Common use of Agreement to Indemnify Clause in Contracts

Agreement to Indemnify. (a) From and after the Closing Date, Buyers shall indemnify, defend and hold harmless Stockholders and any affiliate of Stockholders and each of Stockholders' respective agents and representatives, and Stockholders' heirs, executors, successors and assigns (collectively, "Stockholders' Indemnified Group") from and against any liability, loss, damage, claim (including third-party claims, whether or not meritorious), cost or expense (including, without limitation, reasonable attorneys' fees and disbursements) (collectively, "Losses") incurred or suffered by Stockholders' Indemnified Group to the extent the Losses arise out of, or result from (i) the failure of any representation or warranty made by Buyers herein or in any Ancillary Document to have been true when made and as of the Closing Date, or (ii) the breach of any covenant or agreement of Buyers contained herein or in any Ancillary Document. (b) From and after the Closing Date, Stockholders shall indemnify, defend and hold harmless Buyers and any affiliate of Buyers and each of their respective directors, officers, employees, agents and representatives, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, "Buyers' Indemnified Group") from and against all Losses incurred or suffered by Buyers' Indemnified Group to the extent the Losses arise out of, or result from (i) the failure of any representation or warranty made by Stockholders herein or in any Ancillary Document to have been true when made and as of the Closing Date, (ii) the breach of any covenant or agreement of Stockholders contained herein or in any Ancillary Document, or (iii) any asset, property right, obligation, or liability of the Company not primarily related to the Business including, without limitation, any of the foregoing arising out of the discontinued operation of the Company. Business including, without limitation, any of the foregoing arising out of the discontinued operation of the Company.

Agreement to Indemnify. (a) From Each Company Noteholder will severally, and after the Closing Datenot jointly, Buyers shall indemnifybased on each Company Noteholder’s Pro Rata Share, defend indemnify and hold harmless Stockholders Acquirer, the Surviving Corporation and any affiliate of Stockholders and each of Stockholders' respective agents and representatives, and Stockholders' heirs, executors, successors and assigns (collectively, "Stockholders' Indemnified Group") from and against any liability, loss, damage, claim (including third-party claims, whether or not meritorious), cost or expense (including, without limitation, reasonable attorneys' fees and disbursements) (collectively, "Losses") incurred or suffered by Stockholders' Indemnified Group to the extent the Losses arise out of, or result from (i) the failure of any representation or warranty made by Buyers herein or in any Ancillary Document to have been true when made and as of the Closing Date, or (ii) the breach of any covenant or agreement of Buyers contained herein or in any Ancillary Document. (b) From and after the Closing Date, Stockholders shall indemnify, defend and hold harmless Buyers and any affiliate of Buyers and each of their respective directors, officers, agents, representatives, stockholders and employees, agents and representatives, and each Person, if any, who controls or may control Acquirer or the Surviving Corporation within the meaning of the heirsSecurities Act or the Exchange Act (each, executorsan “Indemnified Person” and, successors and assigns of any of the foregoing (collectively, "Buyers' the “Indemnified Group"Persons”) from and against any and all Losses incurred claims, demands, suits, actions, causes of actions, losses, reductions in value, costs, damages, Liabilities and expenses, including reasonable attorneys’ fees, other professionals’ and experts’ reasonable fees, and court or suffered by Buyers' Indemnified Group to the extent the Losses arise arbitration costs without reduction for any tax benefit (collectively, “Damages”), directly or indirectly incurred, paid or accrued in connection with, resulting from or arising out of, or result from : (i) any inaccuracy, misrepresentation or default in, or breach of, any of the failure of any representation representations, warranties or warranty covenants given or made by Stockholders herein Company in this Agreement, the Company Disclosure Letter or in any Ancillary Document to have been true when made and as agreement, certificate or document delivered by or on behalf of the Closing DateCompany or an officer of Company pursuant hereto, (ii) (A) any claim of any interest in Sub or Acquirer by Genesys Telecommunications Laboratories, Inc. (“Genesys”) based on a warrant of the Company held by Genesys as of the Closing, any exercise or attempted exercise of such warrant by Genesys following the Closing, or any claim by Genesys of a breach of any covenant such warrant by Company, Sub or agreement of Stockholders contained herein or in any Ancillary DocumentAcquirer, or (iiiB) any assetinfringement or claimed infringement by Company of any patents of Genesys or any of its Affiliates (any claim under this subsection (ii) shall hereinafter be referred to as a “Special Indemnity Claim”). (b) Each Company Noteholder will severally, property rightand not jointly, obligationindemnify and hold harmless the Indemnified Persons from and against any and all Damages directly or indirectly incurred, paid or accrued in connection with, resulting from or arising out of any inaccuracy, misrepresentation or default in, or liability of the Company not primarily related to the Business including, without limitationbreach of, any of the foregoing arising out of the discontinued operation of the Company. Business includingrepresentations, without limitation, any of the foregoing arising out of the discontinued operation of the Companywarranties or covenants given or made by such Company Noteholder in such Company Noteholder’s Investment Representation Letter.”

Agreement to Indemnify. (a) From Each Company Member will severally, and after the Closing Datenot jointly, Buyers shall indemnifyin proportion to each Company Member's Pro Rata Ownership Percentage, defend indemnify and hold harmless Stockholders harmless, Parent and any affiliate of Stockholders the Surviving Corporation and their respective officers, directors, agents, representatives, stockholders and employees, and each Person, if any, who controls or may control Parent or the Surviving Corporation within the meaning of Stockholders' respective agents the Securities Act or the Exchange Act (each hereinafter referred to individually as a "Parent Indemnified Person" and representatives, and Stockholders' heirs, executors, successors and assigns (collectively, collectively as "Stockholders' Parent Indemnified GroupPersons") from and against any liability, loss, damage, claim (including third-party and all claims, whether or not meritorious)demands, cost or expense (includingsuits, without limitationactions, causes of actions, losses, costs, damages, liabilities and expenses including reasonable attorneys' fees, other professionals' and experts' reasonable fees and disbursementscourt or mediation or arbitration costs (reduced by any tax benefit actually claimed Parent calculated after taking into account recovery under this Agreement) (collectively, hereinafter collectively referred to as "LossesDamages") incurred directly or suffered by Stockholders' Indemnified Group to the extent the Losses arise indirectly incurred, resulting from or arising out of any inaccuracy, misrepresentation, breach of, or result from (i) default in, any of the failure of any representation representations, warranties or warranty covenants given or made by Buyers herein the Company in this Agreement or in the Company Disclosure Letter or in any Ancillary Document to have been true when made and as agreement or certificate delivered by or on behalf of the Closing Date, Company or (ii) an officer of the breach of any covenant or agreement of Buyers contained herein or in any Ancillary Document.Company pursuant hereto; and (b) From Each Company Member will individually and after the Closing Date, Stockholders shall indemnify, defend severally indemnify and hold harmless Buyers and any affiliate of Buyers and each of their respective directors, officers, employees, agents and representatives, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, "Buyers' Parent Indemnified Group") Persons from and against any and all Losses Damages directly or indirectly incurred in connection with, resulting from or suffered by Buyers' Indemnified Group to the extent the Losses arise and arising out of (i) any inaccuracy, misrepresentation, breach of, or result from (i) the failure of any representation or warranty made by Stockholders herein or in any Ancillary Document to have been true when made and as of the Closing Date, (ii) the breach of any covenant or agreement of Stockholders contained herein or in any Ancillary Document, or (iii) any asset, property right, obligation, or liability of the Company not primarily related to the Business including, without limitationdefault in, any of the foregoing arising out representations, warranties or covenants given or made by a Company Member in such Company Member's Voting Agreement; and (ii) any excess Parent Closing Adjustment of the discontinued operation such Member not satisfied by Parent's retention of the Company. Business including, without limitation, any of the foregoing arising out of the discontinued operation of the CompanyDeferred Closing Adjustment Consideration pursuant to Section 2.5.

