of the Business, taken as a whole; provided, however, that a “Business Material Adverse Effect” shall not include any adverse change, effect or circumstance Indemnified Parties directly or indirectly resulting from arising out of or in any way connected to any of the following: A. The breach of any warranty or the inaccuracy of any representation of Seller, General Partner or Xxxxxxx contained herein; B. Any breach or failure by Seller, General Partner or Xxxxxxx to perform any of the covenants, agreements or obligations under this Agreement or any other agreement or instrument executed and delivered by or on behalf of Seller, General Partner or Xxxxxxx in connection herewith except the Area Development Agreement, any Unit Franchise Agreement, or any Consulting Agreement all by and between Xxxxxxx and Cabo; C. The assertion by any third party against Buffton or Cabo of any claim, liability or obligation, not specifically assumed by Buffton under this Agreement or any other agreement or instrument executed and delivered by or on behalf of Buffton or Cabo in connection herewith, relating to or arising out of (i) actions taken by the Parties in connection with and required by this Agreement business, operations, or by either Party at the request assets of Seller, General Partner or with the written consent Xxxxxxx or Seller's Business, whether known or unknown, accrued, contingent or otherwise as of the other PartyClosing, or the failure any judgment, orders, decrees, claims, actions, suits or proceedings related to take any action prohibited by this AgreementSeller, (ii) the negotiationGeneral Partner, executionXxxxxxx or Seller's Business, announcement, pendency arising out of events occurring or performance of this Agreement or the transactions contemplated hereby, the consummation of the transactions contemplated by this Agreement or any communications with a third party by either Party (whether or not intentional) regarding this Agreement or the transactions contemplated hereby, including, in any such case, the impact thereof on relationships, contractual or otherwise, with customers, suppliers, vendors, investors or employees and the identity of Buyer and its Affiliates (it being understood that this clause (ii) shall not apply with respect to the negotiation, execution, announcement, pendency or performance operation of this Agreement or the transactions contemplated hereby Seller's Business prior to the extent resulting from an inaccuracy of the representation or warranty contained in Section 2.4 and such representation and warranty addresses the consequences resulting from the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby or the performance of obligations hereunder), (iii) changes in the Business’ industry or in markets generally and not specifically relating to the Business, (iv) changes in economic conditions or financial markets in any country or region or globally, including changes in interest or exchange rates and changes in currency and credit markets, (v) changes in general legal, tax, regulatory, political or business conditions in any country or region, (vi) acts of war, armed hostilities, sabotage or terrorism, or any escalation or worsening of any such acts of war, armed hostilities, sabotage or terrorism threatened or underway as of the date of this Agreement, (vii) any failure by the Business to meet any projections, guidance, estimates, forecasts or milestones for or during any period ending on or after the date hereof, provided that in the case of this clause (vii), the underlying cause of, or facts giving rise or contributing to, such changes or failure may be taken into account in determining whether a Business Material Adverse Effect has occurred if not otherwise excepted from this definition, (viii) earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other natural disasters, weather conditions and other force majeure events in any country or region, (ix) changes in law or other legal or regulatory conditions (or the interpretation thereof) or changes in accounting standards (or the interpretation thereof) or (x) any fees or expenses incurred in connection with the transactions contemplated by this Agreement, except to the extent any such change, effect or circumstance resulting from, arising out of or attributable to the matters described in clauses (iii), (iv), (v), (vi), (viii) and (ix) above has a materially disproportionate adverse effect on the Business, taken as a whole, as compared to other similarly situated companies that conduct business in the countries and regions in the world and in the industries and markets in which the Acquired Companies, PKI and the Asset Sellers conduct the Business (in which case, such change, effect or circumstance shall be taken into account only to the extent it is materially disproportionate when determining whether a Business Material Adverse Effect has occurred or may, would or could, or would reasonably be expected to, occur)Closing.

