Common use of Indemnification by Acquiror Clause in Contracts

Indemnification by Acquiror. (a) From and after the Closing, Acquiror will indemnify Seller, its Affiliates and their respective officers and directors (the “Seller Indemnified Parties”) against any Losses suffered by any of them as a result of any (a) breach of any representation or warranty set forth in Article IV (determined without regard to Section 4.9(c) in its entirety and without giving effect to any “Acquiror Material Adverse Effect”, “material” or other materiality qualification, limitation or exception contained therein other than those in Section 4.7, Section 4.8(b) and Section 4.12), (b) failure of any representation or warranty set forth in Article IV to be true and correct as of and as though made on the Closing Date (other than any representation and warranty that is expressly made as of a specified date) (determined without regard to Section 4.9(c) in its entirety and without giving effect to any “Acquiror Material Adverse Effect”, “material” or other materiality qualification, limitation or exception contained therein other than those in Section 4.7, Section 4.8(b) and Section 4.12) (each such breach or failure under clause (a) or (b), an “Acquiror Warranty Breach”), (c) breach of covenant or agreement of Acquiror pursuant to this Agreement or (d) in the event the Acquiror Restructuring is not completed prior the Closing Date in accordance with Section 5.14, (i) the excess of (A) the Tax Liability of Seller with respect to its sale of the Membership Interests pursuant to this Agreement over (B) the Tax Liability the Seller would have had if the Acquiror Restructuring had been completed prior to the Closing Date, (ii) the quotient of (A) any amount distributed to Seller in respect of its Equity Consideration divided by (B) one minus the combined federal and state statutory marginal income tax rate imposed with respect to the earnings of the issuer of the Equity Consideration and its subsidiaries and (iii) in the event Seller subsequently disposes of the Equity Consideration, the excess of (A) the proceeds Seller would have received in such disposition had the Acquiror Restructuring occurred prior to the Closing Date over (B) the proceeds actually received by Seller in such disposition. Seller Indemnified Parties may assert any claim for indemnification against Acquiror in respect of any representation, warranty or covenant only until the last date on which such representation, warranty or covenant survives as provided in Section 7.1. (b) Acquiror’s obligation to indemnify the Seller Indemnified Parties as provided in this Section 7.3 shall be subject to the following limitations: (i) Acquiror shall not be obligated (A) to indemnify against any Losses resulting from any individual Acquiror Warranty Breach of the Acquiror Business Representations that does not exceed the De Minimis Amount or (B) to indemnify against any Losses for individual Acquiror Warranty Breaches of the Acquiror Business Representations in excess of the De Minimis Amount unless and until the aggregate amount of Losses resulting from such Acquiror Warranty Breaches of the Acquiror Business Representations exceeds $525,000 (the “Acquiror Basket”), and then shall be liable only to the extent the aggregate amount of Losses resulting from such Acquiror Warranty Breaches of the Acquiror Business Representations exceeds the Acquiror Basket; (ii) Acquiror shall not be obligated to indemnify against any Losses resulting from Acquiror Warranty Breaches of the Acquiror Business Representations in excess of the De Minimis Amount to the extent the aggregate amount of Losses resulting from such Acquiror Warranty Breaches of the Acquiror Business Representations exceeds $3,500,000; (iii) Seller Indemnified Parties may not assert any claim for indemnification against Acquiror in respect of any representation, warranty or covenant after the date on which the survival period for such representation, warranty or covenant ends as provided in Section 7.1; and (iv) the Seller Indemnified Parties shall not be entitled to indemnification under this Section 7.3 for any Losses that are Excluded Damages (except for Excluded Damages payable to third parties in respect of third party claims). (c) Notwithstanding anything in this Section 7.3 to the contrary, the maximum aggregate amount of Losses that the Acquiror Indemnified Parties may be entitled to recover for Warranty Breaches of the Acquiror Business Representations shall be $35,000,000.

