Common use of Indemnification by Sellers Clause in Contracts

Indemnification by Sellers. Sellers will indemnify and hold Buyer harmless at all times after the date of this Agreement against and in respect of any damage, deficiency, claim or expense resulting from: (i) any misrepresentation, breach of warranty, breach of agreement or covenant or non–observance of any condition on the part of such Seller under this Agreement; (ii) from any misrepresentation in or omission from any other instrument to be furnished by such Seller under this Agreement; and (iii) all actions, suits, proceedings, demands, assessments, judgments, reasonable attorneys' fees and other related costs incident to any of the foregoing (“Buyer’s Indemnifiable Losses”). Buyer’s Indemnifiable Losses will not include: (i) any tax liabilities arising by reason of any reduction or disallowance of deductions from taxable income in one taxable year, to the extent such reduction or disallowance results in a corresponding increase in allowable deductions from income in another taxable year, (ii) the shifting of items of income from one taxable year to another or (iii) the capitalization of amounts which were expenses, but only if such capitalized amounts are subject to amortization or depreciation or recovery in cost of goods sold, inventory or materials, provided, however, that Buyer’s Indemnifiable Losses may include any damage attributable to the lost time value of money with respect to any of such matters. Sellers will reimburse Buyer, after reasonable notice and opportunity to defend against any such claim, for any Buyer’s Indemnifiable Losses experienced or incurred by Buyer at any time after the Closing Date in respect of any liability to which the foregoing indemnity applies, subject to the Deductible. If a claim is asserted against Buyer which Buyer knows or has reason to believe will result in any liability of any Seller under this indemnity, Buyer will promptly notify the affected Seller in writing and afford such Seller the opportunity to defend against such claim.

Indemnification by Sellers. From and for twelve (12) months after the Closing, Sellers will shall hold harmless and indemnify each of the Indemnitees from and hold Buyer harmless at all times after against, and shall compensate and reimburse each of the Indemnitees for, any Damages which are suffered or incurred by any of the Indemnitees or to which any of the Indemnitees may otherwise become subject (regardless of whether or not such Damages relate to any third-party claim) and which arise from or as a result of, or are connected with: (a) any inaccuracy in or material breach of any representation or warranty of Sellers or GGC as of the date of this Agreement against and (without giving effect to any “Material Adverse Effect” or other materiality qualification or any similar qualification contained or incorporated directly or indirectly in respect such representation or warranty); (b) any inaccuracy in or breach of any damagerepresentation or warranty of Sellers or GGC as if such representation and warranty had been made on and as of the Closing Date (except for such representations and warranties that address matters only as of a particular time, deficiencywhich need only be accurate as of such time) (without giving effect to any “Material Adverse Effect” or other materiality qualification or any similar qualification contained or incorporated directly or indirectly in such representation or warranty); (c) any breach of any covenant or obligation of Sellers or GGC set forth in this Agreement; (d) any Closing Indebtedness or Acquired Company Transaction Expenses, claim or expense resulting from: to the extent not credited against the payment of the Purchase Price by Purchaser; (e) (i) any misrepresentation, breach Taxes of warranty, breach of agreement the Acquired Companies with respect to any Pre-Closing Tax Period or covenant or non–observance with respect to the portion of any condition Straddle Period ending on the part of such Seller under this Agreement; (ii) from any misrepresentation in or omission from any other instrument to be furnished by such Seller under this Agreement; and (iii) all actions, suits, proceedings, demands, assessments, judgments, reasonable attorneys' fees and other related costs incident to any of the foregoing (“Buyer’s Indemnifiable Losses”). Buyer’s Indemnifiable Losses will not include: (i) any tax liabilities arising by reason of any reduction or disallowance of deductions from taxable income in one taxable yearClosing Date, to the extent such reduction or disallowance results in a corresponding increase in allowable deductions from income in another taxable year, not credited against the payment of the Purchase Price by Purchaser and (ii) the shifting any Taxes arising out of items of income from one taxable year or related to another or a Permitted Activity; and (iiif) the capitalization termination of amounts which were expensesthe employment of any Key Employee identified in Exhibit B hereto, but only if such capitalized amounts are subject to amortization either for Cause by the Purchaser or depreciation or recovery in cost of goods soldwithout Good Reason by the Key Employee, inventory or materials, within the 12 month period following the Closing (a “Premature Departure”); and provided, however, that Buyer’s Indemnifiable Losses may include any damage attributable in no event shall such Damages be “double counted” for purposes of this Article 10. For purposes of (f) above, the Parties agree that the amount of Damages applicable to a Premature Departure shall vary depending on the lost time value Key Employee who is the subject of money with respect to any of such matters. Sellers will reimburse Buyer, after reasonable notice and opportunity to defend against any such claim, for any Buyer’s Indemnifiable Losses experienced or incurred by Buyer at any time after the Closing Date a Premature Departure as set forth in respect of any liability to which the foregoing indemnity applies, subject to the Deductible. If a claim is asserted against Buyer which Buyer knows or has reason to believe will result in any liability of any Seller under this indemnity, Buyer will promptly notify the affected Seller in writing and afford such Seller the opportunity to defend against such claim.Exhibit B.

