Common use of Buyer Indemnification Clause in Contracts

Buyer Indemnification. 7.2.1 Notwithstanding the Closing or the delivery of the Purchase Price, the Buyer agrees that it will indemnify, defend and hold harmless the Seller and its respective successors and assigns (the "Seller Indemnified Parties") from and against all claims, damages, other liabilities, actions, suits, proceedings, demands, assessments, adjustments, costs and expenses, including reasonable attorneys' fees and expenses of investigation whether absolute, accrued, conditional or otherwise, and whether or not resulting from Third Party Claims (collectively, the "Damages"), incurred or sustained by any Seller Indemnified Party as a result of, in connection with or because of any inaccuracy in, breach or violation of any representation, warranty, covenant or agreement made by the Buyer in this Agreement. 7.2.2 In the event that the Seller desires to make a claim against the Buyer under Section 7.2.1 in connection with any action, suit, proceeding or demand at any time instituted against, or made upon, the Seller by any third party for which the Seller may seek indemnification hereunder (a "Third Party Claim"), the Seller shall promptly notify the Buyer of such Third Party Claim and of the Seller's claim of indemnification with respect thereto; provided, however, that no reasonable delay on the part of the Seller in notifying the Buyer shall relieve the Buyer from any obligation hereunder. The Buyer shall have thirty (30) days after receipt of such notice to notify the Seller if it has elected to assume the defense of such Third Party Claim. If the Buyer timely elects to assume the defense of such Third Party Claim, the Buyer shall be entitled at its own expense to conduct and control the defense and settlement of such Third Party Claim through counsel of its own choosing, provided that (a) the Seller may participate in the defense of such Third Party Claim with its or their own counsel at its or their own expense, (b) the Buyer must conduct the defense of the Third Party Claim actively and diligently in order to preserve its rights in this regard and (c) the Buyer may not settle any claim or matter which imposes a material obligation or adverse impact upon the Seller without the consent of the Seller, which it may grant or withhold in its sole and complete discretion. If the Buyer fails to notify the Seller within thirty (30) days after receipt of the notice of a Third Party Claim, the Seller shall be entitled to assume the defense of such Third Party Claim (and the Seller need not consult with, or obtain the consent of the Buyer) and in the Seller's sole discretion prosecute, litigate, settle and perform such other actions as the Seller may deem necessary in order fully to protect the Seller's interests, and the Buyer will remain responsible for indemnification of the Seller to the full extent provided in this Article X.

Buyer Indemnification. 7.2.1 Notwithstanding (a) Subject to the Closing or the delivery of the Purchase Priceterms and conditions set forth in this Agreement, the Buyer agrees that it Sellers will in accordance with their Pro Rata Percentage indemnify, defend and hold harmless the Seller Buyer Parties and its their respective successors officers, directors, employees and assigns Affiliates (including, from and after the "Seller Indemnified Parties"Closing, the Target Companies) (collectively, the “Buyer Indemnitees”) from and against all claimsDamages actually asserted against or actually incurred by any Buyer Indemnitee as a result of or arising out of: (i) (A) any Taxes of a Target Company with respect to Pre-Closing Tax Periods, damagesincluding, other liabilitieswithout limitation, any Tax imposed on any Target Company attributable to the making of the Section 338(h)(10) Election (including (i) any Tax imposed under section 1374 of the Code, (ii) any Tax imposed under Treasury Regulations Section 1.338(h)(10)-1(d)(2), or (iii) any state, local or foreign Tax imposed on Target Company’s gain, provided, however, Sellers will not be liable for, and their indemnification obligations under this Agreement will not apply to any (y) Taxes to the extent such Taxes are taken into account in the Closing Adjustment and (z) Taxes imposed on a Target Company resulting from actions, suitsdecisions or elections undertaken or made by Buyer or any of its Affiliates (including the Target Companies) after Closing without Key Seller’s written consent which consent shall not be unreasonably withheld; (B) all Taxes of any member of an affiliated, proceedingsconsolidated, demands, assessments, adjustments, costs and expensescombined or unitary group of which any Target Company (or any predecessor of any of the Target Companies) is or was a member on or prior to the Closing Date, including reasonable attorneys' fees pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or non-U.S. law or regulation; (C) all Taxes of any Person (other than any Target Company) imposed on any Target Company as a transferee or successor, by contract or pursuant to any law, rule, or regulation, which Taxes relate to an event or transaction occurring before the Closing Date; (ii) the failure of any representation or warranty stated in Article III (other than the Fundamental Representations stated therein and expenses the representations and warranties stated in Section 3.15 (Tax Returns; Taxes)) to be true and correct as of investigation whether absolute, accrued, conditional the Effective Date and the Closing Date (or otherwise, in the case of such representations and whether or not resulting from Third Party Claims (collectivelywarranties that are as of a specific date, the "Damages"failure of such representations and warranties to be true and correct as of such specified date); (iii) the failure of any of the Fundamental Representations stated in Article III and/or any of the representations and warranties stated in Section 3.15 (Tax Returns; Taxes) to be true and correct as of the Effective Date and the Closing Date (or, in the case of such representations and warranties that are as of a specified date, the failure of such representations and warranties to be true and correct as of such specified date); (iv) items (i), (ii), (iii), (vii) and/or (viii) (and (xi) solely as it relates to such items) under the definition of Company Indebtedness and Seller Transaction Expenses which are not fully repaid on the Closing Date or deducted from the Purchase Price; (v) all items and events set forth on Schedule 8.2(a)(v); and/or (vi) any breach by Energy Constructors of Section 6.15. (b) Subject to the terms and conditions set forth in this Agreement, from and after the Closing, each Seller will, severally but not jointly, indemnify, defend and hold harmless the Buyer Indemnitees from and against all Damages actually asserted against or actually incurred by any Buyer Indemnitee as a result of or sustained arising out of: (i) the failure of any representation or warranty of such Seller stated in Article IV (other than the Fundamental Representations stated therein) to be true and correct as of the Effective Date and the Closing Date (or, in the case of such representations and warranties that are as of a specific date, the failure of such representations and warranties to be true and correct as of such specified date); (ii) the failure of any of the Fundamental Representations stated in Article IV to be true and correct as of the Effective Date and the Closing Date (or, in the case of such representations and warranties that are as of a specific date, the failure of such representations and warranties to be true and correct as of such specified date); and/or (iii) any breach by such Seller of any of such Seller’s covenants and agreements stated herein. (c) Each Seller’s obligation to indemnify the Buyer Indemnitees for Damages under Sections 8.2(a) and 8.2(b) is subject to the following limitations and requirements: (i) No indemnification will be made by any Seller Indemnified pursuant to Section 8.2(a)(ii) unless and until the aggregate amount of all Damages incurred by or asserted against any Buyer Indemnitee that are indemnifiable hereunder (and are the subject of a written notice as provided in this Section 8.2) exceeds Five Hundred Thousand Dollars ($500,000) (such dollar amount being referred to as the “Basket”), and, if the aggregate amount of such Damages exceeds the Basket, Sellers will in accordance with their Pro Rata Percentage indemnify the Buyer Indemnitees for the aggregate amount