Common use of Obligations of Buyer Clause in Contracts

Obligations of Buyer. Effective as of Closing, Buyer shall indemnify, defend, and hold harmless Seller, its Affiliates and their respective directors, officers, managers, members, shareholders, agents, representatives and subsidiaries (“Seller Indemnified Parties”), from and against any and all Losses resulting from, relating to, arising out of or incurred in connection with any of the following: (a) Any breach by Buyer of any of Buyer’s representations and warranties contained in this Agreement or the Transaction Documents; (b) Any breach by Buyer of any of Buyer’s covenants, agreements or obligations contained in this Agreement or the Transaction Documents; (c) All Assumed Liabilities; (d) Any injury to, or death of, any person or for damage to property arising in any way from the access afforded to Buyer hereunder or the activities of Buyer in connection with its on-site inspection of the Purchased Assets unless the injury, death, or damage arises from Seller’s gross negligence or willful misconduct; (e) Buyer Operations post-Closing, including Buyer’s obligations regarding post-closing operations under the Purchased Permits; (f) Seller’s guarantee obligations under Section 18(a) of the Cotiga South Lease and the Lease Guarantee Agreement; (g) Seller’s guarantee obligations under Section 18(a) of any Cotiga North/Association Lease and the applicable Lease Guarantee Agreement; and (h) Until the Seller Bonds posted with respect to all Purchased Permits have been released, any draw on such Seller Bonds after Closing related to or arising out of the Reclamation Liabilities that are Assumed Liabilities or that result from Buyer Operations after Closing.

Obligations of Buyer. Effective as of (a) From and after the Closing, Buyer shall indemnify, defend, defend and hold harmless Seller, Seller and each of its Affiliates (other than the Acquired Companies) and their respective the directors, managers, officers, managers, members, shareholdersemployees, agents, representatives representatives, successors and subsidiaries assigns of the foregoing Persons (collectively, the “Seller Indemnified Parties”), ) from and against any and all Losses resulting from, relating toincurred by any Seller Indemnified Party by reason of, arising out of, resulting from or relating to: (i) any inaccuracy or breach of or incurred in connection with any of the following: (a) Any breach representations or warranties made by Buyer in this Agreement or in any certificate delivered by Buyer to Seller in connection herewith, (ii) any breach or nonperformance of any of Buyer’s representations and warranties the covenants or agreements of Buyer contained in this Agreement or in any certificate delivered by Buyer to Seller in connection herewith, (iii) any liability for Taxes of or with respect to any Acquired Company for any taxable year or period (or portion thereof) that begins after the Transaction Documents;Closing Date, but only to the extent of Seller’s Allocable Share of such Taxes, (iv) any liability for Taxes included as Current Liabilities for purposes of determining the Closing Net Working Capital, or (v) any net increase in liability for Taxes directly and solely attributable to, or directly and solely resulting from, an election under Section 338(h)(10) of the Code (and any corresponding elections under state tax law) as contemplated by Section 6.12(j). (b) Any breach The obligation of Buyer to indemnify the Seller Indemnified Parties for Losses is subject to the following limitations: (i) Buyer shall not be required to provide indemnification to any Seller Indemnified Party pursuant to Section 9.2(a)(i) unless the aggregate amount of Losses incurred by all Seller Indemnified Parties pursuant to such provision exceeds the Basket, and then the Seller Indemnified Parties shall be entitled to indemnification only for the amount in excess of the Basket; and (ii) in no event shall the aggregate amount of such Losses for which Buyer of any of is obligated to indemnify the Seller Indemnified Parties pursuant to Section 9.2(a)(i) exceed the Maximum Amount; provided, however, that neither the Basket nor the Maximum Amount shall limit Buyer’s covenants, agreements or obligations contained in this Agreement or the Transaction Documents; (c) All Assumed Liabilities; (d) Any injury to, or death of, any person or for damage to property arising in any way from the access afforded to Buyer hereunder or the activities of Buyer in connection with its on-site inspection indemnification of the Purchased Assets unless the injury, death, or damage arises from Seller’s gross negligence or willful misconduct; (e) Buyer Operations post-Closing, including Buyer’s obligations regarding post-closing operations under the Purchased Permits; (f) Seller’s guarantee obligations under Section 18(a) of the Cotiga South Lease and the Lease Guarantee Agreement; (g) Seller’s guarantee obligations under Section 18(a) of any Cotiga North/Association Lease and the applicable Lease Guarantee Agreement; and (h) Until the Seller Bonds posted Indemnified Parties with respect to all Purchased Permits have been releasedany Losses by reason of, arising out of, resulting from or relating to breaches of any Buyer Fundamental Representations. Notwithstanding anything to the contrary contained herein, the Basket and Maximum Amount shall not apply with respect to any Loss arising from or related to (and such Loss shall not be counted towards the Maximum Amount) (1) fraud, willful misconduct or intentional misrepresentation or (2) for the avoidance of doubt, any draw on such Seller Bonds after Closing related to breach of any covenant or arising out of the Reclamation Liabilities that are Assumed Liabilities or that result from Buyer Operations after Closingagreement hereunder.

