Common use of Indemnification Provisions for Seller’s Benefit Clause in Contracts

Indemnification Provisions for Seller’s Benefit. If the Closing occurs, and provided that either Seller makes a written claim for indemnification against Purchaser pursuant to Section 14.4 below within the survival period (if there is an applicable survival period pursuant to Section 12.1 above), which written claim must specify the factual basis of the claim, the amount of such claim (if known) and the method of computation of such claim, all with reasonable specificity, Purchaser shall indemnify and hold Sellers harmless against all Adverse Consequences either Seller has suffered or shall suffer relating to, arising from, or in connection with: (a) the failure of Purchaser to perform its covenants, agreements, and obligations under this Agreement or any other Transaction Document; (b) the breach of any representation or warranty made by Purchaser under this Agreement or any other Transaction Document; (c) services and activities performed by Purchaser under the Assumed Contracts on and following the Effective Date; (d) any Assumed Liabilities and any other liability or obligation of either Seller specifically assumed by Purchaser under this Agreement or any other Transaction Document (including without limitation any Adverse Consequences relating to, arising from, or in connection with Purchaser’s failure to render Management Services as provided herein in full satisfaction of Sellers’ obligations and liabilities under the Time Warner Transition Agreement and/or its failure to provide Management Services in accordance with the directives and guidance given by Sellers); (e) employment of the Transferred Employees following the Closing Date; (f) operation of the Business by Purchaser or Purchaser’s ownership or use of the Acquired Assets on and after the Effective Date (including without limitation infringement by Purchaser of any third party’s intellectual property or intellectual property rights arising out of, relating to, or in connection with use of the Intellectual Property, and all taxes arising with respect to periods beginning on or after the Effective Date); and (g) destruction, damage, or loss of any physical property owned or leased by Sellers resulting from Purchaser’s negligence in its use or occupation of Sellers’ principal place of business as provided herein; provided that in no event shall Purchaser indemnify Sellers for any Adverse Consequences either Seller has suffered or shall suffer arising out of, relating to or in connection with any conflict or breach of, or consent required to be obtained pursuant to, any other agreement or obligation of either Seller (including without limitation the Assumed Contracts) arising out of, relating to, or occurring in connection with this Agreement, any other Transaction Document, or the transactions contemplated hereby or thereby.

Indemnification Provisions for Seller’s Benefit. If the Closing occursBuyer shall indemnify Seller, its Affiliates and their respective directors, officers and employees ("Seller Indemnified Parties") from and against any and all Indemnifiable Losses that Seller Indemnified Parties may incur or suffer as a result of (i) any inaccuracy or breach of a representation or warranty made by Buyer in this Agreement, provided that either Seller makes a written claim for indemnification against Purchaser Buyer pursuant to Section 14.4 below 7.1 within the survival period set forth in Section 4.4; (if there is an applicable survival period ii) the breach of, or default in the performance by Buyer of, any covenant, agreement or obligation to be performed by the Buyer pursuant to Section 12.1 above)this Agreement; and (iii) the Assumed Liabilities; provided, which written claim must specify the factual basis of the claim, the amount of such claim (if known) and the method of computation of such claim, all with reasonable specificity, Purchaser shall indemnify and hold Sellers harmless against all Adverse Consequences either Seller has suffered or shall suffer relating to, arising from, or in connection with: however that (a) Buyer shall have no obligation to indemnify Seller Indemnified Parties from and against any Indemnifiable Losses until Seller Indemnified Parties have suffered Indemnifiable Losses in excess of the failure Threshold (in which event Seller Indemnified Parties may recover all Indemnifiable Losses in excess of Purchaser to perform its covenants, agreementsthe Threshold), and obligations under this Agreement or any other Transaction Document; (b) the maximum liability of Buyer for Indemnifiable Losses under this Section 7.8(b) shall not exceed the Cap. The limitations on Buyer's obligations to indemnify set forth in this Section 7.8(b) shall not apply to (x) any willful breach of any representation or warranty made by Purchaser under this Agreement or any other Transaction Document; (c) services and activities performed by Purchaser under the Assumed Contracts on and following the Effective Date; (d) any Assumed Liabilities and any other liability or obligation of either Seller specifically assumed by Purchaser under this Agreement or any other Transaction Document (including without limitation any Adverse Consequences relating to, arising from, or in connection with Purchaser’s failure to render Management Services as provided herein in full satisfaction of Sellers’ obligations and liabilities under the Time Warner Transition Agreement and/or its failure to provide Management Services in accordance with the directives and guidance given by Sellers); (e) employment of the Transferred Employees