Common use of Obligation of the Sellers to Indemnify Clause in Contracts

Obligation of the Sellers to Indemnify. From and after the applicable Closing Date, subject to Article VII and Sections 8.3, 8.4 and 8.5, the Sellers shall, severally and not jointly (based on each Seller’s Ownership Percentage), indemnify, defend and hold harmless the Buyers and each of their respective directors, officers, employees, agents, affiliates and Representatives, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Buyer Indemnified Parties”), from and against all liabilities, losses and damages, plus reasonable attorneys’ fees, court costs and other out-of-pocket expenses (collectively, “Losses”) that arise out of, or result from, (a) the breach or inaccuracy of any representation or warranty of the Sellers contained in this Agreement or in any agreement, certificate or other instrument delivered by the Sellers pursuant to this Agreement to the extent not waived in writing by the Buyers, (b) the inaccuracy of any certificate delivered by the Sellers pursuant to Section 2.4(e), (c) the breach of any covenant or agreement of the Sellers contained in this Agreement or in any agreement, certificate or other instrument delivered by the Sellers pursuant to this Agreement, and (d) any of the liabilities or obligations of the Sellers or any Affiliate of the Sellers (including any liabilities or obligations under any Tax-sharing agreements) with respect to Taxes on account of or with respect to one or more of the Transferred Companies or Projects, the nonpayment of which could result in a lien on, or that are attributable to the ownership or operations of the Transferred Companies prior to applicable Closing or to the sale of the Transferred Interests pursuant to this Agreement (whether or not the applicable Tax period(s) ends on, before or after such Closing) . For purposes of this Section 8.1, any Losses attributable to one Seller shall be deemed to be attributable to all Sellers, but each Seller’s individual responsibility for such Losses shall be based on its respective Seller’s Ownership Percentage.

Obligation of the Sellers to Indemnify. From and after Subject to the applicable Closing Dateterms of this Article 10, subject to Article VII and Sections 8.3each Seller, 8.4 and 8.5, the Sellers shall, severally for itself only and not jointly in the case of the indemnification provided in clauses (based on each Seller’s Ownership Percentage)a) and (c) of this Section 10.1, and jointly and severally in the case of the indemnification provided in clause (b) of this Section 10.1, agrees to indemnify, defend and hold harmless the Buyers and each of Parent, Holdco and Merger Sub S, their affiliates, and the respective directors, officers, shareholders, partners, employees, agents, affiliates agents and Representatives, and representatives of each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Buyer Indemnified Parties”), them from and against all liabilitiesLosses (other than Company Excluded Claims) they may suffer based upon, losses and damages, plus reasonable attorneys’ fees, court costs and other out-of-pocket expenses (collectively, “Losses”) that arise arising out of, of or result from, otherwise in respect of the following: (a) the any breach of or inaccuracy of in any representation or warranty made by any Seller, individually in Section 4.2 hereof; (b) any breach of the Sellers contained in this Agreement or inaccuracy in any agreement, certificate representation or other instrument delivered warranty made by the Sellers pursuant to this Agreement to in Section 4.1 hereof or in the extent not waived in writing by the Buyers, (b) the inaccuracy of any certificate delivered by the Sellers pursuant to Section 2.4(e), 7.2.3; or (c) the any breach or violation of any covenant or agreement made by any Seller for itself or on behalf of the Sellers contained Company or its Subsidiaries in this Agreement or in any agreement, certificate or other instrument documents delivered by to the Sellers Parent Entities at the Closing hereunder. For all purposes of any claim for indemnification pursuant to this AgreementSection 10.1, all materiality and Material Adverse Effect qualifications or limitations (dother than as contained in Sections 4.1.6, 4.1.7 and 4.1.16(a)(iv)) shall be disregarded for purposes of determining whether there has been any breach or inaccuracy in any representation or warranty the subject of any such claim. The Sellers shall not be entitled to make any claim for indemnity or contribution against the Company or any of the liabilities or obligations its Subsidiaries in respect of the Sellers or any Affiliate of the Sellers (including any liabilities or their indemnification obligations under this Section 10.1 in the event of any Tax-sharing agreements) with respect to Taxes on account breach of or with respect to one or more of the Transferred Companies or Projects, the nonpayment of which could result in a lien on, or that are attributable to the ownership or operations of the Transferred Companies prior to applicable Closing or to the sale of the Transferred Interests pursuant to this Agreement (whether by the Company or not the applicable Tax period(s) ends on, before or after such Closing) . For purposes of this Section 8.1, any Losses attributable to one Seller shall be deemed to be attributable to all Sellers, but each Seller’s individual responsibility for such Losses shall be based on its respective Seller’s Ownership PercentageSubsidiaries.