Obligations of Buyer. Effective as of the Closing, Buyer shall indemnify, defend, agrees to indemnify and hold harmless Seller, its Affiliates Seller and their respective directors, officers, managersemployees, membersAffiliates, shareholders, agents, representatives agents and subsidiaries (“Seller Indemnified Parties”), assigns from and against any and all Losses resulting from, relating to, arising out of or incurred in connection with any of the followingagainst: (a) Any breach any and all Indemnifiable Losses based upon or arising from any inaccuracy as of the Closing Date, in any of the representations and warranties made by Buyer in or pursuant to this Agreement; (b) any and all Indemnifiable Losses based upon or arising from any material breach or nonperformance of any of Buyer’s representations and warranties the covenants of Buyer contained in this Agreement or the Transaction Documents; (b) Any breach by Related Agreements, including any matter as to which Buyer in other provisions of any of Buyer’s covenants, agreements or obligations contained in this Agreement (including Sections 5.4, 5.7 or the Transaction Documents5.8) has expressly agreed to indemnify Seller; (c) All Assumed Liabilities;any and all Indemnifiable Losses based upon or arising from any post-Closing claims made against Seller Leases that remain in place after the Closing, except to the ASSET PURCHASE AGREEMENT 57 EXECUTION VERSION extent that Buyer is entitled to indemnification for such matters pursuant to Section 9.1(a) or 9.1(b) (without regard to satisfaction of Section 9.5(a)); or (d) Any injury to, any and all Indemnifiable Losses based upon or death of, any person or for damage to property arising in any way from the access afforded conduct of the Business after the Closing or the failure of Buyer to perform, pay and discharge any Assumed Liability, except to the extent that Buyer is entitled to indemnification for such matters pursuant to Section 9.1 (without regard to the satisfaction of Section 9.5(a)). For purposes of Section 9.2(a), all representations and warranties shall be read as if (x) references therein to the materiality to Buyer hereunder or the activities of Buyer in connection with its on-site inspection of the Purchased Assets unless the injury, death, or damage arises from Seller’s gross negligence or willful misconduct; (e) Buyer Operations post-Closing, including Buyer’s obligations regarding post-closing operations under the Purchased Permits; (f) Seller’s guarantee obligations under Section 18(a) of the Cotiga South Lease and the Lease Guarantee Agreement; (g) Seller’s guarantee obligations under Section 18(a) of any Cotiga North/Association Lease condition or event (including all references to "Material Adverse Effect" and the applicable Lease Guarantee Agreement; and "in all material respects") were deleted and (hy) Until the Seller Bonds posted with respect dollar thresholds that qualify exceptions to all Purchased Permits have been released, any draw on such Seller Bonds after Closing related representations (as opposed to or arising out dollar thresholds for purposes of the Reclamation Liabilities that are Assumed Liabilities or that result from Buyer Operations after Closingdetermining disclosure requirements) were deleted.

Obligations of Buyer. Effective as (a) If the Closing occurs, subject to the terms of Closingthis Article VIII and Section 10.1, Buyer shall indemnify, defend, Xxxxx agrees to indemnify and hold harmless Seller, Seller and its Affiliates and each of their respective directors, officersofficers and employees (in their capacity as such) (collectively, managers, members, shareholders, agents, representatives and subsidiaries (the “Seller Indemnified Parties”), ) from and against Losses imposed on, sustained, incurred or suffered by any and all Losses resulting from, Seller Indemnified Party arising from or relating to, arising out : (i) any inaccuracy or breach of or incurred in connection with any of the following: representations or warranties of Buyer in Article IV; (aii) Any any breach by Buyer of any of Buyer’s representations the covenants or other obligations of Buyer in this Agreement; (iii) any Purchased Assets or Assumed Liabilities; and warranties contained (iv) the operation of the Business by Buyer and its Affiliates from and after the Closing or arising from or related to the Reinsured Policies, in each case, incurred or arising 50213729.30 from and after the Closing, other than, with respect to this clause (iv), (A) any Ancillary Agreement Assumed Liability (which is subject to the terms of the applicable Ancillary Agreement), (B) any Liability which Seller or any of its Affiliates is required to bear or pay (including costs of performance or otherwise) under this Agreement or any Ancillary Agreement and (C) any Company ECOs (as such term is defined in the Transaction Documents;Reinsurance Agreements, but (x) determined as if such Reinsurance Agreements were to continue without waiver, amendment or termination and (y) for the avoidance of doubt, excluding any Losses to the extent resulting from the actions or omissions of any Resulting Insurer (with License) following the Division) (“Post-Closing Reinsured Policy Liabilities”). (b) Any The obligation of Buyer to indemnify the Seller Indemnified Parties for Losses is subject to the following limitations: (i) Buyer shall not be required to provide indemnification to any Seller Indemnified Party pursuant to Section 8.2(a)(i) (other than for Losses arising from or related to the inaccuracy or breach by Buyer of any Buyer Fundamental Representation) unless the aggregate amount of Buyer’s covenantsLosses imposed on, agreements sustained, incurred or obligations contained suffered by the Seller Indemnified Parties in this Agreement respect of all claims against Buyer for indemnification under Section 8.2(a)(i) (excluding Losses arising from or related to the Transaction Documents;inaccuracy or breach of any Buyer Fundamental Representation), subject to Section 8.3(e) and Section 8.3(g), exceeds the Deductible, and then the Seller Indemnified Parties shall be entitled to indemnification for only the amount in excess of the Deductible (other than for Losses arising from or related to the inaccuracy or breach of any Buyer Fundamental Representation, which shall be subject to indemnification without regard to the Deductible); (ii) in no event shall the aggregate amount of Losses for which Buyer is obligated to indemnify Seller Indemnified Parties pursuant to Section 8.2(a)(i), but solely with respect to representations and warranties that are not Buyer Fundamental Representations, subject to Section 8.3(e) and Section 8.3(g), exceed the Cap; and (iii) in no event shall Buyer be required to provide indemnification to any Seller Indemnified Party for any single claim (or aggregated claims arising out of substantially the same events or circumstances) under Section 8.2(a)(i) (other than claims for Losses arising from or related to the inaccuracy or breach of any Buyer Fundamental Representation) unless the amount of such claim (or aggregated claims arising out of substantially the same events or circumstances) involves Losses in excess of the De Minimis Amount and any Losses under such claim or claims not exceeding the De Minimis Amount shall not be counted towards the Deductible. (c) All Assumed Liabilities; (d) Any injury toNotwithstanding anything to the contrary in this Agreement, or death of, any person or for damage to property arising in any way from no event shall the access afforded to Buyer hereunder or the activities aggregate liability of Buyer in connection with and its on-site inspection of the Purchased Assets unless the injury, death, or damage arises from Seller’s gross negligence or willful misconduct; (e) Buyer Operations post-Closing, including Buyer’s obligations regarding post-closing operations under the Purchased Permits; (f) Seller’s guarantee obligations Affiliates under Section 18(a8.2(a)(i) (including, for the avoidance of the Cotiga South Lease and the Lease Guarantee Agreement; (g) Seller’s guarantee obligations under Section 18(a) of any Cotiga North/Association Lease and the applicable Lease Guarantee Agreement; and (h) Until the Seller Bonds posted doubt, with respect to all Purchased Permits have been released, any draw on such Seller Bonds after Closing related to or arising out of the Reclamation Liabilities representations and warranties that are Assumed Liabilities or that result from Buyer Operations after ClosingFundamental Representations), Section 8.2(a)(ii) and Section 9.1(a) be greater than the Purchase Price.