Indemnification by Acquiror. (a) From Acquiror shall indemnify and after hold harmless the ClosingEligible Company Holders, Acquiror will indemnify Sellerfollowing the Effective Time, its Affiliates from and their respective officers and directors (the “Seller Indemnified Parties”) against any Losses suffered Damages to the extent and by any of them as a result reason of any (a) breach of any representation the representations, warranties or warranty set forth covenants given or made by Acquiror in Article IV (determined without regard to Section 4.9(c) in its entirety and without giving effect to any “Acquiror Material Adverse Effect”, “material” or other materiality qualification, limitation or exception contained therein other than those in Section 4.7, Section 4.8(b) and Section 4.12), (b) failure of any representation or warranty set forth in Article IV to be true and correct as of and as though made on the Closing Date (other than any representation and warranty that is expressly made as of a specified date) (determined without regard to Section 4.9(c) in its entirety and without giving effect to any “Acquiror Material Adverse Effect”, “material” or other materiality qualification, limitation or exception contained therein other than those in Section 4.7, Section 4.8(b) and Section 4.12) (each such breach or failure under clause (a) or (b), an “Acquiror Warranty Breach”), (c) breach of covenant or agreement of Acquiror pursuant to this Agreement or (d) in the event the Acquiror Restructuring is not completed prior the Closing Date in accordance with Section 5.14certificates of Acquiror, (i) the excess dated as of (A) the Tax Liability of Seller with respect to its sale of the Membership Interests pursuant to this Agreement over (B) the Tax Liability the Seller would have had if the Acquiror Restructuring had been completed prior to the Closing Date, (iito be delivered by Acquiror pursuant to Sections 7.3(a) the quotient of (A) any amount distributed to Seller in respect of its Equity Consideration divided by (B) one minus the combined federal and state statutory marginal income tax rate imposed with respect to the earnings of the issuer of the Equity Consideration and its subsidiaries and (iii) in the event Seller subsequently disposes of the Equity Consideration, the excess of (A) the proceeds Seller would have received in such disposition had the Acquiror Restructuring occurred prior to the Closing Date over (B) the proceeds actually received by Seller in such disposition. Seller Indemnified Parties may assert any claim for indemnification against Acquiror in respect of any representation, warranty or covenant only until the last date on which such representation, warranty or covenant survives as provided in Section 7.1b). (b) Acquiror’s obligation Any claim for indemnification made by an Eligible Company Holder under this Section 9.3 must be specifically identified in a written notice delivered to indemnify Acquiror by no later than the Seller Indemnified Parties Release Date (a "Eligible Holder Claim Notice"). Any such Eligible Holder Claim Notice shall include, in reasonable detail and among other information, the identity, nature and estimated magnitude of Damages related to such claim. If delivered to Acquiror by no later than the Release Date, a claim for indemnification set forth in an Eligible Holder Claim Notice as provided in this Section 7.3 herein shall be subject to survive the following limitations:Release Date until final resolution thereof. (ic) Acquiror The indemnification provided for in Section 9.3(a) shall not be obligated (A) to indemnify against any Losses resulting from any individual Acquiror Warranty Breach of the Acquiror Business Representations that does not exceed the De Minimis Amount or (B) to indemnify against any Losses for individual Acquiror Warranty Breaches of the Acquiror Business Representations in excess of the De Minimis Amount apply unless and until the aggregate Damages for which one or more Eligible Company Holders seeks or has sought indemnification hereunder, as stated in one or more Eligible Holder Claim Notices as provided herein, exceeds a cumulative aggregate equal to the Basket, in which case the right to recover Damages shall apply to the full amount of Losses resulting from the Basket; provided, however, that the Basket shall not apply to any such indemnification claim (i) involving fraud or willful misrepresentation on the part of Acquiror Warranty Breaches of the Acquiror Business Representations exceeds $525,000 (the “Acquiror Basket”), and then shall be liable only to the extent the aggregate amount of Losses resulting from such Acquiror Warranty Breaches of the Acquiror Business Representations exceeds the Acquiror Basket; or (ii) Acquiror shall not be obligated to indemnify against any Losses resulting from Acquiror Warranty Breaches based upon a breach of the Acquiror Business Representations in excess of the De Minimis Amount to the extent the aggregate amount of Losses resulting from such Acquiror Warranty Breaches of the Acquiror Business Representations exceeds $3,500,000; (iii) Seller Indemnified Parties may not assert any claim for indemnification against Acquiror in respect of any representation, warranty Sections 4.3 or covenant after the date on which the survival period for such representation, warranty or covenant ends as provided in Section 7.1; and (iv) the Seller Indemnified Parties shall not be entitled to indemnification under this Section 7.3 for any Losses that are Excluded Damages (except for Excluded Damages payable to third parties in respect of third party claims)4.7. (c) Notwithstanding anything in this Section 7.3 to the contrary, the maximum aggregate amount of Losses that the Acquiror Indemnified Parties may be entitled to recover for Warranty Breaches of the Acquiror Business Representations shall be $35,000,000.