Indemnification by Sellers. In the event that the transactions provided for in this Agreement are completed and it is subsequently determined that the Corporation or the Parent or Buyer or any agent, employee, affiliate, successor or nominee of the Corporation or the Parent or Buyer, or any of the officers, directors, shareholders, subsidiaries, affiliates, employees and agents of any of the aforesaid (collectively the "Indemnified Parties") has or is subject to any loss, damage, liability, deficiency, claim, cost, recovery, expense (including interest, penalties and reasonable legal fees), assessment or re-assessment (collectively the "Claims") arising out of or from, the incorrectness, failure, non-compliance or other breach of any representation, warranty or covenant made by the Sellers will pursuant to this Agreement, notwithstanding any investigations made by the Parent or Buyer or its representatives, and including any accounts receivables of the Corporation existing as of the Time of Closing which have not been collected within 180 days from the Time of Closing, the Sellers unconditionally agree to indemnify and hold Buyer save harmless at the Indemnified Parties for the amount of such Claims, accounts receivables and any liability for Taxes arising in the Corporation or holding Companies for periods prior to the Effective Date. The obligation of the Sellers to indemnify the Indemnified Parties pursuant to the foregoing is limited, in the case of accounts receivables of the Corporation, to the amount of accounts receivable which have not been collected in full within 180 days of the Closing Date and which, in the aggregate, exceed fifteen percent (15%) of the aggregate amount (before deduction of any reserve or allowance for doubtful accounts) of all times after accounts receivable of the date of this Agreement against and Corporation on the Closing Date; notwithstanding the foregoing, the Sellers shall not be responsible to indemnify any party in respect of any damageaccounts receivable or other intercorporate debt between and among any of Logicorp, deficiencyLSG, claim 123557 and 591360. Any Claim against the Sellers under this section shall be in writing and shall be made within one hundred and twenty (120) days of the date on which such representation or expense resulting from: (i) any misrepresentationwarranty ceases to survive according to the provisions of this Agreement. In the event that the Sellers make an indemnity payment with respect to accounts receivable, breach then the uncollected accounts receivable in respect of warrantywhich the indemnity payment is made, breach shall be transferred and assigned to the Sellers as of agreement or covenant or non–observance the date of the indemnity payment. The Indemnified Parties shall forthwith notify the Sellers of any condition on liability or Claim for which the part Sellers may be liable hereunder promptly after the Indemnified Parties receive notice thereof and the Sellers shall have the right to participate in any negotiations with respect thereto. The Sellers shall at all times have the right, at its joint sole expense, to dispute and contest any liability to, or Claim asserted by, any person other than the Indemnified Parties for which the Sellers may be liable hereunder, provided that the Sellers first admit to the Buyer that if there is a liability in respect of such Seller under this Agreement; (ii) from Claim, the Sellers is responsible for such liability. The Indemnified Parties shall, and shall cause the Corporation to, fully co-operate with the Sellers and its counsel in any misrepresentation in or omission from any other instrument to be furnished by such Seller under this Agreement; and (iii) all actions, suits, proceedings, demands, assessments, judgments, reasonable attorneys' fees and other related costs incident to any of the foregoing (“Buyer’s Indemnifiable Losses”). Buyer’s Indemnifiable Losses will not include: (i) any tax liabilities arising by reason of any reduction or disallowance of deductions from taxable income in one taxable year, to the extent such reduction or disallowance results in a corresponding increase in allowable deductions from income in another taxable year, (ii) the shifting of items of income from one taxable year to another or (iii) the capitalization of amounts which were expenses, but only if such capitalized amounts are subject to amortization or depreciation or recovery in cost of goods sold, inventory or materials, provided, however, that Buyer’s Indemnifiable Losses may include any damage attributable to the lost time value of money proceedings with respect to any of such mattersliability. There shall be no obligation for the Sellers will reimburse to indemnify the Parent or the Buyer, after reasonable notice and opportunity to defend against any such claim, for any Buyer’s Indemnifiable Losses experienced or incurred by Buyer at any time after the Closing Date in respect of any liability to which the foregoing indemnity applies, subject to the Deductible. If a claim is asserted against Buyer which Buyer knows or has reason to believe will result in any liability of any Seller under this indemnity, Buyer will promptly notify the affected Seller in writing and afford such Seller the opportunity to defend against such claim.:

Indemnification by Sellers. Sellers will indemnify Following the Closing, subject to this Article VII, each Seller agrees, severally and individually (and not jointly) to indemnify, defend and hold Buyer harmless at the Purchaser, its officers, directors, agents, employees and Affiliates from and against any and all times after losses, liabilities, claims, damages, penalties, fines, judgments, awards, settlements, Taxes, costs, fees, expenses (including reasonable attorneys', consultant and expert witness fees and expenses), and disbursements (collectively, "Losses") actually sustained by any such Person resulting from, arising out of or relating to (a) any breach by such Seller of any of the date representations or warranties of such Seller, contained in Article III or IV of this Agreement against and in respect of any damage, deficiency, claim or expense resulting from: (i) any misrepresentation, breach of warranty, breach of agreement or covenant or non–observance of any condition on the part of such Seller under this Agreement; (ii) from any misrepresentation in or omission from any other instrument to be furnished certificate delivered by such Seller under pursuant to Section 2.04(d) after taking into account any supplement to the Schedules pursuant to