Common use of Certain Obligations Clause in Contracts

Certain Obligations. Without limiting any other provision hereunder, (a) Seller and its Affiliates shall be solely responsible for (i) claims for welfare benefits arising at any time under any Seller Plan (including any claims for retiree medical or life benefits under the Seller Plans for any current or former Business Employees), (ii) claims for workers’ compensation that are incurred by or with respect to (A) any Transferred Employee, on or before the Closing Date, and (B) any Business Employee who does not become a Transferred Employee, at any time, and (iii) claims relating to health continuation coverage required by Section 4980B of the Code or Part 6 of Title I of ERISA (“COBRA Coverage”) attributable to “qualifying events” (A) with respect to any Transferred Employee and his or her beneficiaries and dependents, that occur on or before the Closing Date and (B) with respect to any Business Employee who does not become a Transferred Employee and his or her beneficiaries and dependents, that occur at any time, and (b) Buyer and its Affiliates shall be solely responsible for (i) claims for welfare benefits arising under any Buyer Plan, (ii) claims for workers’ compensation that are incurred by or with respect to any Transferred Employee after the Closing Date, and (iii) claims relating to COBRA Coverage attributable to “qualifying events” with respect to any Transferred Employee and his or her beneficiaries and dependents that occur after the Closing Date. For purposes of the foregoing, a workers’ compensation claim shall be considered incurred before the Closing Date if the injury or condition giving rise to the claim occurs before the Closing Date. Nothing herein shall be interpreted as allocating COBRA responsibilities of the Seller and Buyer to the other party; provided, that, Seller and its Affiliates shall indemnify and hold Buyer and its Affiliates harmless from (x) any COBRA Liability and (y) any claims relating to COBRA Coverage attributable to “qualifying events” with respect to any Transferred Employee and his or her beneficiaries or dependents that occur on or before the Closing Date, in each case, incurred by Buyer or its Affiliates on or after the Closing Date.

Certain Obligations. Without limiting 2.1 The Confidential Information shall not be used for any purpose except directly for the purposes of conducting due diligence pursuant to a possible acquisition of all or a part of the shares or business assets of the Discloser. The Recipient shall keep confidential and shall not, directly or indirectly, at any time or in any manner, disclose, reveal, divulge, or make known to any person, firm, organization, entity, or other provision hereunderperson or party, including, but not limited to, suppliers, customers, employees, or competitors of the Discloser, any Confidential Information received by the Recipient except as may be reasonably required internally by the Recipient and to affiliates, directors, officers, advisors, and financing sources as may be reasonably required. No Confidential Information shall be copied, reproduced in any form or stored in a retrieval system or data base by Recipient without the prior written consent of Discloser, except for such copies and storage as may be reasonably be required internally by Recipient and to affiliates, directors, officers, advisors, and financing sources. All notes, records, documents and other materials containing Confidential Information delivered by the Discloser under this Agreement and any and all copies thereof and all documents, studies, analyses, and other data and information and materials prepared there from are and will remain the property of the Discloser, and will be promptly returned to the Discloser (or, if and to the extent that the Discloser requests, destroyed) by the Recipient upon the Discloser’s written request. Notwithstanding the foregoing: (a) Seller the Recipient and its Affiliates affiliates, directors, officers, advisors, and financing sources may retain a copy of Confidential Information only as required for regulatory purposes. 2.2 Neither party shall be solely responsible for (i) claims for welfare benefits arising disclose in any manner whatsoever the interest or involvement of the other party without the prior written consent of such other party as to such disclosure and the terms and manner thereof. 