of all such Damages in excess of the Basket (but subject to any other applicable limitations hereunder). (ii) The following sublimits of liability shall apply to Sellers’ indemnification obligations hereunder: (A) Subject to any other applicable limitations hereunder, each Seller’s aggregate indemnification obligations pursuant to Section 8.2(a)(ii) will be limited to its Pro Rata Percentage of Seven Million Five Hundred Thousand Dollars ($7,500,000) (the “Cap Amount”), which amount is included in, counts toward and is not incremental to such Seller’s overall limit of liability provided for in Section 8.2(c)(ii)(B); and (B) Subject to any other applicable limitations hereunder, the aggregate liability of each Seller pursuant to this Section 8.2 will be limited to an amount equal to such Seller’s Pro Rata Percentage multiplied by the Closing Payment. (iii) Each Seller (each a “Seller Indemnifying Party”) will be obligated to indemnify a Buyer Indemnitee under this Section 8.2 only for those Claims for Damages as to which a Buyer Indemnitee has given such Seller Indemnifying Party as written notice (1) promptly (but in no event later than ten (10) Business Days) after becoming aware of the facts giving rise to such Claim and (2) in any event prior to the end of the applicable Survival Period. Failure to timely provide such written notice shall not affect the right of the Buyer Indemnitee’s, except to the extent the Seller Indemnifying Party is prejudiced by such delay or omission. Any written notice delivered by a result Buyer Indemnitee to such Seller Indemnifying Party with respect to Damages will set forth with reasonable specificity the basis of the claim for Damages if reasonably determinable at such time, and to the extent practicable, the amount of Damages claimed. Subject to the procedures with respect to Third-Party Claims under Section 8.5, if such written notice (or an amended notice) states the amount of Damages claimed and the applicable Seller Indemnifying Party notifies the applicable Buyer Indemnitee that such Seller Indemnifying Party does not dispute the Claim described in such written notice or fails to notify such Buyer Indemnitee within thirty (30) Business Days after delivery of such notice by such Buyer Indemnitee whether such Seller Indemnifying Party disputes the Claim described in such notice, Damages in the amount specified (but subject to the applicable indemnification limits) in such notice will be deemed agreed to by such Seller Indemnifying Party, and such Seller Indemnifying Party will be responsible for the payment of such Damages to such Buyer Indemnitee, unless Damages in respect of such Claim, once determined, are less than the amount specified in the written notice, in which event such Buyer Indemnitee will be entitled to recover such lesser amount (subject to the applicable indemnification limits). If the applicable Seller Indemnifying Party has timely disputed liability with respect to such Claim (each, a “Seller Disputed Claim”), Buyer and such Seller Indemnifying Party will proceed in good faith for a period of up to thirty (30) days to attempt to negotiate a resolution of such Seller Disputed Claim. If a written notice does not state the amount of Damages claimed, such omission will not preclude the Buyer Indemnitee from recovering from such Seller Indemnifying Party the amount of Damages with respect to the claim described in such notice if any such amount is not reasonably determinable at the time of delivery of such notice and it is promptly provided to such Seller Indemnifying Party once determined. (d) Subject to the procedures and limitations set forth in this Section 8.2, the applicable Seller Indemnifying Party will pay or cause to be paid the amount of any Damages to the applicable Buyer Indemnitee(s) within five (5) Business Days following the determination of an indemnifying party’s liability for, and the amount of, such Damages (whether such determination is made pursuant to the procedures set forth in connection this Article VIII, by agreement between the applicable Buyer Indemnitee and such Seller Indemnifying Party, or by a final judgment by a court of competent jurisdiction). Notwithstanding the foregoing, (i) any Damages that a Buyer Indemnitee is entitled to receive pursuant to Section 8.2(a)(ii) shall be payable solely from the Escrow Account, and (ii) any other payment that Sellers are obligated to make to any Buyer Indemnitee pursuant to Section 8.2(a) will be satisfied first, to the extent there are sufficient funds in the Escrow Account, by release of funds to such Buyer Indemnitee from the Escrow Account by the Escrow Agent in accordance with the terms of the Escrow Agreement and then, to the extent the Escrow Amount is insufficient to pay any remaining amounts due, or because the Escrow Account no longer then exists, Sellers will be required to pay all of such additional sums due and owing to such Buyer Indemnitee in accordance with and subject to the terms and limitations of this Article VIII. Key Seller will cooperate expeditiously with Buyer to prepare and execute written instructions to Escrow Agent necessary to effectuate the release of any inaccuracy infunds from the Escrow Account as required hereunder. Notwithstanding the foregoing, breach or violation of with respect to any representationDamages that a Buyer Indemnitee is entitled to receive pursuant to Section 8.2(a) , warranty, covenant or agreement made by the Buyer in this Agreement. 7.2.2 In the event that the Escrow Amount is insufficient to pay any such Damages due, or the Escrow Account no longer then exists and a Seller desires (a “Non-Performing Seller”) does not pay its Pro Rata Percentage of such Damages (the “Missing Payment”) within five (5) Business Days following the determination of such Non-Performing Seller’s liability for, and the amount of, the Missing Payment, then Key Seller will pay the Missing Payment on behalf of the Non-Performing Seller to the applicable Buyer Indemnitee, provided that Key Seller shall be entitled to seek reimbursement from such Non-Performing Seller for such payment. Buyer may, upon Buyer’s election in its sole discretion, require any other payment that any Seller is obligated to make a claim against to any Buyer Indemnitee pursuant to Section 8.2 to be paid by release of funds to Buyer from the Buyer under Section 7.2.1 Escrow Account by the Escrow Agent in connection accordance with any action, suit, proceeding or demand at any time instituted against, or made upon, the Seller by any third party for which the Seller may seek indemnification hereunder (a "Third Party Claim"), the Seller shall promptly notify the Buyer of such Third Party Claim and terms of the Seller's claim of indemnification with respect theretoEscrow Agreement; provided, however, that no reasonable delay on the part funds to be released from the Escrow Account with respect to the obligation of any Seller shall not exceed such Seller’s Pro Rata Percentage of the Seller in notifying the Buyer shall relieve the Buyer from any obligation hereunder. The Buyer shall have thirty (30) days after receipt of such notice to notify the Seller if it has elected to assume the defense of such Third Party Claim. If the Buyer timely elects to assume the defense of such Third Party Claim, the Buyer shall be entitled at its own expense to conduct and control the defense and settlement of such Third Party Claim through counsel of its own choosing, provided that (a) the Seller may participate in the defense of such Third Party Claim with its or their own counsel at its or their own expense, (b) the Buyer must conduct the defense of the Third Party Claim actively and diligently in order to preserve its rights in this regard and (c) the Buyer may not settle any claim or matter which imposes a material obligation or adverse impact upon the Seller without the consent of the Seller, which it may grant or withhold in its sole and complete discretion. If the Buyer fails to notify the Seller within thirty (30) days after receipt of the notice of a Third Party Claim, the Seller shall be entitled to assume the defense of such Third Party Claim (and the Seller need not consult with, or obtain the consent of the Buyer) and in the Seller's sole discretion prosecute, litigate, settle and perform such other actions as the Seller may deem necessary in order fully to protect the Seller's interests, and the Buyer will remain responsible for indemnification of the Seller to the full extent provided in this Article X.Escrow Account.