Section 6.04, (b) any breach by such Seller of any covenant contained in this Agreement; Agreement (other than any non-willful and non-deliberate breach of Section 6.03) which requires performance by such Seller, and (iiic) any and all actions, suits, proceedings, demands, assessments, judgments, reasonable attorneys' fees and other related costs incident to any Taxes of the foregoing (“Buyer’s Indemnifiable Losses”). Buyer’s Indemnifiable Losses will not include: (i) LLC for any tax liabilities arising by reason of any reduction taxable period or disallowance of deductions from taxable income in one taxable yearportion thereof ending on or prior to the Closing Date, but only to the extent such reduction Taxes exceed the amount, as of the Closing Date, of any payroll, sales or disallowance results use Taxes incurred in a corresponding increase in allowable deductions from income in another taxable year, (ii) the shifting of items of income from one taxable year to another or (iii) the capitalization of amounts which were expenses, but only if such capitalized amounts are subject to amortization or depreciation or recovery in cost of goods sold, inventory or materials, provided, however, period that Buyer’s Indemnifiable Losses may include any damage attributable to the lost time value of money with respect to any of such matters. Sellers will reimburse Buyer, after reasonable notice begins before and opportunity to defend against any such claim, for any Buyer’s Indemnifiable Losses experienced or incurred by Buyer at any time ends after the Closing Date (a "Straddle Period") and which are due after the Closing Date, provided that liability for any such Straddle Period payroll, sales or use Taxes was incurred as a result of employment services provided or purchases or sales made in respect the ordinary course of any liability to business. For Straddle Period Taxes other than payroll, sales and use Taxes, if any, which are due after the foregoing indemnity appliesClosing Date, subject clause (c) of this Section 7.01 shall apply to, and the Sellers shall be responsible for, an amount equal to the Deductible. If product of the Taxes due for the entire Straddle Period times a claim fraction, the numerator of which is asserted against Buyer the number of days in the portion of the Straddle Period up to and including the Closing Date and the denominator of which Buyer knows or has reason to believe will result is the number of days in any liability of any Seller under this indemnity, Buyer will promptly notify the affected Seller in writing and afford such Seller the opportunity to defend against such claimentire Straddle Period.

Indemnification by Sellers. From and after the Closing, Sellers will shall jointly and severally indemnify and hold Buyer Buyer, its Affiliates, the Company, the Subsidiaries and their respective directors, officers, employees, shareholders, members, partners, agents, successors and assigns (collectively "BUYER CLAIMANTS" and individually "BUYER CLAIMANT") harmless at from and defend each of them from and against any and all times after the date of this Agreement against and in respect of any damagedemands, deficiencyclaims, claim or expense resulting from: (i) any misrepresentation, breach of warranty, breach of agreement or covenant or non–observance of any condition on the part of such Seller under this Agreement; (ii) from any misrepresentation in or omission from any other instrument to be furnished by such Seller under this Agreement; and (iii) all actions, suitsliabilities, proceedingslosses, demandscosts, assessmentsdamages or expenses whatsoever including, judgmentswithout limitation, reasonable attorneys' fees and other related expenses (and costs incident and reasonable attorneys' fees in respect of any suit to any enforce this provision) (collectively, "CLAIMS") asserted against, imposed upon or incurred by Buyer Claimants resulting from or arising out of the foregoing (“Buyer’s Indemnifiable Losses”). Buyer’s Indemnifiable Losses will not include: (i) any tax liabilities arising by reason alleged inaccuracy or breach of any reduction representation or disallowance warranty of deductions from taxable income in one taxable year, to the extent such reduction or disallowance results in a corresponding increase in allowable deductions from income in another taxable year, Sellers contained herein; (ii) the shifting any Claims against Buyer Claimants by any third party or governmental entity or agency relating to any violation of items of income from one taxable year federal, state or agency law, rule or regulation with respect to another any wage and hour law or employment law; (iii) any breach of any covenant or obligation of any of the capitalization Sellers contained herein. The Buyer Claimants' right to indemnification shall not be limited or affected in any way by any pre-Closing investigation by Buyer. Sellers shall not be required to indemnify a Buyer Claimant under clause (i) of the first sentence of this SECTION 9.2 unless the aggregate cumulative sum of all amounts for which were expensesindemnity would otherwise be due under clause (i) of the first sentence of this SECTION 9.2 exceeds $200,000, but in which case Sellers shall only if be responsible for such capitalized amounts are subject excess. In addition, the maximum aggregate liability of Sellers for indemnification under clause (i) of the first sentence of this SECTION 9.2 shall not exceed the 30% of the total Purchase Price. The limitations set forth in the immediately two preceding sentences shall not apply to amortization Claims arising from any inaccuracy or depreciation breach of the representations or recovery warranties contained in cost the first sentence of goods soldSECTION 4.1 and in SECTIONS 4.3, inventory or materials, 4.16; provided, however, that Buyer’s Indemnifiable Losses may include any damage attributable such Claims will be limited to the lost time value of money with respect to any of such matters. Sellers will reimburse Buyer, after reasonable notice and opportunity to defend against any such claim, for any Buyer’s Indemnifiable Losses experienced or incurred by Buyer at any time after the Closing Date in respect of any liability to which the foregoing indemnity applies, subject to the Deductible. If a claim is asserted against Buyer which Buyer knows or has reason to believe will result in any liability of any Seller under this indemnity, Buyer will promptly notify the affected Seller in writing and afford such Seller the opportunity to defend against such claimtotal Purchase Price.