Obligation of the Sellers to Indemnify. From (a) Subject to the limitations contained in this Article X, from and after the applicable Closing DateClosing, subject each Seller agrees to Article VII jointly and Sections 8.3, 8.4 and 8.5, the Sellers shall, severally and not jointly (based on each Seller’s Ownership Percentage), indemnify, defend and hold harmless the Buyers Triarc and each of its Subsidiaries and their respective directors, officers, control persons (but only to the extent such control persons have liability under any federal or state securities law), employees, agents, affiliates and Representatives, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Buyer Indemnified Parties”), "TRIARC INDEMNIFIED PARTIES") from and against all liabilities, losses and damages, plus reasonable attorneys’ fees, court costs and other out-of-pocket expenses Losses based upon or arising from: (collectively, “Losses”i) that arise out of, or result from, (a) the any breach of or inaccuracy of in any representation or warranty of the Sellers contained in this Agreement Article II (other than any representation or warranty contained in Section 2.13, any breach of or inaccuracy in which is addressed in Article VII) or in any agreement, certificate or other instrument delivered by the Sellers pursuant to this Agreement to the extent not waived in writing by the Buyers, (b) the inaccuracy of any certificate delivered by the Sellers RTM Representatives pursuant to Section 2.4(e8.02(d) in respect of such representations and warranties, as of the date such representation or warranty was made or as if such representation or warranty were made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the breach of or inaccuracy in which will be determined with reference to such specified date), ; (cii) the any breach of any covenant or agreement of the Sellers contained in this Agreement (other than any covenant or agreement contained in Section 5.01(p) or Article VII, any breach of which is addressed in Article VII); (iii) except for the Indebtedness set forth in Section 7.16 of the RTMRG Disclosure Letter, any Liability of RTMAC or any of its Subsidiaries arising out of or relating to (i) any RTMAC Related Party Arrangement or (ii) the business, operations, properties or assets of any RTM Related Entity, including any guaranties, leases or subleases by RTMAC or any of its Subsidiaries of real property currently or formerly used as a Mrs. Winners or Lees restaurant and not currently used in the Business; (iv) any Legal Action (other than in respect of Dissenting Shares under Article 13 of the GBCC) threatened or commenced by an RTMRG Shareholder, an RTMMC Member or a Seller relating to the transactions contemplated by this Agreement, the RTMMC Purchase Agreement or the RTMRG Merger Agreement (other than any such Legal Action threatened or commenced by any party to such agreement to enforce against Triarc or any of its direct or indirect Subsidiaries, as applicable, the terms of this Agreement, the RTMRG Merger Agreement, the RTMMC Purchase Agreement or agreements contemplated hereby or thereby); or (v) enforcing the indemnification provided for in this Section 10.04(a), but only if a court of competent jurisdiction determines in a final, nonappealable judgment that such Triarc Indemnified Party is entitled to indemnification under Section 10.04(a)(i), Section 10.04(a)(ii), Section 10.04(a)(iii) or Section 10.04(a)(iv), as applicable. (b) Subject to the limitations contained in this Article X, from and after the Closing, each Seller agrees to jointly and severally (to the extent of the RTM Escrow Fund) and thereafter severally and not jointly, indemnify, defend and hold harmless the Triarc Indemnified Parties from and against all Losses based upon or arising from: (i) any breach of or inaccuracy in any representation or warranty of such Seller contained in Article III or in any agreement, the certificate or other instrument delivered by the Sellers RTM Representatives pursuant to this AgreementSection 8.02(d) in respect of such representations and warranties, and (d) any as of the liabilities date such representation or obligations warranty was made or as if such representation or warranty were made on and as of the Sellers or any Affiliate of Closing Date (except for representations and warranties that expressly relate to a specified date, the Sellers (including any liabilities or obligations under any Tax-sharing agreements) with respect to Taxes on account breach of or inaccuracy in which will be determined with respect reference to one or more such specified date); or (ii) enforcing the indemnification provided for in this Section 10.04, but only if a court of the Transferred Companies or Projects, the nonpayment of which could result competent jurisdiction determines in a lien onfinal, or nonappealable judgment that are attributable such Triarc Indemnified Party is entitled to the ownership or operations of the Transferred Companies prior to applicable Closing or to the sale of the Transferred Interests pursuant to this Agreement (whether or not the applicable Tax period(s) ends on, before or after such Closing) . For purposes of this indemnification under Section 8.1, any Losses attributable to one Seller shall be deemed to be attributable to all Sellers, but each Seller’s individual responsibility for such Losses shall be based on its respective Seller’s Ownership Percentage10.04(b)(i).

Obligation of the Sellers to Indemnify. From Subject to the limitations contained in Article 10 and Section 11.4, from and after the applicable Closing Date, subject to Article VII and Sections 8.3, 8.4 and 8.5, Date the Sellers shallshall be jointly and severally liable to, severally and not jointly (based on each Seller’s Ownership Percentage), shall indemnify, defend and hold harmless the Buyers Buyer, NFO and each the Company (and any of their respective directors, officers, partners, employees, agentsagents and affiliates) (each, affiliates and Representatives, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Buyer an "NFO Indemnified Parties”), Party") from and against all claims, losses, liabilities, losses and damages, plus deficiencies, costs or expenses (including interest, penalties and reasonable attorneys’ fees, court costs fees of attorneys and other out-of-pocket expenses disbursements (collectively, “"Losses”") that arise (which, for the purposes hereof, shall also include the reasonable fees of attorneys and disbursements incurred by an NFO Indemnified Party in bringing a claim under this Agreement, prosecuting its rights of indemnity in respect of such claim and collecting any amounts awarded upon such claim) suffered, sustained or incurred or required to be paid by any such person due to, based upon, arising out of, of or result from, otherwise in respect of (ax) the breach any inaccuracy in or inaccuracy of any representation or warranty of the Sellers contained in this Agreement or in any agreement, certificate or other instrument delivered by the Sellers pursuant to this Agreement to the extent not waived in writing by the Buyers, (b) the inaccuracy of any certificate delivered by the Sellers pursuant to Section 2.4(e), (c) the breach of any representation, warranty, covenant or agreement of the Sellers contained in this Agreement or any certificate required to be delivered in connection therewith, (y) 50% of any agreement, certificate or other instrument delivered by Loss resulting from the Sellers pursuant to this Agreementdisallowance of the allocation of step up from the acquisition costs of Infratest Xxxxx XX Holding in 1995 for trade tax purposes for the period ending on the Closing Date, and (dz) 50% of any Loss (income tax, trade tax or otherwise) resulting from the transfer of the liabilities or obligations of participations in non-German entities to Infratest Xxxxx International GmbH Holding in fiscal year 1995/96; provided, however, that the Sellers or any Affiliate of the Sellers (including any liabilities or obligations under any Tax-sharing agreements) with respect to Taxes on account of or with respect to one or more of the Transferred Companies or Projects, the nonpayment of which could result in a lien on, or that are attributable to the ownership or operations of the Transferred Companies prior to applicable Closing or to the sale of the Transferred Interests shall not be liable for indemnification pursuant to this Agreement clause (whether or not the applicable Tax period(sx) ends on, before or after such Closing) . For purposes of this Section 8.1, 11.1 in respect of any Losses attributable to one Seller shall be deemed to be attributable to all Sellers, but each Seller’s individual responsibility for such Losses shall be based on its respective Seller’s Ownership PercentageLoss that is less than DM25,000.