2.3 The Recipient shall not attempt to gain a business or competitive advantage upon the Discloser at any time under any Seller Plan (including any claims for retiree medical by using the confidential information that has been disclosed to the Recipient. Nor shall the Recipient use the confidential information in an attempt to circumvent or life benefits under thwart normal business relationships between the Seller Plans for any current or former Business Employees), (ii) claims for workers’ compensation that are incurred by or with respect to (A) any Transferred Employee, on or before the Closing Date, and (B) any Business Employee who does not become a Transferred Employee, at any time, and (iii) claims relating to health continuation coverage required by Section 4980B of the Code or Part 6 of Title I of ERISA (“COBRA Coverage”) attributable to “qualifying events” (A) with respect to any Transferred Employee and his or her beneficiaries and dependents, that occur on or before the Closing Date and (B) with respect to any Business Employee who does not become a Transferred Employee and his or her beneficiaries and dependents, that occur at any time, and (b) Buyer Discloser and its Affiliates shall be solely responsible for (i) claims for welfare benefits arising under any Buyer Plan, (ii) claims for workers’ compensation that are incurred by or with respect to any Transferred Employee after the Closing Date, customers and (iii) claims relating to COBRA Coverage attributable to “qualifying events” with respect to any Transferred Employee and his or her beneficiaries and dependents that occur after the Closing Date. For purposes of the foregoing, a workers’ compensation claim shall be considered incurred before the Closing Date if the injury or condition giving rise to the claim occurs before the Closing Date. Nothing herein shall be interpreted as allocating COBRA responsibilities of the Seller and Buyer to the other party; provided, that, Seller and its Affiliates shall indemnify and hold Buyer and its Affiliates harmless from (x) any COBRA Liability and (y) any claims relating to COBRA Coverage attributable to “qualifying events” with respect to any Transferred Employee and his or her beneficiaries or dependents that occur on or before the Closing Date, in each case, incurred by Buyer or its Affiliates on or after the Closing Dateemployees.

Certain Obligations. Without limiting The Company shall not create, incur or assume, or permit any other provision hereunderSubsidiary to create, incur or assume, any Secured Debt and the Company shall not permit any Subsidiary to create, incur or assume any unsecured Indebtedness except the following: (a) Seller Secured Debt secured by purchase money Liens on any fixed or capital property, provided that: 1. any property subject to the foregoing is or has been acquired by the Company or any Subsidiary in the ordinary course of its business and its Affiliates the Lien on any such property is created contemporaneously with or within 90 days after such acquisition; and 2. the Secured Debt secured by such Lien shall be solely responsible for not exceed the lesser of cost or fair value as of the time of acquisition of the property covered thereby to the Company or such Subsidiary acquiring the same; and 3. each such Lien shall attach only to the property so acquired and fixed improvements thereon; (ib) claims for welfare benefits arising at Secured Debt of any time under business entity acquired by the Company or any Seller Plan (including any claims for retiree medical or life benefits under Subsidiary which is outstanding prior to such acquisition and is secured by Liens on the Seller Plans for any current or former Business Employees)property of such business entity, (ii) claims for workers’ compensation that are incurred provided, that: 1. the Secured Debt secured by or with respect to such Liens (A) any Transferred Employee, on or before was not incurred to finance the Closing Date, purchase price of such acquisition and (B) any Business Employee who does was not become a Transferred Employee, at any time, and (iii) claims relating to health continuation coverage required otherwise incurred in contemplation of such acquisition; 2. the Secured Debt secured by Section 4980B such Liens shall not exceed the fair value as of the Code time such acquisition of the property covered thereby to the Company or Part 6 such Subsidiary acquiring the same; and 3. each such Lien shall attach only to the property of Title I the business entity so acquired and fixed improvements thereon; (c) Secured Debt set forth in Schedule 5.15; and (d) other Secured Debt of ERISA (“COBRA Coverage”) attributable to “qualifying events” (A) with respect to the Company or any Transferred Employee Subsidiary and his or her beneficiaries and dependentsunsecured Indebtedness of any Subsidiary, provided, that occur on or before the Closing Date and (B) with respect to any Business Employee who does not become a Transferred Employee and his or her beneficiaries and dependents, that occur at any time, and (b) Buyer and its Affiliates shall be solely responsible for aggregate unpaid principal amount of (i) claims for welfare benefits arising under any Buyer Plan, all such Secured Debt described in this Section 10.6(d) plus (ii) claims for workers’ compensation that are incurred by all unsecured Debt of all Subsidiaries (excluding Existing Debt of Subsidiaries), shall not at any time exceed an amount equal to 15% of Consolidated Tangible Assets. In addition to and not in limitation of the foregoing provisions of this Section 10.6: (i) the Company will not, and will not permit any Subsidiary to, grant any Liens securing Indebtedness outstanding under or with respect pursuant to any