Common use of Terms and Conditions of Indemnification Clause in Contracts

Terms and Conditions of Indemnification. The respective obligations and liabilities of Sellers and of Buyer to indemnify pursuant to this Article IX shall be subject to the following terms and conditions: (a) The party seeking indemnification (the "Claimant") must give the other party or parties, as the case may be (the "Indemnitor"), written notice of any such claim promptly. The Claimant's failure to give prompt notice, however, shall not serve to eliminate or limit the Claimant's right to indemnification hereunder except to the extent such failure prejudices the rights of the Indemnitor. (b) The respective obligations and liabilities of Sellers and of Buyer to indemnify pursuant to this Article IX in respect of any Claim by a third party shall be subject to the following additional terms and conditions: (i) The Indemnitor shall have the right to undertake, by counsel or other representatives of its own choosing reasonably satisfactory to Claimant, the defense, compromise, and settlement of such Claim. (ii) In the event that the Indemnitor shall elect not to undertake such defense, or within a reasonable time after notice of any such claim from the Claimant shall fail to defend, the Claimant (upon further written notice to the Indemnitor) shall have the right to undertake the defense, compromise or settlement of such claim, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnitor. (iii) Notwithstanding anything in this Section 9.4 to the contrary, (A) if there is a reasonable probability that a Claim may materially and adversely affect the Claimant other than as a result of money damages or other money payments, the Claimant shall have the right, at its own cost and expense, to participate in the defense, compromise or settlement of the Claim, (B) the Indemnitor shall not, without the Claimant's written consent, settle or compromise any Claim or consent to entry of any judgment which does not include as an unconditional term thereof the giving by the claiming party or the plaintiff to the Claimant of a release from all liability in respect of such claim, and (C) in the event that the Indemnitor undertakes defense of any Claim, the Claimant by counsel or other representative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnitor and its counsel or other representatives concerning such claim and the Indemnitor and the Claimant and their respective counsel or other representatives shall cooperate with respect to such claim, subject to the execution and delivery of a mutually satisfactory joint defense agreement.

Terms and Conditions of Indemnification. The respective obligations and liabilities of Sellers the Operating Companies and of Buyer to indemnify pursuant to this Article ARTICLE IX shall be subject to the following terms and conditions: (a) The party seeking indemnification (the "“Claimant"”) must give the other party or parties, as the case may be (the "“Indemnitor"”), prompt written notice of any such claim promptlyClaim. The Claimant's ’s failure to give prompt notice, however, shall not serve to eliminate or limit the Claimant's ’s right to indemnification hereunder except to the extent such failure materially prejudices the rights of the Indemnitor. (b) The respective obligations and liabilities of Sellers the Companies and of Buyer to indemnify pursuant to this Article ARTICLE IX in respect of any Claim by a third party shall be subject to the following additional terms and conditions: (i) The Indemnitor shall have the right to undertake, by counsel or other representatives of its own choosing reasonably satisfactory to Claimant, the defense, compromise, and settlement of such Claim. (ii) In the event that the Indemnitor shall elect not to undertake such defense, or within a reasonable time ten (10) days after notice of any such claim Claim from the Claimant shall fail to defend, the Claimant (upon further written notice to the Indemnitor) shall have the right to undertake the defense, compromise or settlement of such claimClaim, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnitor. (iii) Notwithstanding anything in this Section 9.4 to the contrary, (A) if there is a reasonable probability that a Claim may materially and adversely affect the Claimant other than as a result of money damages or other money payments, the Claimant shall have the right, at its own cost and expense, to participate in the defense, compromise or settlement of the Claim, (B) the Indemnitor shall not, without the Claimant's ’s written consent, settle or compromise any Claim or consent to entry of any judgment which does not include as an unconditional term thereof the giving by the claiming party or the plaintiff to the Claimant of a release from all liability in respect of such claimClaim, and (C) in the event that the Indemnitor undertakes defense of any Claim, the Claimant by counsel or other representative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnitor and its counsel or other representatives concerning such claim Claim and the Indemnitor and the Claimant and their respective counsel or other representatives shall cooperate with respect to such claimClaim, subject to the execution and delivery of a mutually satisfactory joint defense agreement. (c) If a Claimant incurs a tax liability as a result of the receipt of an indemnification payment under this ARTICLE IX, the Indemnitor shall indemnify the Claimant for that tax liability and for any tax liability incurred by the Claimant with respect to a payment pursuant to this sentence. (d) Any payment made in respect of indemnification under this ARTICLE IX shall be treated for all purposes, and shall constitute, an adjustment to the Purchase Price. (e) BUYER AND COMPANIES AGREE THAT UNDER NO CIRCUMSTANCES SHALL ANY PARTY TO THIS AGREEMENT, OR ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE RESPONSIBLE (AS A RESULT OF INDEMNITY CLAIM OR OTHERWISE) FOR ANY PUNITIVE CLAIMS OR DAMAGES ARISING IN CONNECTION WITH THIS AGREEMENT OR ANY OPERATIVE DOCUMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES EXCEPT TO THE EXTENT THE INDEMNIFIED PARTY IS LIABLE FOR SUCH DAMAGES TO ANY THIRD PARTY (EXCLUDING ANY AFFILIATE OF A PARTY TO THIS AGREEMENT).