Agreement to Indemnify. a. The Sellers and the Equity Owners jointly and severally agree to indemnify and hold Buyer and Parent (a) From and after the Closing DateClosing, Buyers shall indemnifythe Acquired Companies) and their respective shareholders, defend and hold harmless Stockholders and any affiliate of Stockholders and each of Stockholders' respective agents and representativesmembers, directors, officers, and Stockholders' heirsemployees (“Buyer Indemnified Parties”) harmless from and against the aggregate of all expenses (including reasonable attorney and other professional fees and expenses and court costs), executorslosses, successors costs, judgments, deficiencies, diminution in value, liabilities and assigns damages (collectively, "Stockholders' “Losses”) arising out of or resulting from (x) any breach of a representation or warranty made by the Sellers or the Equity Owners in or pursuant to this Agreement, (y) any breach of the covenants or agreements made by the Sellers or the Equity Owners in or pursuant to this Agreement, and (z) any inaccuracy in any certificate delivered by the Representatives pursuant to this Agreement. Notwithstanding the foregoing provisions of Section 10.1(a), the following limitations shall apply: i. If a Buyer Indemnified Group") from and against Party suffers a Loss as a result of any liability, loss, damage, claim breach of a representation or warranty in or pursuant to Article IVA of this Agreement (including third-party claimsany certificate related thereto) made by ASAP Investors and/or by an Equity Owner of ASAP Investors, whether such Buyer Indemnified Party shall be indemnified jointly and severally by all of ASAP Investors and each Equity Owner of ASAP Investors, but such Buyer Indemnified Party shall have no right to indemnification from CRG Investors or not meritorious)any Equity Owner of CRG Investors. ii. If a Buyer Indemnified Party suffers a Loss as a result of any breach of a representation or warranty in or pursuant to Article IVB of this Agreement (including any certificate related thereto) made by CRG Investors and/or an Equity Owner of CRG Investors, cost such Buyer Indemnified Party shall be indemnified jointly and severally by all of CRG Investors and each Equity Owner of CRG Investors, but such Buyer Indemnified Party shall have no right to indemnification from ASAP Investors or expense (including, without limitation, reasonable attorneys' fees and disbursements) (collectively, "Losses") incurred or suffered by Stockholders' any Equity Owner of ASAP Investors. iii. If a Buyer Indemnified Group to the extent the Losses arise out of, or Party suffers a Loss as a result from of (i) any breach of a representation or warranty made by the failure Equity Owners in or pursuant to Article IVC of this Agreement (including any certificate related thereto), or (ii) any breach of the covenants or agreements made by the Equity Owners in or pursuant to this Agreement, such Buyer Indemnified Party shall be indemnified (A) in the case of a breach by a Seller Member, jointly and severally by the breaching Seller Member and each Individual Owner of such Seller Member, but such Buyer Indemnified Party shall have no right to indemnification from the Sellers, the other Seller Members or their respective Individual Owners, and (B) in the case of a breach by an Individual Owner, solely by the breaching Individual Owner, but such Buyer Indemnified Party shall have no right to indemnification from the Sellers, any Seller Members or any other Individual Owner. iv. In the event that at or prior to the Closing, any of Xxxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxx Xxxxx or Xxxx Xxxxxxxxxx has actual knowledge that the Sellers or the Equity Owners breached any representation or warranty made by Buyers herein them in Article III of this Agreement, then Parent and Buyer (on behalf of any and all Buyer Indemnified Parties) waive their rights to seek indemnification for any Losses arising out of such breach and Parent and Buyer acknowledge that, to the extent of such actual knowledge, they did not rely upon such representation or in warranty made by the Sellers and the Equity Owners. b. The Sellers and the Equity Owners jointly and severally agree to indemnify and hold Buyer Indemnified Parties harmless from and against all Losses arising out of or resulting from (i) all Transaction Expenses and (ii) all Environmental, Health, and Safety Liabilities incurred by any Ancillary Document to Buyer Indemnified Party as a result of a Third Party Claim that Hazardous Materials are present at or have been true when made and Released to or from that portion of the Company Owned Real Property located in Winston-Salem, North Carolina (A) being considered by the North Carolina Department of Transportation for acquisition of additional right of way for U.S. Highway 52 or for construction of roadway improvements following therefrom or (B) being formerly owned by Virginia-Carolina Chemical Company or (C) being formerly owned by Carolina Ore Company or (D) being the Xxxxx Branch, regardless of the source of such Hazardous Materials. Notwithstanding the foregoing, with regard to the Company Owned Real Property described in subparagraph (D), the indemnification provided by this Section 10.1(b)(ii) shall not apply to Third Party Claims for Hazardous Materials present or Released as a result of the operation of normal scrap operations at such Company Owned Real Property. After the third (3rd) anniversary of the Closing Date, or (iiParent and Buyer shall, and shall cause any other Buyer Indemnified Parties to, seek indemnification pursuant to Section 10.1(b)(ii) the breach of any covenant or agreement of Buyers contained herein or in any Ancillary Documentfirst from ASAP Investors and its direct and indirect Equity Owners prior to seeking indemnification from CRG Investors and its direct and indirect Equity Owners. (b) From c. Parent and after the Closing Date, Stockholders shall indemnify, defend Buyer jointly and severally agree to indemnify and hold harmless Buyers the Sellers and any affiliate of Buyers the Equity Owners and each of their respective shareholders, members, directors, officers, employees, agents and representatives, and each of the heirs, executors, successors and assigns of any of the foregoing employees (collectively, "Buyers' “Seller Indemnified Group"Parties”) harmless from and against all Losses incurred arising out of or suffered by Buyers' Indemnified Group to the extent the Losses arise out of, or result resulting from (i) the failure any breach of any a representation or warranty made by Stockholders herein Parent or Buyer in any Ancillary Document or pursuant to have been true when made and as of the Closing Datethis Agreement, (ii) the breach of any covenant or agreement of Stockholders contained herein or inaccuracy in any Ancillary Documentcertificate delivered by Parent or Buyer pursuant to this Agreement, or and (iii) any asset, property right, obligation, or liability breach of the Company not primarily related covenants or agreements made by Parent or Buyer in or pursuant to this Agreement. d. For purposes of determining whether a representation or warranty contained in Article III has been breached, any references therein to “materiality” or a “Material Adverse Effect” shall be considered in such determination. In the event any such representation or warranty qualified by “materiality” or a “Material Adverse Effect” has been breached, the parties’ indemnification obligations and the calculation of Losses shall be determined as if all references to “materiality” or a “Material Adverse Effect” were removed from such representation and warranty, other than the representations and warranties in Section 3.27, and the provisions of Section 10.1(e) shall apply. e. Notwithstanding the foregoing provisions in this Article X, except in the case of fraud or intentional misrepresentation, no claim for Losses arising under Sections 10.1(a) and 10.1(c), other than those Losses arising from any breach of representation or warranty in Sections 3.1, 3.2, 3.6(a), 3.6(c), 3.12, 4A.1, 4A.2, 4A.3, 4A.4, 4B.1, 4B.2, 4B.3, 4B.4, 4C.1, 4C.2, 4C.3, 5.1, 5.2, 5.3 and 5.4 (“Excluded Representations”), shall be asserted by a Buyer Indemnified Party or by a Seller Indemnified Party, respectively, until the aggregate of all such Losses suffered by the Buyer Indemnified Parties on the one hand, and the Seller Indemnified Parties on the other hand, exceeds the sum of $5,000,000 (the “Deductible Amount”) in which case the parties entitled to indemnification shall be entitled to only the amount of their aggregate Losses in excess of the Deductible Amount. Pursuant to this Section 10.1, except in the case of fraud or intentional misrepresentation, the maximum aggregate amount recoverable by Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, with respect to Losses arising from a claim under Sections 10.1(a), 10.1(b)(ii) and 10.1(c) (other than the Excluded Representations) shall be $25,000,000 with respect to the Business includingBuyer Indemnified Parties, without limitationon the one hand, any of and the foregoing arising out of Seller Indemnified Parties, on the discontinued operation of the Company. Business including, without limitation, any of the foregoing arising out of the discontinued operation of the Companyother hand.

Agreement to Indemnify. (a) From VeriSign (and after not any of the Closing Date, Buyers shall indemnify, defend other Sellers) will indemnify and hold harmless Stockholders Buyer, LLC and any affiliate of Stockholders their respective officers, directors, members, managers, agents, representatives and employees, and each Person, if any, who controls or may control Buyer or LLC within the meaning of Stockholders' the Securities Act or the Exchange Act (each hereinafter referred to individually as a “Buyer Indemnified Person” and collectively as “Buyer Indemnified Persons”), from and against any and all claims, demands, suits, actions, causes of actions, losses, costs, damages, Liabilities and expenses, including reasonable attorneys’ fees and costs (hereinafter collectively referred to as “Damages”), directly or indirectly incurred, paid or accrued in connection with or resulting from or and arising out of: (i) any inaccuracy, misrepresentation, breach of, or default in, any of the representations or warranties given or made by Sellers in this Agreement, the Contribution Agreement or any Seller Ancillary Agreement or any certificate delivered pursuant to Section 8.1 or Section 8.2; (ii) any Retained Liabilities; or (iii) any breach of a covenant made by Sellers in this Agreement, the Contribution Agreement or the Assignment Documents. (b) Buyer and LLC will indemnify and hold harmless, Sellers and their respective agents and officers, directors, agents, representatives, stockholders and Stockholders' heirsemployees, executorsand each Person, successors if any, who controls or may control Sellers within the meaning of the Securities Act or the Exchange Act (each hereinafter referred to individually as a “VeriSign Indemnified Person” and assigns (collectively, "Stockholders' collectively as “VeriSign Indemnified Group"Persons”) from and against any liabilityand all Damages directly or indirectly incurred, losspaid or accrued in connection with or resulting from or arising out of: (i) any inaccuracy, damagemisrepresentation, claim (including third-party claims, whether or not meritorious), cost or expense (including, without limitation, reasonable attorneys' fees and disbursements) (collectively, "Losses") incurred or suffered by Stockholders' Indemnified Group to the extent the Losses arise out breach of, or result from (i) default in, any of the failure of any representation representations or warranty warranties given or made by Buyers herein Buyer in this Agreement, the Contribution Agreement or in any Buyer Ancillary Document Agreement or any certificate delivered pursuant to have been true when made and as of the Closing Date, Section 7.1 or Section 7.2; (ii) the breach of any covenant or agreement of Buyers contained herein or in any Ancillary Document. (b) From and Assumed Liabilities after the Closing Date, Stockholders shall indemnify, defend and hold harmless Buyers and any affiliate of Buyers and each of their respective directors, officers, employees, agents and representatives, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, "Buyers' Indemnified Group") from and against all Losses incurred or suffered by Buyers' Indemnified Group to the extent the Losses arise out of, or result from (i) the failure of any representation or warranty made by Stockholders herein or in any Ancillary Document to have been true when made and as of the Closing Date, (ii) the breach of any covenant or agreement of Stockholders contained herein or in any Ancillary Document, ; or (iii) any assetbreach of a covenant made by Buyer or LLC in this Agreement, property right, obligation, the Contribution Agreement or liability the Assignment Documents. (c) Any claim of the Company not primarily related indemnity made by an Indemnified Person under Section 10.2 must be raised in a Notice of Claim delivered to the Business includingIndemnifying Person in accordance with Section 11.7 no later than the applicable Release Date and, without limitationif raised by such Release Date, any of such claim shall survive the foregoing arising out of the discontinued operation of the Company. Business including, without limitation, any of the foregoing arising out of the discontinued operation of the CompanyRelease Date until final resolution thereof.

Agreement to Indemnify. (a) From and after the Closing Date, Buyers shall i. The Company agrees to indemnify, defend and hold harmless Stockholders the Purchasers (and any affiliate of Stockholders their respective officers, directors, affiliates and each of Stockholders' respective agents and representatives, and Stockholders' heirs, executors, successors and assigns (collectively, "Stockholders' Indemnified Group"permitted assigns) from and against any liabilityand all losses, lossclaims, damageliabilities, claim damages, deficiencies, costs or expenses (including third-party claimsinterest, whether or not meritorious), cost or expense (including, without limitation, penalties and reasonable attorneys' fees fees, disbursements and disbursementsrelated charges) (collectively, "Losses") incurred based upon, arising out of or suffered otherwise in respect of any inaccuracy in or breach of any representations or warranties made by Stockholders' Indemnified Group the Company contained in this Agreement or the failure of the Company to perform any of its agreements or covenants contained herein, except to the extent the such Losses are based upon, arise out of, of or result from (i) are otherwise in respect of any inaccuracy in or breach of any representations or warranties made by the Purchasers contained in this Agreement or the failure of the Purchasers to perform any representation of their agreements or warranty made by Buyers herein or in any Ancillary Document to have been true when made and as of the Closing Date, or (ii) the breach of any covenant or agreement of Buyers covenants contained herein or in any Ancillary Documentherein. (b) From ii. Each Purchaser, severally and after the Closing Datenot jointly, Stockholders shall agrees to indemnify, defend and hold harmless Buyers the Company (and any affiliate of Buyers and each of their respective its officers, directors, officers, employees, agents affiliates and representatives, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, "Buyers' Indemnified Group"permitted assigns) from and against any and all Losses incurred based upon, arising out of or suffered otherwise in respect of (1) any inaccuracy in or breach of any representations or warranties made by Buyers' Indemnified Group to such Purchaser contained in this Agreement or any action taken by the extent Company or its affiliates in reliance upon the Losses arise out of, accuracy of such representations or result from warranties or (i2) the failure of such Purchaser to perform any representation of its agreements or warranty made by Stockholders herein covenants contained herein, except to the extent such Losses are based upon, arise out of or are otherwise in respect of any Ancillary Document to have been true when made and as of the Closing Date, (ii) the inaccuracy in or breach of any covenant representations or agreement of Stockholders warranties made by the Company contained herein in this Agreement or in any Ancillary Document, or (iii) any asset, property right, obligation, or liability the failure of the Company not primarily related to the Business including, without limitation, perform any of its agreements or covenants contained herein. Notwithstanding the foregoing arising out foregoing, each Purchaser's indemnification obligations hereunder shall be limited to such Purchaser's proportionate share of the discontinued operation of the Company. Business including, without limitation, any of the foregoing arising out of the discontinued operation of the CompanyPurchase Price.