SELLERS. Each (a) The Sellers, jointly and severally to the extent provided in Section 10.2(a), shall indemnify, defend, and hold harmless Buyer from and against any and all demands, claims, actions or causes of action, judgments, assessments, losses, liabilities, damages, or penalties and reasonable attorneys’ fees and related disbursements (collectively, “Claims”) incurred by Buyer or the Company which arise out of or result from (i) any misrepresentation, breach of warranty, or breach or non-fulfillment of any covenant of the Sellers is an entity duly organized or incorporatedSellers, validly existing andSeller Shareholders and/or the Company, where applicablethe Employees, in good standing under the laws of its respective jurisdiction of organization and is duly qualified to conduct business under the laws of each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities, in each case as they relate to the Business, makes such qualification necessary, except for any such failures to be qualified that would not reasonably be expected to result in a Business Material Adverse Effect (as defined below). Each of the Sellers has all requisite corporate or partnership (as applicable) power and authority, where such concepts are applicable, to carry on the business in which it is now engaged and to own and use the properties now owned and used by it. For purposes of this Agreement, “Business Material Adverse Effect” means any change, effect or circumstance that, individually Key Employees contained herein or in the aggregate, is a materially adverse effect on the business, financial condition Schedules or results of operations of the Business, taken as a whole; provided, however, that a “Business Material Adverse Effect” shall not include Exhibits annexed hereto or in any adverse change, effect other documents or circumstance directly instruments furnished or indirectly resulting from or arising out of (i) actions taken to be furnished by the Parties in connection with and required by this Agreement or by either Party at Sellers, the request or with Company, the written consent of the other PartyEmployees, or the failure to take any action prohibited by this Agreement, (ii) the negotiation, execution, announcement, pendency Key Employees pursuant hereto or performance of this Agreement or the transactions contemplated hereby, the consummation of the transactions contemplated by this Agreement or any communications with a third party by either Party (whether or not intentional) regarding this Agreement or the transactions contemplated hereby, including, in any such case, the impact thereof on relationships, contractual or otherwise, with customers, suppliers, vendors, investors or employees and the identity of Buyer and its Affiliates (it being understood that this clause (ii) shall not apply with respect to the negotiation, execution, announcement, pendency or performance of this Agreement or the transactions contemplated hereby to the extent resulting from an inaccuracy of the representation or warranty contained in Section 2.4 and such representation and warranty addresses the consequences resulting from the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby or the performance of obligations hereunder), (iii) changes in the Business’ industry or in markets generally and not specifically relating to the Business, (iv) changes in economic conditions or financial markets in any country or region or globally, including changes in interest or exchange rates and changes in currency and credit markets, (v) changes in general legal, tax, regulatory, political or business conditions in any country or region, (vi) acts of war, armed hostilities, sabotage or terrorism, or any escalation or worsening of any such acts of war, armed hostilities, sabotage or terrorism threatened or underway as of the date of this Agreement, (vii) any failure by the Business to meet any projections, guidance, estimates, forecasts or milestones for or during any period ending on or after the date hereof, provided that in the case of this clause (vii), the underlying cause of, or facts giving rise or contributing to, such changes or failure may be taken into account in determining whether a Business Material Adverse Effect has occurred if not otherwise excepted from this definition, (viii) earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other natural disasters, weather conditions and other force majeure events in any country or region, (ix) changes in law or other legal or regulatory conditions (or the interpretation thereof) or changes in accounting standards (or the interpretation thereof) or (x) any fees or expenses incurred in connection with the transactions contemplated hereby or thereby, whether asserted by this AgreementBuyer or the Company in its own right or asserted against Buyer or the Company by any third-party, except to the extent or any allegation which, if true, would constitute a misrepresentation or breach or non-fulfillment of any such changecovenant of Sellers, effect the Company, the Employees, or