Common use of Indemnification by the Sellers Clause in Contracts

Indemnification by the Sellers. (a) Subject to the limitations set forth herein, after the Closing, each of the Sellers shall (jointly and severally in the case of the Highstar Sellers, and severally, but not jointly in the case of American General Life Insurance Company), in accordance with its Pro Rata Share (with such Pro Rata Share limitation applicable only in respect of breaches of the representations and warranties contained in Article IV), indemnify and defend the Buyer against, and shall hold the Buyer, its Representatives and its Affiliates (including the Company), each of their respective shareholders, members, partners, officers, directors, managers, employees, agents, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Buyer Indemnitees”) harmless from, any loss, liability, claim, charge, action, suit, proceeding, assessed interest, penalty, damage, Tax or expense (collectively, “Losses”) resulting from, arising out of or incurred by such Buyer Indemnitee in connection with, or otherwise with respect to, (i) any breach of any representation and warranty of such Seller contained in Article III or Article IV, (ii) any breach of the covenants or agreements of such Seller (with respect to the Company and its Subsidiaries, only in respect of covenants and agreements that are required to be performed prior to or contemporaneously with the Closing) contained in this Agreement, (iii) any Income Taxes paid after the date hereof that are attributable to a Pre-Signing Taxable Period or the Pre-Signing portion of any Straddle Taxable Period pursuant to Section 6.9, (iv) any Income Taxes which the Company or any Subsidiary has paid or for which the Company or any Subsidiary is liable in connection with the consummation of the Bayside Transaction, the Xxxxxxxxx Farms Transaction, the Cabarrus Xxxxx Transaction and the Xxxxx Creek Transaction, as applicable, and Transfer Taxes for which Sellers are liable pursuant to Section 6.8 and (iv) any indemnification or other post-closing obligations in respect of the Bayside Transaction, the Cabarrus Xxxxx Transaction, the Xxxxxxxxx Farms Transaction and the Xxxxx Creek Transaction and any liabilities remaining with the Company or any Subsidiary in respect of the assets sold pursuant to such transactions. If any representation or warranty contained herein is limited or qualified based on materiality, including the terms “material,” “Material Adverse Effect” or similar qualifications, such limitation or qualification shall in all respects be ignored and given no effect for purposes of determining the amount of Losses resulting from any breach of any such representation or warranty, but shall not be ignored for purposes of determining if there has been such a breach.

Indemnification by the Sellers. (af) Subject to the limitations set forth herein, From and after the Closing, each subject to the other provisions of this Article VII, the Sellers shall (jointly and severally in the case of the Highstar Sellers, and severally, but not jointly in the case of American General Life Insurance Company), in accordance with its Pro Rata Share (with such Pro Rata Share limitation applicable only in respect of breaches of the representations and warranties contained in Article IV), indemnify and defend the Buyer against, and shall hold the Buyer, its Representatives Apollo and its Affiliates (including the Company), each of their respective shareholders, members, partners, officers, directors, managers, employees, agents, employees and each of the heirs, executors, successors and assigns of any of the foregoing Affiliates (collectively, the “Buyer IndemniteesIndemnified Apollo Parties”) ), and hold each of them harmless fromfrom and against, any lossand all actions, liabilitysuits, claimproceedings, chargedemands, actionassessments, suitjudgments, proceedingclaims, assessed interestliabilities, penaltylosses (including losses arising from the diminution of value), damagecosts, Tax damages, expenses, interest or expense penalties, and reasonable attorneys’ fees, expenses and disbursements, whether or not resulting from a Third Party Claim (collectively, “LossesDamages”) resulting from), arising out of suffered, paid or incurred by such Buyer Indemnitee in connection withIndemnified Apollo Party arising out of, resulting from or otherwise with respect to, caused by: (i) any breach of any of the representations and warranties (read without giving effect to any qualifications regarding materiality, Material Adverse Effect or similar qualifications other than with respect to the representations in Section 2.6 and Section 2.9(a)) made by the Sellers in Article II, or in any certificate or other document delivered in connection with this Agreement, as if such representation or warranty was made as of the Closing (except in the case of representations and warranty warranties which by their terms speak only as of a specific date or dates, in which case as of such Seller contained in Article III date or Article IVdates), (ii) any breach by a Seller of the covenants any covenant or agreements agreement of such Seller (with respect to the Company and its Subsidiaries, only in respect of covenants and agreements that are required to be performed prior to or contemporaneously with the Closing) contained in this Agreement, (iii) any Income Taxes paid after matter described in Section 7.1(a)(iii) of the date hereof that are attributable to a Pre-Signing Taxable Period or the Pre-Signing portion of any Straddle Taxable Period pursuant to Section 6.9Seller Disclosure Letter, (iv) any Income Taxes which the Company Excluded RCS Business or any Subsidiary has paid other businesses operated or for which conducted by the Company or Sellers and its Subsidiaries (other than the Subject Companies), (v) any Subsidiary is liable matter described in connection with the consummation Section 7.1(a)(v) of the Bayside TransactionSeller Disclosure Letter, (vi) the Xxxxxxxxx Farms TransactionPre-Closing Restructuring Actions, (vii) any FINRA Burdensome Condition (provided, however, that the Cabarrus Xxxxx Transaction and obligation to indemnify for any FINRA Burdensome Condition shall not apply if Apollo has exercised its right under the Xxxxx Creek Transaction, as applicablesecond sentence of Section 5.2(i)), and Transfer Taxes for which Sellers are liable (viii) any New Disclosure that would entitle Apollo to terminate the Agreement pursuant to Section 6.8 and (iv) any indemnification or other post-closing obligations in respect of the Bayside Transaction, the Cabarrus Xxxxx Transaction, the Xxxxxxxxx Farms Transaction and the Xxxxx Creek Transaction and any liabilities remaining with the Company or any Subsidiary in respect of the assets sold pursuant to such transactions. If any representation or warranty contained herein is limited or qualified based on materiality, including the terms “material,” “Material Adverse Effect” or similar qualifications, such limitation or qualification shall in all respects be ignored and given no effect for purposes of determining the amount of Losses resulting from any breach of any such representation or warranty, but shall not be ignored for purposes of determining if there has been such a breach4.5.

Indemnification by the Sellers. (a) Subject to the limitations set forth herein, From and after the ClosingClosing Date, each of the Sellers shall (shall, jointly and severally in the case of the Highstar Sellers, and severally, but not jointly in indemnify the case of American General Life Insurance Company), in accordance with its Pro Rata Share Purchaser Indemnified Parties (with such Pro Rata Share limitation applicable only in respect of breaches of the representations each a “Tax Indemnified Purchaser Party” and warranties contained in Article IV), indemnify and defend the Buyer against, and shall hold the Buyer, its Representatives and its Affiliates (including the Company), each of their respective shareholders, members, partners, officers, directors, managers, employees, agents, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Buyer IndemniteesTax Indemnified Purchaser Parties”) against and hold harmless fromfrom any and all liabilities, any losslosses, liabilitydamages, claimclaims, chargecosts, actionexpenses, suit, proceeding, assessed interest, penaltyawards, damagejudgments and penalties (including, without limitation, reasonable fees for both in-house and outside counsel, accountants and other outside consultants) suffered or incurred (each a “Tax or expense (Loss” and collectively, the “Tax Losses”) resulting from, arising out of or incurred by such Buyer Indemnitee in connection with, or otherwise with respect to, (i) any breach of any representation and warranty of such Seller contained in Article III Taxes payable by or Article IV, (ii) any breach of the covenants or agreements of such Seller (with respect to the operations of the Company for periods or portions thereof ending on or before the Closing Date, other than any Section 338(h)(10) Tax Liability (“Pre-Closing Taxes”); (ii) Taxes of any member of an affiliated, consolidated, combined or unitary group of which the Company was a member prior to the Closing Date by reason of liability under Treasury Regulation §1.1502-6, Treasury Regulation §1.1502-78 or comparable provision of foreign, state or local Tax law; (iii) without duplication, Taxes imposed on a Tax Indemnified Purchaser Party as a result of a breach of a representation or warranty set forth in Section 4.08 (Tax Matters); provided, that for purposes of this Section 8.02(a)(iii) only, any breach of a representation, warranty, covenant or agreement shall be determined without reference to any materiality qualifier with respect thereto; (iv) Taxes arising out of any transactions contemplated by this Agreement (other than any Section 338(h)(10) Tax Liability); and its Subsidiaries, only in respect of covenants and agreements that are (v) Taxes or other payments required to be performed prior to or contemporaneously with the Closing) contained in this Agreement, (iii) any Income Taxes paid after the date hereof that are attributable to a Pre-Signing Taxable Period or the Pre-Signing portion of any Straddle Taxable Period pursuant to Section 6.9, (iv) any Income Taxes which by the Company to any party under any Tax Sharing Agreement (whether written or any Subsidiary has paid not) or for which the Company by reason of being a successor-in-interest or any Subsidiary is liable in connection with the consummation transferee of the Bayside Transaction, the Xxxxxxxxx Farms Transaction, the Cabarrus Xxxxx Transaction and the Xxxxx Creek Transaction, as applicable, and Transfer Taxes for which Sellers are liable pursuant to Section 6.8 and (iv) any indemnification or other post-closing obligations in respect of the Bayside Transaction, the Cabarrus Xxxxx Transaction, the Xxxxxxxxx Farms Transaction and the Xxxxx Creek Transaction and any liabilities remaining with the Company or any Subsidiary in respect of the assets sold pursuant to such transactions. If any representation or warranty contained herein is limited or qualified based on materiality, including the terms “material,” “Material Adverse Effect” or similar qualifications, such limitation or qualification shall in all respects be ignored and given no effect for purposes of determining the amount of Losses resulting from any breach of any such representation or warranty, but shall not be ignored for purposes of determining if there has been such a breachanother entity.

Indemnification by the Sellers. (a) Subject From and after the Closing Date, subject to the limitations other provisions of this Article X, the Sellers severally (but only to the extent of the respective percentages set forth herein, after the Closing, each in Section 2.2 of the Sellers shall (jointly Company Disclosure Letter), with respect to Article IV, only, and severally in the case Principal Seller for all other purposes for which indemnification of the Highstar SellersPurchaser is provided hereunder, and severally, but not jointly in agree to indemnify the case of American General Life Insurance Company), in accordance with its Pro Rata Share (with such Pro Rata Share limitation applicable only in respect of breaches of the representations and warranties contained in Article IV), indemnify and defend the Buyer against, and shall hold the Buyer, its Representatives Purchaser and its officers, directors, employees and Affiliates (including the Company), each of their respective shareholders, members, partners, officers, directors, managers, employees, agents, and each of the heirs, executors, successors and assigns of any of the foregoing ) (collectively, the “Buyer IndemniteesIndemnified Purchaser Persons”) and to hold each of them harmless fromfrom and against any and all Actions, liabilities, losses, costs, damages, expenses or penalties, and reasonable attorneys’ fees, expenses and disbursements in connection with any loss, liability, claim, charge, action, suit, proceeding, assessed interest, penalty, damage, Tax Action against such Person whether or expense not arising out of or resulting from any Third Party claim (collectively, “LossesDamages”) resulting from), arising out of suffered, paid or incurred by such Buyer Indemnitee in connection with, Indemnified Purchaser Person to the extent resulting from or otherwise with respect to, caused by: (i) any breach of any of the representations and warranties made by the Sellers to the Purchaser in Article IV and made by the Principal Seller to the Purchaser in Article V and Article VB of this Agreement, or of any breach of any representation and or warranty of such Seller in respect thereof contained in Article III any certificate delivered by the Company, the Sellers or Article IVthe Principal Seller pursuant to this Agreement, (ii) any breach by the Company or the Sellers of any covenant or agreement of the covenants Company or agreements of such Seller (with respect to the Company and its Subsidiaries, only in respect of covenants and agreements that are required to be performed prior to or contemporaneously with the Closing) Sellers contained in this Agreement, Agreement or (iii) any Income Taxes paid after the date hereof that are attributable to a Pre-Signing Taxable Closing Tax Period or allocable to the Pre-Signing portion of Sellers under Section 9.2 and any Straddle Taxable Period pursuant to Section 6.9, (iv) any Income Taxes which that the Company or any Subsidiary has paid or for which the Company or any Subsidiary is liable in connection with the consummation of the Bayside Transaction, the Xxxxxxxxx Farms Transaction, the Cabarrus Xxxxx Transaction and the Xxxxx Creek Transaction, as applicable, and Transfer Taxes for which Sellers are liable pursuant to for under Section 6.8 and (iv) any indemnification or other post-closing obligations in respect of the Bayside Transaction, the Cabarrus Xxxxx Transaction, the Xxxxxxxxx Farms Transaction and the Xxxxx Creek Transaction and any liabilities remaining with the Company or any Subsidiary in respect of the assets sold pursuant to such transactions. If any representation or warranty contained herein is limited or qualified based on materiality, including the terms “material,” “Material Adverse Effect” or similar qualifications, such limitation or qualification shall in all respects be ignored and given no effect for purposes of determining the amount of Losses resulting from any breach of any such representation or warranty, but shall not be ignored for purposes of determining if there has been such a breach9.6.