Terms and Conditions of Indemnification. The respective obligations and liabilities of Sellers the Seller and of Buyer Parent, on the one hand, and Purchaser, on the other, to indemnify pursuant to this Article IX shall be subject to the following terms and conditions: VIII (aa “Claim”) The party seeking indemnification (the "Claimant") must give the other party or parties, as the case may be (the "Indemnitor"), written notice of any such claim promptly. The Claimant's failure to give prompt notice, however, shall not serve to eliminate or limit the Claimant's right to indemnification hereunder except to the extent such failure prejudices the rights of the Indemnitor. (b) The respective obligations and liabilities of Sellers and of Buyer to indemnify pursuant to this Article IX in respect of any Claim by a third party shall be subject to the following additional terms and conditions: (ia) A Party seeking indemnification (the “Claimant”), shall promptly notify the Party or Parties (the “Indemnitor”) required to provide indemnification hereunder of any Claim but in no event later than twenty (20) days after becoming aware of the basis for such Claim; provided, however, that the failure of the Claimant to give the Indemnitor notice within the specified number of days shall not relieve the Indemnitor of any of its obligations hereunder except to the extent such failure actually prejudices such Indemnitor's ability successfully to defend the claim, action, suit or proceeding giving rise to the Claim. (b) The Indemnitor shall have the right to undertake, by counsel or other representatives of its own choosing reasonably satisfactory to the Claimant, the defense, compromise, compromise and settlement of any third party claim (“Third Party Claim”). If the defense of a Third Party Claim is so tendered to the Indemnitor and within twenty (20) days thereafter the Indemnitor accepts such tender by written notice to the Claimant, then upon acceptance of such tender, the Indemnitor shall, unless otherwise expressly agreed in writing by the Claimant, be deemed to have agreed to indemnify the Claimant with respect to such Third Party Claim. (iic) In the event that If the Indemnitor shall elect elects not to undertake such defense, or within a reasonable time twenty (20) days after notice of any such claim Claim from the Claimant shall fail to defenddefend or to reasonably and diligently contest, defend or litigate the Third Party Claim, the Claimant (upon further written notice to the Indemnitor) shall have the right to undertake the defense, compromise or settlement of such claimClaim, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnitor. (iiid) Notwithstanding anything in this Section 9.4 8.4 to the contrary, (A) if there is a reasonable probability that a Claim may materially and adversely affect the Claimant other than as a result of money damages or other money payments, the Claimant shall have the right, at its own cost and expense, to participate in the defense, compromise or settlement of the Claim, (Bi) the Indemnitor shall not, without the Claimant's written consent, settle or compromise any Claim claim or consent to entry of any judgment which does not include unless such compromise or settlement includes as an unconditional term thereof the giving by the claiming party Party or the plaintiff to the Claimant and its Affiliates of a full and unconditional release from all liability Liability in respect of such claimClaim and such compromise or settlement does not otherwise require Claimant or its Affiliates to pay any monetary damages or otherwise restrict Claimant in any material way, and (Cii) in the event that if the Indemnitor undertakes defense of any Claim, the Claimant by counsel or other representative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnitor and its counsel or other representatives concerning such claim Claim and the Indemnitor and the Claimant and their respective counsel or other representatives shall cooperate and keep Claimant informed with respect to such claimClaim, subject to the execution and delivery of a mutually satisfactory joint defense agreementagreement provided, that if in the reasonable opinion of counsel for the Claimant, there is a conflict of interest between the Indemnitor and the Claimant (other than the conflict arising from the Indemnitor's obligations to the Claimant under this Article VIII) in connection with a Third Party Claim, such Claimant may engage its own counsel to represent it and all other affected Claimants in the defense of such Third Party Claim, and the Indemnitor shall be responsible for the reasonable fees and expenses of such one (1) counsel for all such affected Claimants in connection with such defense. (e) Notwithstanding anything contained in this Article VIII to the contrary, an Indemnitor shall not be entitled to assume any defense of a Third Party Claim hereunder if (i) the claim for indemnification is with respect to a criminal proceeding, action, indictment, allegation or investigation, (ii) the Claimant has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnitor and the Claimant with respect to such Third Party Claim or (iii) if there is a reasonable probability that any Third Party Claim may materially and adversely affect the Claimant other than as a result of money damages or other money payments, including where equitable relief is sought or where the Third Party Claim involves a material customer or material supplier of the Claimant. (f) For purposes of this Article VIII, the terms “material,” “Material Adverse Effect,” or similar words, to the extent they appear in any representation, warranty, covenant or other provision of this Agreement, shall be disregarded for purposes of determining (i) whether there has been a breach and (ii) the amount of any Damages. For purposes of indemnification claims pursuant to this Article VIII, in determining (i) whether there has been a breach and (ii) the amount of any Damages, the representations and warranties contained in Section 3.13(d) of this Agreement shall be deemed to have been made without any qualifications as to “knowledge.” (g) With respect to an indemnity notice that is delivered by a Claimant, upon final resolution or acceptance of the amount of Damages subject to such indemnity notice, Parent, Seller and/or Purchaser, as appropriate, shall promptly pay the amount of such Damages to the Claimant. (h) Any Remedial Work performed in connection with this Agreement which a Purchaser Claimant makes a Claim shall be performed by one or more professionally licensed environmental contractors or consulting engineers mutually acceptable to the Parties, such acceptance not to be unreasonably withheld, and Purchaser and Parent will consult with each other regarding the scope and implementation of any Remedial Work; provided, that this Section 8.4(h) shall not require Purchaser to adopt any proposals presented by Parent.