Transferred Employee after Credit Facility unless and until the Closing DateNotes shall be concurrently secured equally and ratably with such Indebtedness in favor of the holders of Notes, and pursuant to documentation in form and substance reasonably satisfactory to the Required Holders; and (iiiii) claims relating the Company will not, and will not permit any Subsidiary to COBRA Coverage attributable to “qualifying events” with respect to any Transferred Employee become a guarantor, borrower or other obligor under a Credit Facility unless and his or her beneficiaries and dependents that occur after until a guarantee is concurrently granted by the Closing Date. For purposes Subsidiary in favor of the foregoingholders of Notes, a workers’ compensation claim shall be considered incurred before the Closing Date if the injury or condition giving rise and pursuant to documentation in form and substance reasonably satisfactory to the claim occurs before the Closing Date. Nothing herein shall be interpreted as allocating COBRA responsibilities of the Seller and Buyer to the other party; provided, that, Seller and its Affiliates shall indemnify and hold Buyer and its Affiliates harmless from (x) any COBRA Liability and (y) any claims relating to COBRA Coverage attributable to “qualifying events” with respect to any Transferred Employee and his or her beneficiaries or dependents that occur on or before the Closing Date, in each case, incurred by Buyer or its Affiliates on or after the Closing DateRequired Holders.

Certain Obligations. Without limiting any other provision hereunder, (a) Seller and its Affiliates shall be solely responsible for (i) claims for welfare benefits arising at any time under any Seller Plan (including any claims for retiree medical or life benefits under From the Seller Plans for any current or former Business Employees), (ii) claims for workers’ compensation that are incurred by or with respect to (A) any Transferred Employee, on or before date hereof until the Closing Date, Seller will not, without the written consent of Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), consent to, ratify, support, execute, approve or otherwise take actions that would result in (x) Pubco engaging in a business that is inconsistent with the operations reflected in the business plan attached hereto as Exhibit A and approved by the board of Pubco (B) any the “Business Employee who does not become a Transferred Employee, at any time, and (iii) claims relating to health continuation coverage required by Section 4980B of the Code or Part 6 of Title I of ERISA (“COBRA CoveragePlan”) attributable to “qualifying events” or (Ay) a communication with respect to the anticipated business operations of Pubco and its subsidiaries being made to Nasdaq, any Transferred Employee and his Stock Exchange or her beneficiaries and dependentsthe SEC that is different from the Business Plan; provided, that occur on (a) any amendments, revisions, updates or before changes to the Closing Date and (B) with respect Business Plan which are consented to by Purchaser in writing in advance of any such amendments, revisions, updates or changes will be deemed to be part of the Business Employee who does not become a Transferred Employee and his or her beneficiaries and dependents, that occur at any timePlan, and (b) Buyer for greater certainty, in no event shall Seller’s consent be deemed unreasonably withheld, conditioned or delayed if it is withheld, conditioned or delayed subject to or during the prior circulation of any revisions to the Business Plan to Convertible Notes Investors and its Affiliates shall be solely responsible for Equity PIPE Investors; (ib) claims for welfare benefits arising under any Buyer Plan, (ii) claims for workers’ compensation that are incurred by or with respect to any Transferred Employee after From the date hereof until the Closing Date, Seller will provide, and (iii) claims relating to COBRA Coverage attributable to “qualifying events” with respect to any Transferred Employee and his or her beneficiaries and dependents that occur after the Closing Date. For purposes as of the foregoing, a workers’ compensation claim shall be considered incurred before the Closing Date if the injury or condition giving rise to the claim occurs before the Closing Date. Nothing herein shall be interpreted as allocating COBRA responsibilities of the Seller and Buyer to the other party; provided, that, Seller and its Affiliates shall indemnify and hold Buyer and its Affiliates harmless from (x) any COBRA Liability and (y) any claims relating to COBRA Coverage attributable to “qualifying events” with respect to any Transferred Employee and his or her beneficiaries or dependents that occur on or before the Closing Date, has provided, Purchaser with all notices and/or copies of all notices, materials, and documents that Seller provides or receives pursuant to or in each caseaccordance with the BCA and/or the other Ancillary Documents. (c) From the date hereof until the Closing, incurred Seller will provide notice to Purchaser if it