Indemnification by the Sellers. (a) Subject to the limitations set forth herein, From and after the Closing, each subject to the other provisions of this Article 9, the Sellers shall agree, on a several and not joint basis (jointly and severally other than with respect to any amounts in the case of the Highstar SellersEscrow Fund, which shall be on a joint and severally, but not jointly in the case of American General Life Insurance Companyseveral basis), in accordance with its Pro Rata Share (with such Pro Rata Share limitation applicable only in respect of breaches of the representations and warranties contained in Article IV), to indemnify and defend the Buyer against, and shall hold the Buyer, its Representatives Purchaser and its Affiliates (including the Company), Acquired Companies) and each of their respective shareholders, members, partnersmanagers, officers, directors, managers, employees, agents, and each of the heirs, executorsrepresentatives, successors and assigns of any of the foregoing (collectively, the “Buyer IndemniteesIndemnified Purchaser Entities”) and to hold each of them harmless fromfrom and against, any lossand all Losses suffered, liabilitypaid or incurred by such Indemnified Purchaser Entity (whether directly, claim, charge, action, suit, proceeding, assessed interest, penalty, damage, Tax pursuant to a Claim by a Third Party or expense otherwise) (collectively, “Losses”i) resulting from, arising out of or incurred by such Buyer Indemnitee in connection with, or otherwise with respect to, (i) related to any breach of any representation of the representations and warranty of such Seller contained warranties made by the Sellers in Article III 3 or by the Company in Article IV4, (ii) arising out of or relating to any breach of any of the covenants or agreements of the Sellers or the Acquired Companies contained in this Agreement (provided, that no Seller shall be responsible for the breach by any other Seller of any covenant or agreement of such Seller other Seller), (with respect iii) arising out of or relating to any Taxes of any of the Acquired Companies (including any Taxes for which any Acquired Company and its Subsidiariesis liable pursuant to Treasury Regulations Section 1.1502-6 (or any similar provision of state, only local or foreign Law)) for any Pre-Closing Period or for the portion of any Straddle Period ending on the Closing Date, (iv) in respect of covenants Transfer Taxes for which the Sellers are responsible pursuant to Section 6.03(c), in each case in Section 9.01(a)(iii) and agreements that are required Section 9.01(a)(iv) other than (w) any Taxes attributable to be performed prior to or contemporaneously with a breach by Purchaser (or, following the Closing, any of the Acquired Companies) of any of their covenants or agreements contained in this Agreement, (iiix) any Income Taxes paid included in Closing Date Net Working Capital Adjustment Amount or otherwise taken into account in the calculation of the final Purchase Price, (y) any Taxes arising out of any action taken or caused to be taken by Purchaser or any of the Acquired Companies outside the ordinary course of business on the Closing Date after the date hereof that are attributable to a Pre-Signing Taxable Period Closing or the Pre-Signing portion of any Straddle Taxable Period pursuant to Section 6.9, (ivz) any Income Taxes which to the Company extent that a net operating loss, capital loss, Tax credit or any Subsidiary has paid or for which the Company or any Subsidiary is liable other Tax attribute in connection with the consummation existence as of the Bayside TransactionClosing Date (for the avoidance of doubt, the Xxxxxxxxx Farms Transactionincluding any such loss, the Cabarrus Xxxxx Transaction and the Xxxxx Creek Transaction, as applicable, and Transfer Taxes for which Sellers are liable pursuant to Section 6.8 and (iv) any indemnification credit or other post-closing obligations attribute arising from the Transaction Tax Deductions or otherwise arising from the Closing) is available (or would have been available if not used in a taxable period (or portion thereof) beginning after the Closing Date) under applicable Law to offset such Tax, or (v) in respect of the Bayside Transaction, the Cabarrus Xxxxx Transaction, the Xxxxxxxxx Farms Transaction and the Xxxxx Creek Transaction and any liabilities remaining with matters set forth on Section 9.01(a)(v) of the Company or any Subsidiary in respect Disclosure Schedule. For purposes of the assets sold pursuant to such transactions. If Section 9.01(a)(i), whether any representation or warranty contained herein is limited (other than any representation or qualified based on warranty set forth in Section 4.07(b), Section 4.10(a) and Section 4.11(a)) has been breached, and the determination and calculation of any Losses resulting from such breach, shall be determined without giving effect to any qualification as to “materiality, ” (including the terms words “material,” ”, “Seller Material Adverse Effect” or similar qualifications, such limitation or qualification shall in all respects be ignored and given no effect for “Company Material Adverse Effect”). For purposes of determining Section 9.01(a)(iii) any real property, personal property and other ad valorem Taxes assessed with respect to a Straddle Period shall be allocated between the amount portion of Losses resulting from such Straddle Period ending on the Closing Date and the portion of such Straddle Period beginning after the Closing Date pro rata in accordance with the number of days in each such portion, and any breach other Taxes assessed with respect to a Straddle Period shall be allocated between the portion of any such representation or warranty, but shall not be ignored for purposes Straddle Period ending on the Closing Date and the portion of determining if there has been such Straddle Period beginning after the Closing Date by means of a breachclosing of the books and records of the applicable Acquired Companies.

Indemnification by the Sellers. (a) Subject From and after the Closing Date, subject to the limitations set forth herein, after the Closingother provisions of this Article X, each of the Sellers shall (jointly severally, with respect to Article IV and severally when the Active Principal Sellers and the Exiting Principal Sellers make separate covenants in Article VII, and jointly for all other purposes for which indemnification is provided hereunder (but only to the case extent of the Highstar Sellers, and severally, but not jointly respective percentages set forth in Section 5.1 of the case of American General Life Insurance CompanyCompany Disclosure Letter), in accordance with its Pro Rata Share (with such Pro Rata Share limitation applicable only in respect of breaches of agree to indemnify the representations and warranties contained in Article IV), indemnify and defend the Buyer against, and shall hold the Buyer, its Representatives Purchaser and its officers, directors, employees and Affiliates (including the Company), each of their respective shareholders, members, partners, officers, directors, managers, employees, agents, and each of the heirs, executors, successors and assigns of any of the foregoing ) (collectively, the “Buyer IndemniteesIndemnified Purchaser Persons”) and to hold each of them harmless fromfrom and against any and all Actions, liabilities, losses, costs, damages, expenses or penalties, and reasonable attorneys’ fees, expenses and disbursements in connection with any loss, liability, claim, charge, action, suit, proceeding, assessed interest, penalty, damage, Tax Action against such Person whether or expense not arising out of or resulting from any Third Party claim (collectively, “LossesDamages”) resulting from), arising out of suffered, paid or incurred by such Buyer Indemnitee in connection with, Indemnified Purchaser Person to the extent resulting from or otherwise with respect to, caused by: (i) any breach of any of the representations and warranties made by the Sellers to the Purchaser in Article IV and made by the Sellers to the Purchaser in Article V and Article VB of this Agreement, or of any breach of any representation and or warranty of such Seller in respect thereof contained in Article III any certificate delivered by the Company or Article IVthe Sellers pursuant to this Agreement; provided, however, in regard to Xxxxxx Xxxxxx, Xxxxxxx X. Xxxxx and The Lowey Family Spray Trust the indemnity obligation under this subparagraph shall be limited to actions, activities, information and facts that existed prior to and including Xxxxx 0, 0000, (iixx) any breach by the Company, the Active Principal Sellers or the Exiting Principal Sellers, as applicable, of the covenants any covenant or agreements of such Seller (with respect to the Company and its Subsidiaries, only in respect of covenants and agreements that are required to be performed prior to or contemporaneously with the Closing) agreement contained in this Agreement, Agreement or (iii) any Income Taxes paid after the date hereof that are attributable to a Pre-Signing Taxable Closing Tax Period or allocable to the Pre-Signing portion of Sellers under Sections 9.1, 9.2 and any Straddle Taxable Period pursuant to Section 6.9, (iv) any Income Taxes which that the Company or any Subsidiary has paid or for which the Company or any Subsidiary is liable in connection with the consummation of the Bayside Transaction, the Xxxxxxxxx Farms Transaction, the Cabarrus Xxxxx Transaction and the Xxxxx Creek Transaction, as applicable, and Transfer Taxes for which Sellers are liable pursuant to for under Section 6.8 and (iv) any indemnification or other post-closing obligations in respect of the Bayside Transaction, the Cabarrus Xxxxx Transaction, the Xxxxxxxxx Farms Transaction and the Xxxxx Creek Transaction and any liabilities remaining with the Company or any Subsidiary in respect of the assets sold pursuant to such transactions. If any representation or warranty contained herein is limited or qualified based on materiality, including the terms “material,” “Material Adverse Effect” or similar qualifications, such limitation or qualification shall in all respects be ignored and given no effect for purposes of determining the amount of Losses resulting from any breach of any such representation or warranty, but shall not be ignored for purposes of determining if there has been such a breach9.6.