Obligation of the Sellers to Indemnify. From and after i) Subject to the applicable Closing Date, subject to limitations contained in Article VII and Sections 8.3, 8.4 and 8.59, the Sellers shall, jointly and severally and not jointly (based on each Seller’s Ownership Percentage), agree to indemnify, defend and hold harmless the Buyers Buyer (and each of their respective its directors, officers, employees, agents, affiliates and Representatives, and each of the heirs, executorsAffiliates, successors and assigns of any of the foregoing (collectively, the “Buyer Indemnified Parties”), assigns) from and against any and all losses, liabilities, losses and damages, plus reasonable attorneys’ feesdeficiencies, court demands, claims, actions, judgments or causes of action, assessments, costs and other out-of-pocket or expenses (collectivelyincluding, “without limitation, interest, penalties and attorneys' fees and disbursements) ("Losses”") that arise based upon, arising out of, of or result from, (a) the breach or inaccuracy otherwise in respect of any representation inaccuracy in or warranty of the Sellers contained in this Agreement or in any agreement, certificate or other instrument delivered by the Sellers pursuant to this Agreement to the extent not waived in writing by the Buyers, (b) the inaccuracy of any certificate delivered by the Sellers pursuant to Section 2.4(e), (c) the breach of any representation, warranty, covenant or agreement of the Sellers contained in this Agreement or in any agreement, certificate or other instrument documents delivered by the Sellers pursuant to this Agreement, with the exception of Sections 3A, 3B and (d) any 4 and with the further exception of the liabilities or obligations of the Sellers or any Affiliate of the Sellers (including any liabilities or obligations under any Tax-sharing agreements) with respect to Taxes on account of or with respect to one or more of the Transferred Companies or ProjectsSection 6.12, the nonpayment of which could result in a lien on, or that are attributable but only to the ownership or operations extent that the breach of the Transferred Companies prior to such Section is not of a covenant applicable Closing or to the sale of the Transferred Interests pursuant to this Agreement (whether or not the applicable Tax period(s) ends on, before or after such Closing) . For purposes of this Section 8.1, any Losses attributable to one Seller shall be deemed to be attributable to all Sellers. ii) Subject to the limitations contained in Article 9, but each Seller’s individual responsibility for the WBHP Sellers jointly and severally agree to indemnify, defend and hold harmless the Buyer (and its directors, employees, officers, Affiliates, successors and assigns) from and against all Losses based upon, arising out of or otherwise in respect of (1) any inaccuracy in or any breach of any representation or warranty of the WBHP Sellers contained in Section 3A or in any documents delivered pursuant to Section 3A and (2) any breach by the WBHP Sellers of the covenants applicable to the WDRM Sellers set forth in Section 6.12. iii) Subject to the limitations contained in Article 9, the Dixie Seller agrees to indemnify, defend and hold harmless the Buyer (and its directors, employees, officers, Affiliates, successors and assigns) from and against all Losses based upon, arising out of or otherwise in respect of (1) any inaccuracy in or any breach of any representation or warranty of the Dixix Xxxler contained in Section 3B or in any documents delivered pursuant to Section 3B and (2) any breach by the Dixix Xxxler of the covenants applicable to the Dixix Xxxler set forth in Section 6.12. iv) Each Seller agrees to indemnify, defend and hold harmless the Buyer (and its directors, employees, officers, Affiliates, successors and assigns) from and against all Losses based upon, arising out of or otherwise in respect of any inaccuracy in or any breach of any representation or warranty of such Losses shall be based on its respective Seller’s Ownership PercentageSeller contained in Article 4 or in any documents delivered pursuant to Article 4.

Obligation of the Sellers to Indemnify. From Subject to the limitations contained in Sections 8.1 and after the applicable Closing Date, subject to Article VII and Sections 8.3, 8.4 and 8.5, the Sellers shall, jointly and severally and not jointly (based on each Seller’s Ownership Percentage), agree to indemnify, defend and hold harmless the Buyers Buyer and each of their respective its directors, officers, employees, agentsshareholders, affiliates partners, members, Affiliates, successors, assigns, consultants, accountants, counsel, advisors and Representatives, and each of the heirs, executors, successors and assigns of any of the foregoing other agents or representatives (collectively, the “Indemnified Buyer Indemnified Parties”), ) from and against any and all liabilitiesLosses based upon, losses and damages, plus reasonable attorneys’ fees, court costs and other out-of-pocket expenses (collectively, “Losses”) that arise out of, arising from or result from, relating to: (a) the any inaccuracy in or breach or inaccuracy of any representation or warranty of made by the Sellers contained in this Agreement or in any agreement, certificate or other instrument document delivered by the Sellers pursuant to this Agreement to (other than any inaccuracy in or breach of any such representation or warranty set forth in Section 2.20, the extent not waived in writing indemnification for which is exclusively provided by Section 6.13), including without limitation Section 4.3, as of the Buyers, date such representation or warranty was made or as if such representation or warranty were made on and as of the Closing Date; (b) the inaccuracy of any certificate delivered by the Sellers pursuant to Section 2.4(e), (c) the breach of any covenant or agreement of the Sellers contained in this Agreement or in any agreement, certificate or other instrument document delivered by the Sellers pursuant to this AgreementAgreement (except in respect of Taxes, and the indemnification for which is exclusively provided by Section 6.13); (c) the conduct of business, the ownership or use of properties or assets or the incurrence of any liability or obligation by any Seller or any Seller’s Subsidiaries or Affiliates or former Subsidiaries or Affiliates, other than the Transferred Companies; (d) the conduct of business, the ownership