circumstance resulting from, the Key Employees (ii) any claims of any Seller or third-parties arising out of or attributable relating to the matters described in clauses ownership of the Company or operation of the Business by Sellers prior to the Closing, (iii)) any claim made by a lender or any creditor of Company or any Seller against Buyer, including any claim that arises from the non-payment by Company’s customers, termination of contracts with Company’s customer, or termination of the business, (iv)) any breach of any non-competition or non-disclosure obligations of Sellers, the Company, Employees, or Key Employees hereunder or in the Schedules annexed hereto or in any other documents or instruments furnished or to be furnished by the Sellers, Company, Employees, or Key Employees, (v)) any liabilities of Company arising out of or relating to the ownership of the Company or operation of the Business by Sellers prior to the Closing, whether accrued, absolute, contingent, or otherwise, (vi) any claim made against the Buyer arising out of the contracts set forth in Sections 6.16 and 6.20 (with respect to products or services provided prior to the Closing) (vii) any claim made against the Company arising out of the contracts set forth in Sections 6.16 and 6.20 (with respect to products or services provided prior to the Closing), (viii) and any liabilities of the Company arising out of the claims set forth in Schedule5(ii), including any costs incurred by the Company in its defense or otherwise pertaining to such litigation, (vii) any claims made by any lender, creditor, shareholder, customer or any other person or entity in relation to the merger of Winsoft Inc. with the Company pursuant to the certificate of merger filed on April 2, 2001, (ix) above has a materially disproportionate adverse effect on the Businessany claims made by any lender, taken creditor or customer in relation to Bayberry Company, (x) any liabilities as a wholeresult of any tax issues set forth in Schedule 5(v), (xi) the amount of any claims or security interests held by creditors or lenders in relation to any of the Assets, (xii) any charge back on any credit cards for amounts collected by the Company prior to the Closing, (xiii) any amounts by which payments received by the Company under the contract contained in Schedule 6.27 are less than those due and owing the Company under such contract for the term of such contract, as compared well as any breach of the warranty set forth in Section 6.27, (xiv) any Tax liability, including any penalties, interest or preparation fees, as a result of the failure of the Sellers to other similarly situated companies that conduct business in properly and accurately prepare and file the countries tax returns, or pay any taxes thereto, required under Section 8.22, (xv) any liability as a result of distributions made pursuant to Section 6.28, and regions in (xvi) any Tax liability resulting from the world distribution of Acquisition Shares pursuant to Schedule 3.1(ii). (b) The Sellers, jointly and in the industries and markets in which the Acquired Companies, PKI and the Asset Sellers conduct the Business (in which case, such change, effect or circumstance shall be taken into account only severally to the extent it provided in Section 10.2(a), shall indemnify the Buyer if a termination by the Company for cause or by the employee for whatever reason occurs under the Employment Agreements between Buyer, Company and each of Gxxx Xxxxxx and Rxxxx Xxxxx (Exhibits A and B respectively), during the Employment Period, as that term is materially disproportionate when determining whether a Business Material Adverse Effect has occurred or maydefined in such Employment Agreements. The Sellers acknowledge that such Employment Agreements are an essential part of this Agreement and that the termination of employment thereunder during the Employment Period would seriously damage the Buyer. Therefore the Sellers agree and acknowledge that the value of the indemnification under this Section 10.1(b) shall be the amount by which the revenues of the Company for Fiscal Years 2005, would or could, or would reasonably 2006 and 2007 are each less than the revenues of the Company for Fiscal Year 2004 as set forth in Schedule 6.2(a). Any indemnification amounts due and payable under this Section 10.1 (b) shall be expected to, occurreduced by any indemnification payments received by Buyer pursuant to the indemnity provision in Section 10.1(a)(xiii). (c) Notwithstanding the terms of this Section 10.1, the shall not be liable to Buyer for the first $50,000 in aggregate claims sustained by Buyer arising out of the provisions of this Section 10.1. (d) The indemnification provided in this Section 10.1 shall be the exclusive remedy of the Buyer against the Sellers for all matters described herein, and the exclusive remedy for any related claim the Company may have against any of the Sellers for any such matter, and the Sellers shall have no other liability, at law or in equity, to the Buyer or the Company for any such matter.