Terms and Conditions of Indemnification. The respective obligations and liabilities of Sellers the Company, Former Securityholders and of Buyer Parent to indemnify pursuant to this Article IX VII shall be subject to the following terms and conditions: (a) The party seeking indemnification (the "“Claimant"”) must give the other party or parties, as the case may be (the "“Indemnitor"”), prompt written notice of any such claim promptlyClaim. The Claimant's ’s failure to give prompt notice, however, shall not serve to eliminate or limit the Claimant's ’s right to indemnification hereunder except to the extent such failure prejudices the rights of the Indemnitor. (b) The respective obligations and liabilities of Sellers the Company, the Former Securityholders and of Buyer Parent to indemnify pursuant to this Article IX VII in respect of any Claim by a third party shall be subject to the following additional terms and conditions: (i) The Indemnitor shall have the right to undertake, by counsel or other representatives of its own choosing reasonably satisfactory to Claimant, the defense, compromise, and settlement of such ClaimClaim (unless Claimant reasonably determines that a third-party claim may adversely affect it or its Affiliates in any material respect other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement). (ii) In the event that If the Indemnitor shall elect elects not to undertake such defense, or within a reasonable time twenty days after notice of any such claim Claim from the Claimant shall fail to defend, the Claimant (upon further written notice to the Indemnitor) shall have the right to undertake the defense, compromise or settlement of such claimClaim, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnitor. (iii) Notwithstanding anything in this Section 9.4 7.4 to the contrary, (A) if there is a reasonable probability that a Claim may materially and adversely affect the Claimant other than as a result of money damages or other money payments, the Claimant shall have the right, at its own cost and expense, to participate in the defense, compromise or settlement of the Claim, (B) the Indemnitor shall not, without the Claimant's ’s written consent, settle or compromise any Claim claim or consent to entry of any judgment which does not include unless (x) such compromise or settlement includes as an unconditional term thereof the giving by the claiming party or the plaintiff to the Claimant and its Affiliates of a release from all liability in respect of such claimclaim and such compromise or settlement does not otherwise require Claimant or its Affiliates to pay any monetary damages, and (Cy) in there is no finding or admission of any violation of any Legal Requirement or any violation of the event that rights of any Person by Claimant or its Affiliates, and (B) if the Indemnitor undertakes defense of any Claimclaim, the Claimant by counsel or other representative of its own choosing and at its sole cost and expense, shall have the right to consult with the Indemnitor and its counsel or other representatives concerning such claim and the Indemnitor and the Claimant and their respective counsel or other representatives shall cooperate and keep Claimant informed with respect to such claim, subject to the execution and delivery of a mutually satisfactory joint defense agreement. (c) With respect to an indemnity notice that is delivered by a Parent Claimant, upon final resolution or acceptance of the amount of damages subject to such indemnity notice (an “Undisputed Amount”), the Escrow Agent upon receipt of joint instructions from Parent and the Securityholders’ Representative will disburse the amount of such Undisputed Amount to Parent (subject, however, to a maximum payment equal to the remaining balance of the Indemnity Escrow Amount), upon the terms and conditions set forth in the Escrow Agreement. If the amount of such Undisputed Amount exceeds the remaining balance in the Indemnity Escrow Amount or the Indemnity Escrow Amount has been released in accordance with the terms of the Escrow Agreement, then, Parent shall have the right to exercise its other rights and remedies hereunder subject to the limitations contained in this Agreement; provided, further that each Former Securityholders’ percentage of such Undisputed Amount shall not exceed the percentage of Merger Consideration to which such Former Securityholder is directly or indirectly entitled as computed pursuant to Schedule 1.6. (d) With respect to an indemnity notice that is delivered by the Securityholders’ Representative, upon final resolution or acceptance of the amount of Damages subject to such indemnity notice, Parent shall promptly pay the amount of such Damages to the Securityholders’ Representative (and the Securityholders’ Representative shall promptly distribute such amount to the Former Securityholders in the same proportion as the distributions to the Former Securityholders of the Merger Consideration). (e) Parent and the Securityholders’ Representative shall provide joint written instructions to the Escrow Agent regarding the release of the Indemnity Escrow Amount within five (5) Business Days of the final resolution or acceptance of an Undisputed Amount.