or use of properties or assets or the incurrence of any liability or obligation by the Transferred Companies based upon, arising from or relating to any division, business unit, operations, Subsidiary or Affiliate of any Transferred Company that was sold, discontinued or otherwise transferred or disposed of prior to the Closing Date (collectively, the “Former Operations”), and any obligation under any agreement pursuant to which any Former Operation was sold, transferred, disposed of or discontinued; (e) (i) any liability of Xxxxxxx Products, Inc. in respect of the liabilities Production Service and Sales District Council Pension Fund or obligations (ii) any liability of any Transferred Company in respect of any employee pension benefit plan (as such term is defined in Section 3(2) of ERISA) subject to Title IV of ERISA in effect prior to the Sellers or any Affiliate of Closing, other than the Sellers Ply Gem Industries, Inc. Group Pension Plan; (including f) any liabilities or obligations based upon, arising from or relating to any lease under which any Former Operation is or was a party and Ply Gem is a guarantor, co-tenant or other obligor, including without limitation, the leases set forth in Exhibit 8.2(f); (g) any Proceeding set forth in Section 2.11 of the Disclosure Letter that is identified with a double asterisk; (h) any liability arising from or under any Tax-sharing agreements) Environmental Law with respect to Taxes on account the conduct of business, the ownership or use of properties or assets or the incurrence of any liability or obligation by Thermal Gard, Inc. prior to the Closing; (i) any Losses in respect of harm to human health arising from the Calgary Condition; (j) one-half (1/2) of any Losses (other than Losses referred to above in Section 8.2(i)) in excess of $750,000 arising from the Calgary Condition; or (k) enforcing the indemnification provided for under this Agreement. The provisions of Section 8.2(i) and 8.2(j) shall expire and have no further force and effect with respect to one any matter as to which the Indemnified Buyer Parties shall not have made a claim in writing against the Sellers on or more prior to the fifth anniversary of the Transferred Companies or Projects, the nonpayment of which could result in a lien on, or that are attributable Closing Date unless prior to the ownership or operations Closing the Buyer provides written notice to the Sellers that a Sampling conducted by a nationally-recognized independent environmental consultant has determined that contamination arising from the Calgary Condition appears likely to have migrated beyond the borders of the Transferred Companies prior to applicable Closing or to the sale of the Transferred Interests pursuant to this Agreement (whether or not the applicable Tax period(s) ends on, before or after such Closing) . For purposes of this Section 8.1, any Losses attributable to one Seller shall be deemed to be attributable to all Sellers, but each Seller’s individual responsibility for such Losses shall be based on its respective Seller’s Ownership Percentage.Calgary facility.‌

Obligation of the Sellers to Indemnify. From Each of Sellers, jointly and after severally agree to indemnify the applicable Closing Date, subject to Article VII Buyer and Sections 8.3, 8.4 and 8.5, the Sellers shall, severally and not jointly (based on each Seller’s Ownership Percentage), indemnify, defend and hold harmless the Buyers Buyer and his permitted assigns and each of their such assign's respective directors, officersofficers and employees ("Indemnitees") from and against any losses, employeesliabilities, agentsdamages, affiliates deficiencies, all suits, proceedings, investigations, claims, charges, assessments, costs or expenses (including interest, penalties and Representativesreasonable attorneys' fees and disbursements) incurred or suffered by such Indemnitees or any of them, whether suit is instituted or not, and, if instituted, whether at any trial and appellate level, and each of whether raised by the heirs, executors, successors and assigns of parties hereto or any of the foregoing third party (collectively, the “Buyer Indemnified Parties”)a "Loss") based upon, from and against all liabilities, losses and damages, plus reasonable attorneys’ fees, court costs and other out-of-pocket expenses (collectively, “Losses”) that arise arising out of, of or result from, otherwise due to: (a) the breach or inaccuracy of any Any false and inaccurate representation or warranty made by or on behalf of the Sellers contained in this Agreement or in any agreement, certificate document or other instrument writing delivered by the Sellers pursuant to this Agreement to the extent not waived in writing by the Buyers, Agreement; (b) Any breach or default in the inaccuracy of any certificate delivered by the Sellers pursuant to Section 2.4(e)performance, (c) the breach of any covenant or agreement of the Sellers contained in this Agreement or in any agreement, certificate document or other instrument writing delivered by the Sellers pursuant to this Agreement; (c) Facts or circumstances existing on or prior to the Closing Date which give rise to claims by any third parties against the Selling Subsidiary or the Buyer or any of them, and including (but not limited to) any claims arising from any service rendered by the Selling Subsidiary; or (d) any Any brokerage fee or other commission arising by virtue of the liabilities or obligations of Sellers' broker listed on Schedule 4.14. The Sellers shall be obligated to indemnify the Buyer only for those Losses as to which Buyer has given to the Sellers written notice thereof on or any Affiliate of the Sellers (including any liabilities or obligations under any Tax-sharing agreements) with respect to Taxes on account of or with respect to one or more of the Transferred Companies or Projects, the nonpayment of which could result in a lien on, or that are attributable to the ownership or operations of the Transferred Companies prior to applicable three years from the Closing or to the sale of the Transferred Interests pursuant to this Agreement (whether or not the applicable Tax period(s) ends on, before or after such Closing) . For purposes of this Section 8.1, any Losses attributable to one Seller shall be deemed to be attributable to all Sellers, but each Seller’s individual responsibility for such Losses shall be based on its respective Seller’s Ownership PercentageDate.