Indemnification by Sellers. Sellers jointly and severally will indemnify and hold Buyer harmless at all times after the date of this Agreement against and in respect of any damage, deficiency, claim or expense resulting from: (i) any misrepresentation, breach of warranty, breach of agreement or covenant or non–-observance of any condition on the part of such Seller under this Agreement; (ii) from any misrepresentation in or omission from any other instrument to be furnished by such Seller under this Agreement; and (iii) all actions, suits, proceedings, demands, assessments, judgments, reasonable attorneys' fees and other related costs incident to any of the foregoing (“"Buyer’s 's Indemnifiable Losses”"). Buyer’s 's Indemnifiable Losses will not include: (i) any tax liabilities arising by reason of any reduction or disallowance of deductions from taxable income in one taxable year, to the extent such reduction or disallowance results in a corresponding increase in allowable deductions from income in another taxable year, (ii) the shifting of items of income from one taxable year to another or (iii) the capitalization of amounts which were expenses, but only if such capitalized amounts are subject to amortization or depreciation or recovery in cost of goods sold, inventory or materials, provided, however, that Buyer’s 's Indemnifiable Losses may include any damage attributable to the lost time value of money with respect to any of such matters. The amount of any claim for which indemnification is provided under this Section 10.1 shall be net of any amounts recovered or recoverable by Buyer under insurance policies with respect to such claim. If, following the receipt by Buyer of any indemnity payment hereunder, Buyer shall receive any insurance recovery or indemnity payment from a third party in respect of the same underlying claim, Buyer shall reimburse the Seller(s) from whom such indemnity payment was received to the extent of such insurance recovery or third-party indemnity payment. The aggregate liability of Sellers under this Article X shall in no case exceed the aggregate value of the Purchase Price paid to Sellers hereunder. Sellers will reimburse Buyer, after reasonable notice and opportunity to defend against any such claim, for any Buyer’s 's Indemnifiable Losses experienced or incurred by Buyer at any time after the Closing Date in respect of any liability to which the foregoing indemnity applies, subject to the Deductible. If a claim is asserted against Buyer which Buyer knows or has reason to believe will result in any liability of any Seller under this indemnity, Buyer will promptly notify the affected Seller in writing and afford such Seller the opportunity to defend against such claim. The indemnification provided for in Section 10.1 will not apply unless and until the aggregate of Buyer's Indemnifiable Losses exceed $25,000 whereupon the indemnification provided for in Section 10.1 shall apply to all Buyer's Indemnifiable Losses including such $25,000.

Indemnification by Sellers. From and after the Closing Date, Sellers will shall, jointly and severally, indemnify and hold Buyer and each of its Affiliates, directors, shareholders, officers, agents, representatives and employees (collectively, the “Buyer Group”), harmless at all times after the date from and against Damages imposed upon or incurred by any of this Agreement against and them in respect of any damageconnection with, deficiencyresulting from or arising out of, claim directly or expense resulting fromindirectly: (i) any misrepresentation, breach or inaccuracy of a representation or warranty, made by Sellers in this Agreement (disregarding for this purpose any materiality, material adverse effect or similar qualifiers contained in such representations); (ii) any breach or non-fulfillment of agreement or any covenant or non–observance of any condition agreement on the part of such Seller under Sellers set forth in this Agreement; (iiiii) from the Excluded Obligations; (iv) the Excluded Liabilities; (v) the Historical Environmental Liabilities (provided that this aspect of the indemnity shall be reduced to the extent that Sellers are harmed as a result of any misrepresentation Buyer breach of any of its obligations under Sections 5.02(c) or any Voluntary Environmental Action); (vi) the fee payable to Concentric Energy Advisors, Inc. referred to in Section 3.17; (vii) the Alstom Litigation; (viii) the failure to obtain any authorization, consent, waiver or omission from any other instrument to be furnished by such Seller under this Agreementapproval listed in Schedule 3.04; and (iiiix) all actions, suits, proceedings, demands, assessments, judgments, reasonable attorneys' fees proceedings and other related costs judgments incident to any of the foregoing foregoing. Notwithstanding anything in this Agreement to the contrary, Sellers (“Buyer’s Indemnifiable Losses”). Buyer’s Indemnifiable Losses will not include: (i1) shall have no indemnification obligations under this Article 10 for any tax liabilities arising by reason of any reduction or disallowance of deductions from taxable income in one taxable year, Environmental Damages to the extent such reduction or disallowance results resulting from changes in a corresponding increase in allowable deductions from income in another taxable year, (ii) the shifting of items of income from one taxable year to another or (iii) the capitalization of amounts which were expenses, but only if such capitalized amounts are subject to amortization or depreciation or recovery in cost of goods sold, inventory or materials, provided, however, that Buyer’s Indemnifiable Losses may include any damage attributable to the lost time value of money with respect to any of such matters. Sellers will reimburse Buyer, after reasonable notice and opportunity to defend against any such claim, for any Buyer’s Indemnifiable Losses experienced or incurred by Buyer at any time Environmental Law occurring after the Closing Date or to the extent attributable to a change in respect the use of any liability to which Real Property from the foregoing indemnity appliesBuyer’s Intended Use or any Voluntary Environmental Action by Buyer or its Affiliates, subject provided that any Remedial Action of Historical Environmental Liabilities may be governed by applicable post-Closing requirements for conducting Remedial Actions, so long as any Remedial Action is conducted in a Lowest-Cost Commercially Reasonable Manner and (2) shall not be liable for any Environmental Damages to the Deductible. If a claim is asserted against extent imposed upon or incurred or accrued by Buyer which Group relating to acts or omissions of Buyer knows or has reason its Affiliates, or the existence of Environmental Conditions to believe will result in any liability of any Seller under this indemnity, Buyer will promptly notify the affected Seller in writing and afford such Seller extent first arising or existing after the opportunity to defend against such claimClosing Date.