Buyer Indemnification. 7.2.1 Notwithstanding (a) The Buyer agrees to indemnify and hold the Closing Company harmless against 50% of all Losses paid, incurred, accrued or sustained by the delivery Company, that arise out of or relate to any of the Purchase PriceExcluded Liabilities that are described in Section 1.2(b)(vii), 1.2(b)(ix) (other than with respect to such Liabilities set forth in Schedule 8.3(b)) or 1.2(b)(x), other than the liabilities that are set forth in Schedule 1.2(b); provided however, that Buyer’s indemnification obligations hereunder shall in no event exceed, in the aggregate, US$1,000,000. (b) In addition to the above, the Buyer agrees that it will indemnify, defend to indemnify and hold the Company harmless the Seller and its respective successors and assigns (the "Seller Indemnified Parties") from and against all claims33.33% of Losses of up to US$6,000,000 paid, damagesincurred, other liabilities, actions, suits, proceedings, demands, assessments, adjustments, costs and expenses, including reasonable attorneys' fees and expenses of investigation whether absolute, accrued, conditional or otherwise, and whether or not resulting from Third Party Claims (collectively, the "Damages"), incurred accrued or sustained by any Seller Indemnified Party as a result ofthe Company, that arise out of or relate to the matter set forth in Schedule 8.3(b); provided however, that Buyer’s indemnification obligations under this subsection (b) shall in no event exceed, in connection with or because the aggregate, US$2,000,000, of any inaccuracy in, breach or violation which the first sum of any representation, warranty, covenant or agreement made up to US$1,000,000 shall be paid by the Buyer in addition to the Purchase Price hereunder, and the remaining US$1,000,000 shall be made from the Escrow Funds. In addition to the Buyer’s indemnification obligations, Losses of up to US$5,000,000 that arise out of or relate to the matter set forth in Schedule 8.3(b) and that are not indemnified by Buyer under this Agreementsubsection 8.3(b), shall be made from the Escrow Fund, by way of release of such amount of Escrow Funds to the Company. For the sake of clarity, any Losses that arise out of or relate to the matter set forth in Schedule 8.3(b) (excluding the indemnification payments by Buyer to Company in accordance with this subsection) shall be deemed Excluded Liabilities hereunder. 7.2.2 In the event that the Seller desires to make a claim against the Buyer under Section 7.2.1 in connection with any action, suit, proceeding or demand at any time instituted against, or made upon, the Seller by any third party for which the Seller may seek indemnification hereunder (a "Third Party Claim"), the Seller shall promptly notify the Buyer of such Third Party Claim and of the Seller's claim of indemnification with respect thereto; provided, however, that no reasonable delay on the part of the Seller in notifying the Buyer shall relieve the Buyer from any obligation hereunder. The Buyer shall have thirty (30) days after receipt of such notice to notify the Seller if it has elected to assume the defense of such Third Party Claim. If the Buyer timely elects to assume the defense of such Third Party Claim, the Buyer shall be entitled at its own expense to conduct and control the defense and settlement of such Third Party Claim through counsel of its own choosing, provided that (a) the Seller may participate in the defense of such Third Party Claim with its or their own counsel at its or their own expense, (b) the Buyer must conduct the defense of the Third Party Claim actively and diligently in order to preserve its rights in this regard and (c) For the avoidance of doubt, (i) Buyer’s indemnification obligation under Section 8.3(a) and the indemnification obligation of up to US$1,000,000 from the Escrow Funds under Section 8.3(b) shall not be cumulative (i.e. the Buyer’s indemnification obligations from the Escrow Fund shall not exceed an aggregate total of US$1,000,000), (ii) Buyer’s aggregate indemnification obligations under this Section 8.3 shall in no event exceed, in the aggregate, US$2,000,000, and (iii) the aggregate amount that may be released from the Escrow Funds under Section 8.3(b) shall in no event exceed, in the aggregate, US$6,000,000 (or such smaller amount, if the Escrow Funds contain less than US$6,000,000 not due to be released to the Buyer may or subject to a conflict as set forth in Section 8.2(i) at such time). (d) Except as specifically set forth in Section 8.3(b), Buyer shall satisfy its indemnification obligations hereunder from the Escrow Funds, by way of release of such amount of Escrow Funds required for the indemnification hereunder to the Company. For the sake of clarity, any indemnification by Buyer from the Escrow Funds (and any other release of Escrow Funds to the Company under Section 8.3(b)) shall be on account of the Purchase Price and shall not settle require the Buyer to pay any claim additional sums, whether to the Escrow Fund or matter which imposes a material obligation or adverse impact upon otherwise. Buyer shall use commercially reasonable efforts to mitigate any Liability set forth in this Section 8.3 above and specifically agrees that with respect to the Seller Liability set forth in Schedule 8.3(b), not to agree to any settlement related to such Liability without the consent of the SellerCompany (not to be unreasonably withheld); provided that Buyer may settle any such claim if Buyer agrees to not use the Escrow Funds to pay the respective settlement and the settlement does not otherwise create any Liability on the Company. The Company hereby agrees and acknowledges that it will participate in 50% of any legal and consulting expenses of the Buyer incurred at any time after the Closing in connection with the settlement of the Liability set forth in Schedule 8.3(b) (or any other process for solving such Liability), which it may grant or withhold in its sole participation shall not exceed US$500,000 and complete discretion. If the Buyer fails to notify the Seller within thirty (30) days after receipt of the notice of a Third Party Claim, the Seller which shall be entitled to assume the defense of such Third Party Claim (and the Seller need not consult with, or obtain the consent of the Buyera Deemed Loss under Section 8.2(c) and in paid from the Seller's sole discretion prosecute, litigate, settle and perform such other actions as Escrow Fund. (e) The Buyer’s obligations under this Section 8.3 shall terminate on the Seller may deem necessary in order fully to protect the Seller's interests, and the Buyer will remain responsible for indemnification of the Seller to the full extent provided in this Article X.Survival Date.