Obligations of Buyer. Effective as of the Closing, Buyer shall indemnify, defend, agrees to indemnify and hold harmless Seller, its Affiliates Sellers and their respective directors, officers, managersemployees, membersAffiliates, shareholders, agents, representatives agents and subsidiaries (“Seller Indemnified Parties”), assigns from and against any and all Losses resulting from, relating to, arising out of or incurred in connection with any of the followingagainst: (a) Any breach any and all Indemnifiable Losses based upon or arising from any inaccuracy in any of the representations and warranties made by Buyer on the Closing Date in or pursuant to this Agreement; (b) any and all Indemnifiable Losses based upon or arising from any material breach or nonperformance of any of Buyer’s representations and warranties the covenants of Buyer contained in this Agreement or the Transaction Documents; (b) Any breach by Related Agreements, including any matter as to which Buyer in other provisions of any of Buyer’s covenants, agreements or obligations contained in this Agreement (including Sections 5.4, 5.7 or the Transaction Documents5.9) has expressly agreed to indemnify Sellers; (c) All Assumed Liabilitiesany and all Indemnifiable Losses based upon or arising from any post-Closing claims made against Scheduled Financial Support Arrangements that remain in place after the Closing; (d) Any injury to, any and all Indemnifiable Losses based upon or death of, arising from any person or for damage to property arising post-Closing claims made against Parent Leases that remain in any way from place after the access afforded to Buyer hereunder or the activities of Buyer in connection with its on-site inspection of the Purchased Assets unless the injury, death, or damage arises from Seller’s gross negligence or willful misconductClosing; (e) Buyer Operations post-Closing, the conduct of the Business after the Closing (including Buyer’s obligations regarding post-closing operations under the Purchased Permits;use of Parent Marks pursuant to Section 5.5); or (f) Seller’s guarantee obligations under Section 18(a) of the Cotiga South Lease and the Lease Guarantee Agreement; fifty percent (g) Seller’s guarantee obligations under Section 18(a50%) of any Cotiga North/Association Lease and the applicable Lease Guarantee Agreement; and (h) Until the Seller Bonds posted with respect to all Purchased Permits have been releasedIndemnifiable Losses resulting from Type A Claims, any draw on such Seller Bonds after Closing related to or arising out of the Reclamation Liabilities and all Indemnifiable Losses resulting from Type B Claims, and any and all Indemnifiable Losses resulting from Type C Claims that are Assumed Liabilities not indemnifiable by Sellers pursuant to Section 9.1(d). For purposes of Section 9.2(a), all representations and warranties shall be read as if (x) references therein to the materiality to Buyer of any condition or event (including all references to "Material Adverse Effect" and "in all material respects") were deleted and (y) dollar thresholds that result from Buyer Operations after Closing.qualify exceptions to representations (as opposed to dollar thresholds for purposes of determining disclosure requirements) were deleted. STOCK PURCHASE AGREEMENT 54 60

Obligations of Buyer. Effective as From and after the Closing Date, -------------------- subject to the terms and conditions of Closingthis Article VIII, Buyer shall hereby agrees to indemnify, defend, defend and hold harmless Seller, Seller and its Affiliates and their respective directorsemployees, officers, managersdirectors, members, shareholders, agents, representatives partners and subsidiaries (“Seller Indemnified Parties”), other Affiliates from and against any and all Losses which any of them may suffer, incur, or sustain arising out of, attributable to, or resulting from, relating to, arising out of or incurred in connection with any of the following: (a) Any any inaccuracy in or breach by Buyer of any of Buyer’s the representations and warranties contained of Buyer made in this Agreement or and identified in Section 8.1 as surviving the Transaction DocumentsClosing (it being agreed that solely for purposes of establishing whether any matter is indemnifiable pursuant to this clause (a), the accuracy of the representations and warranties made by Buyer shall be determined without giving effect to the qualifications to such representations and warranties concerning a Buyer Material Adverse Effect); (b) Any any breach or nonperformance of any of the covenants made by Buyer in this Agreement which survive the Closing pursuant to Section 8.1; provided, however, that the limitations set forth in Sections 8.6 and 8.7 -------- ------- shall not apply to any breach by Buyer of any of Buyer’s covenants, agreements its obligations under Sections 6.3(f) or obligations contained in this Agreement or the Transaction Documents6.17(b); (c) All Assumed Liabilitiesany failure of (i) the Buyer Balance Sheet (including the related notes) to present fairly the consolidated financial position of Buyer and the Buyer Subsidiaries as of the date thereof, and the audited statements of income, changes in shareholders' equity and cash flows for the fiscal year 1997 to present fairly the consolidated results of operations and cash flows of Buyer and the Buyer Subsidiaries for the fiscal period therein set forth or (ii) the Buyer Balance Sheet or the audited statements of income, changes in shareholders' equity and cash flows for the fiscal year 1997 (in each case, including the related notes) to comply in all material respects with applicable accounting requirements with respect thereto or to have been prepared in accordance with GAAP consistently applied during the periods involved (except as indicated in the notes thereto); provided, -------- however, that, notwithstanding anything in this Agreement to the contrary, ------- Buyer shall not have any indemnification obligation under this clause (c) with respect to any such Losses arising out of, attributable to or resulting from any such failure unless Seller shall have given written notice to Buyer specifying in detail the source of the Loss or potential Loss on or prior to the eighteen month anniversary of the Closing Date; (d) Any injury any and all Taxes of any kind of the Company, the Company Subsidiaries, any of their respective successors or Seller arising out of, attributable to, or death ofresulting from the failure of Buyer and/or any successor(s) thereof to provide to Seller on a timely basis any requested Records or other information which may be relevant to Taxes of the Company, any person Company Subsidiary, any of their respective successors, Seller or for damage its Affiliates; provided, however, that Buyer's indemnification obligations -------- ------- with respect to property arising this paragraph (d) shall be without regard to the limitations set forth in any way from the access afforded to Buyer hereunder or the activities of Buyer in connection with its on-site inspection of the Purchased Assets unless the injury, death, or damage arises from Seller’s gross negligence or willful misconductSections 8.6 and 8.7; (e) Buyer Operations post-any additional Tax owed by Seller (including Tax owed by Seller due to this indemnification payment) resulting from any transaction not in the ordinary course of business occurring on the Closing Date after the Closing; provided, including however, that Buyer’s 's indemnification obligations regarding post-closing operations under -------- ------- with respect to this paragraph (e) shall be without regard to the Purchased Permits;limitations set forth in Sections 8.6 and 8.7; and (f) Seller’s guarantee obligations under Section 18(a(i) any Income Taxes of the Company or any Company Subsidiary for any taxable period that begins after the Closing Date and that portion, beginning after the Closing Date, of any taxable period that includes the Closing Date and (ii) any Taxes (other than Income Taxes) of the Cotiga South Lease Company or any Company Subsidiary for any taxable period that begins after the Closing Date and that portion, beginning after the Lease Guarantee Agreement; (g) Seller’s guarantee obligations under Section 18(a) Closing Date, of any Cotiga North/Association Lease and taxable period that includes the applicable Lease Guarantee AgreementClosing Date (based on the number of days in that portion of such period); and (h) Until the Seller Bonds posted provided, however, that Buyer's indemnification -------- ------- obligations with respect to all Purchased Permits have been released, any draw on such Seller Bonds after Closing related this paragraph (f) shall be without regard to or arising out of the Reclamation Liabilities that are Assumed Liabilities or that result from Buyer Operations after Closinglimitations set forth in Sections 8.6 and 8.7.