Indemnification by Sellers. Sellers will indemnify agrees to Indemnify, defend and hold harmless Buyer from and against any losses, costs, damages and expenses (including, without limitation, attorneys' fees and costs) incurred by Buyer and resulting from any breach by Sellers of any of Seller's representations, warranties and covenants set forth in this Agreement. In furtherance, and not in limitation, of the foregoing indemnity, Sellers shall indemnify, defend and hold harmless from and against all claims asserted against, and all losses, costs, damages and expenses incurred by Buyer arising from either the business conducted by Sellers at the Premises prior to the Closing, and the violation of any local, state or federal law relating to hazardous substances or toxic waste by reason of the presence on or under the Premises of hazardous substances or toxic waste, which substances or waste were present prior to the Closing, provided that the presence of such hazardous substances or toxic waste was caused by the Sellers. Buyers shall promptly notify Sellers of the existence of any claim, demand or other matter to which Seller's indemnification obligations would apply and shall give Sellers reasonable opportunity to defend the same at their own expense and with counsel of their own selection; provided, that Buyer shall at all times also have the right to fully participate in the defense at his own expense. If Sellers shall, within a reasonable time after this notice, fail to defend, Buyer shall have the right but not the obligation to undertake the defense of, and to compromise or settle (exercising reasonable business judgment), the claim or other matter on behalf of Sellers. If the claim is one that cannot by its nature be defended solely by Sellers, Buyer shall make available all information and assistance that Sellers may reasonably request. Any time after the Closing Date, but not later than one (1) year after the Closing Date, Buyer shall inform Sellers by written notification ("Claim Notice") of any claim for indemnification under this Section. Sellers shall have ten (10) days from the date of delivery of the Claim Notice in which to dispute any such claim. In the event that all or any portion of a claim remains unresolved twenty (20) days after the date of this Agreement against and in respect of any damage, deficiency, claim or expense resulting from: (i) any misrepresentation, breach of warranty, breach of agreement or covenant or non–observance of any condition on Seller's Notice after good faith efforts to resolve the part of such Seller under this Agreement; (ii) from any misrepresentation in or omission from any other instrument to be furnished by such Seller under this Agreement; and (iii) all actions, suits, proceedings, demands, assessments, judgments, reasonable attorneys' fees and other related costs incident to any of the foregoing (“Buyer’s Indemnifiable Losses”). Buyer’s Indemnifiable Losses will not include: (i) any tax liabilities arising by reason of any reduction or disallowance of deductions from taxable income in one taxable year, to the extent such reduction or disallowance results in a corresponding increase in allowable deductions from income in another taxable year, (ii) the shifting of items of income from one taxable year to another or (iii) the capitalization of amounts which were expenses, but only if such capitalized amounts are subject to amortization or depreciation or recovery in cost of goods sold, inventory or materials, provided, however, that Buyer’s Indemnifiable Losses may include any damage attributable to the lost time value of money with respect to any of such matters. Sellers will reimburse Buyer, after reasonable notice and opportunity to defend against any such claim, for any Buyer’s Indemnifiable Losses experienced or incurred Buyer and Seller shall attempt to resolve such claim through mediation, and then, if necessary, by Buyer at any time after arbitration in accordance with the Closing Date procedures described in respect of any liability to which the foregoing indemnity applies, subject to the Deductible. If a claim is asserted against Buyer which Buyer knows or has reason to believe will result in any liability of any Seller under this indemnity, Buyer will promptly notify the affected Seller in writing Sections 9.09 and afford such Seller the opportunity to defend against such claim9.10.