has actual knowledge of any alleged violation of Sections 8.9, 8.22 and 8.23 and Article 9 of the BCA by Buyer or any party to the BCA, and at Purchaser’s election, will use commercially reasonable efforts to enforce any rights it has with respect to such violation pursuant to the terms of the BCA (including commercially reasonable efforts to seek specific performance). (d) From the date hereof until the Closing, Seller will cooperate with Purchaser and provide Purchaser (and its Affiliates counsel) with a reasonable opportunity to review and comment on or after the Closing DateRegistration Statement (as defined in the BCA) as if Purchaser was a party to Section 8.11 of the BCA. Seller will further provide notice to Purchaser if it has actual knowledge of any alleged violation of Section 8.11 of the BCA by any party to the BCA, and in consultation with Purchaser, will use commercially reasonable efforts to enforce any rights it has with respect to such violation pursuant to the terms of the BCA (including commercially reasonable efforts to seek specific performance).

Certain Obligations. Without limiting 1.3.1. Other than with respect to the indemnification obligations of TERP set forth in Section 1.3.2 below, Parent hereby agrees to indemnify, defend and hold TERP harmless from any and all losses, liabilities, damages, judgments, settlements and expenses, including reasonable attorneys’ fees (collectively, "Losses"), in connection with any suit, action or other proceedings brought by the Company or any other provision hereunderperson against TERP, (a) Seller and its Affiliates Parent hereby agrees that it shall be solely responsible for (ifor, and indemnify, defend and hold TERP harmless from, any amounts payable by Parent or Merger Sub pursuant to Section 4.05(e) claims for welfare benefits arising at or Section 7.02(b) of the Merger Agreement. 1.3.2. TERP hereby agrees to indemnify Parent and Merger Sub from any time under any Seller Plan and all Losses incurred by Parent and/or Merger Sub (including any claims for retiree medical reasonable increased out-of-pocket costs to Parent and/or Merger Sub to seek and obtain alternative financing to otherwise fund the Purchase Amount not funded by TERP) in connection with any suit, action or life benefits under other or proceeding brought by the Seller Plans for any current or former Business Employees), (ii) claims for workers’ compensation that are incurred by or Company against Parent and/or Merger Sub solely in connection with respect the breach of TERP’s obligation to (A) any Transferred Employee, fund the Purchase Amount at the time and on or before the Closing Date, and (B) any Business Employee who does not become a Transferred Employee, at any time, and (iii) claims relating to health continuation coverage required by Section 4980B terms set forth in the Purchase Agreement if all of the Code or Part 6 conditions to funding in the Purchase Agreement were satisfied at the time of Title I of ERISA (“COBRA Coverage”) attributable to “qualifying events” (A) with respect to any Transferred Employee and his or her beneficiaries and dependents, that occur on or before the Closing Date and (B) with respect to any Business Employee who does not become a Transferred Employee and his or her beneficiaries and dependents, that occur at any time, and (b) Buyer and its Affiliates shall be solely responsible for (i) claims for welfare benefits arising under any Buyer Plan, (ii) claims for workers’ compensation that are incurred by or with respect to any Transferred Employee after the Closing Date, and (iii) claims relating to COBRA Coverage attributable to “qualifying events” with respect to any Transferred Employee and his or her beneficiaries and dependents that occur after the Closing Date. For purposes of the foregoing, a workers’ compensation claim shall be considered incurred before the Closing Date if the injury or condition giving rise to the claim occurs before the Closing Date. Nothing herein shall be interpreted as allocating COBRA responsibilities of the Seller and Buyer to the other partysuch funding failure; provided, thathowever, Seller and its Affiliates that TERP’s indemnification obligations under this Section 1.3.2 shall indemnify and hold Buyer and its Affiliates harmless from be conditioned on (x) neither Parent nor Merger Sub being in breach of its obligations under the Merger Agreement (other than any COBRA Liability obligations breached by Parent or Merger Sub solely due to the fact that TERP has breached its obligation to fund its Purchase Amount pursuant to the Purchase Agreement) and (y) any claims relating Parent and Merger Sub being, and demonstrating that they are, ready, willing and able to COBRA Coverage attributable consummate or cause to “qualifying events” with respect to any Transferred Employee be consummated the transactions contemplated by the Merger Agreement and his or her beneficiaries or dependents that occur on or before the Closing Date, in each case, incurred by Buyer or its Affiliates on or after the Closing DatePurchase Agreement.