Obligations of Buyer. Effective as of Closing(a) Subject to the overall limitations, the minimum amounts, caps and time limitations set forth in this Article VII or elsewhere in this Agreement, if the Closing occurs, Buyer shall indemnify, defend, indemnify and hold harmless SellerSeller and its managers, its Affiliates and their respective directors, officers, managersemployees, members, shareholdersAffiliates, agents, representatives successors and subsidiaries assigns (collectively, the “Seller Indemnified Parties”), ) from and against any and all Losses resulting from, relating to, arising out incurred by any Seller Indemnified Party by reason of: (i) any breach of or incurred in connection with any of the following: (a) Any breach representations or warranties made by Buyer of any of Buyer’s representations and warranties contained in this Agreement or in any of the other Transaction Documents;Documents to which Buyer is a party (in each case, when made), (ii) any breach or nonperformance of any of the covenants or agreements made by Buyer in this Agreement or in any of the other Transaction Documents to which Buyer is a party, (iii) any breach or nonperformance after the Closing of any of the covenants or agreements made by the Company in this Agreement or any of the other Transaction Documents to which it is a party, and (iv) any of the Contributed Assets, the Contributed Liabilities or any matter, occurrence, action, omission or circumstance that relates to the conduct or operation of the Forming Business (the Losses referred to in this clause (iv), the “Forming Business Losses”). (b) Any breach The obligation of Buyer to indemnify the Seller Indemnified Parties for Losses pursuant to Section 7.2(a) is subject to the following limitations: (i) Buyer shall not be required to provide indemnification to any Seller Indemnified Party pursuant to Section 7.2(a) unless and until the aggregate amount of Losses incurred by all Seller Indemnified Parties pursuant to Section 7.2(a) (other than Specified Seller Losses) exceeds the Deductible Amount, and then the Seller Indemnified Parties shall be entitled to indemnification for the amount of Losses in excess thereof (it being understood and agreed that the Deductible Amount is intended as a deductible, and Buyer of shall not be liable for any of Buyer’s covenantsLosses less than the Deductible Amount for which the Seller Indemnified Parties are otherwise entitled to indemnification); provided, agreements or obligations contained however, that Specified Seller Losses shall not be subject to the Deductible Amount and shall not be included in this Agreement or calculating whether the Transaction Documents;Deductible Amount has been satisfied. (c) All Assumed Liabilities; (d) Any injury to, or death of, Without limiting any person or for damage to property arising in any way from the access afforded to Buyer hereunder or the activities of Buyer in connection with its on-site inspection of the Purchased Assets unless the injuryother limitations set forth in this Article VII or elsewhere in this Agreement, death, or damage arises from Seller’s gross negligence or willful misconduct; (e) Buyer Operations post-Closing, including Buyer’s obligations regarding post-closing operations under the Purchased Permits; (f) Seller’s guarantee obligations under Section 18(a) of the Cotiga South Lease and the Lease Guarantee Agreement; (g) Seller’s guarantee obligations under Section 18(a) of any Cotiga North/Association Lease and the applicable Lease Guarantee Agreement; and (h) Until the Seller Bonds posted except with respect to all Purchased Permits have been releasedclaims for Specified Seller Losses, the Seller Indemnified Parties shall not be entitled to receive indemnification for Losses pursuant to Section 7.2(a) in an aggregate amount that exceeds, at any draw on time, the Buyer Indemnity Cap less the aggregate amount of Specified Seller Losses recovered by the Seller Indemnified Parties as of such Seller Bonds after Closing related to or arising out of the Reclamation Liabilities that are Assumed Liabilities or that result from Buyer Operations after Closingtime.