Indemnification by Acquiror. (a) From and after the Closing, Acquiror will indemnify Seller--------------------------- shall indemnify, defend and hold Seller and its Affiliates Affiliates, and their respective officers directors, officers, representatives, employees and directors (the “Seller Indemnified Parties”) agents, harmless from and against any Losses suffered by any and all claims, actions, suits, demands, assessments, judgments, losses, liabilities, damages, costs, royalties, payments, license fees and expenses (including interest, penalties, attorneys' fees, accounting fees and investigation costs) (collectively, "Losses") resulting from or arising out of them as a result of any (a) any breach of any representation or warranty set forth of Acquiror contained herein or in Article IV any certificate delivered by Acquiror pursuant hereto (determined without regard provided that Seller properly notifies Acquiror of the claim that such representation or warranty has been breached and such notice is given by Seller in writing prior to Section 4.9(c) in its entirety and without giving effect to any “Acquiror Material Adverse Effect”, “material” the expiration or other materiality qualification, limitation termination of the applicable representation or exception contained therein other than those in Section 4.7, Section 4.8(b) and Section 4.12warranty), or (b) failure any breach of any representation or warranty set forth in Article IV to be true and correct as covenant of and as though made on Acquiror contained herein, which covenant requires performance by Acquiror after the Closing Date (other than any representation and warranty that is expressly made as of a specified date) (determined without regard to Section 4.9(c) in its entirety and without giving effect to any “Acquiror Material Adverse Effect”, “material” or other materiality qualification, limitation or exception contained therein other than those in Section 4.7, Section 4.8(b) and Section 4.12) (each such breach or failure under clause (a) or (b), an “Acquiror Warranty Breach”)Closing, (c) breach any of covenant or agreement of Acquiror pursuant to this Agreement the Assumed Liabilities, or (d) in the event the operation by Acquiror Restructuring is not completed prior the Closing Date in accordance with Section 5.14, (i) the excess of (A) the Tax Liability of Seller with respect to its sale of the Membership Interests pursuant to this Agreement over (B) Business or the Tax Liability the Seller would have had if the ownership or use by Acquiror Restructuring had been completed prior to the Closing Date, (ii) the quotient of (A) any amount distributed to Seller in respect of its Equity Consideration divided by (B) one minus the combined federal and state statutory marginal income tax rate imposed with respect to the earnings of the issuer of Purchased Assets after the Equity Consideration and its subsidiaries and (iii) in the event Seller subsequently disposes of the Equity ConsiderationClosing, the excess of (A) the proceeds Seller would have received in such disposition had the Acquiror Restructuring occurred prior to the Closing Date over (B) the proceeds actually received by Seller in such disposition. Seller Indemnified Parties may assert any claim for indemnification against Acquiror in respect of any representation, warranty or covenant only until the last date on which such representation, warranty or covenant survives as provided in Section 7.1. (b) Acquiror’s obligation to indemnify the Seller Indemnified Parties as provided in this Section 7.3 shall be subject to the following limitations: (i) Acquiror shall not be obligated (A) to indemnify against any Losses resulting from any individual Acquiror Warranty Breach of the Acquiror Business Representations that does not exceed the De Minimis Amount or (B) to indemnify against any Losses for individual Acquiror Warranty Breaches of the Acquiror