Indemnification by the Sellers. (a) Subject to the limitations set forth herein, From and after the Closingdate hereof, each of the Sellers shall (jointly and severally in the case of the Highstar Sellers, jointly and severally, but not jointly in shall indemnify, defend and hold harmless theglobe, Merger Sub, the case of American General Life Insurance Company), in accordance with its Pro Rata Share (with such Pro Rata Share limitation applicable only in respect of breaches of the representations Surviving Corporation and warranties contained in Article IV), indemnify and defend the Buyer against, and shall hold the Buyer, its Representatives and its Affiliates (including the Company), each of their respective shareholders, members, partnersAffiliates, officers, directors, managersemployees, employeesmembers, agents, and each of the heirssuccessors, executors, successors transferees and assigns (collectively, "theglobe Indemnified Group") from and against all Losses incurred or suffered by any member of theglobe Indemnified Group based upon, resulting from or arising out of (i) the breach of any representation or warranty of any of the foregoing (collectively, Sellers or the “Buyer Indemnitees”) harmless from, any loss, liability, claim, charge, action, suit, proceeding, assessed interest, penalty, damage, Tax or expense (collectively, “Losses”) resulting from, arising out of or incurred by such Buyer Indemnitee in connection with, or otherwise with respect to, (i) any breach of any representation and warranty of such Seller Company contained in Article III this Agreement or Article IVany of the Ancillary Documents, (ii) the breach of any covenant or agreement of any of the Sellers (provided, however, that in no event will any Seller be liable for any breach of the covenants contained in Section 5.4 of this Agreement by any other Seller) or agreements of such Seller the Company (but with respect to the Company and its Subsidiaries, only in respect for breaches of covenants and agreements that are required to be performed prior to or contemporaneously with at the ClosingEffective Time) contained in this AgreementAgreement or any of the Ancillary Documents, (iii) any Income Taxes paid after indebtedness of the date hereof that are attributable Company for borrowed money (which shall in no event include lease obligations of the Company or ordinary course trade payables) other than the Naylor Note incurred prior to a Pre-Signing Taxable Period or at the Pre-Signing portion Effective Time which remaxxx xxtstanding at the Effective Time (the Losses to include the dollar amount of any Straddle Taxable Period pursuant to Section 6.9such indebtedness), (iv) the exercise of dissenters' rights by holders of Dissenting Shares (the Losses to include the entire amount of any Income Taxes which payments required to be made by the Company in respect of dissenters' rights), (v) Transaction Costs (as defined below) to the extent they exceed $150,000, (vi) any claims relating to shares of Company Common Stock issued, and Warrants, Options or other equity awards granted, by the Company, (vii) any Subsidiary has paid claims relating to the McGoodwin Employment Agreement or for which the McKeown Employment Agreemenx xxx xxx payments made (and the calcuxxxxxxx of the amount of such payments) thereunder, (viii) any disclosure made in the Information Statement based upon or derived from any erroneous information provided to theglobe by any of the Shareholders or, prior to or at the Effective Time, by the Company or and (ix) any Subsidiary is liable claims relating to the Letter Agreement, dated June 30, 1998, between Jay Powers and the Company. "Transaction Costs" shall mean the agxxxxxxx xxount of all fees and expenses of financial, legal, accounting and other advisors retained by the Company and other out-of-pocket costs of the Company incurred in connection with the consummation of the Bayside Transaction, the Xxxxxxxxx Farms Transaction, the Cabarrus Xxxxx Transaction and the Xxxxx Creek Transaction, as applicable, and Transfer Taxes for which Sellers are liable pursuant to Section 6.8 and (iv) transactions contemplated hereby paid at any indemnification time or other post-closing obligations in respect of the Bayside Transaction, the Cabarrus Xxxxx Transaction, the Xxxxxxxxx Farms Transaction and the Xxxxx Creek Transaction and any liabilities remaining with payable by the Company (other than such fees and expenses which the Shareholders, prior to the Closing, have paid or any Subsidiary agreed in respect of the assets sold pursuant writing to such transactions. If any representation or warranty contained herein is limited or qualified based on materiality, including the terms “material,” “Material Adverse Effect” or similar qualifications, such limitation or qualification shall in all respects be ignored and given no effect for purposes of determining the amount of Losses resulting from any breach of any such representation or warranty, but shall not be ignored for purposes of determining if there has been such a breachpay).

Indemnification by the Sellers. (a) Subject to the limitations set forth herein, after the Closing, each of the The Sellers shall (jointly and severally in the case of the Highstar Sellershereby agree to indemnify, defend and severally, but not jointly in the case of American General Life Insurance Company), in accordance with its Pro Rata Share (with such Pro Rata Share limitation applicable only in respect of breaches of the representations and warranties contained in Article IV), indemnify and defend the Buyer against, and shall hold the Buyerharmless Purchaser, its Representatives and its Affiliates (including the Company)and, each of if applicable, their respective shareholdersdirectors, membersofficers, share holders, partners, officersattorneys, directorsaccountants, managers, employees, agents, agents and each of the employees and their heirs, executors, successors and assigns (the "Purchaser Indemni fied Parties" and, collectively with the Seller Indemnified Parties, the "Indemnified Parties") from, against and in respect of any Losses imposed on, sustained, incurred or suffered by or asserted against any of the foregoing (collectivelyPurchaser Indemnified Parties, the “Buyer Indemnitees”) harmless from, any loss, liability, claim, charge, action, suit, proceeding, assessed interest, penalty, damage, Tax directly or expense (collectively, “Losses”) resulting from, indirectly relating to or arising out of or incurred by such Buyer Indemnitee in connection with, or otherwise with respect to, (i) subject to Section 7.3(b), any inaccuracy or breach of any representation or warranty made by the Sellers contained in this Agreement (it being agreed that any representation or warranty of the Sellers that is subject to a materiality or Material Adverse Effect qualification, other than the representations set forth in Section 3.11(d) and (g), shall be deemed not to be so qualified for purposes of establishing an inaccuracy or breach of such representation and warranty pursuant to this Section 7.3 and any claim for indemnification as a result of such Seller inaccuracy or breach and that, notwithstanding anything to the contrary contained in Article III or Article IVherein, (iiSection 7.3(b) shall not apply to any breach of the representation and warranty set forth in Section 3.19) for the period such representation or warranty survives; (ii) without duplication of the obligations of the Sellers in Section 5.4, any failure by the Sellers to perform their covenants or agreements obligations set forth in Section 5.4; (iii) the breach of such Seller (with respect to any covenant or agreement of the Company and its Subsidiaries, only in respect of covenants and agreements that are required to be performed prior to or contemporaneously with the Closing) Sellers contained in this Agreement, (iii) any Income Taxes paid after the date hereof that are attributable to a Pre-Signing Taxable Period or the Pre-Signing portion of any Straddle Taxable Period pursuant to Section 6.9, ; (iv) any Income Taxes which instance of non-compliance with ERISA and the Company Code occurring prior to the Closing Date by the Sellers, the Companies or any Subsidiary has paid or for which the Company or any Subsidiary is liable Subsidiaries as set forth in connection with the consummation Schedule 3.11(b)(i)(1) of the Bayside Transaction, the Xxxxxxxxx Farms Transaction, the Cabarrus Xxxxx Transaction and the Xxxxx Creek Transaction, as applicable, and Transfer Taxes for which Sellers are liable pursuant to Section 6.8 and (iv) any indemnification or other post-closing obligations in respect of the Bayside Transaction, the Cabarrus Xxxxx Transaction, the Xxxxxxxxx Farms Transaction and the Xxxxx Creek Transaction and any liabilities remaining with the Company or any Subsidiary in respect of the assets sold pursuant to such transactions. If any representation or warranty contained herein is limited or qualified based on materiality, including the terms “material,” “Material Adverse Effect” or similar qualifications, such limitation or qualification shall in all respects be ignored and given no effect for purposes of determining the amount of Losses resulting from any breach of any such representation or warranty, but shall not be ignored for purposes of determining if there has been such a breachDisclosure Schedule.

Indemnification by the Sellers. The Sellers hereby jointly and severally agree to indemnify and hold Buyer harmless (subject to the terms of this Article IX) from and against any and all damages, losses, liabilities, deficiencies, costs and/or expenses (including all reasonable legal fees, expenses and other out-of-pocket costs) (collectively, "Damages") imposed upon, or incurred or suffered by Buyer, directly or indirectly, as a result of, arising from or in connection with (a) Subject to the limitations set forth herein, after the Closing, each of the Sellers shall (jointly and severally in the case of the Highstar Sellers, and severally, but not jointly in the case of American General Life Insurance Company), in accordance with its Pro Rata Share (with such Pro Rata Share limitation applicable only in respect of breaches of the representations and warranties contained in Article IV), indemnify and defend the Buyer against, and shall hold the Buyer, its Representatives and its Affiliates (including the Company), each of their respective shareholders, members, partners, officers, directors, managers, employees, agents, and each of the heirs, executors, successors and assigns any breach of any of the foregoing (collectivelyrepresentation or warranty made by any Seller to Buyer in this Agreement, the “Buyer Indemnitees”) harmless from, whether or not any loss, liability, claim, charge, such Damages are in connection with any action, suit, proceeding, assessed interest, penalty, damage, Tax demand or expense judgment of a third party (collectively, “Losses”including Governmental Authorities) resulting from, arising out of or incurred by such Buyer Indemnitee in connection with, or otherwise with respect to, and (ib) any breach of claim by any representation and warranty of such Seller contained in Article III or Article IV, (ii) any breach of the covenants or agreements of such Seller (third party with respect to any liability relating to the Company and Sellers, the Subsidiaries or the Business which is not an Assumed Liability hereunder; provided, however, that neither Buyer nor any of its Subsidiariesaffiliates shall be entitled to any indemnification to the extent that the aggregate amount of Damages exceeds $9,500,000 (other than for breaches of Section 3.1, only in respect 3.2 or 3.3 of covenants and agreements that are required to be performed prior to or contemporaneously with the Closing) contained in this Agreement); and provided further, (iii) any Income Taxes paid after however, that Sellers shall be liable to Buyer under this Section 9.2 only if the date hereof that are attributable aggregate cumulative liability of Sellers to a Pre-Signing Taxable Period or the Pre-Signing portion of any Straddle Taxable Period Buyer pursuant to this Section 6.99.2 for all such matters is in excess of $750,000, at which point Buyer shall be entitled to receive all Damages (ivsubject to the preceding proviso) in excess of $750,000. Notwithstanding the foregoing provisions of this Section 9.2, if any Income Taxes which event occurs and Buyer would be entitled to indemnification under the Company or any Subsidiary has paid or provisions of this Section 9.2 by reason of such event but for which the Company or any Subsidiary is liable second proviso in connection with the consummation of the Bayside Transactionimmediately preceding sentence, the Xxxxxxxxx Farms Transaction, the Cabarrus Xxxxx Transaction notice and the Xxxxx Creek Transaction, as applicable, and Transfer Taxes for which Sellers are liable pursuant to Section 6.8 and (iv) any indemnification or other post-closing obligations in respect procedural provisions of the Bayside Transaction, the Cabarrus Xxxxx Transaction, the Xxxxxxxxx Farms Transaction and the Xxxxx Creek Transaction and any liabilities remaining with the Company or any Subsidiary in respect of the assets sold pursuant this Article IX shall nevertheless apply to such transactions. If any representation or warranty contained herein is limited or qualified based on materiality, including the terms “material,” “Material Adverse Effect” or similar qualifications, such limitation or qualification shall in all respects be ignored and given no effect for purposes of determining the amount of Losses resulting from any breach of any such representation or warranty, but shall not be ignored for purposes of determining if there has been such a breachevent.