following covenant which survives the Closing Date; (f) operation of the Business by Purchaser or Purchaser’s ownership or use of the Acquired Assets on and after the Effective Date (including without limitation infringement by Purchaser of any third party’s intellectual property or intellectual property rights arising out of, relating to, or in connection with use of the Intellectual Property, and all taxes arising with respect to periods beginning on or after the Effective Date); and (g) destruction, damage, or loss of any physical property owned or leased by Sellers resulting from Purchaser’s negligence in its use or occupation of Sellers’ principal place of business as provided herein; provided that in no event shall Purchaser indemnify Sellers for any Adverse Consequences either Seller has suffered or shall suffer arising out of, relating to or in connection with any conflict or breach of, or consent required to be obtained pursuant to, any other agreement or obligation of either Seller (including without limitation the Assumed Contracts) arising out of, relating to, or occurring in connection with under this Agreement, (y) any other Transaction Document, Indemnifiable Losses arising from Buyer's fraud or (z) the transactions contemplated hereby or therebyAssumed Liabilities.

Indemnification Provisions for Seller’s Benefit. If In the Closing occursevent of any inaccuracy in or breach of any of the representations, warranties, and provided that either covenants of Buyer contained herein, and if Seller makes a written claim for indemnification against Purchaser pursuant to Section 14.4 below Buyer within the survival period (if there is an applicable survival period pursuant to Section 12.1 §8(a) above), which written claim must specify the factual basis of the claimthen Buyer shall indemnify Seller from and against any Adverse Consequences Seller shall suffer based upon, the amount arising out of, with respect to or by reason of such claim inaccuracy or breach; subject to the following limitations: (if knowni) except in the case of Buyer’s fraud, Buyer shall not have any obligation to indemnify Seller from and the method of computation of such claim, all with reasonable specificity, Purchaser shall indemnify and hold Sellers harmless against all any Adverse Consequences either Seller has suffered caused by the inaccuracy in or shall suffer relating to, arising from, or in connection with: (a) the failure of Purchaser to perform its covenants, agreements, and obligations under this Agreement or any other Transaction Document; (b) the breach of any representation or warranty made by Purchaser under this Agreement or any other Transaction Document; (c) services and activities performed by Purchaser under the Assumed Contracts on and following the Effective Date; (d) any Assumed Liabilities and any other liability or obligation of either Seller specifically assumed by Purchaser under this Agreement or any other Transaction Document (including without limitation any Adverse Consequences relating to, arising from, or in connection with Purchaser’s failure to render Management Services as provided herein in full satisfaction of Sellers’ obligations and liabilities under the Time Warner Transition Agreement and/or its failure to provide Management Services in accordance with the directives and guidance given by Sellers); (e) employment of the Transferred Employees following the Closing Date; (f) operation of the Business by Purchaser or Purchaser’s ownership or use of the Acquired Assets on and after the Effective Date (including without limitation infringement by Purchaser of any third party’s intellectual property or intellectual property rights arising out of, relating to, or in connection with use of the Intellectual Property, and all taxes arising with respect to periods beginning on or after the Effective Date); and (g) destruction, damage, or loss of any physical property owned or leased by Sellers resulting from Purchaser’s negligence in its use or occupation of Sellers’ principal place of business as provided herein; provided that in no event shall Purchaser indemnify Sellers for any Adverse Consequences either Buyer until Seller has suffered Adverse Consequences by reason of all such inaccuracies and breaches in excess of $1,750,000, after which point Buyer will be obligated only to indemnify Seller from and against Adverse Consequences in excess of such amount, (ii) except in the case of Buyer’s fraud, under no circumstances shall Buyer’s total indemnification obligation in respect of all such inaccuracies and breaches in the aggregate exceed an amount equal to twelve and one-half percent (12.5%) of the Purchase Price, (iii) Buyer’s total indemnification obligation in respect of any breach or shall suffer arising out ofnon-fulfillment of any covenant, relating to or in connection with any conflict or breach of, or consent required to be obtained pursuant to, any other agreement or obligation to be performed by Buyer pursuant to this Agreement shall not exceed an amount equal to the Purchase Price, and (iv) in the case of either Seller (including without limitation Buyer’s fraud, under no circumstances shall Buyer’s total indemnification obligation exceed an amount equal to the Assumed Contracts) arising out of, relating to, or occurring in connection with Purchase Price. For purposes of this Agreement§8(c), any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect, Material Adverse Change or other Transaction Document, similar qualification contained in or the transactions contemplated hereby otherwise applicable to any representation or therebywarranty.