Certain Obligations. Without limiting any other provision hereunder, (a) Seller and its Affiliates shall be solely responsible for (i) claims for welfare benefits arising at any time under any Seller Plan (including any claims for retiree medical or life benefits under From the Seller Plans for any current or former Business Employees), (ii) claims for workers’ compensation that are incurred by or with respect to (A) any Transferred Employee, on or before date hereof until the Closing Date, Seller will not, without the written consent of Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), consent to, ratify, support, execute, approve or otherwise take actions that would result in (x) Pubco engaging in a business that is inconsistent with the operations reflected in the business plan attached hereto as Exhibit A and approved by the board of Pubco (B) any the “Business Employee who does not become a Transferred Employee, at any time, and (iii) claims relating to health continuation coverage required by Section 4980B of the Code or Part 6 of Title I of ERISA (“COBRA CoveragePlan”) attributable to “qualifying events” or (Ay) a communication with respect to the anticipated business operations of Pubco and its subsidiaries being made to Nasdaq, any Transferred Employee and his Stock Exchange or her beneficiaries and dependentsthe SEC that is different from the Business Plan; provided, that occur on (a) any amendments, revisions, updates or before changes to the Closing Date and (B) with respect Business Plan which are consented to by Purchaser in writing in advance of any such amendments, revisions, updates or changes will be deemed to be part of the Business Employee who does not become a Transferred Employee and his or her beneficiaries and dependents, that occur at any timePlan, and (b) Buyer for greater certainty, in no event shall Seller’s consent be deemed unreasonably withheld, conditioned or delayed if it is withheld, conditioned or delayed subject to or during the prior circulation of any revisions to the Business Plan to Convertible Notes Investors, Equity PIPE Investors and its Affiliates shall be solely responsible for June Equity PIPE Investors; (ib) claims for welfare benefits arising under any Buyer Plan, (ii) claims for workers’ compensation that are incurred by or with respect to any Transferred Employee after From the date hereof until the Closing Date, Seller will provide, and (iii) claims relating to COBRA Coverage attributable to “qualifying events” with respect to any Transferred Employee and his or her beneficiaries and dependents that occur after the Closing Date. For purposes as of the foregoing, a workers’ compensation claim shall be considered incurred before the Closing Date if the injury or condition giving rise to the claim occurs before the Closing Date. Nothing herein shall be interpreted as allocating COBRA responsibilities of the Seller and Buyer to the other party; provided, that, Seller and its Affiliates shall indemnify and hold Buyer and its Affiliates harmless from (x) any COBRA Liability and (y) any claims relating to COBRA Coverage attributable to “qualifying events” with respect to any Transferred Employee and his or her beneficiaries or dependents that occur on or before the Closing Date, has provided, Purchaser with all notices and/or copies of all notices, materials, and documents that Seller provides or receives pursuant to or in each caseaccordance with the BCA and/or the other Ancillary Documents. (c) From the date hereof until the Closing, incurred Seller will provide notice to Purchaser if it has actual knowledge of any alleged violation of Sections 8.9, 8.22 and 8.23 and Article 9 of the BCA by Buyer or any party to the BCA, and at Purchaser’s election, will use commercially reasonable efforts to enforce any rights it has with respect to such violation pursuant to the terms of the BCA (including commercially reasonable efforts to seek specific performance). (d) From the date hereof until the Closing, Seller will cooperate with Purchaser and provide Purchaser (and its Affiliates counsel) with a reasonable opportunity to review and comment on or after the Closing DateRegistration Statement (as defined in the BCA) as if Purchaser was a party to Section 8.11 of the BCA. Seller will further provide notice to Purchaser if it has actual knowledge of any alleged violation of Section 8.11 of the BCA by any party to the BCA, and in consultation with Purchaser, will use commercially reasonable efforts to enforce any rights it has with respect to such violation pursuant to the terms of the BCA (including commercially reasonable efforts to seek specific performance).