Obligations of Buyer. Effective as (a) If the Closing occurs, subject to the terms of Closingthis Article VIII and Section 10.1, except in respect of Taxes (indemnification in respect of Taxes being governed exclusively by Article IX), Buyer shall indemnify, defend, agrees to indemnify and hold harmless Seller, Seller and its Affiliates and each of their respective directors, officersofficers and employees (in their capacity as such) (collectively, managers, members, shareholders, agents, representatives and subsidiaries (the “Seller Indemnified Parties”), ) from and against against, and will pay and reimburse the Seller Indemnified Parties for, any and all Losses resulting from, relating to, incurred by any Seller Indemnified Party arising out of or incurred resulting from: (i) any breach of or inaccuracy in connection with any of the following: representations or warranties of Buyer in this Agreement; (aii) Any any breach by Buyer of any of Buyer’s representations and warranties contained the covenants or other obligations of Buyer in this Agreement; (iii) solely to the extent such Losses are incurred following the Effective Time (other than those Losses incurred as a result of the Liabilities assumed pursuant to Section 2.3(a), Section 2.3(c)(ii) or Section 2.3(d)), any Purchased Assets or Assumed Liabilities (in the case of Assumed Liabilities, other than for Taxes related to any Post-Closing Tax Period, which shall be governed by Article IX); (iv) except as otherwise provided in this Agreement (including Section 8.1(a)(iv)), the Ancillary Agreements, or any other written agreement between Seller or any of its Affiliates, on the Transaction Documents;one hand, and Buyer or any of its Affiliates, on the other hand, Buyer’s and its Affiliates’ operation of the recordkeeping, trust and custody and discretionary businesses acquired from Seller pursuant to the terms hereof from and after the Effective Time, (v) the implementation of a Buyer Direction by Seller or its Affiliates or (vi) the operation of the Seller-Controlled Assets (provided that, in the case of subclause (vi), Buyer shall have no indemnity obligation in respect of Losses arising out of or resulting from Seller’s or its Affiliates’ failure to implement any Buyer Direction (other than pursuant to Section 5.12(f) of the Seller Disclosure Letter)). (b) Any The obligation of Buyer to indemnify the Seller Indemnified Parties for Losses is subject to the following limitations: (i) Buyer shall not be required to provide indemnification to any Seller Indemnified Party pursuant to Section 8.2(a)(i) (other than with respect to any breach by Buyer or inaccuracy of any Buyer Fundamental Representations or in the case of Buyer’s covenantsFraud) unless the aggregate amount of Losses actually incurred by the Seller Indemnified Parties in respect of any claim against Buyer for indemnification under Section 8.2(a)(i), agreements subject to Section 8.3(d) and (e), exceeds the Deductible, and then the Seller Indemnified Parties shall be entitled to indemnification for only the amount in excess of the Deductible, (ii) in no event shall the aggregate amount of Losses for which Buyer is obligated to indemnify Seller Indemnified Parties pursuant to Section 8.2(a)(i) (other than with respect to any breach or obligations contained inaccuracy of any Buyer Fundamental Representations, or in this Agreement the case of Fraud), subject to Section 8.3(d) and (e), exceed the Cap and (iii) in no event shall Buyer be required to provide indemnification to any Seller Indemnified Party for any single claim or aggregated claims arising out of substantially similar or related events or circumstances under Section 8.2(a)(i) (other than with respect to Fraud) unless the Transaction Documents;amount of such claim or aggregated claims arise out of substantially similar or related events or circumstances exceeds the De Minimis Amount. (c) All Assumed Liabilities; (d) Any injury to, For purposes of determining any breach or death of, inaccuracy of any person representation or for damage to property arising in any way from the access afforded to Buyer hereunder or the activities warranty of Buyer in connection with its on-site inspection this Agreement, and the amount of the Purchased Assets unless the injury, death, or damage arises from Seller’s gross negligence or willful misconduct; (e) Buyer Operations post-Closing, including Buyer’s obligations regarding post-closing operations under the Purchased Permits; (f) Seller’s guarantee obligations any Losses under Section 18(a) of the Cotiga South Lease 8.2(a)(i), all qualifications and the Lease Guarantee Agreement; (g) Seller’s guarantee obligations under Section 18(a) of any Cotiga North/Association Lease limitations as to materiality and the applicable Lease Guarantee Agreement; and (h) Until the Seller Bonds posted with respect to all Purchased Permits have been released, any draw on such Seller Bonds after Closing related to or arising out of the Reclamation Liabilities that are Assumed Liabilities or that result from Buyer Operations after Closingother similar materiality qualifiers set forth in Article IV shall be disregarded.