Agreement to Indemnify. (a) From and after the Closing Date, Buyers each party shall indemnify, defend defend, and hold harmless Stockholders the other party hereto and any affiliate of Stockholders and each of Stockholders' respective agents and representatives, and Stockholders' heirs, executors, successors and assigns (collectively, "Stockholders' Indemnified Group") from and against any liability, loss, damage, claim (including third-party claims, whether or not meritorious), cost or expense (including, without limitation, reasonable attorneys' fees and disbursements) (collectively, "Losses") incurred or suffered by Stockholders' Indemnified Group to the extent the Losses arise out of, or result from (i) the failure of any representation or warranty made by Buyers herein or in any Ancillary Document to have been true when made and as Affiliate of the Closing Date, or (ii) the breach of any covenant or agreement of Buyers contained herein or in any Ancillary Document. (b) From and after the Closing Date, Stockholders shall indemnify, defend and hold harmless Buyers and any affiliate of Buyers other party and each of their respective directors, officers, employees, agents and representatives, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the "Buyers' Indemnified Group") from and against any and all Losses incurred or suffered by Buyers' any of the Indemnified Group to the extent that the Losses arise out of, or result from (ix) the failure of any representation or warranty made by Stockholders herein or contained in any Ancillary Document this Agreement to have been true when made and as of the Closing Date, ; or (iiy) the material breach of any covenant or agreement of Stockholders contained herein the indemnifying party which survives the Closing to the extent not waived by the other party hereto. No indemnity may be sought pursuant to this Section 10.1 with respect to any of the representations and warranties unless written notice ("Notice") thereof, setting forth in reasonable detail the claimed misrepresentation or breach of warranty, shall have been delivered to the party alleged to have breached such representation or warranty prior to the expiration of such representation or warranty. (b) From and after the Closing Date, the Seller shall indemnify, defend and hold harmless the Buyer and the Buyer's Indemnified Group from and against all Losses to the extent the Losses arise out of or result from any employee matters to the extent provided for in the Employee Matters Agreement. (c) From and after the Closing Date, the Buyer shall indemnify, defend and hold harmless the Seller and the Seller's Indemnified Group from and against all Losses to the extent the Losses arise out of or result from (i) any Ancillary Document, or employee matters to the extent provided for in the Employee Matters Agreement; (ii) any taxes of the Company due in respect of any period ending after the Closing; (iii) any assetfailure of the Buyer to discharge any of the Assumed Liabilities whether known or unknown, property right, obligationaccrued or contingent, or liability now or subsequently incurred; or (iv) any Losses of the Company not primarily related to or any of its Subsidiaries or Affiliates or arising out of or resulting from any of the Business businesses, assets, operations or activities of the Company, any of its Subsidiaries or Affiliates (including any predecessor of the Company, any Subsidiary or any Affiliate, and any former business, asset, operation, activity or subsidiary of any of the foregoing) heretofore, currently or hereafter owned or conducted, as the case may be, including, without limitation, any Losses based on negligence, gross negligence, strict liability or any other theory of liability, whether in law (whether common or statutory) or equity. The Company shall be jointly and severally liable for the foregoing arising out of the discontinued operation of the Company. Business Buyer's indemnification obligations pursuant to this Agreement, including, without limitation, any of the foregoing arising out of the discontinued operation of the Companypursuant to this Section 10.

Agreement to Indemnify. (a) From and after the Closing Date, Buyers shall Shareholder agrees to indemnify, defend and hold harmless Stockholders Buyer and any affiliate of Stockholders its Affiliates (including after the Closing, Company) and each of Stockholders' their respective successors, officers, directors, employees, representatives and agents and representatives, and Stockholders' heirs, executors, successors and assigns (collectively, "Stockholders' Indemnified Group"the “Buyer Indemnitees”) from from, against and against in respect of any liability, loss, damage, claim (including third-party claims, whether and all Losses incurred by any Buyer Indemnitee arising out of or not meritorious), cost or expense (including, without limitation, reasonable attorneys' fees and disbursements) (collectively, "Losses") incurred or suffered by Stockholders' Indemnified Group to the extent the Losses arise out as a result of, or result from : (i) the failure any inaccuracy or misrepresentation in or breach of any representation or warranty made in Article IV or Article V; (ii) any breach by Buyers herein Shareholder of any covenant contained in this Agreement or in any Ancillary Document other Transaction Agreement; (iii) any Liabilities arising out of acts or omissions prior to have been true when made and the Closing; (iv) any Liabilities in respect of any Taxes (or any nonpayment thereof) for any Pre-Closing Tax Period; (v) any Proceeding pending or threatened as of the Closing DateClosing, whether or not listed in Schedule 4.7 or Schedule 5.3; (iivi) any Debt of Company existing as of the Effective Time that is not taken into account in the calculation of Net Cash; (vii) any Transaction Expenses in excess of the amounts listed on the Transaction Expenses Schedule; or (viii) any inaccuracy or misrepresentation in or breach of any covenant representation or agreement of Buyers contained herein or warranty made in any Ancillary DocumentSection 4.16(k). (bx) From and after the Closing Date, Stockholders shall Xxxxx agrees to indemnify, defend and hold harmless Buyers Shareholder from, against and any affiliate of Buyers and each of their respective directors, officers, employees, agents and representatives, and each of the heirs, executors, successors and assigns in respect of any of the foregoing (collectively, "Buyers' Indemnified Group") from and against all Losses incurred by Shareholder arising out of or suffered by Buyers' Indemnified Group to the extent the Losses arise out as a result of, or result from : (i) the failure any inaccuracy or misrepresentation in or breach of any representation or warranty made in Article VI of this Agreement; (ii) any breach by Stockholders herein Buyer of any covenant contained in this Agreement or in any Ancillary Document to have been true when made and as of the Closing Date, (ii) the breach of any covenant or agreement of Stockholders contained herein or in any Ancillary Document, or other Transaction Agreement; or (iii) any asset, property right, obligation, or liability of the Company not primarily related to the Business including, without limitation, any of the foregoing Liabilities arising out of acts or omissions of Buyer or Company following the discontinued operation Closing, except to the extent such Liabilities (A) are attributable to any breach of the Company. Business includingany representation, without limitation, any warranty or covenant of the foregoing arising out of the discontinued operation of the CompanyShareholder or Company contained herein or (B) are covered by Shareholder’s indemnification obligations under Section 10.1(a) hereof.

Agreement to Indemnify. (a) From and after the Closing Date, Buyers shall indemnify, defend and hold harmless the Stockholders and any affiliate of the Stockholders and each of the Stockholders' respective agents and representatives, and Stockholders' heirs, executors, successors and assigns (collectively, "Stockholders' Indemnified Group") from and against any liability, loss, damage, claim (including third-party claims, whether or not meritorious), cost or expense (including, without limitation, reasonable attorneys' fees and disbursements) (collectively, "Losses") incurred or suffered by Stockholders' Indemnified Group to the extent the Losses arise out of, or result from (i) the failure of any representation or warranty made by Buyers herein or in any Ancillary Document to have been true when made and as of the Closing Date, or (ii) the breach of any covenant or agreement of Buyers contained herein or in any Ancillary Document. (b) From and after the Closing Date, Stockholders shall indemnify, defend and hold harmless Buyers and any affiliate of Buyers and each of their respective directors, officers, employees, agents and representatives, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, "Buyers' Indemnified Group") from and against all Losses incurred or suffered by Buyers' Indemnified Group to the extent the Losses arise out of, or result from (i) the failure of any representation or warranty made by Stockholders herein or in any Ancillary Document to have been true when made and as of the Closing Date, (ii) the breach of any covenant or agreement of the Stockholders contained herein or in any Ancillary Document, or (iii) any asset, property right, obligation, or liability claim made by a Stockholder pursuant to Section 262 of the Company not primarily related to the Business including, without limitation, any of the foregoing arising out of the discontinued operation of the Company. Business including, without limitation, any of the foregoing arising out of the discontinued operation of the CompanyDelaware General Corporation Law.