Indemnification Provisions for Seller’s Benefit. If In the Closing occursevent that any of Buyer’s representations or warranties contained Section 3(b) above, or elsewhere in this Agreement or in any document or certificate delivered to Company or Sellers by Buyer in connection with this Agreement, are breached, at any time at or before the Closing, or were inaccurate as of the Closing, or any of its covenants contained herein are breached and not cured at or before the Closing, and provided that either Seller Stockholders Representative makes a written claim for indemnification against Purchaser pursuant Buyer with respect to Section 14.4 below such breach after the Closing and within the survival period (if there is an applicable survival period pursuant to specified in Section 12.1 8(a) above), which written claim must specify then Buyer will indemnify each Seller from and against the factual basis entirety of the claim, the amount of such claim (if known) and the method of computation of such claim, all with reasonable specificity, Purchaser shall indemnify and hold Sellers harmless against all Adverse Consequences either Seller has suffered or shall suffer relating to, arising from, or in connection with: (a) the failure of Purchaser to perform its covenants, agreements, and obligations under this Agreement or any other Transaction Document; (b) the breach of any representation or warranty made by Purchaser under this Agreement or any other Transaction Document; (c) services and activities performed by Purchaser under the Assumed Contracts on and following the Effective Date; (d) any Assumed Liabilities and any other liability or obligation of either Seller specifically assumed by Purchaser under this Agreement or any other Transaction Document (including without limitation any Adverse Consequences relating to, arising from, or in connection with Purchaser’s failure to render Management Services as provided herein in full satisfaction of Sellers’ obligations and liabilities under the Time Warner Transition Agreement and/or its failure to provide Management Services in accordance with the directives and guidance given by Sellers); such Seller will suffer (e) employment of the Transferred Employees following the Closing Date; (f) operation of the Business by Purchaser or Purchaser’s ownership or use of the Acquired Assets on and including any Adverse Consequences suffered after the Effective Date (including without limitation infringement by Purchaser end of any third party’s intellectual property applicable survival period) caused proximately by the breach or intellectual property rights arising out ofinaccuracy, relating toprovided such indemnification, or if any, in connection with use of no event will exceed, in the Intellectual Property, and all taxes arising aggregate with respect to periods beginning on all Sellers, the Indemnification Ceiling or, with respect to any single Seller, such Seller’s Allocable Portion of the Indemnification Ceiling. To the extent that Adverse Consequences of all Sellers by reason of all such breaches and inaccuracies exceed the Indemnification Ceiling, or to the extent that Adverse Consequences of any single Seller by reason of all such breaches and inaccuracies exceed such Seller’s Allocable Portion of the Indemnification Ceiling, or to the extent that any such claims for indemnification are made after the Effective Date); and (g) destruction, damage, or loss end of any physical property owned or leased by Sellers resulting from Purchaser’s negligence in its use or occupation of Sellers’ principal place of business as provided herein; provided that in applicable survival period, Buyer will have no event shall Purchaser obligation to indemnify Sellers for any or such Seller, as the case may be, from and against such Adverse Consequences either Seller has suffered in excess of the Indemnification Ceiling or shall suffer arising out of, relating any single Seller’s Allocable Portion of the Indemnification Ceiling or that relate solely to or in connection with any conflict or breach of, or consent required to be obtained pursuant to, any other agreement or obligation a claim made after the end of either Seller (including without limitation the Assumed Contracts) arising out of, relating to, or occurring in connection with this Agreement, any other Transaction Document, or the transactions contemplated hereby or therebyapplicable survival period.