Certain Obligations. Without limiting any other provision hereunder, (a) Seller Except as otherwise provided in Section 8 hereof, if the transactions contemplated hereby are consummated and its Affiliates Buyer or the Corporation shall be solely responsible for (i) claims for welfare benefits arising at receive any time under any Seller Plan (including any claims for retiree medical or life benefits amount under the Lease Transaction Documents or otherwise relating to the transactions contemplated thereby to which Seller Plans for any current is properly entitled as indemnitee or former Business Employees), (ii) claims for workers’ compensation that are incurred by or otherwise with respect to (A) any Transferred Employee, the period on or before prior to the Closing on the Closing Date ("Prior Claims"), Buyer or the Corporation shall promptly remit such amount to Seller (together with, to the extent not paid over within ten business days after receipt of such payment and determination that Seller is entitled to the same, interest at a rate per annum equal to the Late Payment Rate from such date to the date of payment to Seller) and until so delivered to Seller any such amount shall be held in trust for the benefit of Seller. Except as otherwise provided in Section 8 hereof, if the transactions contemplated hereby are consummated and Seller shall receive any amount relating the Lease Transaction Documents or otherwise relating to the transactions contemplated thereby (other than any amount received in respect of a Prior Claim) to which Buyer or the Corporation is entitled thereunder with respect to the period after the Closing on the Closing Date, Seller shall promptly upon receipt of such payment remit such amount to the Corporation or Buyer (together with, to the extent not paid over within ten business days after receipt of such payment and (B) any Business Employee who does not become a Transferred Employeethe determination that Buyer or the Corporation is entitled to the same, interest at any timethe Late Payment Rate from such date to the date of payment to Buyer or the Corporation), and (iii) claims relating until so delivered to health continuation coverage required the Buyer or the Corporation any such amount shall be held in trust by Section 4980B Seller for the benefit of the Code Buyer or Part 6 of Title I of ERISA (“COBRA Coverage”) attributable to “qualifying events” (A) with respect to any Transferred Employee and his or her beneficiaries and dependentsthe Corporation, that occur on or before as the Closing Date and (B) with respect to any Business Employee who does not become a Transferred Employee and his or her beneficiaries and dependents, that occur at any time, and case may be. (b) Buyer and its Affiliates shall be solely responsible for (i) claims for welfare benefits arising under any Buyer Plan, (ii) claims for workers’ compensation that are incurred by or with respect to any Transferred Employee after the Closing Datepay, and (iii) claims relating to COBRA Coverage attributable to “qualifying events” with respect to any Transferred Employee and his or her beneficiaries and dependents that occur after hereby assumes the Closing Date. For purposes obligations of the foregoingCorporation (and of Dana Lease Finance Corporation as guarantor of certain of the ob▇▇▇▇tions of the Corporation) pursuant to that certain Settlement Agreement dated September 30, a workers’ compensation claim shall be considered incurred before 1996 between the Closing Date Corporation and the Lessee, including the obligations to make the payments referred to in Sections 7 and 8 thereof if the injury or condition giving rise and to the claim occurs before extent such payments are due. (c) Buyer shall cause the Closing Date. Nothing herein Corporation to comply with its obligations under and shall be interpreted as allocating COBRA responsibilities not take any action in violation of Sections 3(b), 12(b), 12(c) and 19(f) of the Financing Agreement, Sections 12.12, 12.13 and 4.01 of the Indenture or under the Trust Agreement without the prior written consent of Seller and Buyer shall not otherwise take any action or permit any action to be taken which would trigger liability under Dana Lease Finance Corporation's guaranty of the other party; provided, that, Seller and its Affiliates shall indemnify and hold Buyer and its Affiliates harmless from (x) any COBRA Liability and (y) any claims relating to COBRA Coverage attributable to “qualifying events” with respect to any Transferred Employee and his or her beneficiaries or dependents that occur on or before obligations of the Closing Date, in each case, incurred by Buyer or its Affiliates on or after the Closing Date▇▇▇poration.