Indemnification by Sellers. Sellers will shall indemnify and hold harmless the Buyer harmless at from and against any and all times after losses, liabilities, damages, costs and expenses (including, without limitation, reasonable fees and disbursements of counsel and other professional advisors) suffered or incurred by the date Buyer arising out of this Agreement against and in respect or resulting from the breach by the Sellers of any damagerepresentation, deficiency, claim or expense resulting from: (i) any misrepresentation, breach of warranty, breach of agreement warranty or covenant or non–observance of any condition on made by the part of such Seller under Sellers in this Agreement; (ii) from any misrepresentation in . In addition, Sellers shall promptly pay, perform or omission from any discharge all liabilities or other instrument obligations relating to be furnished income taxes, payroll taxes, Environmental Laws or the deferred compensation claim asserted by such Seller under this Agreement; and (iii) all actionsformer Technetics employee David Chandler, suits, proceedings, demands, assessments, judgments, reasonable attorneys' fees and other related costs incident arising out of events or circumstances occxxxxxx xx xx xxistence prior to any of the foregoing (“Buyer’s Indemnifiable Losses”). Buyer’s Indemnifiable Losses will not include: (i) any tax liabilities arising by reason of any reduction or disallowance of deductions from taxable income in one taxable yearClosing Date, to the extent such reduction liabilities or disallowance results in a corresponding increase in allowable deductions from income in another taxable yearobligations are not fully reflected on the Closing Balance Sheet, (ii) or shall reimburse Buyer or Technetics for the shifting amount of items any such liability or other obligation paid, performed or discharged by the Buyer or Technetics. Notwithstanding any other provision of income from one taxable year this Agreement, Sellers shall not be required to another indemnify Buyer or (iii) the capitalization to satisfy liabilities or other obligations of amounts which were expenses, but only if such capitalized amounts are subject to amortization or depreciation or recovery in cost of goods sold, inventory or materials, provided, however, that Buyer’s Indemnifiable Losses may include any damage attributable Technetics except to the lost time value extent such liabilities or obligations in the aggregate exceed $20,000 (twenty thousand dollars). Any amounts due by Sellers to Buyer pursuant to the indemnification provisions of money with respect to any this Section 10.1 may, at the option of such matters. Sellers will reimburse Buyer, after reasonable notice and opportunity to defend be collected by offsetting such amounts against any such claimamounts owed on the Secured Notes or the Adjusted Secured Notes, for as applicable, or any Buyer’s Indemnifiable Losses experienced or incurred other amounts owed by Buyer at any time after the Closing Date in respect of any liability to which the foregoing indemnity applies, subject to the Deductible. If a claim is asserted against Buyer which Buyer knows or has reason to believe will result in any liability of any Seller under this indemnity, Buyer will promptly notify the affected Seller in writing and afford such Seller the opportunity to defend against such claimSellers.

Indemnification by Sellers. HD Supply will, and will cause the other Sellers will to, indemnify Buyer and hold Buyer harmless at the Acquired Companies for (i) Income Taxes owed by any Acquired Company for all times Taxable periods, or portions thereof, ending on or before the Closing Date (together with any interest, penalty or additions to such Taxes accruing after the date of this Agreement against Closing Date on any such Taxes and including any such Taxes, interest, penalties or additions to Tax assessed in connection with a Tax Proceeding in respect of any damagesuch taxable periods), deficiencyincluding, claim or expense resulting from: for the avoidance of doubt, (iA) any misrepresentation, breach of warranty, breach of agreement or covenant or non–observance Income Tax of any condition of the Acquired Companies arising from or attributable to any transaction or activity undertaken to transfer any Excluded Asset or Excluded Liability to HD Supply or any of its Affiliates prior to Closing and (B) any Income Tax imposed on Construction Supply or its beneficial owners arising as a result of any Income Tax audit, litigation or other proceeding of Construction Supply for any Taxable period, or portion thereof, ending on or before the part of such Seller Closing Date whether imposed under this Agreement; Section 6225 or otherwise, (ii) from payroll Taxes owed by or with respect to any misrepresentation Acquired Company that are paid after the Closing Date to the extent such payroll Taxes relate to Taxable periods, or portions thereof, ending on or prior to the Closing Date and the payment of which was deferred pursuant to Section 2302(a)(1) of the CARES Act and any such payroll Taxes arising as a result of any Tax Proceeding relating to the utilization by HD Supply or any of its Affiliates of any employee retention credits provided for pursuant to Section 2301(a) of the CARES Act or any wage subsidies under the Canada Emergency Wage Subsidy, in each case, for Taxable periods, or omission from portions thereof, ending on or prior to the Closing Date, provided however, that the Sellers will retain the tax benefits of any other instrument employee retention credits provided for pursuant to be furnished by such Seller Section 2301(a) of the CARES Act that have not been claimed as of the Closing Date and which employee retention credits relate to Taxable periods ending on or prior to the Closing Date, and wage subsidies under this Agreement; and the Canada Emergency Wage Subsidy related to periods, or portions thereof, ending on or prior to the Closing Date, (iii) all actionsTaxes arising as the result of any inclusion under Section 951 or Section 951A of the Code (or any similar or corresponding provision of state or local Law) by Buyer, suits, proceedings, demands, assessments, judgments, reasonable attorneys' fees and other related costs incident to any Acquired Company or any of their Affiliates to the foregoing extent such inclusion relates to a Taxable period, or portion thereof, ending on or before the Closing Date of any Acquired Company that is a “controlled foreign corporation” (“Buyer’s Indemnifiable Losses”as defined under Section 957 of the Code). Buyer’s Indemnifiable Losses will not include: , as determined as if the Taxable period of such controlled foreign corporation ended on the Closing Date, (iiv) Income Taxes of any tax liabilities Person arising under Treasury Regulations Section 1.1502-6 or comparable provisions of U.S. state or local or foreign Tax Law imposed on an Acquired Company or any successor thereto by reason of any reduction Acquired Company having been a member of a consolidated, combined, affiliated, unitary or disallowance of deductions from taxable income in one taxable year, other similar Tax group prior to the extent such reduction or disallowance results Closing and (v) 75% of the first $1.9 million of AX Xxxxxx Liabilities, and 50% of the next $1.9 million of AX Xxxxxx Liabilities, in each case actually imposed on an Acquired Company by a corresponding increase in allowable deductions from income in another taxable year, (ii) the shifting of items of income from one taxable year to another or (iii) the capitalization of amounts which were expenses, but only if such capitalized amounts are subject to amortization or depreciation or recovery in cost of goods sold, inventory or materials, provided, however, that Buyer’s Indemnifiable Losses may include any damage attributable Governmental Entity prior to the lost time value third anniversary of money with respect to any of such matters. Sellers will reimburse Buyer, after reasonable notice and opportunity to defend against any such claim, for any Buyer’s Indemnifiable Losses experienced or incurred by Buyer at any time after the Closing Date in respect (provided, that, without limiting the generality of any liability to which the foregoing indemnity applies, subject to the Deductible. If a claim is asserted against Buyer which Buyer knows or has reason to believe will result in any liability of any Seller under this indemnityother provision hereof, Buyer will promptly notify HD Supply of any claim relating to the affected Seller foregoing and cooperate in writing HD Supply’s defense thereof), including, for the avoidance of doubt, in the case of each of Sections 5.6(d)(i) through (v) above, any Tax owed as a result of any such indemnification payment. Notwithstanding the foregoing, in the case of each of Sections 5.6(d)(i) through (v) above, HD Supply and afford the other Sellers will not be obligated to indemnify Buyer or any Acquired Company for any Taxes to the extent such Seller Taxes (1) were expressly reflected in the opportunity calculation of the Purchase Price, as finally determined in accordance with this Agreement, (2) are the responsibility of Buyer and its Affiliates pursuant to defend against Section 5.6(c) hereof, or (3) result from a Buyer’s Tax Act. For the avoidance of doubt, any indemnification by HD Supply or Sellers pursuant to this Section 5.6(d) will be determined without regard to any offset or reduction arising from the utilization of any net operating loss, credit or similar Tax asset of Buyer or any of its Affiliates (including any net operating loss, credit or similar Tax asset of any Acquired Company arising after the Closing). For purposes of this Section 5.6(d), in the case of any Taxes that are imposed on a periodic basis and are payable for a Taxable period that includes (but does not end on) the Closing Date (a “Straddle Period”), the portion of such claimTax that relates to the portion of such Taxable period ending on the Closing Date will (x) in the case of any Taxes other than Taxes based upon or related to income or receipts, be deemed to be the amount of such Tax for the entire Straddle Period multiplied by a fraction the numerator of which is the number of days in the Straddle Period ending on the Closing Date and the denominator of which is the number of days in the entire Straddle Period and (y) in the case of any Tax based upon or related to income or receipts (including income Taxes and sales and use Taxes), be deemed equal to the amount which would be payable if the relevant Taxable period ended on the Closing Date. Any credits or estimated Tax payments relating to a Straddle Period will be taken into account as though the relevant Taxable period ended on the Closing Date. Buyer will provide documentation explaining in reasonable detail the calculation and rationale for any claim made under this Section 5.6(d) to HD Supply stating that such Taxes are due or that payment by any of Buyer or its Affiliates of such Taxes has been made. The procedures provided in Section 5.6(e) relating to reviewing, disputing, negotiating and resolving claims will apply to any claim made under this Section 5.6(d).

Indemnification by Sellers. (a) From and after the Closing, subject to the provisions of this Article IX and except as set forth in Article VI which shall govern with respect to the matters expressly set forth therein, Sellers will shall jointly and severally defend, indemnify and hold Buyer harmless at Purchaser and its Affiliates from and against any and all times after Losses to the extent arising or resulting from (i) any Retained Liability, (ii) any breach by any Seller of any of its covenants or agreements contained in this Agreement, (iii) the failure of any representation or warranty made by a Seller in this Agreement to be true and correct on the Closing Date with the same effect as though such representations and warranties had been made on and as of the Closing Date, except to the extent such representations and warranties expressly relate to a date prior to the Closing Date (in which case such representations and warranties shall be true and correct on and as of such earlier date), in each such case disregarding all qualifications and exceptions contained therein relating to materiality, Material Adverse Effect or words of similar import, (iv) any Loss from Environmental Conditions not referenced in or evident from the information included on Schedule 3.10, including any costs for investigation, assessment, monitoring, testing, excavation, clean-up, treatment and disposal costs and the expenses, costs and fees of consultants, attorneys, contractors, laboratories, drillers, haulers and disposal facilities, provided that any claim for such Loss (A) is made in accordance with this Article IX, (B) is made prior to the earlier of (x) the fifth (5th) anniversary of the Closing Date and (y) with respect to any claim for indemnification in respect of a Loss relating to a particular parcel of Real Property, the date on which Purchaser shall have transferred or disposed of this Agreement against and such Real Property to any Person that is not an Affiliate of Purchaser or agreed to indemnify or otherwise be liable to any such