Obligation of the Sellers to Indemnify. From The Sellers jointly and after the applicable Closing Date, subject severally agree to Article VII and Sections 8.3, 8.4 and 8.5, the Sellers shall, severally and not jointly (based on each Seller’s Ownership Percentage), indemnify, defend and hold harmless the Buyers Buyer (and each of their respective its directors, officers, employees, agents, affiliates and Representatives, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Buyer Indemnified Parties”), assigns) from and against all losses, liabilities, losses and damages, plus deficiencies, costs or expenses (including interest, penalties and reasonable attorneys’ fees' fees and disbursements) ("Losses") based upon, court costs and other out-of-pocket expenses (collectively, “Losses”) that arise arising out of, of or result from, (a) the breach or inaccuracy otherwise in respect of any representation inaccuracy in or warranty of the Sellers contained in this Agreement or in any agreement, certificate or other instrument delivered by the Sellers pursuant to this Agreement to the extent not waived in writing by the Buyers, (b) the inaccuracy of any certificate delivered by the Sellers pursuant to Section 2.4(e), (c) the breach of any representation, warranty, covenant or agreement of the Sellers contained in this Agreement or in any agreement, certificate document or other instrument papers delivered pursuant to Sections 3 or 6. The Sellers also jointly and severally agree to indemnify and hold harmless the Buyer (and its directors, officers, employees, affiliates and assigns) payments made by the Sellers Buyer in respect of Liabilities of the Company which exceed Permitted Liabilities (as referred to in Section 8.5), including, without limitation, damages, deficiencies, costs or expenses (including interest, penalties and reasonable attorneys' fees and disbursements). The obligation to indemnify set forth in this Section 10.1 are hereinafter referred to as the "Joint Obligation." Each Seller agrees to indemnify, defend and hold harmless the Buyer (and its directors, officers, employees, affiliates and assigns) from and against any Losses based upon, arising out of or otherwise in respect of any inaccuracy in or any breach of any representation, warranty, covenant or agreement of such Seller contained in Section 4.1 or 4.2 or in any document or other papers delivered pursuant to this AgreementSections 4.1, and 4.2 or 6 (d) any of the liabilities or obligations of the Sellers or any Affiliate of the Sellers (including any liabilities or obligations under any Tax-sharing agreements) with respect to Taxes on account of or with respect to one or more of the Transferred Companies or Projects, the nonpayment of which could result in a lien on, or that are attributable to the ownership or operations of the Transferred Companies prior to applicable Closing or to the sale of the Transferred Interests pursuant to this Agreement (whether or not the applicable Tax period(s) ends on, before or after such Closing) . For purposes of this Section 8.1, any Losses attributable to one Seller shall be deemed to be attributable to all Sellers, but each Seller’s individual responsibility for such Losses shall be based on its respective Seller’s Ownership Percentage"Individual Obligation").

Obligation of the Sellers to Indemnify. From (a) Subject to the limitations contained in Article 10 and after the applicable Closing Date, subject to Article VII and Sections 8.3, 8.4 and 8.5Section 11.4, the Sellers shall, jointly and severally and not jointly (based on each Seller’s Ownership Percentage), agree to indemnify, defend and hold harmless the Buyers Buyer, and each of their respective its directors, officers, employees, agentsAffiliates (including, affiliates and Representativeswithout limitation, and each of the heirs, executorsCompany), successors and assigns of any of the foregoing (collectively, the “Buyer Indemnified Parties”)assigns, from and against all Claims, losses, liabilities, losses and damages, plus reasonable attorneys’ feesdeficiencies, court judgments, assessments, fines, settlements, costs and other out-of-pocket or expenses (collectivelyincluding interest, “Losses”) that arise out ofpenalties and documented reasonable fees and expenses of attorneys, experts, personnel and consultants incurred by the indemnified party in any action or proceeding between the indemnifying party and the indemnified party or between the indemnified party and any third party, or result fromotherwise) ("Losses") based upon, (a) the breach arising out of or inaccuracy otherwise in respect of any representation inaccuracy in or warranty any breach of any representation, warranty, covenant or agreement of the Sellers Sellers, or any of them, contained in this Agreement or in any agreement, certificate documents or other instrument delivered by the Sellers pursuant to this Agreement to the extent not waived in writing by the Buyers, (b) the inaccuracy of any certificate delivered by the Sellers pursuant to Section 2.4(e), (c) the breach of any covenant or agreement of the Sellers contained in this Agreement or in any agreement, certificate or other instrument instruments delivered by the Sellers pursuant to this Agreement, except to the extent otherwise covered by Section 11. 1 (b). (b) Each Seller, severally and not jointly, agrees to indemnify, defend and hold harmless the Buyer, and its directors, employees, officers, Affiliates (dincluding, without limitation, the Company), successors and assigns, from and against all Losses based upon, arising out of or otherwise in respect of (i) any inaccuracy in or any breach of any representation or warranty of such Seller contained in Article 4; or (ii) any breach of any covenant or agreement of such Seller contained in Article 9; provided, however, that notwithstanding anything in this Section 11.1 to the contrary, the Buyer shall have the right to cease making all Covenant Payments and, if appropriate, to recover all Covenant Payments already made, in the event of the liabilities or obligations breach by either Active Seller of the Sellers or any Affiliate of the Sellers (including any liabilities or obligations under any Tax-sharing agreements) with respect to Taxes on account of or with respect to one or more of the Transferred Companies or Projects, the nonpayment of which could result in a lien on, or that are attributable to the ownership or operations of the Transferred Companies prior to applicable Closing or to the sale of the Transferred Interests pursuant to this Agreement (whether or not the applicable Tax period(s) ends on, before or after such Closing) . For purposes of this Section 8.1, any Losses attributable to one Seller shall be deemed to be attributable to all Sellers, but each Seller’s individual responsibility for such Losses shall be based on its respective Seller’s Ownership Percentage9.1(a).