Buyer Indemnification. 7.2.1 Notwithstanding Effective at and after the Closing or the delivery of the Purchase PriceClosing, the Buyer agrees that it will indemnifyhereby indemnifies Seller, defend its Affiliates and hold harmless the Seller their respective current and its former directors, officers, employees, agents and representatives and their respective successors and assigns (the "“Seller Indemnified Parties"Persons”) from and against all claims, damages, other liabilities, actions, suits, proceedings, demands, assessments, adjustments, costs and expenses, including reasonable attorneys' fees and expenses of investigation whether absolute, accrued, conditional or otherwiseagainst, and whether agrees to hold each of them harmless from, and pay or not resulting from Third Party Claims (collectivelyreimburse them for, the "Damages")any and all Losses imposed on or incurred, incurred sustained or sustained suffered by any Seller Indemnified Person, whether in respect of Third Party as a result Claims or claims between the parties hereto, arising out of, in connection or resulting from: (a) any Warranty Breach (disregarding for purposes of this Section 10.03 any qualifications relating to materiality, including the term “Material Adverse Effect”) provided that with respect to indemnification by Buyer for Warranty Breaches pursuant to this Section 10.03 (other than Warranty Breaches pursuant to Section 4.01, Section 4.01 and Section 4.08) (A) Buyer shall not be liable for any individual Warranty Breach (and such Warranty Breach shall be disregarded for all purposes hereunder) unless the Losses with respect to such Warranty Breach exceeds $25,000 (it being understood that all Warranty Breaches arising from the same nucleus of operative facts shall collectively be deemed an individual Warranty Breach for purposes of this clause (A)), (B) Buyer shall not be liable for Warranty Breaches unless the aggregate amount of Losses with respect to such Warranty Breaches exceeds the Deductible and then only to the extent of such excess and (C) Buyer’s maximum liability for all such Warranty Breaches shall not exceed an amount equal to the Cap (provided that the foregoing clauses (A), (B) and (C) shall not apply to any misrepresentation or because breach of Section 4.01, Section 4.01 or Section 4.08 or any inaccuracy in, claim involving fraud or intentional or willful breach); (b) any breach or violation of any representation, warranty, a covenant or agreement made or to be performed by the Buyer in or its Affiliates pursuant to this Agreement.; and 7.2.2 In (c) the event that the Seller desires to make a claim against the Buyer under Section 7.2.1 in connection with any actionOff-Risk Business (including, suitfor purposes of clarity, proceeding or demand at any time instituted against, or made upon, the Seller by any third party for which the Seller may seek indemnification hereunder (a "Third Party Claim"), the Seller shall promptly notify the Buyer of such Third Party Claim and of the Seller's claim of indemnification with respect thereto; provided, however, that no reasonable delay on the part of the Seller in notifying the Business ceded to Buyer shall relieve the Buyer from any obligation hereunder. The Buyer shall have thirty (30) days after receipt of such notice to notify the Seller if it has elected to assume the defense of such Third Party Claim. If the Buyer timely elects to assume the defense of such Third Party Claim, the Buyer shall be entitled at its own expense to conduct and control the defense and settlement of such Third Party Claim through counsel of its own choosing, provided that (a) the Seller may participate in the defense of such Third Party Claim with its or their own counsel at its or their own expense, (b) the Buyer must conduct the defense of the Third Party Claim actively and diligently in order to preserve its rights in this regard and (c) the Buyer may not settle any claim or matter which imposes a material obligation or adverse impact upon the Seller without the consent of the Seller, which it may grant or withhold in its sole and complete discretion. If the Buyer fails to notify the Seller within thirty (30) days after receipt of the notice of a Third Party Claim, the Seller shall be entitled to assume the defense of such Third Party Claim (and the Seller need not consult with, or obtain the consent of the Buyer) and in the Seller's sole discretion prosecute, litigate, settle and perform such other actions as the Seller may deem necessary in order fully to protect the Seller's interests, and the Buyer will remain responsible for indemnification of the Seller pursuant to the full Core Coinsurance Agreement), except to the extent provided in this Article X.that Seller or its Affiliates has an obligation to indemnify Buyer pursuant to Section 10.02 or any AFLIAC Agreement as amended through the date hereof.