Indemnification Provisions for Seller’s Benefit. If In the Closing occursevent (i) Buyer breaches any of its representations or warranties contained in this Agreement or (ii) Buyer breaches any of its covenants or obligations under this Agreement (including, but not limited to, its obligations with respect to the Assumed Liabilities in Section 14.1), and in each case provided that either Seller makes a written claim for indemnification against Purchaser and to Buyer pursuant to Section 14.4 16.2 below within the survival period (if there is an any applicable survival period pursuant to Section 12.1 above)14.5 A, which written claim must specify the factual basis of the claimthen in each case Buyer shall be obligated to indemnify, the amount of such claim (if known) and the method of computation of such claim, all with reasonable specificity, Purchaser shall indemnify defend and hold Sellers harmless Seller and its affiliates, managers, directors, officers, stockholders, members and employees (collectively the “Seller Indemnitees”) from and against any and all Adverse Consequences either Losses any Seller has suffered or shall Indemnitee may suffer resulting from, arising out of, relating to, arising fromin the nature of, or in connection with: caused by the breach; provided, however, that (a) Buyer shall not have any obligation to indemnify the failure of Purchaser to perform its covenantsSeller Indemnitees from and against any Losses resulting from, agreementsarising out of, and obligations under this Agreement relating to, in the nature of, or any other Transaction Document; (b) caused by the breach of any representation or warranty made by Purchaser under contained in this Agreement or any other Transaction Document; until the Seller Indemnitees have suffered Losses by reason of all such breaches in excess of a $400,000.00 aggregate deductible (cafter which point Buyer will be obligated only to indemnify the Seller Indemnitees from and against further such Losses), and (b) services and activities performed by Purchaser under there will be a $7,500,000.00 aggregate ceiling on the Assumed Contracts on and following the Effective Date; (d) any Assumed Liabilities and any other liability or obligation of either Buyer to indemnify the Seller specifically assumed by Purchaser under this Agreement or any other Transaction Document (including without limitation any Adverse Consequences relating to, arising Indemnitees from and against the Losses resulting from, or in connection with Purchaser’s failure to render Management Services as provided herein in full satisfaction of Sellers’ obligations and liabilities under the Time Warner Transition Agreement and/or its failure to provide Management Services in accordance with the directives and guidance given by Sellers); (e) employment of the Transferred Employees following the Closing Date; (f) operation of the Business by Purchaser or Purchaser’s ownership or use of the Acquired Assets on and after the Effective Date (including without limitation infringement by Purchaser of any third party’s intellectual property or intellectual property rights arising out of, relating to, or in connection with use of the Intellectual Property, and all taxes arising with respect to periods beginning on or after the Effective Date); and (g) destruction, damage, or loss of any physical property owned or leased by Sellers resulting from Purchaser’s negligence in its use or occupation of Sellers’ principal place of business as provided herein; provided that in no event shall Purchaser indemnify Sellers for any Adverse Consequences either Seller has suffered or shall suffer arising out of, relating to or in connection with any conflict or breach nature of, or consent required to be obtained pursuant to, any other agreement or obligation caused by breaches by Buyer of either Seller (including without limitation the Assumed Contracts) arising out of, relating to, or occurring in connection with this Agreement, any other Transaction Document, or the transactions contemplated hereby or thereby.