Obligation of the Sellers to Indemnify. From (a) Subject to the limitations set forth in ARTICLE XII, (i) Fors and after the applicable Closing Date, subject to Article VII Xxxx and Sections 8.3, 8.4 and 8.5, the Sellers shallcontrolled by them shall jointly and severally, and (ii) each of the other Responsible Individuals and Sellers shall severally and not jointly (based on each with respect to the Restaurant Entity or Restaurant Entities owned directly or indirectly by such Seller’s Ownership Percentage), indemnify, defend and hold harmless from the Buyers date hereof and each of their respective directorsafter the Closing the Purchaser and its assigns and, officers, employees, agents, affiliates and Representatives, and each of after the heirs, executors, successors and assigns of any of the foregoing (collectivelyClosing, the “Buyer Indemnified Parties”)Restaurant Entities and their assigns, from and against all liabilitiesagainst, losses and damagesany Losses suffered, plus reasonable attorneys’ feessustained, court costs and other out-of-pocket expenses incurred or required to be paid by the Purchaser or any Restaurant Entity or their respective assigns, as the case may be, based upon, arising out of or otherwise with respect to: (collectively, “Losses”i) that arise out of, or result from, (a) the a breach or inaccuracy of any representation or warranty, or any failure to perform or comply with any covenant or agreement, of the Sellers or Responsible Individuals contained herein or in any Document or Other Paper delivered pursuant hereto; (ii) the matters set forth on Schedule 4.14 (litigation); (iii) any activities, responsibilities or obligations performed or undertaken by any Management Company on behalf of any of the Restaurant Entities, including, but not limited to, Losses in connection with any Employee Benefit Plan maintained by any Management Company; and (iv) the actions or the operations of any Restaurant Entity on or prior to the Closing Date (other than those arising from Listed Liabilities that are reflected on the Final Closing Schedule) or for Listed Liabilities arising from acts or omissions occurring prior to the Closing in amounts that are in excess of the amounts set forth on the Final Closing Schedule; PROVIDED, HOWEVER, that the Purchaser, its successors and assigns, the Restaurant Entities and their successors and assigns shall not be entitled to indemnification for Losses arising out of (i) Remedial Actions assumed or undertaken by the Purchaser pursuant to Section 6.19(d), (ii) the repair, rebuilding or replacement of any Damaged Restaurant pursuant to Section 7.01 in excess of the Withheld Amount, or (iii) Remodeling Expenses assumed or undertaken by the Purchaser pursuant to Section 8.06, in each case regardless of whether such Losses result from a breach of any representation or warranty made by Fors, Mund, the other Sellers or any Responsible Individual. (b) None of the Sellers' or Responsible Individuals' representations or warranties in this Agreement shall be deemed to have been breached for purposes of Section 12.01(a)(i) and, therefore, none of such Persons shall have any liability under Section 12.01(a)(i), except to the extent that (x) any individual breach or series of related breaches of any representation or warranty has resulted in Losses exceeding $10,000 (a "QUALIFYING BREACH") and (y) the total amount of Losses that resulted from all Qualifying Breaches would exceed $400,000 in the aggregate; PROVIDED, that no such representation or warranty shall be deemed to have been breached and no such Person shall have any liability for such purposes due to the Sellers' failure to fully equip or construct any Additional Restaurant if the Purchase Price was not increased to reflect the incremental costs which are the basis for such breach. In the event the total amount of such Losses exceeds $400,000 in the aggregate, (A) the Sellers and the Responsible Individuals shall be responsible for one-half of such Losses up to $400,000, and (B) the Sellers and the Responsible Individuals shall be responsible for all of such Losses in excess of $400,000. (i) In no event shall any Responsible Individual or Seller (other than Fors and Xxxx and their related Sellers) have any liability under this ARTICLE XII in excess of the portion of the Purchase Price received by such Responsible Individual and related Seller and, subject to the provisions of clause (ii) below, Fors and Xxxx and their related Sellers shall not be liable under this ARTICLE XII in excess of the aggregate Purchase Price received by them. (ii) The aggregate Losses that may be recovered for breaches of representations or warranties that are not Long Term Provisions shall be limited to $10,000,000. (d) With respect to any Additional Restaurant, neither Fors, Mund, the other Sellers nor any Responsible Individuals shall have any liability under this ARTICLE XII with respect to any breach of the representations and warranties contained in Sections 4.16(b)(iv) and (v), 4.16(e) or the third sentence of Section 4.19 (the "Asset Quality Representations") unless any claim thereunder is brought within 90 days of the Closing. Prior to pursuing any claim made for indemnification under the Asset Quality Representations with respect to any Additional Restaurant, the Purchaser shall first use commercially reasonable efforts to recover under any remedy it may have under any manufacturer's or other third party warranty and the amount of any indemnifiable Losses shall be reduced by any amounts recovered by the Purchaser pursuant thereto. (e) The provisions of ARTICLE X and XII shall constitute the sole and exclusive remedy of any indemnified party after the Closing with respect to the breach of any representation or warranty of the Responsible Individuals or Sellers contained in this Agreement Agreement, the Related Documents and any certificate delivered pursuant hereto or thereto. To the extent of any covenant or restriction which is required to be performed or observed on or after the Closing Date, none of the limitations set forth in this ARTICLE XII shall apply. Any other rights to indemnification or Losses to which the Purchaser or any agreementother indemnified party might otherwise be entitled after the Closing, certificate whether now existing or other instrument delivered hereafter arising, with respect to such a breach, are hereby waived to the maximum extent permitted by applicable law. Notwithstanding the Sellers pursuant to provisions of this Section 12.01, except for Section 12.01(b) and 12.01(c) (i) which shall supersede any provisions in this Agreement to the extent contrary, the indemnification provided for hereby shall not waived in writing by the Buyers, (b) the inaccuracy of apply to any certificate delivered by the Sellers pursuant Losses related to Section 2.4(e), (c) the breach of any covenant or agreement of the Sellers contained in this Agreement or in any agreement, certificate or other instrument delivered by the Sellers pursuant to this AgreementTaxes, and (d) any indemnification in respect of the liabilities or obligations of the Sellers or any Affiliate of the Sellers (including any liabilities or obligations under any Tax-sharing agreements) with respect to Taxes on account of or with respect to one or more of the Transferred Companies or Projects, the nonpayment of which could result in a lien on, or that are attributable to the ownership or operations of the Transferred Companies prior to applicable Closing or to the sale of the Transferred Interests pursuant to this Agreement (whether or not the applicable Tax period(s) ends on, before or after such Closing) . For purposes of this Section 8.1, any Losses attributable to one Seller shall be deemed to be attributable to all Sellers, but each Seller’s individual responsibility for such Losses shall be based on its respective Seller’s Ownership Percentagegoverned by the provisions of ARTICLE X hereof. (f) The representation set forth in Section 4.36 shall not be breached and the Purchaser shall have no claim for Losses pursuant to this ARTICLE XII with respect to a breach of Section 4.36 unless the Combined Net Cash Flow, as finally determined for purposes of calculating the Purchase Price hereunder, is less than $10,000,000.