Agreement to Indemnify. (a) From and after the Closing DateClosing, Buyers shall and subject to the terms and conditions of this Agreement, the Indemnitors jointly and severally covenant and agree to indemnify, defend and hold harmless Stockholders Xxxx-Xxxx, and any affiliate other Person controlling, controlled by or under common control with Xxxx-Xxxx, including any officer, director, stockholder, partner, member, employee, agent or representative of Stockholders any of them (a "Xxxx-Xxxx Affiliate"), from and each against all claims, judgments, assessments, losses, damages, liabilities, costs and expenses, including without limitation interest, penalties and reasonable fees and expenses of Stockholders' respective agents and representatives, and Stockholders' heirs, executors, successors and assigns legal counsel chosen by Xxxx-Xxxx or a Xxxx-Xxxx Affiliate (collectively, "Stockholders' Indemnified GroupDamages"), imposed upon or incurred by Xxxx- Xxxx, or any Xxxx-Xxxx Affiliate arising out of or in connection with or resulting from any and all 361 claims or threatened claims (collectively, "Claims") from relating to the following: (i) the fairness, appropriateness, authority and against legal sufficiency of the allocation of the Exchange Consideration and the Units amongst the Contributors and their partners under the Contribution and Exchange Agreements, which allocation has been determined by the Indemnitors and the Contributors in their sole discretion immediately preceding the Closing; (ii) the distribution or allocation of any of the Units, and/or cash received by any Contributor at the Closing or to such entity's partners, shareholders, members, beneficiaries or other individuals or entities having a legal or beneficial ownership interest in such entity and/or the appropriateness or legal sufficiency of any such distribution or allocation; (iii) with regard to any Property conveyed to Xxxx-Xxxx by assignment of Contributed Interests, any failure to convey to Xxxx-Xxxx one hundred percent (100%) of the Contributed entities comprised of such Contributed Interests; (iv) with regard to any Property conveyed to Xxxx-Xxxx, any failure to obtain any necessary partner or member consent to such transfer and/or assignment; (v) any breach of the representations and warranties of the Contributors, Apollo and other Property owners set forth in the Contribution and Exchange Agreements to the extent they would be liable for such breach under said agreements; and/or (vi) with respect to the Contributed Interests and/or the Property, any direct or indirect indebtedness, liability, lossclaim or loss that accrued prior to Closing, damageto the extent Contributors would be liable for the same under the Contribution and Exchange Agreements, claim (including third-party claimswhether known or unknown, fixed or unfixed, xxxxxx or inchoate, liquidated or unliquidated, secured or unsecured, accrued, absolute, contingent or otherwise, whether or not meritorious)of a kind required by GAAP to be set forth on the Property Financials or in the notes thereto, cost or expense (including, without limitation, reasonable attorneys' fees and disbursements) indebtedness for borrowed money (collectively, "LossesLiabilities") incurred or suffered by Stockholders' Indemnified Group ), unless such Liabilities were fully and accurately reflected on a schedule to the extent Contribution and Exchange Agreements and/or the Losses arise out of, or result from (i) the failure of any representation or warranty made Property Financials and expressly approved by Buyers herein or in any Ancillary Document to have been true when made and as of the Closing Date, or (ii) the breach of any covenant or agreement of Buyers contained herein or in any Ancillary DocumentXxxx-Xxxx. (b) From and after the Closing Date, Stockholders shall indemnify, defend and hold harmless Buyers and any affiliate of Buyers and each of their respective directors, officers, employees, agents and representatives, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, "Buyers' Indemnified Group") from and against all Losses incurred or suffered by Buyers' Indemnified Group to the extent the Losses arise out of, or result from (i) the failure of any representation or warranty made by Stockholders herein or in any Ancillary Document to have been true when made and as of the Closing Date, (ii) the breach of any covenant or agreement of Stockholders contained herein or in any Ancillary Document, or (iii) any asset, property right, obligation, or liability of the Company not primarily related to the Business including, without limitation, any of the foregoing arising out of the discontinued operation of the Company. Business including, without limitation, any of the foregoing arising out of the discontinued operation of the Company.

Agreement to Indemnify. (a) From and after the Closing Date, Buyers shall upon the terms and subject to the conditions of this Article IX, (i) the Non-Management Shareholders hereby agree, jointly and severally, to indemnify, defend and hold harmless Stockholders the Buyer and any affiliate of Stockholders its affiliates, officers, directors, employees and each of Stockholders' respective agents and representativesagents, and Stockholders' heirs, executors, successors and assigns including the Company (collectively, the "Stockholders' Indemnified Buyer Group") ), from and against any and all loss, liability, loss, damage, claim damage or deficiency (including third-party claimsinterest, whether or not meritorious), cost or expense (including, without limitation, penalties and reasonable attorneys' fees and disbursementsfees) (collectivelythat the Buyer Group may suffer, "Losses") incurred sustain, incur, or suffered by Stockholders' Indemnified Group to the extent the Losses arise become subject based upon, arising out of, or result resulting from (ix) any breach by the failure Company or the Non-Management Shareholders of any representation or warranty made by Buyers herein contained in this Agreement or in any Ancillary Document closing document delivered to have been true when made and as the Buyer in connection herewith; (y) the failure of the Closing DateCompany or the Non-Management Shareholders to perform their covenants, undertakings and obligations under this Agreement, and (z) any liability of the Company, not attributable to the Company, for Taxes of any person under Treasury Regulation Section 1.1502.6 (or any similar provision of state, local or foreign law) as transferor or successor, by contract or otherwise, and (ii) the breach of any covenant or agreement of Buyers contained herein or in any Ancillary Document.McGaxxx xxxeby (b) From and after the Closing Date, Stockholders shall upon the terms and subject to the conditions of this Article IX, the Buyer, jointly and severally, hereby agrees to indemnify, defend and hold harmless Buyers and any affiliate of Buyers and each of their respective directors, officers, employees, agents and representatives, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, "Buyers' Indemnified Group") Selling Shareholders from and against any and all Losses incurred loss, liability, damage or suffered by Buyersdeficiency (including interest, penalties and reasonably attorneys' Indemnified Group to fees) that the extent the Losses arise Selling Shareholders may suffer, sustain, incur or become subject based upon, arising out of, or result resulting from (i) any breach by the failure Buyer of any representation or warranty made by Stockholders herein contained in this Agreement or in any Ancillary Document closing document delivered to have been true when made the Selling Shareholders in connection herewith; and as of the Closing Date, (ii) the breach of any covenant or agreement of Stockholders contained herein or in any Ancillary Document, or (iii) any asset, property right, obligation, or liability failure of the Company not primarily related Buyer to the Business includingperform their respective covenants, without limitation, any of the foregoing arising out of the discontinued operation of the Company. Business including, without limitation, any of the foregoing arising out of the discontinued operation of the Companyundertakings and obligations under this Agreement.

Agreement to Indemnify. (a) From Buyer and after the Closing Date, Buyers shall indemnify, defend and hold harmless Stockholders and any affiliate of Stockholders and each of Stockholders' respective agents and representatives, and Stockholders' heirs, executors, successors and assigns (collectively, "Stockholders' Indemnified Group") from and against any liability, loss, damage, claim its Affiliates (including third-party claims, whether or not meritorious), cost or expense (including, without limitation, reasonable attorneys' fees the Companies) and disbursements) (collectively, "Losses") incurred or suffered by Stockholders' Indemnified Group to the extent the Losses arise out of, or result from (i) the failure of any representation or warranty made by Buyers herein or in any Ancillary Document to have been true when made and as of the Closing Date, or (ii) the breach of any covenant or agreement of Buyers contained herein or in any Ancillary Document. (b) From and after the Closing Date, Stockholders shall indemnify, defend and hold harmless Buyers and any affiliate of Buyers and each of their respective officers, directors, officers, employees, attorneys and agents and representatives, and each of the heirs, executors, successors and assigns of any each of the foregoing (collectively, "Buyers' Indemnified Group"the “Buyer Indemnitees”) from shall each be indemnified and against all Losses incurred or suffered by Buyers' Indemnified Group held harmless to the extent set forth in this Article IX by each Shareholder in respect of any and all Damages reasonably and proximately incurred by any Buyer Indemnitee as a result of or arising out of any inaccuracy or misrepresentation in or breach of any representation, warranty, covenant or agreement made in this Agreement, the Losses arise Ancillary Agreements or any certificate or other document delivered pursuant hereto or thereto or in connection with the Subject Transactions by the Companies or any Shareholder at any time, or, in the event Xxxxxxx takes action to rescind the Settlement Agreement, in respect of any and all Damages relating to that certain letter agreement dated as of January 18, 2006 (relating to phantom stock obligations) by and between Limited and Xxxxxxx . Each Shareholder’s indemnification obligations hereunder shall be several and not joint, in accordance with their respective Pro Rata Portions, except, with respect to any inaccuracy or misrepresentation in or breach of any representation, warranty, covenant or agreement set forth in Article III hereof made by a particular Shareholder, such Shareholder shall be fully liable for any Damages in respect thereof and the Pro Rata Portion of the aggregate amount of indemnification to be paid by such Shareholder as a result of or arising out ofof such Shareholder’s inaccuracy or misrepresentation in or breach of any representation, warranty, covenant or agreement set forth in Article III hereof will equal 100% and each of the other Shareholder’s Pro Rata Portion of such amount of indemnification will equal zero. (b) The Shareholders and their respective Affiliates and their respective attorneys, agents, personal representatives and heirs and the assigns of each of the foregoing (collectively, the “Shareholder Indemnitees”) shall each be indemnified and held harmless to the extent set forth in this Article IX by Buyer in respect of any and all Damages reasonably and proximately incurred by any Shareholder Indemnitee as a result from of or arising out of any inaccuracy or misrepresentation in or breach of any representation, warranty, covenant or agreement made by the Buyer in this Agreement, the Ancillary Agreements or any certificate or other document delivered pursuant hereto or thereto or in connection with the Subject Transactions. (ic) Except to the extent of confidentiality provisions in Section 7.02 in this Agreement, no Person shall have any claim or cause of action as a result of any inaccuracy or misrepresentation in or breach of or failure to perform any representation, warranty, covenant, agreement or obligation of any Indemnifying Party referred to in this Section 9.01 against any Affiliate, member, stockholder, director, officer, employee, consultant or agent of such Indemnifying Party. Nothing set forth in this Article IX shall be deemed to prohibit or limit any Buyer Indemnitee’s or Shareholder Indemnitee’s right at any time before, on or after the Closing Date, to seek injunctive or other equitable relief for the failure of any representation or warranty made by Stockholders herein or in any Ancillary Document Indemnifying Party to have been true when made and as of the Closing Date, (ii) the breach of perform any covenant or agreement contained herein. (d) The Shareholders shall have no obligation to pay any amount of Stockholders contained herein or indemnity pursuant to Section 9.01(a) unless and until the aggregate amount of Damages incurred in respect of all claims for which indemnity would be payable by the Shareholders pursuant to Section 9.01(a) but for this Section 9.01(d) exceeds Two Hundred Fifty Thousand Dollars ($250,000) (the “Deductible”), whereupon the Shareholders shall be liable pursuant to Section 9.01(a), to indemnify the Buyer Indemnitees in an amount equal to each Shareholder’s Pro Rata Portion of all amounts of such Damages over the Deductible; provided, however, that the limitation in this Section 9.01(d) shall not apply with respect to any Ancillary Documentclaim based upon a breach of any of the representations, or warranties, covenants, agreements and obligations set forth in Sections 3.01, 3.02, 3.03, 3.04, 3.06, 4.01, 4.02, 4.03, 4.17 (iii) any asset, property right, obligation, or liability solely to the extent of representations with respect to the ownership of the Company Intellectual Property), 4.18, 4.21 and 6.05 of this Agreement (the “Fundamental Representations”). (e) The aggregate amount of indemnification to be paid by each Shareholder pursuant to Section 9.01(a) of this Agreement shall not primarily related exceed such Shareholder’s Pro Rata Portion of Three Million Five Hundred Thousand Dollars 3,500,000; provided, however, the limitation in this Section 9.01(e) shall not apply with respect to the Business including, without limitation, any claim based upon a breach of any of the foregoing arising out Fundamental Representations. (f) Notwithstanding anything herein to the contrary, the obligation of each Shareholder to indemnify the discontinued operation Buyer Indemnitees under this Article IX in the event of Damages reasonably and proximately incurred by any Buyer Indemnitee as a result of such Shareholder’s fraud or willful misconduct shall not be subject to any Deductible set forth in Section 9.01(d) of this Agreement or to any maximum limitations set forth in Section 9.01(e) of this Agreement. (g) Any indemnification of any Buyer Indemnitee is first required to be effected by one or more offsets of Buyer’s obligation to make any payment described in Sections 2.05 hereof; provided, however, that the Companyremedies available to any Buyer Indemnitee pursuant to this Article IX shall in no way be limited to such rights of offset. (h) Any claim for indemnification shall be reduced by any insurance payment received by the Buyer Indemnitee and any tax benefit actually realized by the Buyer Indemnitee. Business includingShareholder Indemnitees shall not be required to indemnify Buyer Indemnitees for punitive, without limitationspecial, any exemplary, incidental or consequential damages and Buyer Indemnitees waives all rights of the foregoing arising out of the discontinued operation of the Companyrecovery with respect thereto.