Indemnification Provisions for Seller’s Benefit. If the Closing occurs, and provided that either Seller makes a written claim for indemnification against Purchaser pursuant to Section 14.4 below within the survival period (if there is an applicable survival period pursuant to Section 12.1 above), which written claim must specify the factual basis of the claim, the amount of such claim (if known) and the method of computation of such claim, all with reasonable specificity, Purchaser shall indemnify and hold Sellers harmless against all Adverse Consequences either Seller has suffered or shall suffer relating to, arising from, or in connection with: (a) Buyer shall be obligated to indemnify, defend and hold harmless Sellers and their respective Affiliates, officers, directors and employees (the failure “Seller Indemnitees”) from and against the entirety of Purchaser any Adverse Consequences they may suffer resulting from, arising out of, relating to perform its covenants, agreements, and obligations under this Agreement or any other Transaction Document; caused by (bi) the breach of any representation or warranty made by Purchaser of Buyer under this Agreement or any other Transaction Document; (c) services and activities performed by Purchaser under the Assumed Contracts on and following the Effective Date; (d) any Assumed Liabilities and any other liability or obligation of either Seller specifically assumed by Purchaser under this Agreement or any other Transaction Document (including without limitation any Adverse Consequences relating to, arising from, or in connection with Purchaser’s failure to render Management Services as provided herein in full satisfaction of Sellers’ obligations and liabilities under the Time Warner Transition Agreement and/or its failure to provide Management Services in accordance with the directives and guidance given by Sellers); (e) employment of the Transferred Employees following the Closing Date; (f) operation of the Business by Purchaser or Purchaser’s ownership or use of the Acquired Assets on and after the Effective Date (including without limitation infringement by Purchaser of any third party’s intellectual property or intellectual property rights arising out of, relating to, or in connection with use of the Intellectual Property, and all taxes arising with respect to periods beginning on or after the Effective Date); and (g) destruction, damage, or loss of any physical property owned or leased by Sellers resulting from Purchaser’s negligence in its use or occupation of Sellers’ principal place of business as provided herein; provided that in no event shall Purchaser indemnify Sellers for any Adverse Consequences either Seller has suffered or shall suffer arising out of, relating to or in connection with any conflict or breach of, or consent required to be obtained pursuant to, any other agreement or obligation of either Seller (including without limitation the Assumed Contracts) arising out of, relating to, or occurring in connection with this Agreement, (ii) the nonperformance or breach of any covenant or agreement made by Buyer under this Agreement, (iii) the Assumed Liabilities, and (iv) any claim or demand by Buyer against DTE (including, without limitation, any claims subrogated to any insurance carrier) which results in DTE making a claim or demand against either of the Sellers; provided, however, Buyer shall not be obligated to indemnify, defend and hold harmless the Seller Indemnitees from and against any Environmental Liabilities other Transaction Documentthan any of the following Environmental Liabilities (collectively, the “Buyer Environmental Liabilities”): (A) a claim or demand by a governmental authority or other third party as a result of any voluntary communication between Buyer or its agents, representatives, employees, or successors and assigns and such governmental authority or other third party, or (B) a claim or demand by a third party against DTE resulting from Buyer’s successful assertion of any defense in event of a claim or demand against Buyer by such third party that ultimately results in DTE making a claim or demand against either of the transactions contemplated hereby Sellers. For purposes of this Agreement, Environmental Liabilities which arise directly from communications between Buyer or therebyits agents and a governmental authority or other third party in response to an inquiry, request for information or similar demand initiated by a governmental authority or third party, but only where such response is legally mandated and in writing, shall not constitute Buyer Environmental Liabilities. Buyer shall not have any obligation to indemnify the Seller Indemnitees unless Sellers deliver a written claim for indemnification to Buyer pursuant to Section 9.8. In addition, Buyer shall not have any obligation to indemnify Seller Indemnitees under Section 8.3(a)(i), unless such written claim for indemnification is made by Sellers pursuant to Section 9.8 within the survival period pursuant to Section 8.1. To the extent any claim for indemnification arises under Section 8.3(a)(i) and the representation or warranty is qualified by reference to materiality or a Material Adverse Effect, such representation or warranty shall be treated as if it did not contain any limitation as to materiality or Material Adverse Effect for the purposes of determining the amount of Adverse Consequences.