Indemnification by the Sellers. (JOINT AND SEVERAL). Each of the Sellers, jointly and severally, shall indemnify each of the Purchaser Parties and save and hold each of them harmless against any Losses which any such Purchaser Party may suffer, sustain or become subject to, as a result of, in connection with, relating or incidental to or by virtue of: (a) Subject any breach of any representation or warranty of the Company under this Agreement or any of the Schedules attached hereto, or in any of the certificates or other instruments or documents furnished by the Company pursuant to this Agreement; (b) any nonfulfillment or breach of any covenant, agreement or other provision by the Company under this Agreement or any of the Schedules attached hereto required to be performed or complied with by the Company or its Subsidiaries at or prior to the limitations set forth hereinClosing (other than any breach of Paragraph 4G above that was not knowing and willful); or (c) any claim by any Person (other than the Purchasers) with respect to, after or arising as a result of, any Company Transaction (whether or not consummated) based on any alleged arrangement or agreement to which the Closing, each Company or any of its Subsidiaries or any of their respective directors or officers is alleged to be a party; PROVIDED THAT the Sellers shall not have any liability under clause (jointly and severally in the case of the Highstar Sellers, and severally, but not jointly in the case of American General Life Insurance Company), in accordance a) above (other than with its Pro Rata Share (with such Pro Rata Share limitation applicable only in respect of breaches of to the representations and warranties contained in Article IVParagraph 5B (Capital Stock and Related Matters), indemnify and defend the Buyer againstParagraph 5O (Brokerage), and the first and last sentences of Paragraph 5D (Authorization; No Breach)) unless the aggregate of all Losses relating thereto for which the Sellers would, but for this proviso, be liable exceeds on a cumulative basis an amount equal to $250,000 (and then the Sellers shall hold be liable only for all Losses in excess thereof); and PROVIDED FURTHER that the BuyerSellers shall not have any liability under clause (a) above for any individual item where the Loss relating to such item is less than $10,000 (but with it being understood, its Representatives and its Affiliates (including the Company)however, each of their respective shareholders, members, partners, officers, directors, managers, employees, agents, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Buyer Indemnitees”) harmless from, any loss, liability, claim, charge, action, suit, proceeding, assessed interest, penalty, damage, Tax or expense (collectively, “Losses”) resulting from, that all Losses reasonably related to claims arising out of the same or incurred by substantially common facts, events or circumstances shall be considered an individual claim for purposes of this Agreement and all such Buyer Indemnitee in connection with, or otherwise with respect to, (i) any breach of any representation and warranty of such Seller contained in Article III or Article IV, (ii) any breach items shall be aggregated for purposes of the covenants or agreements of such Seller first proviso to this Paragraph 8B(i)); and PROVIDED FURTHER that the Sellers' aggregate liability under clause (a) above (other than with respect to the Company representations and its Subsidiarieswarranties contained in Paragraph 5B (Capital Stock and Related Matters), only Paragraph 5O (Brokerage), and the first and last sentences of Paragraph 5D (Authorization; No Breach)) shall - 37 - in no event exceed twelve percent (12%) of the Repurchase Price (but with it being understood, however, that nothing in this Agreement (including this Paragraph 8B) shall limit or restrict any of the Purchaser Parties' right to maintain or recover any amounts in connection with any action or claim based upon fraudulent misrepresentation or fraud). Any indemnification payment in respect of covenants and agreements that are required Losses under this Paragraph 8B(i) shall be reduced by an amount equal to the Tax Benefit, if any, attributable to the Losses giving rise to such payment. All indemnification payments for the benefit of the Purchasers under this Paragraph 8B shall be deemed to be performed prior adjustments to or contemporaneously with the Closing) contained Stock Purchase Price set forth in this Agreement, (iii) any Income Taxes paid after the date hereof that are attributable to a Pre-Signing Taxable Period or the Pre-Signing portion of any Straddle Taxable Period pursuant to Section 6.9, (iv) any Income Taxes which the Company or any Subsidiary has paid or for which the Company or any Subsidiary is liable in connection with the consummation of the Bayside Transaction, the Xxxxxxxxx Farms Transaction, the Cabarrus Xxxxx Transaction and the Xxxxx Creek Transaction, as applicable, and Transfer Taxes for which Sellers are liable pursuant to Section 6.8 and (iv) any indemnification or other post-closing obligations in respect of the Bayside Transaction, the Cabarrus Xxxxx Transaction, the Xxxxxxxxx Farms Transaction and the Xxxxx Creek Transaction and any liabilities remaining with the Company or any Subsidiary in respect of the assets sold pursuant to such transactions. If any representation or warranty contained herein is limited or qualified based on materiality, including the terms “material,” “Material Adverse Effect” or similar qualifications, such limitation or qualification shall in all respects be ignored and given no effect for purposes of determining the amount of Losses resulting from any breach of any such representation or warranty, but shall not be ignored for purposes of determining if there has been such a breachParagraph 1B above.

Indemnification by the Sellers. (ai) Subject to the limitations set forth hereinThe Sellers shall, after the Closing, each of the Sellers shall (jointly and severally in the case of the Highstar Sellers, and severally, but not jointly in the case of American General Life Insurance Company), in accordance with its Pro Rata Share (with such Pro Rata Share limitation applicable only in respect of breaches of the representations and warranties contained in Article IV), indemnify and defend the Buyer against, and shall hold harmless the Buyer, its Representatives Parent, the Acquired Companies and its Affiliates (including the Company), each of their respective shareholdersAffiliates, members, partners, successors and assigns and their respective officers, directors, managers, employees, agents, shareholders, members and each of the heirsequityholders (each, executors, successors and assigns of any of the foregoing (collectively, the a “Buyer IndemniteesIndemnitee”) harmless fromfrom and against any and all losses, liabilities, claims, demands, damages, penalties, fines, judgments, awards, assessments, settlements, Taxes, loss of Tax benefits, costs, fees, expenses (including reasonable attorneys’ fees) and disbursements, including any lossand all consequential, liabilityspecial, claimexemplary and incidental damages, chargeloss of future revenue or profits, action, suit, proceeding, assessed interest, penalty, damage, Tax or expense diminution in value and multiple of earnings damages and punitive damages (collectively, but only to the extent such punitive damages are awarded to a third party in connection with a Liability Claim) (collectively “Losses”) resulting frombased upon, arising out of or incurred by such Buyer Indemnitee otherwise in connection withrespect of (A) any misrepresentation of, inaccuracy in or otherwise with respect tobreach of any representation or warranty of the Sellers set forth in Article 5 of this Agreement (including any Schedule attached hereto and any certificates delivered pursuant hereto), (iB) any breach of or failure to perform any representation and warranty of such Seller contained in Article III covenant or Article IV, (ii) any breach agreement of the covenants or agreements of such Seller (with respect Representative or, prior to the Closing, any Acquired Company and its Subsidiaries, only in respect of covenants and agreements that are required to be performed prior to or contemporaneously with the Closing) contained set forth in this Agreement, (iiiC) any Income Indebtedness of the Acquired Companies or Selling Expenses not fully paid on the Closing Date or not taken into account in the calculation of the Purchase Price, (D) (1) any Taxes paid after (or the date hereof that are attributable nonpayment thereof) of or with respect to a any Acquired Company for any Pre-Signing Taxable Closing Tax Period or the and any Pre-Signing portion Closing Straddle Period; (2) any Taxes of any Straddle Taxable Period member of an affiliated, combined or unitary group of which any Acquired Company is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 6.91.1502-6 or any analogous or similar state, local or foreign Law; (iv3) any Income Taxes of any Person (other than the Acquired Companies) imposed on any Acquired Company as a transferee or successor, by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Company Closing Date; or (4) any Subsidiary has paid or for which the Company or any Subsidiary is liable in connection with the consummation invalidity of the Bayside Transaction, the Xxxxxxxxx Farms Transaction, the Cabarrus Xxxxx Transaction and the Xxxxx Creek Transaction, as applicableSection 338(h)(10) Election, and Transfer Taxes for which Sellers are liable pursuant to Section 6.8 and (ivE) any indemnification or other post-closing obligations in respect of the Bayside Transaction, the Cabarrus Xxxxx Transaction, the Xxxxxxxxx Farms Transaction and the Xxxxx Creek Transaction and any liabilities remaining with the Company or any Subsidiary in respect of the assets sold pursuant to such transactions. If any representation or warranty contained herein is limited or qualified based matter set forth on materiality, including the terms “material,” “Material Adverse Effect” or similar qualifications, such limitation or qualification shall in all respects be ignored and given no effect for purposes of determining the amount of Losses resulting from any breach of any such representation or warranty, but shall not be ignored for purposes of determining if there has been such a breachSchedule 9.1(a)(i).

Indemnification by the Sellers. Subject to the provisions of this Article XII, after the First Closing Date, FDS shall indemnify the Purchaser and its Affiliates against, and agree to hold each of them harmless from, any and all damage, loss, liability, cost, claim, interest, award, judgment, penalty or expense (including reasonable expenses of investigation and reasonable attorneys' fees and expenses in connection with any action, suit or proceeding) ("Losses") incurred or suffered by the Purchaser or any of its Affiliates because of (1) any breach of a representation or warranty of the Sellers contained in Section 5.1 or made pursuant to Section 9.2(b) (and, with respect to representations and warranties made pursuant to Section 9.2(b), the references to Section 5.1 throughout this Section 12.2 shall be deemed to refer to the corresponding representations and warranties made pursuant to Section 9.2(b)) determined without regard to any Knowledge, Material Adverse Effect or materiality qualifier therein (except in the case of the representations set forth in Sections 5.1(e)(1) and (f)), (2) any breach of an agreement or covenant made by the Sellers in this Agreement, (3) any Excluded Liability, (4) any Excluded Asset, (5) any Prime Excluded Taxes, (6) the failure by the Sellers to comply with any applicable bulk sales laws (notwithstanding the waiver contained in Section 6.13) or (7) any Action brought by a Cardholder against (x) any Seller with respect to one or more FDS Accounts that is pending as of the First Closing Date, (y) any Seller or GE Bank with respect to one or more GE/Macy's Accounts that is pending as of the Second Closing Date, and (z) any Seller, May Co. or May Bank with respect to one or more May Accounts that is pending as of the Third Closing Date. Notwithstanding the foregoing, the Purchaser and its Affiliates shall not be entitled to indemnification pursuant to clause (1) of this Section 12.2 (other than for breaches of Sections 5.1(a), (b), (g), (l)(1) and (l)(2), which shall not be subject to the following limitations): (a) Subject in respect of any individual set of claims, facts or occurrences or any series of related claims, facts or occurrences (each a "De Minimis Claim"), if the aggregate Losses in respect of such De Minimis Claim is less than twenty-five thousand dollars ($25,000); provided, however, in the event that the aggregate Losses in respect of all such De Minimis Claims exceed five million dollars ($5,000,000), thereafter indemnification claims pursuant to clause (1) of this Section 12.2 shall be subject to indemnification without regard to the limitations set forth herein, after in this clause (a); (b) for any Losses until the Closing, each aggregate amount of all Losses incurred or suffered by the Sellers shall Purchaser or any of its Affiliates (jointly and severally in the case of the Highstar Sellers, and severally, but not jointly in the case of American General Life Insurance Companyexcluding Losses related to De Minimis Claims) exceeds twenty-five million dollars ($25,000,000), in accordance with its Pro Rata Share (with such Pro Rata Share limitation applicable only in respect of breaches of which case the representations and warranties contained in Article IV), indemnify and defend the Buyer against, and shall hold the Buyer, its Representatives Purchaser and its Affiliates (including shall be entitled to indemnification for the Company), each of their respective shareholders, members, partners, officers, directors, managers, employees, agents, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Buyer Indemnitees”) harmless from, any loss, liability, claim, charge, action, suit, proceeding, assessed interest, penalty, damage, Tax or expense (collectively, “Losses”) resulting from, arising out of or incurred by such Buyer Indemnitee in connection with, or otherwise with respect to, (i) any breach of any representation and warranty of such Seller contained in Article III or Article IV, (ii) any breach of the covenants or agreements of such Seller (with respect to the Company and its Subsidiaries, only in respect of covenants and agreements that are required to be performed prior to or contemporaneously with the Closing) contained in this Agreement, (iii) any Income Taxes paid after the date hereof that are attributable to a Pre-Signing Taxable Period or the Pre-Signing portion of any Straddle Taxable Period pursuant to Section 6.9, (iv) any Income Taxes which the Company or any Subsidiary has paid or for which the Company or any Subsidiary is liable in connection with the consummation of the Bayside Transaction, the Xxxxxxxxx Farms Transaction, the Cabarrus Xxxxx Transaction and the Xxxxx Creek Transaction, as applicable, and Transfer Taxes for which Sellers are liable pursuant to Section 6.8 and (iv) any indemnification or other post-closing obligations in respect of the Bayside Transaction, the Cabarrus Xxxxx Transaction, the Xxxxxxxxx Farms Transaction and the Xxxxx Creek Transaction and any liabilities remaining with the Company or any Subsidiary in respect of the assets sold pursuant to such transactions. If any representation or warranty contained herein is limited or qualified based on materiality, including the terms “material,” “Material Adverse Effect” or similar qualifications, such limitation or qualification shall in all respects be ignored and given no effect for purposes of determining the full amount of Losses resulting from in excess of such threshold; and (c) for Losses, in the aggregate, incurred or suffered by the Purchaser or any breach of any such representation or warranty, but shall not be ignored for purposes its Affiliates in excess of determining if there has been such a breachfour-hundred million dollars ($400,000,000).