Agreement to Indemnify. (a) From Subject to the terms and after the Closing Dateconditions of this Article 7, Buyers shall Company hereby agrees to indemnify, defend and hold harmless Stockholders and any affiliate of Stockholders Merge, Holdings and each of Stockholders' their respective agents directors and representativesofficers, and Stockholders' heirs, executors, successors and assigns (collectively, the "Stockholders' Indemnified Merge Group") from and against any liabilityand all Damages asserted against, lossresulting from, damageimposed on or incurred or suffered by the Merge Group, claim (including third-party claimsdirectly or indirectly, whether with Damages of Company being deemed to be suffered by the Merge Group as a result of or not meritorious), cost or expense (including, without limitation, reasonable attorneys' fees and disbursements) arising from the following (collectively, "LossesMerge Claims") incurred or suffered by Stockholders' Indemnified Group to the extent the Losses arise out of, or result from ): (i) the failure any breach or alleged breach of any representation of the representations or warranty warranties made by Buyers herein Company in this Agreement, in any Transaction Agreement or in any Ancillary Document certificate or other document furnished by or on behalf of Company pursuant to have been true when made and as this Agreement or any of the Closing DateTransaction Agreements (provided, or however, that the Merge Group shall not be entitled to indemnification for Merge Claims pursuant to this clause (i) unless and until the sum of the Damages arising out of such breaches exceeds Cdn. $10,000 in the aggregate (the "Deductible"); and provided further that thereafter, subject to Section 7.3, the Merge Group shall be entitled to indemnification in respect of all Damages arising out of such breaches in excess of the Deductible); and (ii) any failure or alleged failure by Company to perform any of its covenants, obligations or agreements contained in this Agreement, any Transaction Agreement or any certificate or document furnished by or on behalf of Company pursuant to this Agreement or any of the breach of any covenant or agreement of Buyers contained herein or in any Ancillary DocumentTransaction Agreements. (b) From Subject to the terms and after the Closing Dateconditions of this Article 7, Stockholders shall Merge hereby agrees to indemnify, defend and hold harmless Buyers Company from and against any affiliate and all Damages asserted against, resulting from, imposed on or incurred or suffered by Company, directly or indirectly, as a result of Buyers and each of their respective directorsor arising from the following (collectively, officers, employees, agents and representatives, and each of the heirs, executors, successors and assigns "Company Claims"): (i) any breach by Merge of any of the foregoing representations or warranties made by Merge in this Agreement, in any Transaction Agreement or in any certificate or other document furnished by or on behalf of Merge pursuant to this Agreement or any of the Transaction Agreements (collectivelyprovided, "Buyers' Indemnified Group") from and against all Losses incurred or suffered by Buyers' Indemnified Group however, that Company shall not be entitled to the extent the Losses arise out of, or result from indemnification for Company Claims pursuant to this clause (i) unless and until the failure Damages arising out of any representation such breaches exceed U.S. $6,700 and provided further that thereafter, subject to Section 7.3, Company shall be entitled to indemnification in respect of all Damages arising out of such breaches in excess of U.S. $6,700); or warranty made by Stockholders herein or in any Ancillary Document to have been true when made and as of the Closing Date, (ii) the breach any failure or alleged failure by Merge to perform any of its covenants or agreements contained in this Agreement, any covenant Transaction Agreement or agreement any certificate or document furnished by or on behalf of Stockholders contained herein Merge or in any Ancillary Document, pursuant to this Agreement or (iii) any asset, property right, obligation, or liability of the Company not primarily related to the Business including, without limitation, any of the foregoing arising out of the discontinued operation of the Company. Business including, without limitation, any of the foregoing arising out of the discontinued operation of the CompanyTransaction Agreements.

Agreement to Indemnify. (a) From Subject to the limitations hereinafter set forth, from and after the Closing DateClosing, Buyers shall Seller agrees to indemnify, defend and hold harmless Stockholders and any affiliate of Stockholders and each of Stockholders' respective agents and representatives, and Stockholders' heirs, executors, successors and assigns (collectively, "Stockholders' Indemnified Group") the Buyer Group from and against any liabilityand all demands, loss, damage, claim (including third-party claims, whether or not meritorious)losses, cost or expense (includingdamages, liabilities, costs and expenses, including without limitationlimitation interest, costs, penalties and reasonable attorneys' fees (each a "Loss" and disbursements) (collectively, "Losses") ), asserted directly against, resulting directly to, imposed directly upon or incurred or suffered directly by Stockholders' Indemnified any member of the Buyer Group to the extent the Losses arise out of, as a result of or result arising from (i) the failure any inaccuracy in or breach or nonfulfillment of any representation or warranty made by Buyers herein or in any Ancillary Document to have been true when made and as of the Closing Datewarranty, or (ii) the breach of any covenant or agreement of Buyers Seller contained herein in this Agreement, except for inaccuracies or breaches of the representations and warranties contained in Sections 3.14 and 3.18, which are governed by Sections 5.5 and 9.4, respectively, and Section 3.22, (ii) any Ancillary Documentinaccuracies or breaches of the representations and warranties contained in Section 3.22, except to the extent of any amounts required to be paid by Buyer in accordance with Section 2.11, (iii) the Moloxxx Xxxt, and (iv) any claims by Guy X. Xxxxxx xxxsuant to the Ramsxx Xxxt, the Settlement Agreement or the breach or nonperformance of the Settlement Agreement. (b) From and after Subject to the Closing Datelimitations hereinafter set forth, Stockholders shall Buyer agrees to indemnify, defend and hold harmless Buyers and any affiliate of Buyers and each of their respective directors, officers, employees, agents and representatives, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, "Buyers' Indemnified Group") Seller Group from and against any and all Losses Losses, asserted directly against, resulting directly to, imposed directly upon or incurred or suffered directly by Buyers' Indemnified any member of the Seller Group to the extent the Losses arise out of, as a result of or result arising from (i) the failure any inaccuracy in or breach or nonfulfillment of any representation or warranty made by Stockholders herein warranty, covenant or agreement of Buyer contained in this Agreement. (c) For purposes of this Article IX, all Losses shall be computed net of (i) any Ancillary Document actual income tax benefit resulting therefrom to have been true when made and as of the Closing Dateindemnified party, (ii) the breach of any covenant or agreement of Stockholders contained herein or in any Ancillary Documentinsurance coverage with respect thereto, or and (iii) any asset, property right, obligation, or liability of amounts recovered from any third parties based on claims the Company not primarily related to indemnified party has against such third parties which reduce the Business including, without limitation, any of the foregoing Losses that would otherwise be sustained arising out of the discontinued operation event relating to such Losses; provided, however, that in all cases, the timing of the Companyreceipt or realization of insurance proceeds or income tax benefits or recoveries from third parties shall be taken into account in determining the amount of reduction of Losses. Business includingIn the event the indemnified party has any potential claims or rights against any third party which would materially reduce the amount of Losses otherwise incurred by such indemnified party, without limitationthe indemnified party shall have no obligation to pursue such claims or rights; provided, any of however, that at the foregoing arising out of indemnifying party's request the discontinued operation of indemnified party shall assign such claims or rights to the Companyindemnifying party and shall cooperate with the indemnifying party (at the indemnifying party's expense) in pursuing such claims or rights.

Agreement to Indemnify. (a) From Subject to the terms and after conditions of this Article 10, the Closing DateShareholders and UA hereby agree, Buyers shall severally, but only to the extent set forth below, to indemnify, defend and hold harmless Stockholders the Buyer and any affiliate of Stockholders and each of Stockholders' respective agents and representatives, and Stockholders' heirs, executors, successors and assigns (collectively, "Stockholders' Indemnified Group") from and against any liability, loss, damage, claim (including third-party claims, whether Affiliate thereof or not meritorious), cost or expense (including, without limitation, reasonable attorneys' fees and disbursements) (collectively, "Losses") incurred or suffered by Stockholders' Indemnified Group to the extent the Losses arise out of, or result from (i) the failure of any representation or warranty made by Buyers herein or in any Ancillary Document to have been true when made and as of the Closing Date, or (ii) the breach of any covenant or agreement of Buyers contained herein or in any Ancillary Document. (b) From and after the Closing Date, Stockholders shall indemnify, defend and hold harmless Buyers and any affiliate of Buyers and each of their respective directors, officers, employees, agents and representatives, and each of the heirs, executors, successors and assigns of any of its or their directors or officers (the foregoing (collectively, "Buyers' Indemnified Buyer Group") from and against all Losses incurred demands, claims, actions or suffered by Buyers' Indemnified Group to the extent the Losses arise out ofcauses of action, or result from (i) the failure of any representation or warranty made by Stockholders herein or in any Ancillary Document to have been true when made assessments, losses, damages, liabilities, costs and as of the Closing Dateexpenses, (ii) the breach of any covenant or agreement of Stockholders contained herein or in any Ancillary Document, or (iii) any asset, property right, obligation, or liability of the Company not primarily related to the Business including, without limitation, interest, penalties and reasonable attorneys' fees and expenses (collectively, "Damages"), asserted against, resulting to, imposed upon or incurred by the Buyer Group, or any member thereof, directly or indirectly, by reason of or resulting from: (1) any inaccuracy in, or a breach of, any representation, warranty, covenant or agreement of the Shareholders contained in or made pursuant to this Agreement or any facts or circumstances constituting such a breach, excluding any inaccuracy in, or breach with respect to, any item contained in Section 4.1(o) and Section 4.2(o); and (2) any and all liabilities, direct or indirect, absolute or contingent, for personal injury and property damage consumer claims in excess of insurance coverage maintained by the Buyer in the Ordinary Course of Business ("Consumer Claims") asserted against the Buyer Group or any member thereof with respect to the operations or properties of any of the foregoing arising out Companies, as the case may be, prior to the Closing Date. (b) Subject to the terms and conditions of this Article 10, the Buyer hereby agrees to indemnify, defend and hold harmless the Shareholders and any Affiliate thereof (the "Shareholders Group") from and against all Damages asserted against, resulting to, imposed upon or incurred by the Shareholders Group or any member thereof, directly or indirectly, by reason of or resulting from: (1) any inaccuracy in, or a breach of, any representation, warranty, covenant or agreement of the discontinued operation Buyer contained in or made pursuant to this agreement or any facts or circumstances constituting such a breach; or (2) the operations of the Company. Business including, without limitation, any of the foregoing arising out Companies at or after Closing. (c) Each matter for which the Buyer or each of the discontinued operation of the CompanyShareholder has agreed to provide indemnification pursuant to this Section 10.3 is hereinafter referred to as a "Indemnification Claim" and collectively as "Indemnification Claims".