Obligations of Buyer. Effective as of From and after the Closing, Buyer shall indemnify, defend, agrees to indemnify and hold harmless Seller, Parent and its Affiliates and their respective directors, officers, managersemployees, membersAffiliates and successors (collectively, shareholders, agents, representatives and subsidiaries (the “Seller Parent Indemnified Parties”), ) from and against any and all Losses resulting from, relating to, incurred by any Parent Indemnified Party to the extent arising out of: (a) any breach of or incurred in connection with any of the following: (a) Any breach representations or warranties made by Buyer in this Agreement, (b) any breach or nonperformance of any of Buyer’s representations and warranties contained the covenants or agreements made by Buyer in this Agreement, (c) the Assumed Liabilities, (d) any breach or nonperformance of any of the covenants or agreements made by the Company in this Agreement which are required to be performed or complied with following the Closing, and (e) except to the extent (1) Parent is obligated to defend, indemnify and hold harmless the Buyer Indemnified Parties pursuant to Section 8.1 or as otherwise provided herein or (2) Parent or Affiliates thereof are obligated to indemnify Buyer, its Affiliates or other indemnified parties pursuant to the Transaction Documents; , the operation of the Business and the Company from and after the Closing. The obligation of Buyer to indemnify the Parent Indemnified Parties for Losses is subject to the following limitations: (bx) Any breach Buyer shall not be required to provide indemnification to any Buyer Indemnified Party pursuant to this Section 8.2 of this Agreement unless the aggregate amount of Losses incurred by all Parent Indemnified Parties pursuant to such provision exceeds, after taking into consideration the impact of other provisions of this Section 8.2, the Basket, and then the Buyer Indemnified Parties shall be entitled to indemnification for the amount of any Losses in excess of Buyer’s covenants, agreements or obligations contained the Basket; and (y) in no event shall the aggregate amount of Losses for which Buyer is obligated to indemnify the Parent Indemnified Parties pursuant to this Section 8.2 of this Agreement exceed the Maximum R&W Indemnification Amount; provided, however, no Claim shall be taken into account when determining whether the Basket has been exceeded unless such Claim is greater than or equal to the Transaction Documents; De Minimis Claim Threshold; provided, however, that the foregoing limitation shall not apply to breaches of Sections 3.2(a) (cDue Organization and Good Standing) All Assumed Liabilities; or 3.2(b) (dAuthorization of Transaction) Any injury to, or death of, to any person breaches or for damage to property arising in any way from the access afforded to Buyer hereunder or the activities inaccuracies of Buyer in connection with its on-site inspection provisions of the Purchased Assets unless the injury, death, or damage arises from Seller’s gross negligence or willful misconduct; (e) Buyer Operations post-Closing, including Buyer’s obligations regarding post-closing operations under the Purchased Permits; (f) Seller’s guarantee obligations under Section 18(a) of the Cotiga South Lease and the Lease Guarantee Agreement; (g) Seller’s guarantee obligations under Section 18(a) of any Cotiga North/Association Lease and the applicable Lease Guarantee Agreement; and (h) Until the Seller Bonds posted with respect to all Purchased Permits have been released, any draw on such Seller Bonds after Closing related to or arising out of the Reclamation Liabilities this Agreement that are Assumed Liabilities or that result from Buyer Operations after Closingconstitute actual fraud.

Obligations of Buyer. Effective as of the Closing, Buyer shall indemnify, defend, agrees to indemnify and hold harmless SellerACS, its Affiliates Holdco and each of their respective directors, officers, managersemployees, membersAffiliates, shareholders, agents, representatives agents and subsidiaries (“Seller Indemnified Parties”), assigns from and against any and all Losses resulting from, relating to, arising out of or incurred in connection with any of the followingagainst: (a) Any breach any and all Indemnifiable Losses based upon or arising from any inaccuracy, as of the Closing Date, in any of the representations and warranties made by Buyer in or pursuant to this Agreement; (b) any and all Indemnifiable Losses based upon or arising from any material breach or nonperformance of any of Buyer’s representations and warranties the covenants of Buyer or its Affiliates (including, after the Closing, the Acquired Entities) contained in this Agreement or the Transaction Documents; (b) Any breach by Related Agreements, including any matter as to which Buyer in other provisions of any of Buyer’s covenants, agreements or obligations contained in this Agreement (including Sections 5.4, 5.7 or the Transaction Documents5.8) has expressly agreed to indemnify Seller; (c) All Assumed Liabilities;any and all Indemnifiable Losses based upon or arising from any post-Closing claims made against Seller Leases or Financial Support Arrangements issued by Seller or its Affiliates (other than an Acquired Entity), in either case, that remain in place after the Closing, except to the extent that Buyer is entitled to indemnification for such matters pursuant to Section 9.1(a) or 9.1(b) (without regard to satisfaction of Section 9.5(a)); or (d) Any injury to, any and all Indemnifiable Losses based upon or death of, any person or for damage to property arising in any way from the access afforded conduct of the Business after the Closing or any Action initiated against ACS or any Affiliate of ACS with respect to Buyer hereunder any post-Closing action or omission in the activities conduct of the Business of Buyer in connection with or any Affiliate of Buyer (including the Acquired Entities) (including any Indemnifiable Loss arising from any guaranty by Seller and its on-site inspection of the Purchased Assets unless the injury, death, or damage arises from Seller’s gross negligence or willful misconduct; Affiliates (e) Buyer Operations post-Closing, including Buyer’s obligations regarding post-closing operations under the Purchased Permits; (f) Seller’s guarantee obligations under Section 18(aother than an Acquired Entity) of the Cotiga South Lease Contracts included in the Newco Contributed Assets), except to the extent that Buyer is entitled to indemnification for such matters pursuant to Section 9.1(a) or 9.1(b) (without regard to satisfaction of Section 9.5(a)). For purposes of Section 9.2(a), all representations and warranties shall be read as if (x) references therein to the Lease Guarantee Agreement; (g) Seller’s guarantee obligations under Section 18(a) materiality to Buyer of any Cotiga North/Association Lease condition or event (including all references to "Material Adverse Effect" and the applicable Lease Guarantee Agreement; and "in all material respects") were deleted and (hy) Until the Seller Bonds posted with respect dollar thresholds that qualify exceptions to all Purchased Permits have been released, any draw on such Seller Bonds after Closing related representations (as opposed to or arising out dollar thresholds for purposes of the Reclamation Liabilities that are Assumed Liabilities or that result from Buyer Operations after Closingdetermining disclosure requirements) were deleted.