Indemnification by the Sellers. (a) Subject to the limitations set forth hereinin this Article XII, from and after the Closing, each of the Sellers shall (Seller, jointly and severally in the case of the Highstar Sellers, and severally, but not jointly in (and, subject to the case provisions of American General Life Insurance CompanySection 12.4(d), the Stockholders in accordance with its Pro Rata Share (with such Pro Rata Share limitation applicable only in respect of breaches their respective Indemnity Percentages) shall hold harmless and indemnify each of the representations Buyer Indemnitees from and warranties contained in Article IV), indemnify and defend the Buyer against, and shall hold the Buyer, its Representatives compensate and its Affiliates (including the Company), each of their respective shareholders, members, partners, officers, directors, managers, employees, agents, and reimburse each of the heirsBuyer Indemnitees for, executors, successors and assigns of any Damages which are suffered or incurred by any of the foregoing Buyer Indemnitees or to which any of the Buyer Indemnitees may otherwise become subject (collectively, the “Buyer Indemnitees”regardless of whether or not such Damages relate to any third-party claim) harmless from, any loss, liability, claim, charge, action, suit, proceeding, assessed interest, penalty, damage, Tax and which arise from or expense (collectively, “Losses”) resulting from, arising out as a result of or incurred by such Buyer Indemnitee in connection are connected with, or otherwise with respect to, : (i) any misrepresentation in, inaccuracy in or breach of any representation and or warranty of such Seller contained the Sellers set forth in Article III this Agreement or Article IVin any agreement, certificate or instrument furnished or to be furnished to Buyer pursuant hereto or in connection with the transactions contemplated hereby; (ii) any breach of any covenant or obligation of the covenants Sellers set forth in this Agreement or agreements of such Seller (in any agreement, certificate or instrument furnished or to be furnished to Buyer pursuant hereto or in connection with respect to the Company and its Subsidiariestransactions contemplated hereby, only in respect of other than those covenants and agreements that are required obligations of the Sellers during the Pre-Closing Period as set forth in Article VI (except for a breach of Sections 6.2(b), (c) and (h), 6.6, 6.11, 6.14, 6.15, 6.16, 6.18 and 6.19, for which Buyer Indemnitees shall be entitled to be performed prior to or contemporaneously with the Closing) contained in this Agreement, indemnification hereunder); (iii) any Income Taxes paid after the date hereof that are attributable to a Pre-Signing Taxable Period or the Pre-Signing portion liability arising out of any Straddle Taxable Period pursuant to Section 6.9, Siemens Contracts; (iv) any Income Taxes which liability arising out of acts or omissions occurring on or prior to the Closing Date relating to (A) any actual or alleged overpayment due to adjustments made after the Closing Date to the cost reports of the Sellers, the Company or any Company Subsidiary has paid with respect to periods on or prior to the Closing Date (determined on an aggregate basis after first netting any applicable reserves for which such liability set forth as a current liability on the Closing Date Balance Sheet and then taking into account, without duplication, any underpayments (other than underpayments reflected as current assets on the Closing Date Balance Sheet) owed to the Company or any Company Subsidiary is liable in connection with due to adjustments made to such cost reports during the consummation period from the Closing Date to the third anniversary of the Bayside Transaction, the Xxxxxxxxx Farms Transaction, the Cabarrus Xxxxx Transaction and the Xxxxx Creek Transaction, as applicable, and Transfer Taxes for which Sellers are liable pursuant to Section 6.8 Closing Date) and (ivB) any indemnification actual or alleged overpayment by any third party payor other post-closing obligations in respect than due to adjustments made to the cost reports filed by or on behalf of the Bayside Transaction, the Cabarrus Xxxxx Transaction, the Xxxxxxxxx Farms Transaction and the Xxxxx Creek Transaction and any liabilities remaining with the Company or any Company Subsidiary in respect on or prior to the Closing Date; (v) any Indebtedness to the extent such Indebtedness exceeds the amounts thereof used to calculate the Estimated Purchase Price pursuant to Section 2.2; and any Transaction Fees and Expenses; (vi) any liability for severance obligations and related costs paid to any officer or employee of the assets sold Company or any Company Subsidiary upon termination after the Closing by such officer or employee of such officer’s or employee’s employment pursuant to agreements in effect prior to the Closing; (vii) any liability or obligation of the Sellers, the Company or any Company Subsidiary arising from events or circumstances, or relating to acts or omissions, which occur prior to the Closing and for which the Sellers, the Company or any Company Subsidiary would have been indemnified under its or their commercial general liability, automobile liability, workers’ compensation or professional malpractice or liability insurance policies (without regard to any deductible or self-insured retention) had such transactions. If policies remained in effect indefinitely from and after the Closing; (viii) any representation liability or warranty contained herein is limited obligation arising out of the purchase by the Company of the Minority Partnership Interest or qualified based on materiality, including the terms “material,” “Material Adverse Effect” or similar qualifications, such limitation or qualification shall in all respects be ignored and given no effect for purposes of determining the amount of Losses resulting from any breach violation of any such representation Legal Requirement related to the acquisition or warranty, but shall not be ignored for purposes ownership of determining if there has been such a breachpartnership interest in the Woodlands LP; or (ix) enforcement by any Buyer Indemnitee of any of its indemnification rights under this Agreement.

Indemnification by the Sellers. (a) Subject From and after the Closing Date, subject to the limitations set forth herein, after the Closingother provisions of this Article X, each of the Sellers shall severally, with respect to Article IV only, and the Principal Sellers, jointly, for all other purposes for which indemnification is provided hereunder (jointly and severally in but only to the case extent of the Highstar Sellers, and severally, but not jointly respective percentages set forth in Section 5.1 of the case of American General Life Insurance CompanyCompany Disclosure Letter as applied to the Cap (hereinafter defined)), in accordance with its Pro Rata Share (with such Pro Rata Share limitation applicable only in respect of breaches of agree to indemnify the representations and warranties contained in Article IV), indemnify and defend the Buyer against, and shall hold the Buyer, its Representatives Purchaser and its officers, directors, employees and Affiliates (including the Company), each of their respective shareholders, members, partners, officers, directors, managers, employees, agents, and each of the heirs, executors, successors and assigns of any of the foregoing ) (collectively, the “Buyer IndemniteesIndemnified Purchaser Persons”) and to hold each of them harmless fromfrom and against any and all Actions, liabilities, losses, costs, damages, expenses or penalties, and reasonable attorneys’ fees, expenses and disbursements in connection with any lossAction against such Person, liability, claim, charge, action, suit, proceeding, assessed interest, penalty, damage, Tax whether or expense not arising out of or resulting from any Third Party claim (collectively, “LossesDamages”) resulting from), arising out of suffered, paid or incurred by such Buyer Indemnitee in connection with, Indemnified Purchaser Person to the extent resulting from or otherwise with respect to, caused by: (i) any breach of any of the representations and warranties made by the Sellers to the Purchaser in Article IV and made by the Principal Sellers to the Purchaser in Article V and Article VB of this Agreement, or of any breach of any representation and or warranty of such Seller in respect thereof contained in Article III any certificate delivered by the Company or Article IVthe Sellers pursuant to this Agreement, (ii) any breach by the Company or the Sellers of any covenant or agreement of the covenants Company or agreements of such Seller the Sellers contained in this Agreement (provided that, with respect to the Company and its SubsidiariesCompany, only in respect Damages suffered, paid or incurred and resulting from or caused by breaches of covenants and or agreements that are required to be performed by the Company prior to the Closing shall be indemnifiable under this Section 10.1(a), for the avoidance of doubt such limitation shall not include Sections 7.4, 7.6, 7.8 and 7.13) or contemporaneously with the Closing) contained in this Agreement, (iii) any Income Taxes paid after the date hereof that are attributable to a Pre-Signing Taxable Closing Tax Period or allocable to the Pre-Signing portion of Sellers under Sections 9.1 and 9.2 and any Straddle Taxable Period pursuant to Section 6.9, (iv) any Income Taxes which that the Company or any Subsidiary has paid or for which the Company or any Subsidiary is liable in connection with the consummation of the Bayside Transaction, the Xxxxxxxxx Farms Transaction, the Cabarrus Xxxxx Transaction and the Xxxxx Creek Transaction, as applicable, and Transfer Taxes for which Sellers are liable pursuant to for under Section 6.8 and (iv) any indemnification or other post-closing obligations in respect of the Bayside Transaction, the Cabarrus Xxxxx Transaction, the Xxxxxxxxx Farms Transaction and the Xxxxx Creek Transaction and any liabilities remaining with the Company or any Subsidiary in respect of the assets sold pursuant to such transactions. If any representation or warranty contained herein is limited or qualified based on materiality, including the terms “material,” “Material Adverse Effect” or similar qualifications, such limitation or qualification shall in all respects be ignored and given no effect for purposes of determining the amount of Losses resulting from any breach of any such representation or warranty, but shall not be ignored for purposes of determining if there has been such a breach9.6.

Indemnification by the Sellers. (a) Subject to the limitations limits set forth hereinin this Section 10.1, from and after the Closing, each of the Sellers shall (jointly agree, on a joint and severally in several basis, to indemnify, defend and hold the case of Company, the Highstar SellersSubsidiaries, and severally, but not jointly in the case of American General Life Insurance Company), in accordance with its Pro Rata Share (with such Pro Rata Share limitation applicable only in respect of breaches of the representations and warranties contained in Article IV), indemnify and defend the Buyer against, and shall hold the Buyer, its Representatives and its their respective Affiliates (including including, for the Companyavoidance of doubt, the Investors and the Seller Stockholder), each of their respective shareholders, members, partners, officers, directors, managersstockholders, employees, agents, agents and each of representatives (the heirs, executors, successors "Investor Indemnified Persons") harmless from and assigns in respect of any and all losses, damages, costs and reasonable expenses (including reasonable fees and expenses of the foregoing counsel) (collectively, the “Buyer Indemnitees”) harmless from"Losses"), any loss, liability, claim, charge, action, suit, proceeding, assessed interest, penalty, damage, Tax or expense (collectively, “Losses”) resulting from, that they may incur arising out of or incurred by such Buyer Indemnitee in connection with, or otherwise with respect to, due to (i) any inaccuracy or breach of any representation and or warranty of such Seller the Sellers contained in Article III or Article IV4 of this Agreement (other than set forth in Section 4.11 (Tax Matters) and, with respect to Taxes, in Section 4.4 (Financial Statements); provided, for the avoidance of doubt, that all other representations and warranties of the Sellers contained in Section 4.4 shall be included within the scope of the indemnity contained in this Section 10.1(a)(i)), (ii) any breach of any covenant or other agreement of the covenants or agreements of such Seller (with respect to the Company and its Subsidiaries, only in respect of covenants and agreements that are required to be performed prior to or contemporaneously with the Closing) Sellers contained in this Agreement, (iii) the Interim Transfer, the Transferred Companies and Assets and all liabilities related thereto, any Income Taxes paid after the date hereof that are attributable to a Pre-Signing Taxable Period Retained Employee or the Pre-Signing portion of any Straddle Taxable Period pursuant to Section 6.9Retained Contract, (iv) any Income Taxes which action, claim, demand, summons, subpoena, suit, proceeding or investigation relating to exposure to silica, asbestos, or any other personal injury or wrongful death caused or alleged to be caused by events, actions, circumstances or factors occurring prior to Closing that do not arise out of the Business, (v) any action, claim, demand, summons, subpoena, suit, proceeding or investigation relating to exposure to silica in respect of facts, circumstances or events occurring prior to the Closing that arise out of the Business, (vi) any failure to obtain any consent required under any agreements referenced on Schedule 4.2(a), (vii) any employment or other agreement between RSC or any of its Affiliates and Xxxxxx Xxxx, the termination of Xxxxxx Xxxx'x employment and other relationships with RSC and any other activities of Xxxxxx Xxxx, (viii) any activities, operations or business, including the industrial air tool business and the temperature control equipment business, conducted by the Company or any Subsidiary has paid or for which of its Affiliates prior to Closing other than the Company or any Subsidiary is liable in connection with the consummation of the Bayside Transaction, the Xxxxxxxxx Farms Transaction, the Cabarrus Xxxxx Transaction and the Xxxxx Creek Transaction, as applicable, and Transfer Taxes for which Sellers are liable pursuant to Section 6.8 and (iv) any indemnification or other post-closing obligations in respect of the Bayside Transaction, the Cabarrus Xxxxx Transaction, the Xxxxxxxxx Farms Transaction and the Xxxxx Creek Transaction Business and any liabilities remaining with the Company or any Subsidiary in respect of the assets sold pursuant to such transactions. If any representation or warranty contained herein is limited or qualified based on materiality, including the terms “material,” “Material Adverse Effect” or similar qualifications, such limitation or qualification shall in all respects be ignored and given no effect for purposes of determining the amount of Losses resulting from any breach disposition of any such representation business and (ix) any Intercompany Debt other than payments the Company is required to make under Section 7.10(a)(iv). Anything to the contrary contained herein notwithstanding, and except for claims made under Section 7.4 (Employee Matters; Labor Matters), none of Investor Indemnified Persons shall be entitled to recover from the Sellers pursuant to (x) clause (a)(i) of this Section 10.1 for (A) any particular Loss unless such Loss (together with all Losses arising out of the same facts, circumstances, events or warrantyseries of events) exceeds $75,000 and no claim therefor shall be asserted for any purpose hereunder (and no such Loss shall be included in the calculation of the deductible provided for in clause (B) hereof), but (B) any Losses unless and until the total of all Losses indemnifiable pursuant to clause (a)(i) of this Section 10.1 exceeds $33,000,000, and then only for the amount by which such claims exceed such amount and (C) more than an aggregate of twenty percent of the Purchase Price with respect to all Losses indemnifiable pursuant to clause (a)(i) of this Section 10.1 (the limitation set forth in this Section 10.1(a)(x)(C), the "Sellers Cap"), (y) clause (a)(vi) of this Section 10.1 for (A) any particular Loss unless and to the extent such Loss exceeds $50,000 and no claim therefor shall not be ignored asserted for purposes any purpose hereunder and (B) more than $10,000,000 with respect to all Losses indemnifiable pursuant to clause (a)(vi) of determining if there has been this Section 10.1, or (z) clause (v) of this Section 10.1(a) for any Losses other than (i) one-half of all such a breachLosses until the aggregate amount of such Losses equals $10,000,000 and (ii) all such Losses in excess of $10,000,000 until such Losses equal $35,000,000 in the aggregate.