Agreement to Indemnify. (a) From Buyer and after the Closing Date, Buyers shall indemnify, defend and hold harmless Stockholders and any affiliate of Stockholders and each of Stockholders' respective agents and representatives, and Stockholders' heirs, executors, successors and assigns (collectively, "Stockholders' Indemnified Group") from and against any liability, loss, damage, claim its Affiliates (including third-party claims, whether or not meritorious), cost or expense (including, without limitation, reasonable attorneys' fees the Companies) and disbursements) (collectively, "Losses") incurred or suffered by Stockholders' Indemnified Group to the extent the Losses arise out of, or result from (i) the failure of any representation or warranty made by Buyers herein or in any Ancillary Document to have been true when made and as of the Closing Date, or (ii) the breach of any covenant or agreement of Buyers contained herein or in any Ancillary Document. (b) From and after the Closing Date, Stockholders shall indemnify, defend and hold harmless Buyers and any affiliate of Buyers and each of their respective officers, directors, officers, employees, attorneys and agents and representatives, and each of the heirs, executors, successors and assigns of any each of the foregoing (collectively, "Buyers' Indemnified Group"the “Buyer Indemnitees”) from shall each be indemnified and against all Losses incurred or suffered by Buyers' Indemnified Group held harmless to the extent set forth in this Article IX by each Shareholder in respect of any and all Damages reasonably and proximately incurred by any Buyer Indemnitee as a result of or arising out of any inaccuracy or misrepresentation in or breach of any representation, warranty, covenant or agreement made in this Agreement, the Losses arise Ancillary Agreements or any certificate or other document delivered pursuant hereto or thereto or in connection with the Subject Transactions by the Companies or any Shareholder at any time, or, in the event Xxxxxxx takes action to rescind the Settlement Agreement, in respect of any and all Damages relating to that certain letter agreement dated as of January 18, 2006 (relating to phantom stock obligations) by and between Limited and Xxxxxxx . Each Shareholder’s indemnification obligations hereunder shall be several and not joint, in accordance with their respective Pro Rata Portions, except, with respect to any inaccuracy or misrepresentation in or breach of any representation, warranty, covenant or agreement set forth in Article III hereof made by a particular Shareholder, such Shareholder shall be fully liable for any Damages in respect thereof and the Pro Rata Portion of the aggregate amount of indemnification to be paid by such Shareholder as a result of or arising out ofof such Shareholder’s inaccuracy or misrepresentation in or breach of any representation, warranty, covenant or agreement set forth in Article III hereof will equal 100% and each of the other Shareholder’s Pro Rata Portion of such amount of indemnification will equal zero. (b) The Shareholders and their respective Affiliates and their respective attorneys, agents, personal representatives and heirs and the assigns of each of the foregoing (collectively, the “Shareholder Indemnitees”) shall each be indemnified and held harmless to the extent set forth in this Article IX by Buyer in respect of any and all Damages reasonably and proximately incurred by any Shareholder Indemnitee as a result from of or arising out of any inaccuracy or misrepresentation in or breach of any representation, warranty, covenant or agreement made by the Buyer in this Agreement, the Ancillary Agreements or any certificate or other document delivered pursuant hereto or thereto or in connection with the Subject Transactions. (ic) Except to the extent of confidentiality provisions in Section 7.02 in this Agreement, no Person shall have any claim or cause of action as a result of any inaccuracy or misrepresentation in or breach of or failure to perform any representation, warranty, covenant, agreement or obligation of any Indemnifying Party referred to in this Section 9.01 against any Affiliate, member, stockholder, director, officer, employee, consultant or agent of such Indemnifying Party. Nothing set forth in this Article IX shall be deemed to prohibit or limit any Buyer Indemnitee’s or Shareholder Indemnitee’s right at any time before, on or after the Closing Date, to seek injunctive or other equitable relief for the failure of any representation or warranty made by Stockholders herein or in any Ancillary Document Indemnifying Party to have been true when made and as of the Closing Date, (ii) the breach of perform any covenant or agreement contained herein. (d) The Shareholders shall have no obligation to pay any amount of Stockholders contained herein or indemnity pursuant to Section 9.01(a) unless and until the aggregate amount of Damages incurred in respect of all claims for which indemnity would be payable by the Shareholders pursuant to Section 9.01(a) but for this Section 9.01(d) exceeds Two Hundred Fifty Thousand Dollars ($250,000) (the “Deductible”), whereupon the Shareholders shall be liable pursuant to Section 9.01(a), to indemnify the Buyer Indemnitees in an amount equal to each Shareholder’s Pro Rata Portion of all amounts of such Damages over the Deductible; provided, however, that the limitation in this Section 9.01(d) shall not apply with respect to any Ancillary Documentclaim based upon a breach of any of the representations, or warranties, covenants, agreements and obligations set forth in Sections 3.01, 3.02, 3.03, 3.04, 3.06, 4.01, 4.02, 4.03, 4.17 (iii) any asset, property right, obligation, or liability solely to the extent of representations with respect to the 32 ownership of the Company Intellectual Property), 4.18, 4.21 and 6.05 of this Agreement (the “Fundamental Representations”). (e) The aggregate amount of indemnification to be paid by each Shareholder pursuant to Section 9.01(a) of this Agreement shall not primarily related exceed such Shareholder’s Pro Rata Portion of Three Million Five Hundred Thousand Dollars 3,500,000; provided, however, the limitation in this Section 9.01(e) shall not apply with respect to the Business including, without limitation, any claim based upon a breach of any of the foregoing arising out Fundamental Representations. (f) Notwithstanding anything herein to the contrary, the obligation of each Shareholder to indemnify the discontinued operation Buyer Indemnitees under this Article IX in the event of Damages reasonably and proximately incurred by any Buyer Indemnitee as a result of such Shareholder’s fraud or willful misconduct shall not be subject to any Deductible set forth in Section 9.01(d) of this Agreement or to any maximum limitations set forth in Section 9.01(e) of this Agreement. (g) Any indemnification of any Buyer Indemnitee is first required to be effected by one or more offsets of Buyer’s obligation to make any payment described in Sections 2.05 hereof; provided, however, that the Companyremedies available to any Buyer Indemnitee pursuant to this Article IX shall in no way be limited to such rights of offset. (h) Any claim for indemnification shall be reduced by any insurance payment received by the Buyer Indemnitee and any tax benefit actually realized by the Buyer Indemnitee. Business includingShareholder Indemnitees shall not be required to indemnify Buyer Indemnitees for punitive, without limitationspecial, any exemplary, incidental or consequential damages and Buyer Indemnitees waives all rights of the foregoing arising out of the discontinued operation of the Companyrecovery with respect thereto.

Agreement to Indemnify. (a) From Subject to Section 10.01(f) of this Agreement and the other terms set forth herein, Sellers shall, jointly and severally, indemnify, defend and hold harmless Buyer and its Affiliates, and their respective officers, directors, employees, representatives and agents (collectively, the “Buyer Indemnitees”) from, against and in respect of any and all Damages incurred by any Buyer Indemnitee arising out of or as a result of: (i) any inaccuracy or misrepresentation in or breach of any representation or warranty made by Sellers herein; (ii) any breach of any covenant or agreement made by Sellers herein; (iii) any Excluded Liability; (iv) the Storm Water Prevention Plan Permit disclosed as item 9 under the Perris Facility in Section 4.11 of the Disclosure Letter or Sellers’ failure timely to update or comply with such Permit, whether any such Damages are assessed with respect to the period prior to the Closing or the period on and after the Closing Date(v) any and all Proceedings, Buyers judgments, decrees, awards, assessments, fees and expenses incident to any of the foregoing or incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing this indemnification. (b) Subject to Section 10.01(f) of this Agreement and the other terms set forth herein, Buyer shall indemnify, defend and hold harmless Stockholders each Seller and any affiliate of Stockholders and each of Stockholders' their respective agents and representativesAffiliates, and Stockholders' heirstheir respective officers, executorsdirectors, successors employees, representatives and assigns agents (collectively, "Stockholders' Indemnified Group"the “Seller Indemnitees”) from from, against and against in respect of any liability, loss, damage, claim (including third-party claims, whether and all Damages incurred by any Seller Indemnitee arising out of or not meritorious), cost or expense (including, without limitation, reasonable attorneys' fees and disbursements) (collectively, "Losses") incurred or suffered by Stockholders' Indemnified Group to the extent the Losses arise out as a result of, or result from : (i) the failure any inaccuracy or misrepresentation in or breach of any representation or warranty made by Buyers herein or in any Ancillary Document to have been true when made and as of the Closing Date, or Buyer herein; (ii) the any breach of any covenant or agreement of Buyers contained herein or in made by Buyer herein; (iii) any Ancillary Document. (b) From and after the Closing Date, Stockholders shall indemnify, defend and hold harmless Buyers and any affiliate of Buyers and each of their respective directors, officers, employees, agents and representatives, and each of the heirsAssumed Obligations; (iv) any Post Closing Claim, executorsor (v) any and all Proceedings, successors judgments, decrees, awards, assessments, fees and assigns of expenses incident to any of the foregoing or incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing this indemnification. Notwithstanding the foregoing, Buyer shall have no indemnification hereunder in respect of any matter for which Sellers are required to indemnify Buyer pursuant to Section 10.01(a) of this Agreement or would be so required but for any materiality qualifiers in Article IV or limitations set forth in this Article X. As used herein, “Post Closing Claim” means any claim made by a third party (collectively, "Buyers' Indemnified Group"other than Sellers or their Affiliates) from and against all Losses incurred or suffered by Buyers' Indemnified Group with respect to the extent the Losses arise out of, or result from (i) the failure of any representation or warranty made by Stockholders herein or in any Ancillary Document to have been true when made and as of the Closing Date, (ii) the breach of any covenant or agreement of Stockholders contained herein or in any Ancillary Document, or (iii) any asset, property right, obligation, or liability of the Company not primarily related to the Business including, without limitation, any of the foregoing arising out of the discontinued operation of the Company. Business includingBusiness, without limitation, Facilities or Purchased Assets by Buyer or any Affiliate of Buyer on or after the Closing Date provided that such claim does not arise out of or relate to (1) any act or omission of Sellers or any of their Affiliates or (2) any contractual or other commercial arrangement entered into after the foregoing arising out date hereof between Buyer and any of its Affiliates, on the discontinued operation one hand, and Sellers or any of their Affiliates, on the Companyother hand.