Obligation of the Sellers to Indemnify. From Subject to the limitations contained in Sections 8.1 and after the applicable Closing Date, subject to Article VII and Sections 8.3, 8.4 and 8.5, the Sellers shall, jointly and severally and not jointly (based on each Seller’s Ownership Percentage), agree to indemnify, defend and hold harmless the Buyers Buyer and each of their respective its directors, officers, employees, agentsshareholders, affiliates partners, members, Affiliates, successors, assigns, consultants, accountants, counsel, advisors and Representatives, and each of the heirs, executors, successors and assigns of any of the foregoing other agents or representatives (collectively, the “"Indemnified Buyer Indemnified Parties”), ") from and against any and all liabilitiesLosses based upon, losses and damages, plus reasonable attorneys’ fees, court costs and other out-of-pocket expenses (collectively, “Losses”) that arise out of, arising from or result from, relating to: (a) the any inaccuracy in or breach or inaccuracy of any representation or warranty of made by the Sellers contained in this Agreement or in any agreement, certificate or other instrument document delivered by the Sellers pursuant to this Agreement to (other than any inaccuracy in or breach of any such representation or warranty set forth in Section 2.20, the extent not waived in writing indemnification for which is exclusively provided by Section 6.13), including without limitation Section 4.3, as of the Buyers, date such representation or warranty was made or as if such representation or warranty were made on and as of the Closing Date; (b) the inaccuracy of any certificate delivered by the Sellers pursuant to Section 2.4(e), (c) the breach of any covenant or agreement of the Sellers contained in this Agreement or in any agreement, certificate or other instrument document delivered by the Sellers pursuant to this AgreementAgreement (except in respect of Taxes, and the indemnification for which is exclusively provided by Section 6.13); (c) the conduct of business, the ownership or use of properties or assets or the incurrence of any liability or obligation by any Seller or any Seller's Subsidiaries or Affiliates or former Subsidiaries or Affiliates, other than the Transferred Companies; (d) the conduct of business, the ownership or use of properties or assets or the incurrence of any liability or obligation by the Transferred Companies based upon, arising from or relating to any division, business unit, operations, Subsidiary or Affiliate of any Transferred Company that was sold, discontinued or otherwise transferred or disposed of prior to the Closing Date (collectively, the "Former Operations"), and any obligation under any agreement pursuant to which any Former Operation was sold, transferred, disposed of or discontinued; (e) (i) any liability of Xxxxxxx Products, Inc. in respect of the liabilities Production Service and Sales District Council Pension Fund or obligations (ii) any liability of any Transferred Company in respect of any employee pension benefit plan (as such term is defined in Section 3(2) of ERISA) subject to Title IV of ERISA in effect prior to the Sellers or any Affiliate of Closing, other than the Sellers Ply Gem Industries, Inc. Group Pension Plan; (including f) any liabilities or obligations based upon, arising from or relating to any lease under which any Former Operation is or was a party and Ply Gem is a guarantor, co-tenant or other obligor, including without limitation, the leases set forth in Exhibit 8.2(f); (g) any Proceeding set forth in Section 2.11 of the Disclosure Letter that is identified with a double asterisk; (h) any liability arising from or under any Tax-sharing agreements) Environmental Law with respect to Taxes on account the conduct of business, the ownership or use of properties or assets or the incurrence of any liability or obligation by Thermal Gard, Inc. prior to the Closing; (i) any Losses in respect of harm to human health arising from the Calgary Condition; (j) one-half (1/2) of any Losses (other than Losses referred to above in Section 8.2(i)) in excess of $750,000 arising from the Calgary Condition; or (k) enforcing the indemnification provided for under this Agreement. The provisions of Section 8.2(i) and 8.2(j) shall expire and have no further force and effect with respect to one any matter as to which the Indemnified Buyer Parties shall not have made a claim in writing against the Sellers on or more prior to the fifth anniversary of the Transferred Companies or Projects, the nonpayment of which could result in a lien on, or that are attributable Closing Date unless prior to the ownership or operations Closing the Buyer provides written notice to the Sellers that a Sampling conducted by a nationally-recognized independent environmental consultant has determined that contamination arising from the Calgary Condition appears likely to have migrated beyond the borders of the Transferred Companies prior to applicable Closing or to the sale of the Transferred Interests pursuant to this Agreement (whether or not the applicable Tax period(s) ends on, before or after such Closing) . For purposes of this Section 8.1, any Losses attributable to one Seller shall be deemed to be attributable to all Sellers, but each Seller’s individual responsibility for such Losses shall be based on its respective Seller’s Ownership PercentageCalgary facility.