Indemnification by the Sellers. (a) Subject to the limitations set forth hereinterms hereof, after the Closing, each of the Sellers shall (jointly indemnify, defend and severally in hold harmless the case of the Highstar Sellers, and severally, but not jointly in the case of American General Life Insurance Company), in accordance with its Pro Rata Share (with such Pro Rata Share limitation applicable only in respect of breaches of the representations and warranties contained in Article IV), indemnify and defend the Buyer against, and shall hold the BuyerPurchaser, its Representatives Affiliates and its Affiliates (including the Company), each of their respective shareholders, members, partnersdirectors, officers, directors, managersstockholders, employees, agentsattorneys, accountants, representatives and each of the agents and their respective heirs, executors, successors and permitted assigns of any of the foregoing (collectively, the “Buyer Purchaser Indemnitees”) harmless fromfrom and against any and all Damages (other than indemnification with respect to Taxes, any loss, liability, claim, charge, action, suit, proceeding, assessed interest, penalty, damage, Tax for which only the provisions of Section 7.1 will exclusively govern) incurred or expense (collectively, “Losses”) suffered by the Purchaser Indemnitees arising or resulting from, arising out of directly or incurred by such Buyer Indemnitee in connection with, or otherwise with respect toindirectly, (i) any breach of any representation or warranty made by the Sellers set forth in Article 2 of this Agreement (other than breaches of representations and warranty of such Seller warranties contained in Article III or Article IVSection 2.9 (Tax Matters), for which the provisions of Section 7.1 will govern), (ii) any breach of any covenant or agreement of the covenants or agreements of such Seller (with respect to the Company and its Subsidiaries, only in respect of covenants and agreements that are required to be performed prior to or contemporaneously with the Closing) contained Sellers set forth in this AgreementAgreement (except for Section 4.2(d) hereunder for which the provisions of Section 4.2(d) will exclusively govern), (iii) any Income Excluded Liability, including all Damages arising out of the operation of the CPMRC Business or the ownership or use of the Transferred Assets, in each case prior to the Closing, provided, however, that the provisions of Section 7.1 will govern any and all indemnification obligations of the Sellers under this Agreement that relate to any Taxes paid after of any of the date hereof that are attributable to a Sellers for Pre-Signing Taxable Period or the Pre-Signing portion of any Straddle Taxable Period pursuant to Section 6.9Closing Periods, (iv) any Income Taxes which claim by an Employee or a Consultant that relates to an act or omission by any Seller prior to Closing, (v) any claims made by any broker, finder, agent, financial advisor or other intermediary employed or alleged to have been employed by any Seller (or its Affiliates), (vi) third party claims relating to the Company failure by the Sellers to obtain any consents, approvals or other authorizations or the failure to give any Subsidiary has paid notices, in each case that are or for which the Company or any Subsidiary is liable were required in connection accordance with the consummation terms of this Agreement, provided that the indemnification provided by this part (vi) will cover and include Damages excluding lost profits, lost revenue, diminution in value or other consequential damages and provided further that the Sellers shall have no liability under this part (vi) with respect to any of the Bayside Transactionclient agreements set forth in Section 4.2(b) of the Seller Disclosure Schedule if the Purchaser advised and concurred with any Seller expressly in a signed writing and in accordance with Section 4.2(b) herein that consent, the Xxxxxxxxx Farms Transactionapproval, the Cabarrus Xxxxx Transaction and the Xxxxx Creek Transactionauthorization or notice was not required or should not be obtained or provided, as applicable, and Transfer Taxes for which Sellers are liable pursuant to Section 6.8 and or (ivvii) any indemnification or other post-closing obligations matter set forth in respect Section 2.13(k) of the Bayside TransactionSeller Disclosure Schedule, other than that the Cabarrus Xxxxx Transaction, Proprietary Intellectual Property includes or reflects information from the Xxxxxxxxx Farms Transaction and the Xxxxx Creek Transaction and any liabilities remaining with the Company or any Subsidiary in respect of the assets sold pursuant to such transactions. If any representation or warranty contained herein is limited or qualified based on materiality, including the terms “material,” “Material Adverse Effect” or similar qualifications, such limitation or qualification shall in all respects be ignored and given no effect for purposes of determining the amount of Losses resulting from any breach of any such representation or warranty, but shall not be ignored for purposes of determining if there has been such a breachpublic domain.

Indemnification by the Sellers. (a) Subject to the limitations set forth hereinfurther provisions of this Article X, after the Closing, each of the Sellers shall (jointly indemnify and severally in the case of the Highstar Sellershold harmless EVTC and its Affiliates, and severally, but not jointly in the case of American General Life Insurance Company), in accordance with its Pro Rata Share (with such Pro Rata Share limitation applicable only in respect of breaches of the representations and warranties contained in Article IV), indemnify and defend the Buyer against, and shall hold the Buyer, its Representatives and its Affiliates (including the Company), each of their respective shareholders, members, partnersits directors, officers, directors, managers, employees, agents, representatives, stockholders and each controlling parties and all of the heirs, executors, their successors and assigns of any of the foregoing (collectively, the “Buyer Indemnitees”each an "EVTC Indemnified Person") harmless from, and defend each of them from and against, and will pay each EVTC Indemnified Person for any lossand all Losses asserted against, liabilityimposed upon or incurred by any such EVTC Indemnified Person, claimdirectly or indirectly, charge, action, suit, proceeding, assessed interest, penalty, damage, Tax resulting from or expense (collectively, “Losses”) resulting from, arising out of or incurred by such Buyer Indemnitee in connection with, with or otherwise with respect to, relating to any of the following: (ia) any inaccuracy or breach of any representation or warranty of IWT or any of the Sellers contained herein or in any of the Seller Documents or IWT Documents; (b) any breach of any representation and warranty agreement, covenant or obligation of such IWT or any of Sellers contained herein or in any of the Seller contained in Article III Documents or Article IV, IWT Documents; (iic) any breach liability, obligation or responsibility of IWT or any of the covenants Sellers or agreements of such Seller (with respect which in any way relates to the Company and its SubsidiariesBusiness (including, only in respect without limitation, any liability for Taxes or withholdings) arising out of covenants and agreements that are required to be performed the operation of the Business prior to the Closing Date; (d) any and all claims, actions, suits or contemporaneously with any administrative, arbitration, governmental or other proceedings or investigations against any EVTC Indemnified Person or in which any EVTC Indemnified Person becomes involved that relate to IWT or the Business in which the principal event giving rise thereto occurred prior to the Closing Date or which result from or arise out of any action or inaction prior to the Closing Date of IWT or any director, officer, employee, agent, representative or subcontractor of IWT or a state of facts prior to Closing Date, including, without limitation, any claim, action, suit or proceeding or investigation set forth on Schedule 4.5(a) and/or Schedules 4.12 and 4.13 to this Agreement; and (e) the operations of the Business following the Closing) contained in this Agreement, (iii) any Income Taxes paid after the date hereof that are attributable to a Pre-Signing Taxable Period or the Pre-Signing portion of any Straddle Taxable Period pursuant to Section 6.9, (iv) any Income Taxes which the Company or any Subsidiary has paid or for which the Company or any Subsidiary is liable in connection with the consummation of the Bayside Transaction, the Xxxxxxxxx Farms Transaction, the Cabarrus Xxxxx Transaction and the Xxxxx Creek Transaction, as applicable, and Transfer Taxes for which Sellers are liable pursuant to Section 6.8 and (iv) any indemnification or other post-closing obligations in respect of the Bayside Transaction, the Cabarrus Xxxxx Transaction, the Xxxxxxxxx Farms Transaction and the Xxxxx Creek Transaction and any liabilities remaining with the Company or any Subsidiary in respect of the assets sold pursuant to such transactions. If any representation or warranty contained herein is limited or qualified based on materiality, including the terms “material,” “Material Adverse Effect” or similar qualifications, such limitation or qualification shall in all respects be ignored and given no effect for purposes of determining the amount of Losses resulting from any breach of any such representation or warranty, but shall not be ignored for purposes of determining if there has been such a breach.

Indemnification by the Sellers. (a) Subject to the limitations set forth herein, From and after the Closingdate of this Agreement, each of the Sellers shall (jointly Seller will indemnify, defend and severally in the case of the Highstar Sellers, and severally, but not jointly in the case of American General Life Insurance Company), in accordance with its Pro Rata Share (with such Pro Rata Share limitation applicable only in respect of breaches of the representations and warranties contained in Article IV), indemnify and defend the Buyer against, and shall hold the BuyerPurchaser, its Representatives Affiliates and its Affiliates (including the Company), each of their respective shareholders, members, partners, officers, directors, managersemployees and agents harmless from and against any and all Losses that may be incurred by any such indemnified party, employees, agents, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Buyer Indemnitees”) harmless directly or indirectly resulting or arising from, any loss, liability, claim, charge, action, suit, proceeding, assessed interest, penalty, damage, Tax or expense (collectively, “Losses”) resulting from, arising out of related to or incurred by such Buyer Indemnitee in connection with, or otherwise with respect to(i) the Excluded Liabilities, (iii) the Excluded Assets (iii) liabilities in connection with the Non-Assignable Leases and (iv) any breach of any representation or warranty or any covenant, obligation or agreement of the Sellers contained in this Agreement; provided, that, with respect to this clause (iv), the indemnification rights of Purchaser with respect to Losses related to any breach of any of the Sellers' representations and warranties set forth in (a) Section 3.1, Section 3.2 (other than the representation and warranty of such Seller contained made in Article III or Article IV, clause (ii) any breach of thereof), Section 3.3 (other than the covenants or agreements of such Seller representation and warranty made in clause (ii) thereof), Section 3.6(a) (second sentence only), Section 3.11, Section 3.15 (other than with respect to the Company representations and its Subsidiarieswarranties related to any state or local sales or use Tax, ad valorem personal property Tax, payroll Tax arising after January 31, 1998 or, with respect to the Leases, any real property Tax relating to the Leases) and Section 3.17 ("Non-Business Seller Breach Losses") and (b) clause (ii) of Section 3.2, clause (ii) of Section 3.3, Section 3.4, Section 3.6 (other than the second sentence of Section 3.6(a), Section 3.8, Section 3.9, Section 3.10, Section 3.13 and Section 3.16 ("Business Seller Breach Losses" and, together with the Business Seller Breach Losses, the "Seller Breach Losses") shall survive only for the applicable Survival Periods; and provided, further, that the Sellers shall not be required to indemnify Purchaser under this clause (iv) of this Article XII in respect of covenants and agreements that are required to be performed prior to or contemporaneously with the Closing) contained in this Agreement, (iii) any Income Taxes paid after the date hereof that are attributable to a Pre-Signing Taxable Period or the Pre-Signing portion of any Straddle Taxable Period pursuant to Section 6.9, (iv) any Income Taxes which the Company or any Subsidiary has paid or for which the Company or any Subsidiary is liable in connection with the consummation of the Bayside Transaction, the Xxxxxxxxx Farms Transaction, the Cabarrus Xxxxx Transaction and the Xxxxx Creek Transaction, as applicable, and Transfer Taxes for which Sellers are liable pursuant to Section 6.8 and (iv) any indemnification or other post-closing obligations in respect of the Bayside Transaction, the Cabarrus Xxxxx Transaction, the Xxxxxxxxx Farms Transaction and the Xxxxx Creek Transaction and any liabilities remaining with the Company or any Subsidiary in respect of the assets sold pursuant to such transactions. If any representation or warranty contained herein is limited or qualified based on materiality, including the terms “material,” “Material Adverse Effect” or similar qualifications, such limitation or qualification shall in all respects be ignored and given no effect for purposes of determining the amount of Losses resulting from any breach of any such representation or warranty, but shall not be ignored for purposes of determining if there has been such a breach.Seller Breach Loss until the