Agreement to Indemnify. (a1) From Subject to the express provisions of Section 3 as to the Subscriber'ssole remedy for the failure of the Company and after CF to present the Closing Dateseven Qualified Verticals set forth on Annex A to the Subscriber within the 12-Month Period, Buyers shall as the same may be extended by a Black-Out Period, the Company agrees to indemnify, defend and hold harmless Stockholders the Subscriber (and any affiliate of Stockholders its officers, directors, Affiliates and each of Stockholders' respective agents and representatives, and Stockholders' heirs, executors, successors and assigns (collectively, "Stockholders' Indemnified Group"permitted assigns) from and against any liabilityand all losses, lossclaims, damageliabilities, claim damages, deficiencies, costs or expenses (including third-party claimsinterest, whether or not meritorious), cost or expense (including, without limitation, penalties and reasonable attorneys' fees fees, disbursements and disbursementsrelated charges) (collectively, "Losses") incurred based upon, arising out of or suffered otherwise in respect of (x) any inaccuracy in or breach of any representations or warranties made by Stockholders' Indemnified Group the Company contained in this Subscription Agreement or any action taken by the Subscriber or its Affiliates in reliance upon the accuracy of such representations or warranties or (y) failure of the Company to perform any of the agreements or covenants contained herein, except to the extent the such Losses are based upon, arise out of, of or result from (i) are otherwise in respect of any inaccuracy in or breach of any representations or warranties made by the Subscriber contained in this Subscription Agreement or the failure of the Subscriber to perform any representation or warranty made by Buyers herein or in any Ancillary Document to have been true when made and as of the Closing Date, agreements or (ii) the breach of any covenant or agreement of Buyers covenants contained herein or in any Ancillary Documentherein. (b2) From and after the Closing Date, Stockholders shall The Subscriber agrees to indemnify, defend and hold harmless Buyers the Company (and any affiliate of Buyers and each of their respective its officers, directors, officers, employees, agents Affiliates and representatives, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, "Buyers' Indemnified Group"permitted assigns) from and against any and all Losses incurred based upon, arising out of or suffered otherwise in respect of (x) any inaccuracy in or breach of any representations or warranties made by Buyers' Indemnified Group to the extent Subscriber contained in this Subscription Agreement or any action taken by the Losses arise out of, Company or result from its Affiliates in reliance upon the accuracy of such representations or warranties or (iy) the failure of the Subscriber to perform any representation or warranty made by Stockholders herein or in any Ancillary Document to have been true when made and as of the Closing Dateagreements or covenants contained herein, (ii) except to the extent such Losses are based upon, arise out of or are otherwise in respect of any inaccuracy in or breach of any covenant representations or agreement of Stockholders warranties made by the Company contained herein in this Subscription Agreement or in any Ancillary Document, or (iii) any asset, property right, obligation, or liability the failure of the Company not primarily related to the Business including, without limitation, perform any of the foregoing arising out of the discontinued operation of the Company. Business including, without limitation, any of the foregoing arising out of the discontinued operation of the Companyagreements or covenants contained herein.

Agreement to Indemnify. (a) From and after the Closing Date, Buyers shall indemnify, defend and hold harmless Stockholders and any affiliate of Stockholders and each of Stockholders' respective agents and representatives, and Stockholders' heirs, executors, successors and assigns (collectively, "Stockholders' Indemnified Group") from and against any liability, loss, damage, claim (including third-party claims, whether or not meritorious), cost or expense (including, without limitation, reasonable attorneys' fees and disbursements) (collectively, "Losses") incurred or suffered by Stockholders' Indemnified Group to the extent the Losses arise out of, or result from (i) the failure of any representation or warranty made by Buyers herein or in any Ancillary Document to have been true when made and as of the Closing Date, or (ii) the breach of any covenant or agreement of Buyers contained herein or in any Ancillary Document. (b) From and after the Closing Date, the Principal Stockholders shall indemnify, defend and hold harmless Buyers and any affiliate of Buyers and each of their respective directors, officers, employees, agents and representatives, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, "Buyers' Indemnified Group") from and against all Losses incurred or suffered by Buyers' Indemnified Group to the extent the Losses arise out of, or result from (i) the failure of any representation or warranty made by the Principal Stockholders herein or in any Ancillary Document to have been true when made and as of the Closing Date, or (ii) the breach of any covenant or agreement of the Principal Stockholders contained herein or in any Ancillary Document, or (iii) any asset, property right, obligation, or liability of the Company not primarily related to the Business including, without limitation, any of the foregoing arising out of the discontinued operation of the Company. Business including, without limitation, any of the foregoing arising out of the discontinued operation of the Company.

Agreement to Indemnify. (a) From and after the Closing Date, Buyers shall indemnify, defend 10.1.1. The Purchaser agrees to indemnify and hold the Seller harmless Stockholders and any affiliate of Stockholders and each of Stockholders' respective agents and representatives, and Stockholders' heirs, executors, successors and assigns (collectively, "Stockholders' Indemnified Group") from and against any and all monetary loss, liability, lossobligation, damage, claim (including third-party claims, whether or not meritorious), cost or expense (including, without limitation, reasonable attorneys' attorney's fees and disbursements) (collectively, "Losses") incurred or suffered by Stockholders' Indemnified Group or asserted against the Seller or any of its respective Affiliates, including but not limited to their respective officers, directors, agents and employees, directly or indirectly as a result of or in connection with (a) the extent breach by the Losses arise out Purchaser of any representation or warranty made in this Agreement; or (b) the breach by the Purchaser of, or the failure of the Purchaser to perform, any of its covenants or obligations contained in this Agreement. 10.1.2. The Seller agrees to indemnify and hold the Purchaser and its directors, officers, agents, employees and shareholders harmless from and against any and all loss, liability, obligation, damage, cost or expense (including, without limitation, reasonable attorney's fees and disbursements) incurred or suffered by or asserted against the Purchaser, the Company, their Affiliates or any of their respective directors, officers, agents, employees and shareholders, directly or indirectly ("Losses"), as a result from of or in connection with (ia) the failure breach or inaccuracy of any representation or warranty made by Buyers herein or either Seller in any Ancillary Document to have been true when made and as of the Closing Date, or (ii) the breach of any covenant or agreement of Buyers contained herein or in any Ancillary Document.this Agreement; (b) From the breach by Seller, or failure of Seller, to perform any of its covenants, conditions or obligations contained in this Agreement; (c) claims of employees of the Company with respect to occupational disease or injuries with respect to events, circumstances or conditions which existed, arose or occurred during the period prior to the date hereof; (d) any third party liability claims which were made prior to the date hereof for damages arising from accidents, for which any of the Company is responsible and which accidents occurred prior to the date hereof for claims which do not exceed $1,000 Dollars and (ii) for such claims which are in excess of $1,000 Dollars and which are listed on Exhibit "8"; (e) third party claims or potential claims arising from events occurring prior to the date hereof and which are not listed on Exhibit "8"; (f) actual liability and reasonable attorney's fees paid after the Closing Date, Stockholders shall indemnify, defend and hold harmless Buyers and in connection with the existing fines levied by any affiliate of Buyers and each of their respective directors, officers, employees, agents and representatives, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, "Buyers' Indemnified Group") from and against all Losses incurred or suffered by Buyers' Indemnified Group to the extent the Losses arise out of, or result from (i) the failure of any representation or warranty made by Stockholders herein or in any Ancillary Document to have been true when made and as of the Closing Date, (ii) the breach of any covenant or agreement of Stockholders contained herein or in any Ancillary Document, or (iii) any asset, property right, obligation, or liability of the Company not primarily related to the Business including, without limitation, any of the foregoing arising out of the discontinued operation of the Company. Business including, without limitation, any of the foregoing arising out of the discontinued operation of the Companygovernmental agency.