Obligation of the Sellers to Indemnify. From Subject to the limitations contained in Sections 8.1 and after the applicable Closing Date, subject to Article VII and Sections 8.3, 8.4 and 8.5, the Sellers shall, jointly and severally and not jointly (based on each Seller’s Ownership Percentage), agree to indemnify, defend and hold harmless the Buyers Buyer and each of their respective its directors, officers, employees, agentsshareholders, affiliates partners, members, Affiliates, successors, assigns, consultants, accountants, counsel, advisors and Representatives, and each of the heirs, executors, successors and assigns of any of the foregoing other agents or representatives (collectively, the “Buyer Indemnified Parties”), "INDEMNIFIED BUYER PARTIES") from and against any and all liabilitiesLosses based upon, losses and damages, plus reasonable attorneys’ fees, court costs and other out-of-pocket expenses (collectively, “Losses”) that arise out of, arising from or result from, relating to: (a) the any inaccuracy in or breach or inaccuracy of any representation or warranty of made by the Sellers contained in this Agreement or in any agreement, certificate or other instrument document delivered by the Sellers pursuant to this Agreement to (other than any inaccuracy in or breach of any such representation or warranty set forth in Section 2.20, the extent not waived in writing indemnification for which is exclusively provided by Section 6.13), including without limitation Section 4.3, as of the Buyers, date such representation or warranty was made or as if such representation or warranty were made on and as of the Closing Date; (b) the inaccuracy of any certificate delivered by the Sellers pursuant to Section 2.4(e), (c) the breach of any covenant or agreement of the Sellers contained in this Agreement or in any agreement, certificate or other instrument document delivered by the Sellers pursuant to this AgreementAgreement (except in respect of Taxes, and the indemnification for which is exclusively provided by Section 6.13); (c) the conduct of business, the ownership or use of properties or assets or the incurrence of any liability or obligation by any Seller or any Seller's Subsidiaries or Affiliates or former Subsidiaries or Affiliates, other than the Transferred Companies; (d) the conduct of business, the ownership or use of properties or assets or the incurrence of any liability or obligation by the Transferred Companies based upon, arising from or relating to any division, business unit, operations, Subsidiary or Affiliate of any Transferred Company that was sold, discontinued or otherwise transferred or disposed of prior to the Closing Date (collectively, the "FORMER OPERATIONS"), and any obligation under any agreement pursuant to which any Former Operation was sold, transferred, disposed of or discontinued; (e) (i) any liability of Xxxxxxx Products, Inc. in respect of the liabilities Production Service and Sales District Council Pension Fund or obligations (ii) any liability of any Transferred Company in respect of any employee pension benefit plan (as such term is defined in Section 3(2) of ERISA) subject to Title IV of ERISA in effect prior to the Sellers or any Affiliate of Closing, other than the Sellers Ply Gem Industries, Inc. Group Pension Plan; (including f) any liabilities or obligations based upon, arising from or relating to any lease under which any Former Operation is or was a party and Ply Gem is a guarantor, co-tenant or other obligor, including without limitation, the leases set forth in EXHIBIT 8.2(F); (g) any Proceeding set forth in Section 2.11 of the Disclosure Letter that is identified with a double asterisk; (h) any liability arising from or under any Tax-sharing agreements) Environmental Law with respect to Taxes on account the conduct of business, the ownership or use of properties or assets or the incurrence of any liability or obligation by Thermal Gard, Inc. prior to the Closing; (i) any Losses in respect of harm to human health arising from the Calgary Condition; (j) one-half (1/2) of any Losses (other than Losses referred to above in Section 8.2(i)) in excess of $750,000 arising from the Calgary Condition; or (k) enforcing the indemnification provided for under this Agreement. The provisions of Section 8.2(i) and 8.2(j) shall expire and have no further force and effect with respect to one any matter as to which the Indemnified Buyer Parties shall not have made a claim in writing against the Sellers on or more prior to the fifth anniversary of the Transferred Companies or Projects, the nonpayment of which could result in a lien on, or that are attributable Closing Date unless prior to the ownership or operations Closing the Buyer provides written notice to the Sellers that a Sampling conducted by a nationally-recognized independent environmental consultant has determined that contamination arising from the Calgary Condition appears likely to have migrated beyond the borders of the Transferred Companies prior to applicable Closing or to the sale of the Transferred Interests pursuant to this Agreement (whether or not the applicable Tax period(s) ends on, before or after such Closing) . For purposes of this Section 8.1, any Losses attributable to one Seller shall be deemed to be attributable to all Sellers, but each Seller’s individual responsibility for such Losses shall be based on its respective Seller’s Ownership PercentageCalgary facility.

Obligation of the Sellers to Indemnify. From Subject to the limitations contained in Sections 6.4 and after the applicable Closing Date, subject to Article VII and Sections 8.3, 8.4 and 8.56.6, the Sellers shallSellers, severally hereby agree, jointly and not jointly (based on each Seller’s Ownership Percentage)severally, indemnifyto indemnify Purchaser and its affiliates, defend and hold harmless the Buyers and each of their respective directorsstockholders, officers, directors, employees, agents, representatives and successors, permitted assignees of Purchaser and their affiliates (individually, a "Purchaser Indemnified Party" and Representatives, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Buyer "Purchaser Indemnified Parties”)") against, from and against to protect, save and keep harmless Purchaser Indemnified Parties from, and to pay on behalf of or reimburse Purchaser Indemnified Parties as and when incurred for, any and all liabilities, losses and damages, plus reasonable attorneys’ fees, court costs and other out-of-pocket expenses (collectively, “Losses”) Losses that arise out may be imposed on or incurred by any Purchaser Indemnified Party as a consequence of, in connection with, incident to, resulting from or result from, arising out of or in any way related to or by virtue of: (a) the any material misrepresentation, inaccuracy or breach or inaccuracy of any warranty or representation or warranty of the Sellers contained in this Agreement or in any agreement, certificate or other instrument delivered by TAA or the Sellers pursuant to this Agreement to at the extent not waived in writing by the Buyers, Closing; (b) the inaccuracy of any certificate delivered breach or failure by TAA or the Sellers pursuant to Section 2.4(e)comply with, (c) the breach of perform or discharge any obligation, agreement or covenant by TAA or agreement of the Sellers contained in this Agreement Agreement; and (c) any action, demand, proceeding, investigation or claim by any third party (including any Governmental or Regulatory Authority) against or affecting any Purchaser Indemnified Party which may give rise to or evidence the existence of or relate to a misrepresentation or breach of any of the representations and warranties of TAA or Sellers contained in Article II hereof or in any agreement, certificate or other instrument delivered by Sellers at the Closing, provided that Purchaser Indemnified Parties’ claim therefor is instituted by written notice to the Sellers pursuant to this Agreement, and (d) any of within the liabilities or obligations of the Sellers or any Affiliate of the Sellers (including any liabilities or obligations under any Tax-sharing agreements) with respect to Taxes on account of or with respect to one or more of the Transferred Companies or Projects, the nonpayment of which could result time period specified in a lien on, or that are attributable to the ownership or operations of the Transferred Companies prior to applicable Closing or to the sale of the Transferred Interests pursuant to this Agreement (whether or not the applicable Tax period(s) ends on, before or after such Closing) . For purposes of this Section 8.1, any Losses attributable to one Seller shall be deemed to be attributable to all Sellers, but each Seller’s individual responsibility for such Losses shall be based on its respective Seller’s Ownership PercentageSections 6.5.