Buyer Indemnification. 7.2.1 Notwithstanding anything else contained herein: (1) the Closing conditions set forth in this Section 6.2(c) shall be deemed satisfied with respect to any Governmental Challenge or Material Adverse Governmental Determination to the delivery of the Purchase Priceextent that Buyer has agreed in writing (x) to assume, at its sole cost and expense, the Buyer agrees that it will defense of such Governmental Challenge or Material Adverse Governmental Determination and (y) to indemnify, defend and hold harmless the Seller and its respective successors and assigns (the "all Seller Indemnified Parties") Parties from and against any and all claimsDamages incurred in connection with, damages, other liabilities, actions, suits, proceedings, demands, assessments, adjustments, costs and expenses, including reasonable attorneys' fees and expenses arising out of investigation whether absolute, accrued, conditional or otherwise, and whether or not resulting from Third Party Claims (collectivelysuch Governmental Challenge or Material Adverse Governmental Determination; provided, the "Damages")however, incurred or sustained by any Seller Indemnified Party as a result ofthat, in connection with or because of any inaccuracy in, breach or violation of any representation, warranty, covenant or agreement made by the Buyer in this Agreement. 7.2.2 In the event that Seller’s prospective Damages are reasonably likely to consist of either criminal sanctions and/or the loss of Seller’s tax-exempt status, (x) Buyer’s indemnification pursuant to this clause (iii) shall be presumed to be ineffective and (y) the conditions set forth in clause (ii) of this Section 6.2(c) shall continue to apply; provided, further, that Buyer shall in any event have the right to seek a declaratory judgment with respect to any such Governmental Challenge or Material Adverse Determination; (2) the conditions set forth in this Section 6.2(c) shall be deemed satisfied with respect to any Non-Frivolous Seller desires Claim to make a claim the extent that Buyer has agreed in writing (x) to assume, at its sole cost and expense, the defense of such Non-Frivolous Seller Claim and (y) to indemnify, defend and hold harmless Seller and all Seller Indemnified Parties from and against the Buyer under Section 7.2.1 any and all Damages incurred in connection with with, arising out of or resulting from such Non-Frivolous Seller Claim; and (3) Buyer shall have the right to cease its defense of any actionGovernmental Challenge, suit, proceeding Material Adverse Governmental Determination or demand Non-Frivolous Seller Claim (as the case may be) following written notice to Seller at any time instituted againstprior to the Closing, or made upon, in which case the Seller by any third party for which the Seller may seek indemnification hereunder conditions set forth in clause (a "Third Party Claim"), the Seller ii) of this Section 6.2(c) shall promptly notify the Buyer of such Third Party Claim and of the Seller's claim of indemnification with respect theretocontinue to apply; provided, however, that no reasonable delay on the part of the Seller in notifying the any cessation by Buyer shall relieve the Buyer from any obligation hereunder. The Buyer shall have thirty (30) days after receipt of such notice defense shall not relieve Buyer of its indemnification obligations to notify Seller and all Seller Indemnified Parties for any Damages arising prior to the Seller if it has elected to assume date on which Buyer ceased the defense of such Third Party Governmental Challenge, Material Adverse Governmental Determination or Non-Frivolous Seller Claim. If the Buyer timely elects to assume the defense of such Third Party Claim, the Buyer shall be entitled at its own expense to conduct and control the defense and settlement of such Third Party Claim through counsel of its own choosing, provided that (a) the Seller may participate in the defense of such Third Party Claim with its or their own counsel at its or their own expense, (b) the Buyer must conduct the defense of the Third Party Claim actively and diligently in order to preserve its rights in this regard and (c) the Buyer may not settle any claim or matter which imposes a material obligation or adverse impact upon the Seller without the consent of the Seller, which it may grant or withhold in its sole and complete discretion. If the Buyer fails to notify the Seller within thirty (30) days after receipt of the notice of a Third Party Claim, the Seller shall be entitled to assume the defense of such Third Party Claim (and the Seller need not consult with, or obtain the consent of the Buyer) and in the Seller's sole discretion prosecute, litigate, settle and perform such other actions as the Seller may deem necessary in order fully to protect the Seller's interests, and the Buyer will remain responsible for indemnification of the Seller to the full extent provided in this Article X..

Buyer Indemnification. 7.2.1 Notwithstanding the Closing or the delivery of the Purchase PriceBuyer hereby agrees to indemnify Sellers and their directors, the Buyer agrees that it will indemnifyofficers, defend agents, representatives and hold harmless the Seller and its respective successors and assigns employees (the collectively "Seller Indemnified PartiesSellers") and to hold Sellers harmless from and against any and all claims, damages, other liabilities, actions, suits, proceedings, demands, assessments, adjustments, costs and expenses, including reasonable attorneys' fees and expenses of investigation whether absolute, accrued, conditional or otherwise, and whether or not resulting from Third Party Claims (collectively, the "Damages"), Damages incurred or sustained suffered by Sellers arising out of or in respect of the following: (i) any Seller Indemnified Party as a result of, in connection with breach of representation or because warranty of any inaccuracy in, breach or violation of any representation, warranty, covenant or agreement made by the Buyer in under this Agreement. 7.2.2 In the event that the Seller desires to make , a claim against the for which, except for those representations and warranties of Buyer under Section 7.2.1 in connection with 5(b) above, is asserted within two (2) years after the Closing Date; (ii) any actionbreach of representation or warranty of Buyer under Section 5(b)above, suit, proceeding or demand at any time instituted against, or made upon, the Seller by any third party a claim for which the Seller may seek indemnification hereunder is asserted within five (a "Third Party Claim"), the Seller shall promptly notify the Buyer of such Third Party Claim 5) years and of the Seller's claim of indemnification with respect thereto; provided, however, that no reasonable delay on the part of the Seller in notifying the Buyer shall relieve the Buyer from any obligation hereunder. The Buyer shall have thirty (30) days after receipt the Closing Date; (iii) any breach of a covenant or agreement made or to be performed by Buyer pursuant to this Agreement, a claim for which is asserted within four (4) years after the Closing Date (except that an alleged breach of Buyer's covenant to provide access to slides, specimens and records in accordance with Section 7(d) above, shall have a claim period of five (5) years after the Closing Date or such longer time period as is required by law with respect to the retention of such notice to notify the Seller if it has elected to assume the defense of such Third Party Claim. If the Buyer timely elects to assume the defense of such Third Party Claimslides, the Buyer shall be entitled at its own expense to conduct specimens and control the defense and settlement of such Third Party Claim through counsel of its own choosing, provided that records); (aiv) the Seller may participate Assumed Obligations; (v) the operation of the Assets and the Business from and after the Closing Date, except with respect to Damages incurred after the Closing Date that were caused by or arose from a breach of any of Sellers' representations, warranties, covenants or agreements contained in this Agreement and except for any alleged decline in the defense of such Third Party Claim with its or their own counsel at its or their own expense, (b) the Buyer must conduct the defense value of the Third Party Claim actively Shares resulting from Buyer's operation of the Assets and diligently Business after the Closing Date; (vi) except as provided in order Section 7(c) above, any and all claims relating to preserve the employment or termination of employment by Buyer of any Person, other than Key Persons, or for compensation and other of Buyer's employee benefits (including without limitation, its rights in this regard severance, disability or post-retirement, health, workers' compensation and death benefits) and any and all claims with respect to any employee benefit or welfare plan maintained or contributed to by Buyer or any other claim by any employee, other than Key Employees, of Buyer, except as required to be paid by Sellers hereunder, for any accrued compensation or benefit owing or maintained by Buyer arising out of services rendered to Buyer after the Closing Date; and (cvii) the Buyer may not settle Buyer's failure to pay any claim or matter which imposes a material obligation or adverse impact upon the Seller without the consent of the Seller, New York State bulk sales tax for which it may grant or withhold in its sole and complete discretion. If the Buyer fails to notify the Seller within thirty (30) days after receipt of the notice of a Third Party Claimis liable under Section 3(d), the Seller shall be entitled to assume the defense of such Third Party Claim (and the Seller need not consult with, or obtain the consent of the Buyer) and in the Seller's sole discretion prosecute, litigate, settle and perform such other actions as the Seller may deem necessary in order fully to protect the Seller's interests, and the Buyer will remain responsible for indemnification of the Seller to the full extent provided in this Article X.above.