Agreement to Indemnify. (a) From Subject to Section 10.01(f) of this Agreement and the other terms set forth herein, Sellers shall, jointly and severally, indemnify, defend and hold harmless Buyer and its Affiliates, and their respective officers, directors, employees, representatives and agents (collectively, the “Buyer Indemnitees”) from, against and in respect of any and all Damages incurred by any Buyer Indemnitee arising out of or as a result of: (i) any inaccuracy or misrepresentation in or breach of any representation or warranty made by Sellers herein; (ii) any breach of any covenant or agreement made by Sellers herein; (iii) any Excluded Liability; (iv) the Storm Water Prevention Plan Permit disclosed as item 9 under the Perris Facility in Section 4.11 of the Disclosure Letter or Sellers’ failure timely to update or comply with such Permit, whether any such Damages are assessed with respect to the period prior to the Closing or the period on and after the Closing Date(v) any and all Proceedings, Buyers judgments, decrees, awards, assessments, fees and expenses incident to any of the foregoing or incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing this indemnification. (b) Subject to Section 10.01(f) of this Agreement and the other terms set forth herein, Buyer shall indemnify, defend and hold harmless Stockholders each Seller and any affiliate of Stockholders and each of Stockholders' their respective agents and representativesAffiliates, and Stockholders' heirstheir respective officers, executorsdirectors, successors employees, representatives and assigns agents (collectively, "Stockholders' Indemnified Group"the “Seller Indemnitees”) from from, against and against in respect of any liability, loss, damage, claim (including third-party claims, whether and all Damages incurred by any Seller Indemnitee arising out of or not meritorious), cost or expense (including, without limitation, reasonable attorneys' fees and disbursements) (collectively, "Losses") incurred or suffered by Stockholders' Indemnified Group to the extent the Losses arise out as a result of, or result from : (i) the failure any inaccuracy or misrepresentation in or breach of any representation or warranty made by Buyers herein Buyer herein; (ii) any breach of any covenant or agreement made by Buyer herein; (iii) any of the Assumed Obligations; (iv) any Post Closing Claim, or (v) any and all Proceedings, judgments, decrees, awards, assessments, fees and expenses incident to any of the foregoing or incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing this indemnification. Notwithstanding the foregoing, Buyer shall have no indemnification hereunder in respect of any Ancillary Document matter for which Sellers are required to indemnify Buyer pursuant to Section 10.01(a) of this Agreement or would be so required but for any materiality qualifiers in Article IV or limitations set forth in this Article X. As used herein, “Post Closing Claim” means any claim made by a third party (other than Sellers or their Affiliates) with respect to the operation of the Business, Facilities or Purchased Assets by Buyer or any Affiliate of Buyer on or after the Closing Date provided that such claim does not arise out of or relate to (1) any act or omission of Sellers or any of their Affiliates or (2) any contractual or other commercial arrangement entered into after the date hereof between Buyer and any of its Affiliates, on the one hand, and Sellers or any of their Affiliates, on the other hand. (c) If any third party asserts a claim against a Buyer Indemnitee or a Seller Indemnitee (each an “Indemnified Party”) with respect to any matter for which such Indemnified Party intends to seek indemnification against Sellers or Buyers, as the case may be (the “Indemnifying Party”) under this Article X, then such Indemnified Party will notify the Indemnifying Party thereof within thirty (30) days thereafter, such notice to state the nature and basis of any claim made by the third party; provided that, no delay on the part of an Indemnified Party in notifying the Indemnifying Party will relieve an Indemnifying Party from any obligation hereunder unless, and then solely to the extent that, an Indemnifying Party is demonstrably prejudiced thereby. In the event the Indemnifying Party notifies the Indemnified Party within thirty (30) days after the date the Indemnified Party has given notice of the matter that the Indemnifying Party will indemnify the Indemnified Party in respect of such matter, then the Indemnifying Party may, by notice to the Indemnified Party within such 30-day period, assume the defense of such matter. If the Indemnifying Party assumes the defense of such matter, (i) the Indemnifying Party will defend the Indemnified Party against the matter with counsel of the Indemnifying Party’s choice reasonably satisfactory to the Indemnified Party, (ii) the Indemnified Party may retain separate counsel at its sole cost and expense, and (iii) the Indemnifying Party will not consent to the entry of a judgment or consent order with respect to the matter, or enter into any settlement, in each case which either (A) grants the plaintiff or claimant any form of relief other than monetary damages which will be satisfied in full by the Indemnifying Party or (B) fails to include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto, in either such case without the written consent of the Indemnified Party. If the Indemnifying Party does not assume the defense of such matter, (i) the Indemnified Party may defend against the matter in any manner it reasonably may deem appropriate, and with counsel of its choice, and without prejudice to its indemnification rights hereunder, and (ii) the Indemnifying Party may retain separate counsel at their sole cost and expense. Notwithstanding anything to the contrary in the foregoing, if defendants in any action include any Indemnified Party and any Indemnifying Party, and any Indemnified Party shall have been advised by its counsel that there may be material legal defenses available to such Indemnified Party inconsistent with those available to one or more Indemnifying Parties, or if a conflict of interest exists between any Indemnified Party and any Indemnifying Party with respect to such claim or the defense thereof, or if the Indemnifying Party’s control of such defense would reasonably be expected to have an adverse effect on the Business or the outcome of the matter, then in any such case, the Indemnified Party shall have the right to re-assume such defense through its own counsel, and in such event (or in the event that the Indemnifying Party does not timely assume or diligently pursue the defense of such matter as provided above) the reasonable fees and expenses of the Indemnified Party’s counsel shall be borne by the Indemnifying Party and shall be paid by it from time to time within twenty (20) days of receipt of appropriate invoices therefore. (d) In the event that an Indemnified Party notifies the Indemnifying Party of any claim for indemnification hereunder that does not involve a third party claim, the Indemnifying Party shall, within thirty (30) days after the date of such notice, pay to the Indemnified Party the amount of Damages payable pursuant to this Section 10.01 and shall thereafter pay any other Damages payable pursuant to this Section 10.01 and arising out of the same matter on demand, unless the Indemnifying Party disputes in writing their liability for, or the amount of, any such Damages within such 30-day period, in which case such payment shall be made as provided above in respect of any matters or amounts not so disputed and any Damages in respect of the matters so disputed shall be paid within five (5) Business Days after any determination (by agreement of such Indemnified Party and the Indemnifying Party, or pursuant to arbitration in accordance with Section 11.11) that the Indemnifying Party is liable therefor pursuant to this Section 10.01. (e) In connection with any payment of Damages pursuant to this Section 10.01, the Indemnifying Party shall pay to the Indemnified Party an amount calculated like interest on the amount of such Damages at the Reference Rate from the date of the Closing until the Indemnified Party shall have been true when indemnified in respect thereof. (f) Notwithstanding the foregoing, neither Buyer nor Sellers shall have any indemnification obligation in respect of any inaccuracies or misrepresentations in or breaches of any representations or warranties under Section 10.01(a)(i) or 10.01(b)(i) unless and until the aggregate amount of Damages incurred by the Buyer Indemnitees or the Seller Indemnitees, respectively, exceeds $210,000 (the “Basket”), and then only to the extent such Damages exceed the Basket. The aggregate liability of Sellers, on the one hand, and the aggregate liability of Buyer, on the other, to indemnify the Buyer Indemnitees or the Seller Indemnitees, respectively, in respect of inaccuracies or misrepresentations in or breaches of or defaults under representations or warranties under Section 10.01(a)(i) or 10.01(b)(i), as applicable, shall not exceed the sum of (i) $8,000,000 less (ii) the amount of any payments actually made by Central to Buyer for indemnity claims under the Xxxxxxx Lease (such sum, the “Cap”). Notwithstanding anything to the contrary herein, neither the Basket nor the Cap shall apply to any Damages resulting from or arising out of (i) fraud or intentional misrepresentation, or (ii) a breach of the representations and warranties made in Section 4.02 (Authority; Enforceability), Section 4.08(c) (Title), Section 4.10 (Taxes), Section 4.13(a) (Ownership of Real Property) Section 4.16 (Employee Benefit Plans), and Section 5.02 (Authority, Enforceability), nor shall any such Damages apply toward satisfaction of the Basket or Cap. For purposes of calculating the Damages incurred by any Buyer Indemnitee in respect of any inaccuracy in or breach of any representation or warranty of the Sellers (but not for purposes of determining the existence of such inaccuracy or breach), any “Material Adverse Effect” qualifier contained in the applicable representation or warranty shall be disregarded. (g) The amount of any Damages for which an Indemnified Party is entitled to indemnity under this Section 10.01 shall be reduced by the amount of insurance proceeds actually received by the Indemnified Party or its Affiliates with respect to such Damages (net in each case of (i) any costs incurred to recover such amounts (including any related retrospective premium adjustments resulting from assertion of such claims), (ii) any losses in respect of the same matter that are not subject to indemnification pursuant to Section 10.01(a) of this Agreement or any limitations contained in this Agreement, and (iii) any insurance proceeds that are subject to any self-insurance or re-insurance arrangements that are effectively equivalent to self-insurance arrangements by such Indemnified Party or its Affiliates). Under no circumstances shall the possibility of a future insurance recovery be a basis for reducing the Damages subject to indemnification hereunder prior to the actual receipt of such benefit or recovery, or for limiting, postponing or delaying satisfaction of any indemnification obligation hereunder or any Indemnified Party’s right to be indemnified. (h) The parties agree that, from and after the Closing Date, the remedies provided in this Section 10.01 shall constitute the parties’ exclusive remedies for claims arising out of or related to this Agreement, including claims based on breaches of representations and warranties; provided, however, that nothing in this Section 10.01(h) will operate to limit any equitable remedies (including specific performance) available to an Indemnified Party, or the common law liability of any Indemnifying Party for fraud in the event such Indemnifying Party is determined by a court of competent jurisdiction to have committed a fraud against the Indemnified Party with respect to the representations and warranties of each party contained herein set forth in Section 4 or Section 5 of this Agreement. (i) Any claim for indemnity under Sections 10.01(a)(i)-(iii), (v) or 10.01(b) SHALL NOT INCLUDE PUNITIVE DAMAGES, EXEMPLARY DAMAGES, DAMAGES BASED ON A MULTIPLE OF EARNINGS, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS BASED ON THE LOSS OF PROSPECTIVE BUSINESS OPPORTUNITIES THAT ARE NOT THE SUBJECT OF A CONTRACT ACTUALLY AWARDED, unless in each case any such Damages arise out of a third party claim against an Indemnified Party pursuant to Section 10.01(c). (j) Any Indemnified Party shall act in good faith and use its reasonable efforts to mitigate the amount of any Damages for which it seeks indemnification, provided however, no Indemnified Party shall have any obligation to resort to litigation or an outside collection agency as part of such mitigation, nor shall an Indemnified Party have any obligation to compromise or waive any other right or accept any liability or other future obligation or burden in order to mitigate its Damages. (k) Subject to the accuracy of Sellers’ representations and warranties in Section 4.15, as of the Closing Date, or (ii) and subject to the breach other provisions of any covenant or agreement of Buyers contained herein or in any Ancillary Document. (b) From and after the Closing Datethis Article X, Stockholders shall Buyer will indemnify, defend and hold harmless Buyers and any affiliate of Buyers and each of their respective directors, officers, employees, agents and representatives, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, "Buyers' Indemnified Group") Seller Indemnitees from and against all Losses any and in respect of any Damages actually incurred or suffered by Buyers' Indemnified Group to the extent the Losses arise out of, or any Seller Indemnitee as a result from (i) the of any failure of any representation or warranty made by Stockholders herein or San Diego Precast to comply with the Worker Adjustment Xxxxxxxxxxxx Xxx, 00 X.X.X. §§000x, et seq. (“WARN Act”) in any Ancillary Document to have been true when made and as connection with its termination of the Business Employees at the Perris Facility or San Diego Facility at the Closing Date, (ii) the breach of any covenant or agreement of Stockholders contained herein or in any Ancillary Document, or (iii) any asset, property right, obligation, or liability of the Company not primarily related pursuant to the Business including, without limitation, any of the foregoing arising out of the discontinued operation of the Company. Business including, without limitation, any of the foregoing arising out of the discontinued operation of the CompanySection 6.04 hereof.