SELLERS. Each After the Closing, Sellers, jointly and severally, shall indemnify, defend and hold harmless Buyer and Company from and against any and all demands, claims, actions or causes of the Sellers is an entity duly organized action, judgments, assessments, losses, liabilities, damages, penalties, fines, forfeitures, taxes, interest and other charges and impositions and reasonable attorneys' fees and related disbursements (collectively, “Claims”) asserted against, imposed upon or incorporated, validly existing and, where applicable, in good standing under the laws of its respective jurisdiction of organization and is duly qualified to conduct business under the laws of each jurisdiction where the character of the properties owned, leased incurred by Buyer or operated by it Company (A) which Buyer or the nature of its activities, in each case as they relate to the Business, makes such qualification necessary, except for any such failures to be qualified that Company would not reasonably be expected to result in a Business Material Adverse Effect (as defined below). Each of the Sellers has all requisite corporate have suffered or partnership (as applicable) power and authority, where such concepts are applicable, to carry on the business in which it is now engaged and to own and use the properties now owned and used by it. For purposes of this Agreement, “Business Material Adverse Effect” means any change, effect or circumstance that, individually or in the aggregate, is a materially adverse effect on the business, financial condition or results of operations of the Business, taken as a whole; provided, however, that a “Business Material Adverse Effect” shall not include any adverse change, effect or circumstance directly or indirectly resulting from or arising out of incurred if (i) actions taken all of the representations and warranties of Sellers contained herein, in the Schedules or in any ancillary certificates (including, without limitation, the Liability Certificate) or other documents, agreements or instruments furnished by the Parties Sellers pursuant hereto or in connection with and required by this Agreement or by either Party at the request or with the written consent of the other Party, or the failure to take any action prohibited by this Agreement, (ii) the negotiation, execution, announcement, pendency or performance of this Agreement or the transactions contemplated hereby, the consummation of the transactions contemplated by this Agreement or any communications with a third party by either Party (whether or not intentional) regarding this Agreement or the transactions contemplated hereby, including, in any such case, the impact thereof on relationships, contractual or otherwise, with customers, suppliers, vendors, investors or employees and the identity of Buyer and its Affiliates (it being understood that this clause (ii) shall not apply with respect to the negotiation, execution, announcement, pendency or performance of this Agreement or the transactions contemplated hereby to the extent resulting from an inaccuracy of the representation or warranty contained in Section 2.4 and such representation and warranty addresses the consequences resulting from the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby or any exhibit or schedule thereto had been true, correct and complete on the performance Closing Date or (ii) Sellers had timely performed all of their obligations hereunder)and liabilities under this Agreement or if all of the conditions contained in Section 2.2.1 had been timely fulfilled or (B) which arise out of, relate to, are based on or result from (i) conditions or states of facts to the extent not disclosed herein or in the Schedules which existed or came into existence or events which occurred prior to the Closing out of which liabilities or obligations accrue thereafter under any of the Company Agreements; or (ii) the ownership or maintenance or condition of the Property, the operation or condition of the Business, the terms or conditions of the employment of any persons in the Business or compliance with any federal, state or local laws, rules, regulations or other requirements of any governmental or industry standard-setting body, court or agency prior to the Closing notwithstanding that the date of the levying or assertion of any such Claim may be subsequent to the Closing and notwithstanding that the existence thereof or the facts or conditions causing the same may not breach any of the representations or warranties of Sellers contained herein; or (iii) changes the conduct of the Business or ownership of the Property by Company prior to the Closing to the extent not disclosed herein or in the Business’ industry Schedules; or in markets generally and not specifically relating to the Business, (iv) changes in economic conditions or financial markets in any country or region or globally, including changes in interest or exchange rates and changes in currency and credit markets, (v) changes in general legal, tax, regulatory, political or business conditions in any country or region, (vi) acts of war, armed hostilities, sabotage or terrorism, or any escalation or worsening of any such acts of war, armed hostilities, sabotage or terrorism threatened or underway as of the date of this Agreement, (vii) any failure by the Business to meet any projections, guidance, estimates, forecasts or milestones for or during any period ending on or after the date hereof, provided that in the case of this clause (vii), the underlying cause of, or facts giving rise or contributing to, such changes or failure may be taken into account in determining whether a Business Material Adverse Effect has occurred if not otherwise excepted from this definition, (viii) earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other natural disasters, weather conditions and other force majeure events in any country or region, (ix) changes in law or other legal or regulatory conditions (or the interpretation thereof) or changes in accounting standards (or the interpretation thereof) or (x) any fees or expenses incurred in connection with the transactions contemplated by this Agreement, except to the extent a Required Consent is not timely obtained in accordance with Section 2.2.1.1 the failure to obtain such Required Consent. With respect to those representations or warranties contained herein that are limited to matters of which any Seller has knowledge or is aware, Sellers shall indemnify Buyer and Company hereunder whether or not any Seller had such changeknowledge or awareness. With respect to those representations or warranties contained herein that are qualified by “material” or “materially” or the like, effect Sellers shall indemnify Buyer hereunder as if such representations or circumstance resulting from, arising out warranties were not so qualified. The extent of or attributable Sellers’ joint and several liability under this Paragraph 6.2 is expressly limited to the matters described in clauses (iii), (iv), (v), (vi), (viii) and (ix) above has a materially disproportionate adverse effect on the Business, taken additional 666,667 Buyer Shares as a whole, as compared to other similarly situated companies that conduct business in the countries and regions in the world and in the industries and markets in which the Acquired Companies, PKI and the Asset Sellers conduct the Business (in which case, such change, effect or circumstance shall be taken into account only to the extent it is materially disproportionate when determining whether a Business Material Adverse Effect has occurred or may, would or could, or would reasonably be expected referred to, occur)and as defined in Paragraph 1.2.2, namely the $500,000.00 amount contemplated within Paragraph 1(a) of the Letter of Intent.