Buyer Indemnification. 7.2.1 Notwithstanding To the Closing or the delivery of the Purchase Priceextent permitted by law, the Buyer agrees that it will indemnify, defend indemnify and hold harmless each Seller who holds such Registrable Shares, the directors and officers, if any, of such Seller, each person, if any, who controls any Seller within the meaning of the Securities Act, any underwriter (as defined in the Securities Act) for the Sellers, the directors, if any, of such underwriter and its respective successors the officers, if any, of such underwriter, and assigns each person, if any, who controls any such underwriter within the meaning of the Securities Act or the Exchange Act (the each, an "Seller Indemnified PartiesRegistration-Related Person") from and ), against all any losses, claims, damages, other liabilitiesexpenses or liabilities (joint or several) (collectively, actions"Claims") to which any of them become subject under the Securities Act, suits, proceedings, demands, assessments, adjustments, costs and expenses, including reasonable attorneys' fees and expenses of investigation whether absolute, accrued, conditional the Exchange Act or otherwise, and whether or not resulting from Third Party insofar as such Claims (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any of the following statements, omissions or violations in the Registration Statement, or any post-effective amendment thereof, or any prospectus included therein: (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any post-effective amendment thereof or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus if used prior to the effective date of such Registration Statement, or contained in the final prospectus (as amended or supplemented, if Buyer files any amendment thereof or supplement thereto with the SEC) or the omission or alleged omission to state therein, in light of the circumstances under which the statements therein were made, not misleading; or (iii) any violation or alleged violation by Buyer of the Securities Act, the Exchange Act or any state securities law or any rule or regulation (the matters in the foregoing clauses (i) through (iii) being, collectively, the "DamagesViolations"). Subject to the restrictions set forth in Section 10A.4 with respect to the number of legal counsel, Buyer shall reimburse the Sellers and each such underwriter or controlling person, promptly as such expenses are incurred and are due and payable, for any legal fees or sustained other reasonable expenses incurred by any Seller Indemnified Party as a result of, them in connection with investigating or because of defending any inaccuracy insuch Claim. Notwithstanding anything to the contrary contained herein, breach or violation of any representation, warranty, covenant or the indemnification agreement made by the Buyer contained in this Agreement. 7.2.2 In the event that the Seller desires Section 10A.1: (1) shall not apply to make a claim against the Claim arising out of or based upon a Violation which occurs in reliance upon and in conformity with information furnished in writing to Buyer under Section 7.2.1 by any Indemnified Registration-Related Person or underwriter for such Indemnified Registration-Related Person expressly for use in connection with the preparation of the Registration Statement or any actionsuch amendment thereof or supplement thereto, suit, proceeding or demand at any time instituted against, or made upon, if the Seller by any third party for which the Seller may seek indemnification hereunder (prospectus forming a "Third Party Claim"), the Seller shall promptly notify the Buyer part of such Third Party Registration Statement was made available by Buyer; (2) with respect to any preliminary prospectus shall not inure to the benefit of any such person from whom the person asserting any such Claim purchased the Registrable Shares that are the subject thereof (or to the benefit of any person controlling such person) if the untrue statement or omission of material fact contained in the preliminary prospectus was corrected in the prospectus, as then amended or supplemented, if such prospectus was timely made available by Buyer; and (3) shall not apply to amounts paid in settlement of any Claim if such settlement is effected without the prior written consent of Buyer, which consent shall not be unreasonably withheld. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Seller's claim of indemnification with respect thereto; provided, however, that no reasonable delay on the part of the Seller in notifying the Buyer shall relieve the Buyer from any obligation hereunder. The Buyer shall have thirty (30) days after receipt of such notice to notify the Seller if it has elected to assume the defense of such Third Party Claim. If the Buyer timely elects to assume the defense of such Third Party Claim, the Buyer shall be entitled at its own expense to conduct and control the defense and settlement of such Third Party Claim through counsel of its own choosing, provided that (a) the Seller may participate in the defense of such Third Party Claim with its or their own counsel at its or their own expense, (b) the Buyer must conduct the defense of the Third Party Claim actively and diligently in order to preserve its rights in this regard and (c) the Buyer may not settle any claim or matter which imposes a material obligation or adverse impact upon the Seller without the consent of the Seller, which it may grant or withhold in its sole and complete discretion. If the Buyer fails to notify the Seller within thirty (30) days after receipt of the notice of a Third Party Claim, the Seller shall be entitled to assume the defense of such Third Party Claim (and the Seller need not consult with, or obtain the consent of the Buyer) and in the Seller's sole discretion prosecute, litigate, settle and perform such other actions as the Seller may deem necessary in order fully to protect the Seller's interests, and the Buyer will remain responsible for indemnification of the Seller to the full extent provided in this Article X.Indemnified Registration-Related Persons.