Obligations of Buyer. Effective as of the Closing, Buyer shall indemnify, defend, defend and hold harmless Seller, its Affiliates Sellers and their respective directors, officers, managersemployees, membersAffiliates, shareholders, agents, representatives agents and subsidiaries (“Seller Indemnified Parties”), assigns from and against any and all Indemnifiable Losses resulting from, relating to, resulting from or arising out of or incurred in connection with any of the followingof: (a) Any any breach by Buyer of any of Buyer’s the representations and warranties made by Buyer on the Closing Date in or pursuant to this Agreement; (b) any material breach or nonperformance of any of the covenants of Buyer contained in this Agreement or the Transaction Documents; Related Agreements, including any matter as to which Buyer in other provisions of this Agreement (b) Any breach by Buyer of any of Buyer’s covenantsincluding Section 5.9), agreements or obligations contained in this the Assumption and Reimbursement Agreement or the Transaction Documents;Tax Sharing Agreement has expressly agreed to indemnify Sellers; TC1: 469823 Execution Stock Purchase Agreement (c) All any obligations of Buyer, the Company or any Company Subsidiary (or any of their assignees or transferees of an Underlying Obligation) arising or claims made under or in respect of any Assumed LiabilitiesFinancial Support Arrangement, Lifecare Agreement of Undertaking or Underlying Obligation after the Closing; (d) Any injury to, or death of, any person or for damage to property arising in any way from the access afforded to Buyer hereunder or the activities of Buyer in connection with its on-site inspection conduct of the Purchased Assets unless Business after the injuryClosing, death, or damage arises from Seller’s gross negligence or willful misconduct;provided that Indemnifiable Losses under this clause (d) shall not include any damages based on harm to the reputation of Sellers; or (e) any obligations arising or claims made under or in respect of license agreements covering any Included Software that is assigned to the Company, to the extent based on actions or inactions of Buyer Operations post-Closing, or any of its Affiliates (including Buyer’s obligations regarding post-closing operations under the Purchased Permits; (fCompany or any Company Subsidiary) Seller’s guarantee obligations under Section 18(a) of after the Cotiga South Lease and the Lease Guarantee Agreement; (g) Seller’s guarantee obligations under Section 18(a) of any Cotiga North/Association Lease and the applicable Lease Guarantee Agreement; and (h) Until the Seller Bonds posted with respect to all Purchased Permits have been released, any draw on such Seller Bonds after Closing related to or arising out of the Reclamation Liabilities that are Assumed Liabilities or that result from Buyer Operations after Closing.

Obligations of Buyer. Effective as (a) If the Closing occurs, subject to the terms of Closingthis ARTICLE IX, Buyer shall indemnify, defend, indemnify and hold harmless Seller and Seller, its ’s Affiliates and each of their respective officers, directors, officersemployees, managersagents and Representatives (collectively, members, shareholders, agents, representatives and subsidiaries (the “Seller Indemnified Parties”), ) from and against Losses incurred by any and all Losses resulting from, relating to, arising out Seller Indemnified Party by reason of any: (i) breach of or incurred inaccuracy in connection with any of the following: representations or warranties of Buyer in this Agreement as of the date hereof or as of the Closing (aas though made on and as of the Closing Date); (ii) Any breach by Buyer of any of Buyer’s representations and warranties contained the covenants of Buyer in this Agreement and (iii) in the event Buyer has not delivered to Seller a release as contemplated by Section 5.12 with respect to any Seller Guaranty, failure by Buyer or its Affiliates (including after the Transaction Documents;Closing, the Company and the Company Subsidiaries) to perform the obligations secured thereby. (b) Any breach The obligation of Buyer to indemnify the Seller Indemnified Parties for Losses is subject to the following limitations: (i) Buyer shall not be required to provide indemnification to any Seller Indemnified Party pursuant to Section 9.3(a)(i) unless the aggregate amount of Losses incurred by Buyer all the Seller Indemnified Parties in respect of any claim against Buyer for indemnification under Section 9.3(a)(i) exceeds the Deductible, and then the Seller Indemnified Parties shall be entitled to indemnification for only the amount in excess of Buyer’s covenants, agreements or obligations contained the Deductible and (ii) in no event shall the aggregate amount of Losses for which Buyer is obligated to indemnify Seller Indemnified Parties pursuant to Section 9.3(a)(i) of this Agreement or exceed the Transaction Documents; (c) All Assumed Liabilities; (d) Any injury to, or death of, any person or for damage to property arising in any way from the access afforded to Buyer hereunder or the activities of Buyer in connection with its on-site inspection of the Purchased Assets unless the injury, death, or damage arises from Seller’s gross negligence or willful misconduct; (e) Buyer Operations post-Closing, including Buyer’s obligations regarding post-closing operations under the Purchased Permits; (f) Seller’s guarantee obligations under Section 18(a) of the Cotiga South Lease and the Lease Guarantee Agreement; (g) Seller’s guarantee obligations under Section 18(a) of any Cotiga North/Association Lease and the applicable Lease Guarantee Agreement; and (h) Until the Seller Bonds posted with respect to all Purchased Permits have been released, any draw on such Seller Bonds after Closing related to or arising out of the Reclamation Liabilities that are Assumed Liabilities or that result from Buyer Operations after ClosingCap.

Obligations of Buyer. Effective The Buyer has used its commercially reasonable efforts to procure that the commitments as set forth in Schedule 5.14 of Closingthe Disclosure Letter (the “Sellers’ Commitments”) are, subject to the condition precedent that the Closing occurs, terminated on or by the Closing Date, and that Total, the Sellers and their respective Affiliates (other than the Group Companies) are, subject to the condition precedent that the Closing occurs, fully, irrevocably and unconditionally released from all present and future obligations, duties and liabilities thereunder. On the Closing Date, the Buyer has delivered to Total complete and accurate details of those unconditional, irrevocable and full releases from the Seller Commitments which the Buyer has obtained until such date. To the extent necessary, and requested by the Buyer, Total and the Sellers shall indemnifyrender reasonable assistance to the Buyer in obtaining the release from the Seller Commitments; provided that nothing in this Agreement shall oblige Total, defendthe Sellers or any of their respective Affiliates to make any payment to any Person, incur any liability or obligation or forego any benefit, in order to obtain a release from any Seller Commitment. If and to the extent that Total, the Sellers and their respective Affiliates are not fully, irrevocably and unconditionally released from all Seller Commitments or all present and future obligations, duties and liabilities thereunder on the Closing Date, the Buyer shall, in the name of Total, the Sellers and their respective Affiliates but at the Buyer’s own expense and account, duly perform any and all duties and obligations under all such Seller Commitments and receive all benefits thereunder, and on a Euro-by-Euro basis (respectively on a one-to-one basis in the respective foreign currency) indemnify Total, the Sellers and their respective Affiliates for, and hold each of them harmless Sellerfrom, its Affiliates and their respective directors, officers, managers, members, shareholders, agents, representatives and subsidiaries (“Seller Indemnified Parties”), from and against any and all Losses resulting fromcosts, relating todamages, claims and liabilities arising out of or incurred in connection with any such Seller Commitment as from the Closing Date. To the Knowledge of the following: (a) Any breach by Buyer Sellers, Schedule 5.14 to the Disclosure Letter contains a complete list of any of Buyer’s representations and warranties contained in this Agreement or the Transaction Documents; (b) Any breach by Buyer of any of Buyer’s covenants, agreements or obligations contained in this Agreement or the Transaction Documents; (c) All Assumed Liabilities; (d) Any injury to, or death of, any person or for damage to property arising in any way from the access afforded to Buyer hereunder or the activities of Buyer in connection with its on-site inspection commitments existing as of the Purchased Assets unless the injury, death, or damage arises from Seller’s gross negligence or willful misconduct; (e) Buyer Operations post-Closing, including Buyer’s obligations regarding post-closing operations under the Purchased Permits; (f) Seller’s guarantee obligations under Section 18(a) of the Cotiga South Lease and the Lease Guarantee Agreement; (g) Seller’s guarantee obligations under Section 18(a) of any Cotiga North/Association Lease and the applicable Lease Guarantee Agreement; and (h) Until the Seller Bonds posted with respect to all Purchased Permits have been released, any draw on such Seller Bonds after Closing related to or arising out of the Reclamation Liabilities that are Assumed Liabilities or that result from Buyer Operations after Closingdate hereof.