SELLERS. Each PKI and each of the other Sellers is an entity duly organized or incorporated, validly existing and, where applicable, in good standing (if applicable in the relevant jurisdiction) under the laws Laws of its respective jurisdiction of organization and is duly qualified to conduct business under the laws Laws of each jurisdiction where the character of the properties properties, rights and assets owned, leased or operated by it or the nature of its activities, in each case as they relate to the Business, makes such qualification necessary, except for any such failures to be qualified that would not reasonably be expected to result in be material to the Business, taken as a Business Material Adverse Effect (as defined below)whole. Each PKI and each of the other Sellers has all requisite corporate (or partnership (as applicableequivalent) power and authority, where such concepts are applicable, authority to carry on the business in which it is now engaged and to own and use the properties properties, rights and assets now owned and used by it. For purposes of this Agreement, “Business Material Adverse Effect” means any change, event, effect or circumstance that, individually or in the aggregate, is has had or would reasonably be expected to have a materially material adverse effect on the business, financial condition or results of operations of the Business, taken as a whole; provided, however, that that, a “Business Material Adverse Effect” shall not include any adverse change, event, effect or circumstance to the extent directly or indirectly resulting from or arising out of (i) actions taken by the Parties in connection with and which are expressly required by under this Agreement (including the Pre-Closing Transactions) (other than the obligations set forth in Section 4.3 clauses (i) through (viii)) or by either Party at the express written request or with the written consent of the other Party, or the failure to take any action prohibited by this AgreementBuyer, (ii) the negotiation, execution, announcement, pendency or performance of the Original Agreement, this Agreement or the transactions contemplated hereby, the consummation of the transactions contemplated by this the Original Agreement or any communications with a third party by either Party (whether or not intentional) regarding this Agreement or the transactions contemplated herebyAgreement, including, in any such case, the impact thereof on relationships, contractual or otherwise, of the Business with its customers, suppliers, vendors, investors or employees and the identity of Buyer and its Affiliates (it being understood provided that no effect shall be given to this clause (ii) shall not apply for purposes of the representations or warranties set forth in Section 2.4 or the closing condition with respect to the negotiation, execution, announcement, pendency or performance accuracy of this Agreement or the transactions contemplated hereby to the extent resulting from an inaccuracy of the representation or warranty contained in Section 2.4 and such representation and warranty addresses the consequences resulting from the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby or the performance of obligations hereunder2.4), (iii) changes in the Business’ industry or in markets generally and not specifically relating to the Businessgenerally, (iv) general changes in economic conditions or financial markets in any country or region or globally, including changes in interest or exchange rates and changes in currency and credit markets, (v) changes in general legal, tax, regulatory, regulatory or political or business conditions in any country or region, (vi) acts of war, armed hostilities, sabotage or terrorism, or any escalation or worsening of any such acts of war, armed hostilities, sabotage or terrorism threatened or underway as of the date of this AgreementOriginal Execution Date, (vii) any failure by the Business to meet any projections, guidance, estimates, forecasts or milestones for or during any period ending on or after the date hereof, (provided that in the case underlying causes of such failures (subject to the other provisions of this clause (viidefinition) shall not be excluded), the underlying cause of, or facts giving rise or contributing to, such changes or failure may be taken into account in determining whether a Business Material Adverse Effect has occurred if not otherwise excepted from this definition, (viii) earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other natural disasters, weather conditions conditions, epidemics, pandemics or disease outbreaks (including SARS-CoV-2 or the COVID-19 virus and any evolutions or mutations thereof (“COVID-19”), or any quarantine, “shelter in place,” “stay at home,” workforce reduction, social distancing, shut down, closure, sequester or any other Law, regulation, rule, order or directive of any Governmental Entity in connection with or in response to COVID-19, including the Coronavirus Aid, Relief, and Economic Security Act (“COVID-19 Measures”) or any action or inaction, including the establishment of any policy, procedure or protocol, by PKI, any Seller or any of their respective subsidiaries that PKI, any Seller or any of their respective subsidiaries reasonably determines is necessary, advisable or prudent in connection with (x) ensuring compliance by PKI, any Seller or any of their respective subsidiaries with COVID-19 Measures applicable