Buyer Indemnification. 7.2.1 Notwithstanding the Closing or the delivery of the Purchase PriceWith respect to indemnification claims that may be asserted under Section 8.2: (i) If a Company Indemnified Party wishes to seek indemnification under this Section 8, the Buyer agrees Stockholder Representative shall give written notice thereof to the Buyer; provided, that it will indemnify, defend and hold harmless in the Seller and its respective successors and assigns (the "Seller Indemnified Parties") from and against all claims, damages, other liabilities, actions, suits, proceedings, demands, assessments, adjustments, costs and expenses, including reasonable attorneys' fees and expenses of investigation whether absolute, accrued, conditional or otherwise, and whether or not resulting from Third Party Claims (collectively, the "Damages"), incurred or sustained by any Seller Indemnified Party as a result of, in connection with or because case of any inaccuracy in, breach action or violation of any representation, warranty, covenant lawsuit brought or agreement made asserted by the Buyer in this Agreement. 7.2.2 In the event that the Seller desires to make a claim against the Buyer under Section 7.2.1 in connection with any action, suit, proceeding or demand at any time instituted against, or made upon, the Seller by any third party for which the Seller may seek indemnification hereunder (a "“Third Party Claim")”) that would entitle the Company Indemnified Party to indemnity hereunder, the Seller Stockholder Representative shall promptly notify the Buyer of such Third Party Claim and of the Seller's claim of indemnification with respect theretosame in writing; provided, howeverprovided further, that no reasonable delay on the part of the Seller in notifying failure to so notify the Buyer promptly shall not relieve the Buyer from any of its indemnification obligation hereunder. The Buyer shall have thirty (30) days after receipt of such notice hereunder except to notify the Seller if it has elected to assume the defense of such Third Party Claim. If extent that the Buyer timely elects to assume has been materially prejudiced thereby. Any request for indemnification made by a Company Indemnified Party shall be in writing, shall specify in reasonable detail the defense basis for such claim, the facts pertaining thereto and, if known and quantifiable, the amount thereof. (ii) In the case of such any Third Party Claim, if within 30 Business Days after receiving the notice described in Section 8.5(a)(i) above the Buyer gives written notice to the Stockholder Representative stating (i) that the Buyer disputes and intends to defend against such claim and (ii) that the Buyer will be solely responsible for all costs, expenses and liabilities incurred in connection with or otherwise relating to such claim, then counsel for the defense shall be selected by the Buyer (subject to the consent of the Stockholders Representative, which consent shall not be unreasonably withheld), whereupon the Buyer shall not be entitled at required to make any payment to the Company Indemnified Party for the costs of its own expense to conduct and control the defense and settlement counsel in respect of such Third Party Claim through counsel of as long as the Buyer is conducting a good faith and diligent defense; provided, that the Company Indemnified Party and Stockholder Representative shall at all times have the right to fully participate in such defense at its own choosing, provided that (a) expense directly or through counsel. If the Seller may participate in Buyer assumes the defense in accordance with the preceding sentence, it shall have the right, with the consent of the Stockholder Representative, which consent shall not be unreasonably withheld, to settle the portion of such Third Party Claim with its that is subject to indemnification; provided, that the settlement (i) does not involve the imposition of an injunction or their own counsel at its or their own expenseother equitable relief on the Company Indemnified Party, (b) the Buyer must conduct the defense of the Third Party Claim actively and diligently in order to preserve its rights in this regard and (cii) expressly and unconditionally releases the Buyer may not settle any claim or matter which imposes a material obligation or adverse impact upon the Seller without the consent of the Seller, which it may grant or withhold in its sole and complete discretion. If the Buyer fails Company Indemnified Party from all Liabilities with respect to notify the Seller within thirty (30) days after receipt of the notice of a Third Party Claim, the Seller shall be entitled to assume the defense of such Third Party Claim (and all other claims arising out of the Seller need same or similar facts and circumstances), with prejudice. The Buyer shall keep the Stockholder Representative apprised of the status of any Third Party Claim for which it has assumed the defense, shall furnish the Stockholder Representative with all documents and information that such Company Indemnified Party reasonably requests, and shall consult with the Stockholder Representative prior to acting on major matters, including settlement discussions. Notwithstanding any of the foregoing, the Buyer shall not consult withhave the right to assume control of the defense, and shall pay the reasonable fees and expenses of counsel retained by the Company Indemnified Party, if the Third Party Claim which the Buyer seeks to assume control of: (1) seeks non-monetary relief; (2) involves criminal or quasi-criminal allegations; (3) is one in which Buyer and the Company Indemnified Party are both named in the complaint, and joint representation by the same counsel would be inappropriate under applicable standards of ethical conduct; (4) could reasonably be expected to adversely affect the Taxes of the Company Indemnified Party for a taxable period (or portion thereof) beginning after the date hereof; or (5) involves a claim for which an adverse determination would have a material and adverse effect on the Company Indemnified Party’s reputation or future business prospects. If notice of intent to dispute and defend is not given by the Buyer within the time period referenced above, or obtain if such diligent good faith defense is not being or ceases to be conducted, then the consent Company Indemnified Party may undertake the defense of (with counsel selected by such Company Indemnified Party), and shall have the right to compromise or settle, such Third Party Claim (exercising reasonable business judgment) in its discretion. If such Third Party Claim is one that, by its nature, cannot be defended solely by the Buyer) , then the Company Indemnified Party shall make available all information and in assistance that the Seller's sole discretion prosecute, litigate, settle and perform such other actions as the Seller may deem necessary in order fully to protect the Seller's interestsBuyer shall reasonably request, and shall cooperate with the Buyer will remain responsible for indemnification of the Seller to the full extent provided in this Article X.such defense.