Indemnification by the Sellers. Subject to the provisions of this Article XII, after the First Closing Date, FDS shall indemnify the Purchaser and its Affiliates against, and agree to hold each of them harmless from, any and all damage, loss, liability, cost, claim, interest, award, judgment, penalty or expense (including reasonable expenses of investigation and reasonable attorneys’ fees and expenses in connection with any action, suit or proceeding) (“Losses”) incurred or suffered by the Purchaser or any of its Affiliates because of (1) any breach of a representation or warranty of the Sellers contained in Section 5.1 or made pursuant to Section 9.2(b) (and, with respect to representations and warranties made pursuant to Section 9.2(b), the references to Section 5.1 throughout this Section 12.2 shall be deemed to refer to the corresponding representations and warranties made pursuant to Section 9.2(b)) determined without regard to any Knowledge, Material Adverse Effect or materiality qualifier therein (except in the case of the representations set forth in Sections 5.1(e)(1) and (f)), (2) any breach of an agreement or covenant made by the Sellers in this Agreement, (3) any Excluded Liability, (4) any Excluded Asset, (5) any Prime Excluded Taxes, (6) the failure by the Sellers to comply with any applicable bulk sales laws (notwithstanding the waiver contained in Section 6.13) or (7) any Action brought by a Cardholder against (x) any Seller with respect to one or more FDS Accounts that is pending as of the First Closing Date, (y) any Seller or GE Bank with respect to one or more GE/Macy’s Accounts that is pending as of the Second Closing Date, and (z) any Seller, May Co. or May Bank with respect to one or more May Accounts that is pending as of the Third Closing Date. Notwithstanding the foregoing, the Purchaser and its Affiliates shall not be entitled to indemnification pursuant to clause (1) of this Section 12.2 (other than for breaches of Sections 5.1(a), (b), (g), (l)(1) and (l)(2), which shall not be subject to the following limitations): (a) Subject in respect of any individual set of claims, facts or occurrences or any series of related claims, facts or occurrences (each a “De Minimis Claim”), if the aggregate Losses in respect of such De Minimis Claim is less than twenty-five thousand dollars ($25,000); provided, however, in the event that the aggregate Losses in respect of all such De Minimis Claims exceed five million dollars ($5,000,000), thereafter indemnification claims pursuant to clause (1) of this Section 12.2 shall be subject to indemnification without regard to the limitations set forth herein, after in this clause (a); (b) for any Losses until the Closing, each aggregate amount of all Losses incurred or suffered by the Sellers shall Purchaser or any of its Affiliates (jointly and severally in the case of the Highstar Sellers, and severally, but not jointly in the case of American General Life Insurance Companyexcluding Losses related to De Minimis Claims) exceeds twenty-five million dollars ($25,000,000), in accordance with its Pro Rata Share (with such Pro Rata Share limitation applicable only in respect of breaches of which case the representations and warranties contained in Article IV), indemnify and defend the Buyer against, and shall hold the Buyer, its Representatives Purchaser and its Affiliates (including shall be entitled to indemnification for the Company), each of their respective shareholders, members, partners, officers, directors, managers, employees, agents, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Buyer Indemnitees”) harmless from, any loss, liability, claim, charge, action, suit, proceeding, assessed interest, penalty, damage, Tax or expense (collectively, “Losses”) resulting from, arising out of or incurred by such Buyer Indemnitee in connection with, or otherwise with respect to, (i) any breach of any representation and warranty of such Seller contained in Article III or Article IV, (ii) any breach of the covenants or agreements of such Seller (with respect to the Company and its Subsidiaries, only in respect of covenants and agreements that are required to be performed prior to or contemporaneously with the Closing) contained in this Agreement, (iii) any Income Taxes paid after the date hereof that are attributable to a Pre-Signing Taxable Period or the Pre-Signing portion of any Straddle Taxable Period pursuant to Section 6.9, (iv) any Income Taxes which the Company or any Subsidiary has paid or for which the Company or any Subsidiary is liable in connection with the consummation of the Bayside Transaction, the Xxxxxxxxx Farms Transaction, the Cabarrus Xxxxx Transaction and the Xxxxx Creek Transaction, as applicable, and Transfer Taxes for which Sellers are liable pursuant to Section 6.8 and (iv) any indemnification or other post-closing obligations in respect of the Bayside Transaction, the Cabarrus Xxxxx Transaction, the Xxxxxxxxx Farms Transaction and the Xxxxx Creek Transaction and any liabilities remaining with the Company or any Subsidiary in respect of the assets sold pursuant to such transactions. If any representation or warranty contained herein is limited or qualified based on materiality, including the terms “material,” “Material Adverse Effect” or similar qualifications, such limitation or qualification shall in all respects be ignored and given no effect for purposes of determining the full amount of Losses resulting from in excess of such threshold; and (c) for Losses, in the aggregate, incurred or suffered by the Purchaser or any breach of any such representation or warranty, but shall not be ignored for purposes its Affiliates in excess of determining if there has been such a breachfour-hundred million dollars ($400,000,000).

Indemnification by the Sellers. (a) Subject to the limitations set forth herein, From and after the Closing, each subject to the other provisions of this Article VII, the Sellers shall (jointly and severally in the case of the Highstar Sellers, and severally, but not jointly in the case of American General Life Insurance Company), in accordance with its Pro Rata Share (with such Pro Rata Share limitation applicable only in respect of breaches of the representations and warranties contained in Article IV), indemnify and defend the Buyer against, and shall hold the Buyer, its Representatives Apollo and its Affiliates (including the Company), each of their respective shareholders, members, partners, officers, directors, managers, employees, agents, employees and each of the heirs, executors, successors and assigns of any of the foregoing Affiliates (collectively, the “Buyer IndemniteesIndemnified Apollo Parties”) ), and hold each of them harmless fromfrom and against, any lossand all actions, liabilitysuits, claimproceedings, chargedemands, actionassessments, suitjudgments, proceedingclaims, assessed interestliabilities, penaltylosses (including losses arising from the diminution of value), damagecosts, Tax damages, expenses, interest or expense penalties, and reasonable attorneys’ fees, expenses and disbursements, whether or not resulting from a Third Party Claim (collectively, “LossesDamages”) resulting from), arising out of suffered, paid or incurred by such Buyer Indemnitee in connection withIndemnified Apollo Party arising out of, resulting from or otherwise with respect to, caused by: (i) any breach of any of the representations and warranties (read without giving effect to any qualifications regarding materiality, Material Adverse Effect or similar qualifications other than with respect to the representations in Section 2.6 and Section 2.9(a)) made by the Sellers in Article II, or in any certificate or other document delivered in connection with this Agreement, as if such representation or warranty was made as of the Closing (except in the case of representations and warranty warranties which by their terms speak only as of a specific date or dates, in which case as of such Seller contained in Article III date or Article IVdates), (ii) any breach by a Seller of the covenants any covenant or agreements agreement of such Seller (with respect to the Company and its Subsidiaries, only in respect of covenants and agreements that are required to be performed prior to or contemporaneously with the Closing) contained in this Agreement, (iii) any Income Taxes paid after matter described in Section 7.1(a)(iii) of the date hereof that are attributable to a Pre-Signing Taxable Period or the Pre-Signing portion of any Straddle Taxable Period pursuant to Section 6.9Seller Disclosure Letter, (iv) any Income Taxes which the Company Excluded RCS Business or any Subsidiary has paid other businesses operated or for which conducted by the Company or Sellers and its Subsidiaries (other than the Subject Companies), (v) any Subsidiary is liable matter described in connection with the consummation Section 7.1(a)(v) of the Bayside TransactionSeller Disclosure Letter, (vi) the Xxxxxxxxx Farms Transaction, the Cabarrus Xxxxx Transaction and the Xxxxx Creek Transaction, as applicable, and Transfer Taxes for which Sellers are liable pursuant to Section 6.8 Pre-Closing Restructuring Actions and (ivvii) any indemnification or other post-closing obligations in respect of FINRA Burdensome Condition (provided, however, that the Bayside Transaction, the Cabarrus Xxxxx Transaction, the Xxxxxxxxx Farms Transaction and the Xxxxx Creek Transaction and obligation to indemnify for any liabilities remaining with the Company or any Subsidiary in respect of the assets sold pursuant to such transactions. If any representation or warranty contained herein is limited or qualified based on materiality, including the terms “material,” “Material Adverse Effect” or similar qualifications, such limitation or qualification shall in all respects be ignored and given no effect for purposes of determining the amount of Losses resulting from any breach of any such representation or warranty, but FINRA Burdensome Condition shall not be ignored for purposes apply if Apollo has exercised its right under the second sentence of determining if there has been such a breachSection 5.2(i)).

Indemnification by the Sellers. (a) Subject to the limitations limits set forth hereinin this Article IX, from and after the Closing, the Sellers agree, jointly and severally, to indemnify, defend and hold harmless each Buyer and each of their Affiliates (including, after the Closing, each of the Sellers shall (jointly Sold Companies) and severally in the case of the Highstar Sellers, and severally, but not jointly in the case of American General Life Insurance Company), in accordance with its Pro Rata Share (with such Pro Rata Share limitation applicable only in respect of breaches of the representations and warranties contained in Article IV), indemnify and defend the Buyer against, and shall hold the Buyer, its Representatives and its Affiliates (including the Company), each of their respective shareholders, members, partners, officers, directors, managersstockholders, employees, agents, agents and each of the heirs, executors, successors and assigns of any of the foregoing representatives (collectively, the “Buyer IndemniteesIndemnified Persons”) harmless fromagainst and in respect of any and all actions, any losssuits, liabilityproceedings, claimclaims, chargeLiabilities, actionlosses, suitdamages, proceeding, assessed interest, penalty, damage, Tax or expense costs and expenses (including reasonable fees and expenses of counsel) (collectively, “Losses”) resulting from), arising that they may incur or suffer and that arise out of of, result from or incurred by such Buyer Indemnitee in connection with, or otherwise with respect to, are due to (i) any breach of any representation and or warranty of such Seller the Sellers contained in this Agreement (other than the Tax representations and warranties contained in Section 3.11, which are addressed separately in the Tax indemnity set forth in Section 5.6, and other than the representations and warranties contained in Sections 3.1, 3.2 and 3.3, 3.14 (as it relates to title), 3.18 (as it relates to title), and 3.19 (as it relates to title) (such parts of Article III being referred to collectively as, the “Title Representations”)), in any Closing Agreement or Article IVin any certificates delivered in connection herewith or therewith, (ii) any breach of the covenants or agreements of such Seller (with respect to the Company and its Subsidiaries, only in respect of covenants and agreements that are required to be performed prior to or contemporaneously with the Closing) contained in this Agreementany Title Representations, (iii) any Income Taxes paid after failure of Sellers to perform any covenant or other agreement of the date hereof that are attributable to a Pre-Signing Taxable Period or the Pre-Signing portion of any Straddle Taxable Period pursuant to Section 6.9, (iv) any Income Taxes which the Company Sellers contained in this Agreement or any Subsidiary has paid or for which the Company or any Subsidiary is liable in connection with the consummation of the Bayside Transaction, the Xxxxxxxxx Farms Transaction, the Cabarrus Xxxxx Transaction and the Xxxxx Creek Transaction, as applicable, and Transfer Taxes for which Sellers are liable pursuant to Section 6.8 Closing Agreement and (iv) any indemnification Excluded Asset or other post-closing obligations in respect of the Bayside Transaction, the Cabarrus Xxxxx Transaction, the Xxxxxxxxx Farms Transaction and the Xxxxx Creek Transaction and any liabilities remaining with the Company or any Subsidiary in respect of the assets sold pursuant to such transactions. If any representation or warranty contained herein is limited or qualified based on materiality, including the terms “material,” “Material Adverse Effect” or similar qualifications, such limitation or qualification shall in all respects be ignored and given no effect for purposes of determining the amount of Losses resulting from any breach of any such representation or warranty, but shall not be ignored for purposes of determining if there has been such a breachExcluded Liability.