to any of them and/or (y) in respect of COVID-19, protecting the health and safety of employees or other persons with whom PKI, any Seller or any of their respective subsidiaries and their personnel come into contact with during the course of business operations (“COVID-19 Responses”) and other force majeure events in any country or region, and (ix) changes after the Original Execution Date in law or other legal or regulatory conditions Law (or the interpretation thereof) or changes after the Original Execution Date in accounting standards (or the interpretation thereof) or (x) any fees or expenses incurred in connection with the transactions contemplated by this Agreement), except to the extent any such change, effect or circumstance resulting from, arising out of or attributable to the matters described in clauses (iii), (iv), (v), (vi), (viii) and (ix) above has a materially disproportionate adverse effect on the Business, taken as a whole, as compared to other similarly situated companies that conduct business in the countries Business’ industry and regions in the world and in the industries and markets geographies in which the Acquired Companies, PKI and the Asset Sellers conduct the Business operates (in which case, such change, effect or circumstance shall be taken into account only to the extent it is materially disproportionate when determining whether a Business Material Adverse Effect has occurred or may, would or could, or would reasonably be expected to, could occur).

SELLERS. (a) Each Seller hereby irrevocably appoints Xxxxxx X. Xxxxxxxx as the designated representative of such Seller (the “Seller Representative”). The Seller Representative shall, for each Seller, have the right, power and authority to take all actions required or permitted under the Escrow Agreement and this Agreement with respect to the interests and rights of the Sellers is an entity duly organized or incorporatedincluding, validly existing and, where applicable, in good standing under the laws of its respective jurisdiction of organization and is duly qualified to conduct business under the laws of each jurisdiction where the character exercise of the properties owned, leased or operated by it or the nature of its activities, in each case as they relate power to the Business, makes such qualification necessary, except for any such failures to be qualified that would not reasonably be expected to result in a Business Material Adverse Effect (as defined below). Each of the Sellers has all requisite corporate or partnership (as applicable) power and authority, where such concepts are applicable, to carry on the business in which it is now engaged and to own and use the properties now owned and used by it. For purposes of this Agreement, “Business Material Adverse Effect” means any change, effect or circumstance that, individually or in the aggregate, is a materially adverse effect on the business, financial condition or results of operations of the Business, taken as a whole; provided, however, that a “Business Material Adverse Effect” shall not include any adverse change, effect or circumstance directly or indirectly resulting from or arising out of (i) actions taken authorize the delivery of cash from the Escrow Account to Parent or to a Parent Indemnified Party in satisfaction of claims by the Parties in connection with and required by this Agreement or by either Party at the request or with the written consent of the other a Parent Indemnified Party, or the failure to take any action prohibited by this Agreement, (ii) the negotiationagree to, executionnegotiate, announcemententer into settlements and compromises of, pendency or performance and comply with orders of this Agreement or the transactions contemplated hereby, the consummation of the transactions contemplated by this Agreement or any communications with a third party by either Party (whether or not intentional) regarding this Agreement or the transactions contemplated hereby, including, in any such case, the impact thereof on relationships, contractual or otherwise, with customers, suppliers, vendors, investors or employees and the identity of Buyer and its Affiliates (it being understood that this clause (ii) shall not apply courts with respect to the negotiation, execution, announcement, pendency or performance of this Agreement or the transactions contemplated hereby to the extent resulting from an inaccuracy of the representation or warranty contained in Section 2.4 and such representation and warranty addresses the consequences resulting from the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby or the performance of obligations hereunder)any claims for indemnification, (iii) changes take all actions necessary in the Business’ industry or in markets generally and not specifically relating to judgment of Xxxxxx Xxxxxxxx for the Businessaccomplishment of the foregoing, (iv) changes in economic conditions or financial markets in any country or region or globallyexecute, including changes in interest or exchange rates deliver and changes in currency receive delivery of all amendments, waivers, ancillary agreements, notices, extensions, certificates and credit marketsother documents relating to the Transactions, and (v) changes interpret the terms and provisions of this Agreement and all documents to be executed and delivered in general legalconnection herewith on behalf of the Sellers. For the avoidance of doubt, tax, regulatory, political