Obligations of Buyer. Effective as of Closing, Buyer shall indemnify, defend, and hold harmless Seller, its Affiliates and their respective directors, officers, managers, members, shareholders, agents, representatives and subsidiaries (“Seller Indemnified Parties”), from and against any and all Losses resulting from, relating to, arising out of or incurred in connection with any of the following: (a) Any breach by Buyer of any of Buyer’s representations and warranties contained in this Agreement or the Transaction Documents; (b) Any breach by Buyer of any of Buyer’s covenants, agreements or obligations contained in this Agreement or the Transaction Documents; (c) All Assumed Liabilities; (d) Any injury to, or death of, any person or for damage to property arising in any way from the access afforded to Buyer hereunder or the activities of Buyer in connection with its on-site inspection of the Purchased Assets unless the injury, death, or damage arises from Seller’s gross negligence or willful misconduct; (e) Buyer Operations post-Closing, including Buyer’s obligations regarding post-closing operations under the Purchased Permits; (f) Seller’s guarantee obligations under Section 18(a) of the Cotiga South Lease and the Lease Guarantee Agreement; (g) Seller’s guarantee obligations under Section 18(a) of any Cotiga North/Association Lease and the applicable Lease Guarantee Agreement; and (hf) Until the Seller Bonds posted with respect to all Purchased Permits have been released, any draw on such Seller Bonds after Closing related to or arising out of the Reclamation Liabilities that are Assumed Liabilities or that result from Buyer Operations after Closing.

Obligations of Buyer. Effective as of (a) From and after the Initial Closing, Buyer shall indemnifysubject to the terms of this Article VIII and Section 10.1, defendexcept in respect of Taxes (indemnification in respect of Taxes being governed as set forth in Article IX), Xxxxx agrees to indemnify and hold harmless Seller, Seller and its Affiliates and each of their respective directors, officersmembers, managers, memberspartners, shareholdersdirectors, agentsofficers and employees (in their capacity as such) and their respective successors and permitted assigns (collectively, representatives and subsidiaries (the “Seller Indemnified Parties”), ) from and against Losses actually incurred by any and all Losses resulting Seller Indemnified Party arising from, relating to, arising out : (i) any breach of or incurred in connection with any of the following:representations or warranties of Buyer in Article IV either as of the date hereof or as of the Effective Time as though made on and as of such Effective Time (or such other date as of which such representations or warranties expressly speak); (aii) Any any breach by Buyer of any of the covenants or other agreements of Buyer in this Agreement; (iii) any Transferred Assets and Liabilities (in the case of Assumed Liabilities, other than for Taxes related to any Post-Closing Tax Period, which shall be governed by Article IX); or (iv) Buyer’s representations and warranties contained in this Agreement Ownership or Operation of the Transaction Documents;Business. (b) Any breach by Buyer of shall not be required to provide indemnification to any of Buyer’s covenants, agreements or obligations contained in this Agreement or the Transaction Documents;Seller Indemnified Party: (ci) All Assumed Liabilities; pursuant to Section 8.2(a)(i) (dother than with respect to Fraud or any Buyer Fundamental Representation) Any injury tounless the aggregate amount of Losses (excluding any claims that are not indemnifiable pursuant to Section 8.2(b)(ii)) actually incurred by the Seller Indemnified Parties in respect of all claims against Buyer for indemnification under Section 8.2(a)(i) (other than with respect to Fraud or any Buyer Fundamental Representation) exceeds the Deductible, or death of, any person or and then the Seller Indemnified Parties shall be entitled to indemnification for damage to property arising only the amount in any way from the access afforded to Buyer hereunder or the activities of Buyer in connection with its on-site inspection excess of the Purchased Assets unless the injury, death, or damage arises from Seller’s gross negligence or willful misconduct; (e) Buyer Operations post-Closing, including Buyer’s obligations regarding post-closing operations under the Purchased Permits; (f) Seller’s guarantee obligations under Section 18(a) of the Cotiga South Lease and the Lease Guarantee Agreement; (g) Seller’s guarantee obligations under Section 18(a) of any Cotiga North/Association Lease and the applicable Lease Guarantee AgreementDeductible; and (hii) Until the Seller Bonds posted for any single claim or aggregated claims arising out of substantially similar events, facts or circumstances under Section 8.2(a)(i) (other than with respect to all Purchased Permits have been released, Fraud or any draw on Buyer Fundamental Representation) unless the amount of such Seller Bonds after Closing related to claim or aggregated claims arising out of substantially similar events, facts or circumstances exceeds the Reclamation Liabilities that are Assumed Liabilities or that result from Buyer Operations after ClosingDe Minimis Amount.