Business Representations in excess of the De Minimis Amount unless and until the aggregate amount of Losses resulting from such Acquiror Warranty Breaches of the Acquiror Business Representations exceeds $525,000 (the “Acquiror Basket”), and then shall be liable only except to the extent the aggregate amount of Losses resulting from such Acquiror Warranty Breaches of the Acquiror Business Representations exceeds the Acquiror Basket; (ii) Acquiror shall not be Seller is obligated to indemnify against any Losses resulting from Acquiror Warranty Breaches of the Acquiror Business Representations in excess of the De Minimis Amount to the extent the aggregate amount of Losses resulting from such Acquiror Warranty Breaches of the Acquiror Business Representations exceeds $3,500,000; (iii) Seller Indemnified Parties may not assert any claim for indemnification against Acquiror in with respect of any representation, warranty or covenant after the date on which the survival period for such representation, warranty or covenant ends as provided in Section 7.1; and (iv) the Seller Indemnified Parties shall not be entitled to indemnification under this Section 7.3 for any Losses that are Excluded Damages (except for Excluded Damages payable to third parties in respect of third party claims)thereto. (c) Notwithstanding anything in this Section 7.3 to the contrary, the maximum aggregate amount of Losses that the Acquiror Indemnified Parties may be entitled to recover for Warranty Breaches of the Acquiror Business Representations shall be $35,000,000.

Indemnification by Acquiror. (a) From and after the Closing, and subject to this Article 9, Acquiror will shall indemnify Sellerand hold harmless Member, its Affiliates (including Parent) and each of their respective officers officers, directors, employees and directors agents (collectively, the “Seller Indemnified PartiesMember Indemnitees”) against from and against, and pay or reimburse the Parent Indemnitees for, any and all Losses suffered by caused by, arising out of, resulting from or relating to (i) any of them as a result of any (a) inaccuracy in or breach of any representation or warranty set forth made by Acquiror or Merger Sub in Article IV (determined without regard 4) or any inaccuracy in the Officers Certificate delivered pursuant to Section 4.9(c) in its entirety and without giving effect to any “Acquiror Material Adverse Effect”, “material” or other materiality qualification, limitation or exception contained therein other than those in Section 4.7, Section 4.8(b) and Section 4.126.3(d), (bii) failure any breach or nonperformance by Acquiror or Merger Sub of any representation of its covenants or warranty set forth in Article IV agreements contained herein which are to be true and correct as of and as though made on the Closing Date (other than any representation and warranty that is expressly made as of a specified date) (determined without regard to Section 4.9(c) in its entirety and without giving effect to any “Acquiror Material Adverse Effect”, “material” performed at or other materiality qualification, limitation or exception contained therein other than those in Section 4.7, Section 4.8(b) and Section 4.12) (each such breach or failure under clause (a) or (b), an “Acquiror Warranty Breach”), (c) breach of covenant or agreement of Acquiror pursuant to this Agreement or (d) in the event the Acquiror Restructuring is not completed prior the Closing Date in accordance with Section 5.14, (i) the excess of (A) the Tax Liability of Seller with respect to its sale of the Membership Interests pursuant to this Agreement over (B) the Tax Liability the Seller would have had if the Acquiror Restructuring had been completed prior to the Closing Date, (ii) the quotient of (A) any amount distributed to Seller in respect of its Equity Consideration divided by (B) one minus the combined federal and state statutory marginal income