or business conditions in any country or region, (vi) acts of war, armed hostilities, sabotage or terrorism, or any escalation or worsening delivery of any such acts of warnotice, armed hostilities, sabotage or terrorism threatened or underway as of the date of this Agreement, (vii) any failure by the Business to meet any projections, guidance, estimates, forecasts or milestones for or during any period ending on or after the date hereof, provided that in the case of this clause (vii), the underlying cause of, or facts giving rise or contributing to, such changes or failure may be taken into account in determining whether a Business Material Adverse Effect has occurred if not otherwise excepted from this definition, (viii) earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires certificate or other natural disasters, weather conditions and other force majeure events in any country writing to the Seller Representative under this Agreement or region, (ix) changes in law or other legal or regulatory conditions (or the interpretation thereof) or changes in accounting standards (or the interpretation thereof) or (x) any fees or expenses incurred in connection with the transactions contemplated by this Agreement, except Transactions shall be deemed delivered to the extent Sellers collectively. If the Seller Representative shall resign or become deceased or otherwise be unable to fulfill his responsibilities as representative of the Sellers, the Sellers shall, within ten (10) business days after the occurrence of such event, appoint (by vote of Sellers holding a majority of the Interests immediately prior to the Closing) a successor representative and, promptly thereafter, shall notify Parent of the identity of such successor. Any such successor shall become the “Seller Representative” upon such appointment. (b) A decision, act, consent or instruction of the Seller Representative shall constitute a decision for all of the Sellers, and shall be final, binding and conclusive upon each Seller, and the Escrow Agent and Parent may rely exclusively upon any such changedecision, effect act, consent or circumstance resulting frominstruction of the Seller Representative as being the decision, arising out act, consent or instruction of each Seller. The Escrow Agent and Parent are hereby relieved from any Liability hereunder to any Person for any acts done by them in accordance with such decision, act, consent or attributable to the matters described in clauses (iii), (iv), (v), (vi), (viii) and (ix) above has a materially disproportionate adverse effect on the Business, taken as a whole, as compared to other similarly situated companies that conduct business in the countries and regions in the world and in the industries and markets in which the Acquired Companies, PKI and the Asset Sellers conduct the Business (in which case, such change, effect or circumstance shall be taken into account only to the extent it is materially disproportionate when determining whether a Business Material Adverse Effect has occurred or may, would or could, or would reasonably be expected to, occur)instruction of Seller Representative.

SELLERS. (i) Each Party hereby agrees, on its own behalf and on behalf of its directors, managers, officers, owners, employees and Affiliates (including the Sponsor) and each of their successors and assigns (all such parties, the “Waiving Parties”), that Cozen X’Xxxxxx (or any successor thereto) (“Cozen”) may represent Sellers is an entity duly organized or incorporatedany direct or indirect director, validly existing andmanager, where applicableofficer, owner, employee or Affiliate thereof or of any Xxx Company, in good standing under the laws connection with any dispute, claim, Proceeding or Liability arising out of its respective jurisdiction of organization and is duly qualified or relating to conduct business under the laws of each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities, in each case as they relate to the Business, makes such qualification necessary, except for any such failures to be qualified that would not reasonably be expected to result in a Business Material Adverse Effect (as defined below). Each of the Sellers has all requisite corporate or partnership (as applicable) power and authority, where such concepts are applicable, to carry on the business in which it is now engaged and to own and use the properties now owned and used by it. For purposes of this Agreement, “Business Material Adverse Effect” means any change, effect or circumstance that, individually or in the aggregate, is a materially adverse effect on the business, financial condition or results of operations of the Business, taken as a whole; provided, however, that a “Business Material Adverse Effect” shall not include any adverse change, effect or circumstance directly or indirectly resulting from or arising out of (i) actions taken by the Parties in connection with and required by this Agreement or by either Party at the request or with the written consent of the other Party, or the failure to take any action prohibited by this Agreement, (ii) the negotiation, execution, announcement, pendency or performance of this Agreement or the transactions contemplated hereby, the consummation of the transactions contemplated by this Agreement or any communications with a third party by either Party (whether or not intentional) regarding this Agreement or the transactions contemplated