Indemnification Provisions for Seller’s Benefit. If (i) In the Closing occursevent of any inaccuracy in, breach of or failure to perform any representations, warranties, or covenants of Buyer contained in this Agreement or in any certificate furnished by Buyer pursuant to this Agreement (determined, for purposes of this Section 8(c)(i), without regard to any limitations or qualifications as to “Material Adverse Effect”, “material” or other similar limitations or qualifications contained in any such representation or warranty), and provided that either any Seller makes a written claim for indemnification against Purchaser pursuant to Section 14.4 below Buyer within the applicable survival period (if there is an applicable survival period pursuant to Section 12.1 8(a) above), which written claim must specify the factual basis of the claimthen Buyer agrees to indemnify, defend and hold harmless each Seller, its Affiliates and their respective officers, directors, employees, agents, advisors, successors and assigns (collectively, the amount “Seller Indemnitees”) from and against the entirety of such claim (if known) and the method of computation of such claim, all with reasonable specificity, Purchaser shall indemnify and hold Sellers harmless against all Adverse Consequences either Seller has suffered or shall suffer relating to, arising from, or in connection with: (a) the failure of Purchaser to perform its covenants, agreements, and obligations under this Agreement or any other Transaction Document; (b) the breach of any representation or warranty made by Purchaser under this Agreement or any other Transaction Document; (c) services and activities performed by Purchaser under the Assumed Contracts on and following the Effective Date; (d) any Assumed Liabilities and any other liability or obligation of either Seller specifically assumed by Purchaser under this Agreement or any other Transaction Document (including without limitation any Adverse Consequences relating to, arising suffered (including any Adverse Consequences suffered after the end of any applicable survival period) resulting from, or in connection with Purchaser’s failure to render Management Services as provided herein in full satisfaction of Sellers’ obligations and liabilities under the Time Warner Transition Agreement and/or its failure to provide Management Services in accordance with the directives and guidance given by Sellers); (e) employment of the Transferred Employees following the Closing Date; (f) operation of the Business by Purchaser or Purchaser’s ownership or use of the Acquired Assets on and after the Effective Date (including without limitation infringement by Purchaser of any third party’s intellectual property or intellectual property rights arising out of, relating to, or in connection with use of the Intellectual Property, and all taxes arising with respect to periods beginning on or after the Effective Date); and (g) destruction, damagenature of, or loss of caused by such inaccuracy, breach or failure; provided, however, that Buyer shall not have any physical property owned obligation to indemnify, defend or leased by Sellers resulting hold harmless the Seller Indemnitees from Purchaser’s negligence in its use or occupation of Sellers’ principal place of business as provided herein; provided that in no event shall Purchaser indemnify Sellers for and against any Adverse Consequences either Seller has suffered or shall suffer arising out ofresulting from, relating to or in connection with any conflict or breach of, or consent required to be obtained pursuant to, any other agreement or obligation of either Seller (including without limitation the Assumed Contracts) arising out of, relating to, or occurring in connection with this Agreement, any other Transaction Documentthe nature of, or caused by any inaccuracy in or breach of any representation or warranty of Buyer (other than any representation or warranty in Sections 3(b)(i), 3(b)(ii) and 3(b)(iv), as to which this proviso shall not apply) until the transactions contemplated hereby Seller Indemnitees have suffered Adverse Consequences by reason of all such inaccuracies and breaches in excess of an aggregate deductible amount equal to $225,000 (after which point Buyer will be obligated only to indemnify the Seller Indemnitees from and against Adverse Consequences in excess of such amount) provided, that, for the purposes of determining whether the deductible amount has been met or therebyexceeded, claims for Adverse Consequences arising from a single event or a group or series of related events that are, individually or in the aggregate, less than $50,000 shall be excluded; and provided, further, that there will be an aggregate ceiling in an amount equal to $7,000,000 on the obligation of Buyer to indemnify, defend and hold harmless the Seller Indemnitees from and against Adverse Consequences resulting from, arising out of, relating to, in the nature of, or caused by any inaccuracy in or breach of any representation or warranty of Buyer (other than any representation or warranty in Sections 3(b)(i), 3(b)(ii) and 3(b)(iv), as to which such aggregate ceiling shall not apply).