tax rate imposed with respect to the earnings of the issuer of the Equity Consideration and its subsidiaries and (iii) in the event Seller subsequently disposes any failure of the Equity ConsiderationCompany after the Merger to fulfill any of the Business Obligations (other than Business Obligations arising under Affiliate Contracts including this Agreement, the excess Ancillary Agreements and Contracts set forth on Section 5.11 of (A) the proceeds Seller would have received in such disposition had the Acquiror Restructuring occurred prior to the Closing Date over (B) the proceeds actually received by Seller in such disposition. Seller Indemnified Parties may assert any claim for indemnification against Acquiror in respect of any representation, warranty or covenant only until the last date on which such representation, warranty or covenant survives as provided in Section 7.1Member Disclosure Schedules). (b) Acquiror’s obligation Notwithstanding anything to indemnify the Seller Indemnified Parties as provided contrary contained in this Section 7.3 9.3, Parent Indemnitees shall not be subject entitled to the following limitations: indemnification, or to make a claim for indemnity, under Section 9.3(a)(i) (other than with respect to fraud) (i) Acquiror shall not be obligated (A) to indemnify against any Losses resulting from any individual Acquiror Warranty Breach of the Acquiror Business Representations that does not exceed the De Minimis Amount or (B) to indemnify against any Losses for individual Acquiror Warranty Breaches of the Acquiror Business Representations in excess of the De Minimis Amount unless and until the aggregate amount of Losses resulting from such Acquiror Warranty Breaches that would otherwise be payable hereunder, without taking account of any individual claim or aggregated claims arising out of substantially the Acquiror Business Representations exceeds $525,000 (same events or circumstances that does not or do not in any instance exceed the “Acquiror Basket”)De Minimis amount, and then shall be liable only exceeds, on a cumulative basis, an amount equal to the extent Indemnification Deductible, in which case Acquiror shall provide indemnification for the aggregate amount of such Losses resulting from such Acquiror Warranty Breaches of the Acquiror Business Representations exceeds the Acquiror Basket; (ii) Acquiror shall not be obligated to indemnify against any Losses resulting from Acquiror Warranty Breaches of the Acquiror Business Representations in excess of the Indemnification Deductible, subject to the Cap; or (ii) for aggregate Losses for which the Acquiror would otherwise be liable in excess of the Cap; provided, however, that none of the Indemnification Deductible, the De Minimis Amount Amount, nor the Cap shall apply with respect to the extent the aggregate amount of Losses resulting from such Acquiror Warranty Breaches of the Acquiror Business Representations exceeds $3,500,000; (iii) Seller Indemnified Parties may not assert any claim by a Member Indemnitee for indemnification against Acquiror for any inaccuracy in respect or breach of any representation, warranty or covenant after the date on which the survival period for such representation, warranty or covenant ends as provided in Section 7.1; and (iv) the Seller Indemnified Parties shall not be entitled to indemnification under this Section 7.3 for any Losses that are Excluded Damages (except for Excluded Damages payable to third parties in respect Fundamental Representation of third party claims)Acquiror. (c) Notwithstanding anything in Any payment to Member under Article 8 or this Section 7.3 to the contrary, the maximum aggregate amount of Losses that the Acquiror Indemnified Parties may be entitled to recover for Warranty Breaches of the Acquiror Business Representations 9.3 shall be $35,000,000paid in the same manner as an Excess Amount is paid pursuant to Section 2.7(b)(vi)(A).