Certain Obligations. Without limiting 1.3.1. Other than with respect to the indemnification obligations of TERP set forth in Section 1.3.2 below, Parent hereby agrees to indemnify, defend and hold TERP harmless from any and all losses, liabilities, damages, judgments, settlements and expenses, including reasonable attorneys’ fees (collectively, “Losses”), in connection with any suit, action or other proceedings brought by the Company or any other provision hereunderperson against TERP, (a) Seller and its Affiliates Parent hereby agrees that it shall be solely responsible for (ifor, and indemnify, defend and hold TERP harmless from, any amounts payable by Parent or Merger Sub pursuant to Section 4.05(e) claims for welfare benefits arising at or Section 7.02(b) of the Merger Agreement. 1.3.2. TERP hereby agrees to indemnify Parent and Merger Sub from any time under any Seller Plan and all Losses incurred by Parent and/or Merger Sub (including any claims for retiree medical reasonable increased out-of-pocket costs to Parent and/or Merger Sub to seek and obtain alternative financing to otherwise fund the Purchase Price not funded by TERP) in connection with any suit, action or life benefits under other or proceeding brought by the Seller Plans for any current or former Business Employees), (ii) claims for workers’ compensation that are incurred by or Company against Parent and/or Merger Sub solely in connection with respect the breach of TERP’s obligation to (A) any Transferred Employee, fund the Purchase Price at the time and on or before the Closing Date, and (B) any Business Employee who does not become a Transferred Employee, at any time, and (iii) claims relating to health continuation coverage required by Section 4980B terms set forth in the Purchase Agreement if all of the Code or Part 6 conditions to funding in the Purchase Agreement were satisfied at the time of Title I of ERISA (“COBRA Coverage”) attributable to “qualifying events” (A) with respect to any Transferred Employee and his or her beneficiaries and dependents, that occur on or before the Closing Date and (B) with respect to any Business Employee who does not become a Transferred Employee and his or her beneficiaries and dependents, that occur at any time, and (b) Buyer and its Affiliates shall be solely responsible for (i) claims for welfare benefits arising under any Buyer Plan, (ii) claims for workers’ compensation that are incurred by or with respect to any Transferred Employee after the Closing Date, and (iii) claims relating to COBRA Coverage attributable to “qualifying events” with respect to any Transferred Employee and his or her beneficiaries and dependents that occur after the Closing Date. For purposes of the foregoing, a workers’ compensation claim shall be considered incurred before the Closing Date if the injury or condition giving rise to the claim occurs before the Closing Date. Nothing herein shall be interpreted as allocating COBRA responsibilities of the Seller and Buyer to the other partysuch funding failure; provided, thathowever, Seller and its Affiliates that TERP’s indemnification obligations under this Section 1.3.2 shall indemnify and hold Buyer and its Affiliates harmless from be conditioned on (x) neither Parent nor Merger Sub being in breach of its obligations under the Merger Agreement (other than any COBRA Liability obligations breached by Parent or Merger Sub solely due to the fact that TERP has breached its obligation to fund its Purchase Price pursuant to the Purchase Agreement) and (y) any claims relating Parent and Merger Sub being, and demonstrating that they are, ready, willing and able to COBRA Coverage attributable consummate or cause to “qualifying events” with respect to any Transferred Employee be consummated the transactions contemplated by the Merger Agreement and his or her beneficiaries or dependents that occur on or before the Closing Date, in each case, incurred by Buyer or its Affiliates on or after the Closing DatePurchase Agreement.