Indemnification by the Sellers. (a) Subject to the limitations set forth hereinin this Article X (including the provisions of Section 10.1), from and after the Closing, each of the Sellers shall (jointly together with their respective successors, assigns and severally in heirs, the case of the Highstar Sellers“Seller Indemnitors”) will, and severallyon a several, but not jointly in the case of American General Life Insurance Company), in accordance with its Pro Rata Share (with such Pro Rata Share limitation applicable only in respect of breaches of the representations and warranties contained in Article IV)joint basis, indemnify and defend the hold harmless Buyer againstand its successors and permitted assigns, and shall hold the Buyerofficers, its Representatives and its Affiliates (including the Company), each of their respective shareholders, members, partners, officersemployees, directors, managers, employeesmembers, agents, partners and each stockholders of the heirs, executors, successors Buyer and assigns of any of the foregoing their heirs and personal representatives (collectively, the “Buyer Indemnitees”) harmless fromfrom and against, and will pay to the Buyer Indemnitees the amount of, any loss, liability, claim, charge, action, suit, proceeding, assessed interest, penalty, damage, Tax and all Losses that are suffered or expense (collectively, “Losses”) resulting from, arising out actually incurred by any of the Buyer Indemnitees following the Closing as a result of or incurred by such Buyer Indemnitee in connection with, or otherwise with respect to, arising from: (ia) any breach of or inaccuracy in the representations and warranties of the Company or any representation and warranty of such Seller contained in Article III this Agreement (including the Schedules and exhibits attached hereto and the certificates delivered pursuant hereto) or Article IVany Ancillary Agreement, as of the Effective Date or as of the Closing Date (iiexcept in the case of representations and warranties which by their terms speak only as of a specific date or dates, in which case as of such specified date or dates); provided that for the purposes of this clause (a), qualifications as to material, materiality or Material Adverse Effect contained in such representations and warranties shall be given effect for determining whether a breach or inaccuracy of such representations and warranties has occurred, but shall not be given effect for purposes of calculating any Losses relating thereto; (b) any breach of the covenants or agreements of such Seller (with respect to the Company and its Subsidiaries, only in respect of covenants and agreements that are required to be performed arising prior to or contemporaneously with as of the Closing) , or any breach of the covenants or agreements of any of the Sellers, contained in this Agreement (including the Schedules and exhibits attached hereto and the certificates delivered pursuant hereto) or any Ancillary Agreement, ; and/or (iiic) any Income Taxes paid after the date hereof that are attributable to a Pre-Signing Taxable Period or the Pre-Signing portion of any Straddle Taxable Period pursuant to Section 6.9, (iv) any Income Taxes which the Company or any Subsidiary has paid or for which the Company or any Subsidiary is liable in connection with the consummation of the Bayside Transaction, the Xxxxxxxxx Farms Transaction, the Cabarrus Xxxxx Transaction and the Xxxxx Creek Transaction, as applicable, and Transfer Taxes for which Sellers are liable pursuant to Section 6.8 and (iv) any indemnification or other post-closing obligations in respect of the Bayside Transaction, the Cabarrus Xxxxx Transaction, the Xxxxxxxxx Farms Transaction and the Xxxxx Creek Transaction and any liabilities remaining with the Company or any Subsidiary in respect of the assets sold pursuant to such transactions. If any representation or warranty contained herein is limited or qualified based on materiality, including the terms “material,” “Material Adverse Effect” or similar qualifications, such limitation or qualification shall in all respects be ignored and given no effect for purposes of determining the amount of Losses resulting from any breach of any such representation or warranty, but shall not be ignored for purposes of determining if there has been such a breachFraud.

Indemnification by the Sellers. (a) Subject to the limitations set forth hereinprovisions of this Article X and except with respect to indemnification for Taxes (which shall be governed exclusively by Article VII and Section 5.17(b)), effective as of and after the ClosingClosing Date, each of Parent and the Sellers shall (jointly and severally in the case of the Highstar Sellers, jointly and severally, but not jointly in the case of American General Life Insurance Company)shall indemnify, in accordance with its Pro Rata Share (with such Pro Rata Share limitation applicable only in respect of breaches of the representations defend and warranties contained in Article IV), indemnify and defend the Buyer against, and shall hold the Buyer, its Representatives harmless Purchaser and its Affiliates (including including, following the Company)Closing, each of the Transferred Companies and their respective shareholdersSubsidiaries) and their respective stockholders, members, partners, managers, officers, directors, managers, employees, representatives, controlling Persons, counsel, agents, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Buyer IndemniteesPurchaser Indemnified Parties”) harmless from), from and against any lossand all Losses incurred or suffered by any of the Purchaser Indemnified Parties, liability, claim, charge, action, suit, proceeding, assessed interest, penalty, damage, Tax or expense (collectively, “Losses”) resulting from, to the extent arising out of or incurred by such Buyer Indemnitee in connection with, or otherwise with respect to, relating to (i) any breach of any representation and or warranty of such Seller Parent or the Sellers contained in Article III this Agreement or Article IV, any Foreign Acquisition Agreement or any breach of the certification of Parent in the certificate delivered pursuant to Section 8.2(c); (ii) any breach of any covenant or agreement of Parent or the covenants or agreements of such Seller (with respect to the Company and its Subsidiaries, only in respect of covenants and agreements that are required to be performed prior to or contemporaneously with the Closing) Sellers contained in this Agreement or any Foreign Acquisition Agreement, ; (iii) any Income Taxes paid after business (including the date hereof that are attributable to a Pre-Signing Taxable Period or the Pre-Signing portion conduct and activities of any Straddle Taxable Period pursuant business) of Parent or its Affiliates (which, for the avoidance of doubt, shall include the eMe Business), other than for Losses arising out of or relating to Section 6.9the Business (for the avoidance of doubt, (iv) any Income Taxes which the Company or any Subsidiary has paid or for which the Company or any Subsidiary is liable in connection with the consummation legacy Liabilities of the Bayside TransactionBusiness, including arising out of discontinued or divested businesses, are deemed to be Liabilities of the Xxxxxxxxx Farms Transaction, the Cabarrus Xxxxx Transaction and the Xxxxx Creek Transaction, as applicable, and Transfer Taxes for which Sellers are liable pursuant to Section 6.8 Business); and (iv) any indemnification or other post-closing obligations in respect of the Bayside Transaction, the Cabarrus Xxxxx Transaction, the Xxxxxxxxx Farms Transaction and the Xxxxx Creek Transaction and any liabilities remaining with the Company or any Subsidiary in respect matters listed on Schedule 10.2 of the assets sold pursuant to such transactions. If any representation or warranty contained herein is limited or qualified based on materiality, including the terms “material,” “Material Adverse Effect” or similar qualifications, such limitation or qualification shall in all respects be ignored and given no effect for purposes of determining the amount of Losses resulting from any breach of any such representation or warranty, but shall not be ignored for purposes of determining if there has been such a breachPurchaser Disclosure Schedule.

Indemnification by the Sellers. From and after the Closing (a) Subject but subject to the limitations set forth herein, after the Closing, each and other provisions of this Article 10) the Sellers shall (will jointly and severally in the case of the Highstar Sellers, and severally, but not jointly in the case of American General Life Insurance Company), in accordance with its Pro Rata Share (with such Pro Rata Share limitation applicable only in respect of breaches of the representations and warranties contained in Article IV)defend, indemnify and defend the hold harmless Buyer against, and shall hold the Buyer, its Representatives and its Affiliates (including including, after Closing the Company), each of Target Entities and the Company Subsidiaries) and their respective shareholders, members, partners, officers, directors, managers, employees, agents, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Buyer Indemnitees”) harmless from and against, and pay or reimburse Buyer Indemnitees for, all Losses arising from, any loss, liability, claim, charge, action, suit, proceeding, assessed interest, penalty, damage, Tax or expense (collectively, “Losses”) resulting from, arising out of or incurred by such Buyer Indemnitee in connection with, or otherwise with respect to, as a result of: (i) any inaccuracy or breach of any representation and warranty of such Seller contained in Article III or Article IVthe Sellers Representations, (ii) any the breach of any agreement or covenant of the covenants Sellers or agreements of such Seller (with respect to the Company and its Subsidiaries, only in respect of covenants and agreements that are required to be performed prior to or contemporaneously with the Closing) Target Entities contained in this AgreementAgreement (in the case of the Target Entities, to the extent such agreement or covenant contemplates performance on or before the Closing Date), (iii) any Income Taxes and all Indebtedness and Transaction Expenses, in each case, to the extent not actually paid after at or prior to the date hereof that are attributable to a Pre-Signing Taxable Period or the Pre-Signing portion of any Straddle Taxable Period pursuant to Section 6.9Closing, (iv) the Excluded Business, (v) any Income Taxes which the fees, expenses or other payments incurred or owned by any Target Entity or Company Subsidiary to any brokers, financial advisors or comparable other Persons retained or employed by any Seller, Target Entity or Company Subsidiary has paid or for which the Company or any Subsidiary is liable in connection with the consummation transactions contemplated by this Agreement, (vi) any Indemnified Taxes, (vii) the Vista Outdoor Inc. Pension and Retirement Plan and any retiree medical plan of the Bayside TransactionSellers and its Affiliates, (viii) any failure to consult with the Xxxxxxxxx Farms TransactionWorks Council or any other similar employee representative body of the Target Employees in connection with this Agreement or the transactions contemplated hereby (whether such Losses arise before or after the Closing), (ix) the Cabarrus Xxxxx Transaction and performance or non-performance by the Xxxxx Creek Transaction, as applicableSellers of any of their obligations under Section 7.21, and Transfer Taxes for which Sellers are liable pursuant to Section 6.8 and (ivx) any indemnification or other post-closing obligations in respect of the Bayside Transaction, the Cabarrus Xxxxx Transaction, the Xxxxxxxxx Farms Transaction and the Xxxxx Creek Transaction and any liabilities remaining with the Company or any Subsidiary in respect of the assets sold pursuant to such transactions. If any representation or warranty contained herein is limited or qualified based on materiality, including the terms “material,” “Material Adverse Effect” or similar qualifications, such limitation or qualification shall in all respects be ignored and given no effect for purposes of determining the amount of Losses resulting from any breach termination of any such representation employee of any Target Entity or warranty, but shall not be ignored for purposes of determining if there has been such a breachCompany Subsidiary.