Indemnification by Acquiror. (a) From Subject to the terms and conditions of this Article X, from and after the Closing, Acquiror will indemnify indemnify, defend and hold Seller, its Affiliates Affiliates, and their respective officers directors, officers, representatives, employees and directors (the “Seller Indemnified Parties”) agents harmless from and against any Losses suffered by and all claims, actions, suits, demands, assessments, judgments, losses, liabilities, damages, costs, royalties, payments, license fees and expenses (including interest, penalties, reasonable attorneys' fees, accounting fees and investigation costs) (collectively, "LIABILITIES") resulting from or arising out of (i) any of them as a result of any (a) breach of any representation or warranty set forth of Acquiror contained herein or in Article IV any other closing document delivered by Acquiror in connection herewith, or (determined without regard ii) any breach of any covenant of Acquiror contained herein or in any other closing document delivered by Acquiror in connection herewith, which covenant requires performance by Acquiror after the Closing, or (iii) the operation by Acquiror of the Business after the Closing, except to Section 4.9(cthe extent Seller is required to indemnify Acquiror with respect thereto; (iv) in its entirety and without giving effect to any “Acquiror Material Adverse Effect”matter or item disclosed on Schedules 3.7, “material” or other materiality qualification, limitation or exception contained therein 3.8 (other than those in Section 4.7, Section 4.8(bitems 1 and 5(a) and Section 4.12), (b) failure of disclosed thereon), 3.10, or 3.13, (v) any representation liability reserved against or warranty set forth included in Article IV to be true and correct as of and as though made on the Financial Statements or the Closing Date (other than any representation and warranty that is expressly made as Balance Sheet or reserved against or included in the Final Net Worth but in both cases only to the extent of a specified date) (determined without regard to Section 4.9(c) in its entirety and without giving effect to any “Acquiror Material Adverse Effect”the reserve or accrual for such liability, “material” or other materiality qualification, limitation or exception contained therein other than those in Section 4.7, Section 4.8(b) and Section 4.12) (each such breach or failure under clause (a) or (b)vi) any liability, an “Acquiror Warranty Breach”)including, (c) breach but not limited to, liabilities relating to Hazardous Materials or Environmental Laws, of covenant either of the Companies or agreement of relating to the Business with respect to which Seller is not required to indemnify Acquiror pursuant to this Agreement or (d) in the event the Acquiror Restructuring is not completed prior the Closing Date in accordance with Section 5.14, (i) the excess of (A) the Tax Liability of Seller with respect to its sale of the Membership Interests pursuant to this Agreement over (B) the Tax Liability the Seller would have had if the Acquiror Restructuring had been completed prior to the Closing Date, (ii) the quotient of (A) any amount distributed to Seller in respect of its Equity Consideration divided by (B) one minus the combined federal and state statutory marginal income tax rate imposed with respect to the earnings of the issuer of the Equity Consideration and its subsidiaries and (iii) in the event Seller subsequently disposes of the Equity Consideration, the excess of (A) the proceeds Seller would have received in such disposition had the Acquiror Restructuring occurred prior to the Closing Date over (B) the proceeds actually received by Seller in such disposition. Seller Indemnified Parties may assert any claim for indemnification against Acquiror in respect of any representation, warranty or covenant only until the last date on which such representation, warranty or covenant survives as provided in Section 7.1Agreement. (b) Acquiror’s obligation to indemnify the Seller Indemnified Parties as provided in this Section 7.3 shall be subject to the following limitations: (i) Acquiror shall not be obligated (A) to indemnify against any Losses resulting from any individual Acquiror Warranty Breach of the Acquiror Business Representations that does not exceed the De Minimis Amount or (B) to indemnify against any Losses for individual Acquiror Warranty Breaches of the Acquiror Business Representations in excess of the De Minimis Amount unless and until the aggregate amount of Losses resulting from such Acquiror Warranty Breaches of the Acquiror Business Representations exceeds $525,000 (the “Acquiror Basket”), and then shall be liable only to the extent the aggregate amount of Losses resulting from such Acquiror Warranty Breaches of the Acquiror Business Representations exceeds the Acquiror Basket; (ii) Acquiror shall not be obligated to indemnify against any Losses resulting from Acquiror Warranty Breaches of the Acquiror Business Representations in excess of the De Minimis Amount to the extent the aggregate amount of Losses resulting from such Acquiror Warranty Breaches of the Acquiror Business Representations exceeds $3,500,000; (iii) Seller Indemnified Parties may not assert any claim for indemnification against Acquiror in respect of any representation, warranty or covenant after the date on which the survival period for such representation, warranty or covenant ends as provided in Section 7.1; and (iv) the Seller Indemnified Parties shall not be entitled to indemnification under this Section 7.3 for any Losses that are Excluded Damages (except for Excluded Damages payable to third parties in respect of third party claims). (c) Notwithstanding anything in this Section 7.3 to the contrary, the maximum aggregate amount of Losses that the Acquiror Indemnified Parties may be entitled to recover for Warranty Breaches of the Acquiror Business Representations shall be $35,000,000.