hereby, including, in any such case, the impact thereof on relationships, contractual or otherwise, with customers, suppliers, vendors, investors or employees and the identity of Buyer and its Affiliates (it being understood that this clause (ii) shall not apply with respect to the negotiation, execution, announcement, pendency or performance of this Ancillary Agreement or the transactions contemplated hereby to or thereby (any such representation, the extent resulting from an inaccuracy “Seller Post-Closing Representation”) notwithstanding its representation (or any continued representation) of the representation or warranty contained in Section 2.4 Sellers and such representation and warranty addresses the consequences resulting from the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby or the performance of obligations hereunder), (iii) changes in the Business’ industry or in markets generally and not specifically relating to the Business, (iv) changes in economic conditions or financial markets in any country or region or globally, including changes in interest or exchange rates and changes in currency and credit markets, (v) changes in general legal, tax, regulatory, political or business conditions in any country or region, (vi) acts of war, armed hostilities, sabotage or terrorism, or any escalation or worsening of any such acts of war, armed hostilities, sabotage or terrorism threatened or underway as of the date of this Agreement, (vii) any failure by the Business to meet any projections, guidance, estimates, forecasts or milestones for or during any period ending on or after the date hereof, provided that in the case of this clause (vii), the underlying cause of, or facts giving rise or contributing to, such changes or failure may be taken into account in determining whether a Business Material Adverse Effect has occurred if not otherwise excepted from this definition, (viii) earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other natural disasters, weather conditions and other force majeure events in any country or region, (ix) changes in law or other legal or regulatory conditions (or the interpretation thereof) or changes in accounting standards (or the interpretation thereof) or (x) any fees or expenses incurred Utz Companies in connection with the transactions contemplated by this Agreement, except and each of the Buyer and the Company on behalf of itself and the Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest or any objection arising therefrom or relating thereto, even though the interests of the Seller Post-Closing Representation may be directly adverse to the extent Waiving Parties. (ii) Each of the Buyer and the Company acknowledges that the foregoing provision applies whether or not Cozen provides legal services to the Utz Companies after the Closing Date. Each of the Buyer and the Company, for itself and the Waiving Parties, hereby irrevocably acknowledges and agrees that all communications among Cozen, the Utz Companies, Sellers and/or any such changedirector, effect manager, officer, owner, employee or circumstance resulting fromrepresentative of any of the foregoing made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute, claim, Proceeding or Liability arising out of or attributable relating to, this Agreement, any Ancillary Agreement or the transactions contemplated hereby or thereby or any matter relating to any of the foregoing, are privileged communications and the attorney-client privilege and the expectation of client confidence belongs solely to Sellers and is exclusively controlled by Sellers and shall not pass to or be claimed by Buyer, the Sponsor or any of the Utz Companies. From and after the Closing, none of the Buyer, the Sponsor, any Xxx Company or any Person purporting to act on behalf of or through the Buyer, the Sponsor, any Xxx Company or any of the Waiving Parties, will seek to obtain the same by any process. From and after the Closing, each of the Buyer and the Company, on behalf of itself and the Waiving Parties, irrevocably waives and will not assert any attorney-client privilege with respect to any communication among Cozen, any Xxx Company, Sellers and/or any director, manager, officer, owner, employee or representative of any of the foregoing occurring prior to the matters described Closing in clauses (iii)connection with any Seller Post-Closing Representation. Notwithstanding the foregoing, (iv)in the event that a dispute arises between the Buyer, (v)the Sponsor or any Xxx Company, (vi), (viii) and (ix) above has a materially disproportionate adverse effect on the Businessone hand, taken as and a wholethird party other than Sellers, as compared on the other hand, the Buyer, the Sponsor and any Xxx Company may assert the attorney-client privilege to other similarly situated companies prevent disclosure of confidential communications to such third party; provided, however, that conduct business in neither the countries and regions in Buyer nor the world and in Sponsor nor any Xxx Company may waive such privilege without the industries and markets in which the Acquired Companies, PKI and the Asset Sellers conduct the Business (in which case, such change, effect or circumstance shall be taken into account only to the extent it is materially disproportionate when determining whether a Business Material Adverse Effect has occurred or may, would or could, or would reasonably be expected to, occur)prior written consent of Sellers.