Person in respect of any damageEnvironmental Condition relating to such Real Property, deficiency, claim or expense resulting from: (iC) any misrepresentation, breach is due to requirements of warranty, breach of agreement or covenant or non–observance a Governmental Order and (D) is not related to a change in use of any condition on the part of such Seller under this Agreement; (ii) from any misrepresentation in or omission from any other instrument to be furnished by such Seller under this Agreement; and (iii) all actions, suits, proceedings, demands, assessments, judgments, reasonable attorneys' fees and other related costs incident to any of the foregoing (“Buyer’s Indemnifiable Losses”). Buyer’s Indemnifiable Losses will not include: (i) any tax liabilities arising by reason of any reduction or disallowance of deductions from taxable income in one taxable year, to the extent such reduction or disallowance Real Property which results in a corresponding increase in allowable deductions use different from income in another taxable year, (ii) the shifting use of items of income from one taxable year the Real Property on the Closing Date. Any payment made to another or (iii) the capitalization of amounts which were expenses, but only if such capitalized amounts are subject to amortization or depreciation or recovery in cost of goods sold, inventory or materials, provided, however, that Buyer’s Indemnifiable Losses may include any damage attributable Purchaser by Sellers pursuant to the lost time value of money with respect to any of such mattersindemnification obligations under this Section 9.1(a) shall constitute a reduction in the Aggregate Purchase Price hereunder. Sellers will reimburse Buyer, after reasonable notice and opportunity obligations pursuant to defend against any such claim, for any Buyer’s Indemnifiable Losses experienced or incurred by Buyer at any time after clause (iv) of this Section 9.1(a) shall expire upon the fifth (5th) anniversary of the Closing Date in respect of any liability to which the foregoing indemnity applies, subject to the Deductible. If a claim is asserted against Buyer which Buyer knows or has reason to believe will result in any liability of any Seller under this indemnity, Buyer will promptly notify the affected Seller in writing and afford such Seller the opportunity to defend against such claimDate.

Indemnification by Sellers. Sellers will indemnify agree to indemnify, defend and hold harmless Buyer from and against any losses, costs, damages and expenses (including, without limitation, attorneys' fees and costs) incurred by Buyer and resulting from any breach by Sellers of any of Seller's representations, warranties and covenants set forth in this Agreement, in furtherance, and not in limitation, of the foregoing indemnity, sellers shall indemnify, defend and hold Buyer harmless at from and against all times after claims asserted against, and all losses, costs, damages and expense incurred by Buyer arising from either the date of this Agreement against business conducted by Sellers prior to the Closing, and in respect the violation of any damagelocal, deficiency, claim state or expense resulting from: (i) any misrepresentation, breach of warranty, breach of agreement United States law relating to hazardous substances or covenant or non–observance of any condition on the part of such Seller under this Agreement; (ii) from any misrepresentation in or omission from any other instrument to be furnished by such Seller under this Agreement; and (iii) all actions, suits, proceedings, demands, assessments, judgments, reasonable attorneys' fees and other related costs incident to any of the foregoing (“Buyer’s Indemnifiable Losses”). Buyer’s Indemnifiable Losses will not include: (i) any tax liabilities arising toxic wastes by reason of any reduction the presence of hazardous substances or disallowance of deductions from taxable income in one taxable yeartoxic waste, which substances or waste were present prior to the extent Closing, provided that the presence of such reduction hazardous substances or disallowance results in a corresponding increase in allowable deductions from income in another taxable yeartoxic waste was caused by the Sellers. Buyer shall promptly notify Sellers of the existence of any claim, (ii) demand or other matter to which Seller's indemnification obligations would apply and shall give Sellers reasonable opportunity to defend the shifting same at their own expense and with counsel of items of income from one taxable year to another or (iii) the capitalization of amounts which were expenses, but only if such capitalized amounts are subject to amortization or depreciation or recovery in cost of goods sold, inventory or materials, their own choosing; provided, however, that Buyer’s Indemnifiable Losses Buyer shall at all times also have the right to fully participate in the defense of at its own expense. If Sellers shall, within a reasonable time after this notice, fail to defend, Buyer shall have the right but not obligation to undertake the defense of and to compromise or settle (exercising reasonable business judgement) the claim or other matter on behalf of Sellers. If the claim is one that cannot by its nature be defended solely by Sellers, Buyer shall make available all information and assistance that Sellers may include any damage attributable to the lost time value of money with respect to any of such mattersreasonably request. Sellers will reimburse Buyer, after reasonable notice and opportunity to defend against any such claim, for any Buyer’s Indemnifiable Losses experienced or incurred by Buyer at At any time after the Closing Date in respect Date, but not later than one year after the Closing Date, Buyer shall inform Sellers by written notification ("Claim Notice") of any liability claim for indemnification under this Section. Sellers shall have ten days from the date of delivery of the Claim Notice in which to which dispute any such claim. In the foregoing indemnity applies, subject to the Deductible. If event that all or any portion of a claim is asserted against Buyer which Buyer knows or has reason remains unresolved twenty days after the date of Seller's notice after good faith efforts to believe will result in any liability of any Seller under this indemnityresolve the claim, Buyer will promptly notify and Sellers shall attempt to resolve such claim through mediation, and then, if necessary, by arbitration in accordance with the affected Seller procedures described in writing Sections 9.09 and afford such Seller the opportunity to defend against such claim9.10, hereof.