Buyer Indemnification. 7.2.1 Notwithstanding (a) Subject to the Closing or the delivery of the Purchase Pricelimitations set forth in this ARTICLE 8, the and as otherwise expressly set forth herein, Buyer hereby agrees that it will indemnify, defend and hold harmless the to indemnify Seller and its respective successors Seller’s Subsidiaries, Affiliates and assigns Representatives (the "“Seller Indemnified Parties") ”), against and agrees to hold the Seller Indemnified Parties harmless from and against all claims, damages, other liabilities, actions, suits, proceedings, demands, assessments, adjustments, costs and expenses, including reasonable attorneys' fees and expenses any Loss incurred or suffered by the Seller Indemnified Parties (regardless of investigation whether absolute, accrued, conditional or otherwise, and whether or not resulting from Third Party Claims (collectively, the "Damages"), incurred or sustained by such Losses relate to any Seller Indemnified Party as a result of, in connection with or because of any inaccuracy in, breach or violation of any representation, warranty, covenant or agreement made by the Buyer in this Agreement. 7.2.2 In the event that the Seller desires to make a claim against the Buyer under Section 7.2.1 in connection with any action, suit, proceeding or demand at any time instituted against, or made upon, the Seller by any third party for which the Seller may seek indemnification hereunder (a "Third Party Claim") arising out of or related to: (i) a Warranty Breach or Covenant Breach by Buyer; (ii) any Taxes of GPAA or LDMA (or any Subsidiary of either), or any Taxes of Buyer levied with respect to GPAA and LDMA, attributable to Tax periods (or portions of Tax periods) ending after the Closing Date and any other Taxes (including any and all income Taxes and Taxes in the nature of income Taxes) of Buyer (and any Subsidiaries of Buyer other than GPAA or LDMA or their Subsidiaries) for any Tax periods; and (iii) the Assumed Liabilities. (b) Notwithstanding anything herein to the contrary and subject to the limitations set forth in this ARTICLE 8, Buyer shall have no liability with respect to indemnification under this Agreement due to a Warranty Breach or Covenant Breach until the aggregate amount of Losses incurred by the Seller Indemnified Parties due to a Warranty Breach or Covenant Breach by Buyer exceeds $25,000. (c) Except as expressly provided in the next sentence of this Section 8.2(c), notwithstanding anything herein to the contrary, in no event shall promptly notify the Buyer Buyer’s liability for Losses (including Buyer’s reasonable costs of such defending a Third Party Claim and pursuant to Section 8.4) under Section 8.2(a) exceed, individually or in the aggregate, One Million Seven Hundred Thousand Dollars ($1,700,000). The provisions of the Seller's claim of this Section 8.2(c) shall not apply to indemnification with respect thereto; providedobligations arising out of, however, that no reasonable delay relating to or resulting from fraud on the part of the Seller in notifying the Buyer shall relieve the Buyer from any obligation hereunder. The Buyer shall have thirty (30) days after receipt of such notice to notify the Seller if it has elected to assume the defense of such Third Party Claim. If the Buyer timely elects to assume the defense of such Third Party Claim, the Buyer shall be entitled at its own expense to conduct and control the defense and settlement of such Third Party Claim through counsel of its own choosing, provided that (a) the Seller may participate in the defense of such Third Party Claim with its or their own counsel at its or their own expense, (b) the Buyer must conduct the defense of the Third Party Claim actively and diligently in order to preserve its rights in this regard and (c) the Buyer may not settle any claim or matter which imposes a material obligation or adverse impact upon the Seller without the consent of the Seller, which it may grant or withhold in its sole and complete discretion. If the Buyer fails to notify the Seller within thirty (30) days after receipt of the notice of a Third Party Claim, the Seller shall be entitled to assume the defense of such Third Party Claim (and the Seller need not consult with, or obtain the consent of the Buyer) and in the Seller's sole discretion prosecute, litigate, settle and perform such other actions as the Seller may deem necessary in order fully to protect the Seller's interests, and the Buyer will remain responsible for indemnification of the Seller to the full extent provided in this Article X..

Buyer Indemnification. 7.2.1 Notwithstanding the Closing or the delivery of the Purchase PriceThe Sellers shall, jointly and severally, indemnify the Buyer agrees that it will indemnifyIndemnified Persons for, defend and hold each of them harmless from and against, any and all Losses resulting from any Buyer Indemnification Event (other than a Buyer Indemnification Event described in clause (vi) of Section 5.1(a)); provided, however, that: (i) the Sellers shall have no obligation or liability to indemnify and hold harmless the Seller and its respective successors and assigns (the "Seller Buyer Indemnified Parties") Persons from and against all claimsLosses resulting from a Buyer Indemnification Event described in Section 5.1(a)(i) (unless such Buyer Indemnification Event relates to a breach of the representation set forth in Section 3.1(q)(xix)), damagesSection 5.1(a)(iii)(A) and Section 5.1(a)(ix) (in the case of (ix), other liabilities, actions, suits, proceedings, demands, assessments, adjustmentsonly to the extent such fees, costs and expensesexpenses arise from a Buyer Indemnification Event described in clause (i) and (iii)(A) of Section 5.1(a)) unless and until the aggregate amount of all such Losses shall exceed $450,000 and then only to the extent of such Losses in excess of $450,000 and the aggregate liability of the Sellers under this Section 5.2(a) for such Losses shall not exceed, including reasonable attorneys' fees when aggregated with any other payment by the Sellers to the Buyer Indemnified Persons under this Agreement, the Purchase Price; and (ii) the Buyer Indemnified Persons shall not be entitled to indemnification for any Losses resulting from a Buyer Indemnification Event described in clause (i) of Section 5.1(a) which is based upon a breach of the representation and expenses warranty set forth in Section 3.1(i)(i)(C)(y) which result from sales of investigation whether absoluteRack Products after the Buyer has knowledge that such Rack Product infringes the Intellectual Property Rights of another Person. The Sellers shall, accruedjointly and severally, conditional or otherwiseindemnify the Buyer Indemnified Persons for, and whether or not hold each of them harmless from and against, any and all Losses resulting from Third Party Claims any Buyer Indemnification Event described in clause (collectively, the "Damages"vi) of Section 5.1(a), incurred or sustained by any Seller Indemnified Party as a result of, in connection with or because of any inaccuracy in, breach or violation of any representation, warranty, covenant or agreement made by the Buyer in this Agreement. 7.2.2 In the event that the Seller desires to make a claim against the Buyer under Section 7.2.1 in connection with any action, suit, proceeding or demand at any time instituted against, or made upon, the Seller by any third party for which the Seller may seek indemnification hereunder (a "Third Party Claim"), the Seller shall promptly notify the Buyer of such Third Party Claim and of the Seller's claim of indemnification with respect thereto; provided, however, that the Sellers shall have no reasonable delay on obligation or liability to indemnify and hold harmless the part Buyer Indemnified Persons from and against 50% of the Seller first $450,000 of Losses (other than Losses arising from the first item described under Section III of Schedule 5.1(a)(vii) as to which no basket shall apply) resulting from a Buyer Indemnified Event described in notifying clause (vi) of Section 5.1(a) (after the Buyer Indemnified Persons have incurred 50% of the first $450,000 of Losses all Losses above $450,000 shall relieve be indemnified by the Sellers) and the aggregate liability of the Sellers under this Section 5.2(a) for such Losses shall not exceed, when aggregated with any other payment by the Sellers to the Buyer from any obligation hereunder. The Buyer shall have thirty (30) days after receipt of such notice to notify the Seller if it has elected to assume the defense of such Third Party Claim. If the Buyer timely elects to assume the defense of such Third Party ClaimIndemnified Persons under this Agreement, the Buyer shall be entitled at its own expense to conduct and control the defense and settlement of such Third Party Claim through counsel of its own choosing, provided that (a) the Seller may participate in the defense of such Third Party Claim with its or their own counsel at its or their own expense, (b) the Buyer must conduct the defense of the Third Party Claim actively and diligently in order to preserve its rights in this regard and (c) the Buyer may not settle any claim or matter which imposes a material obligation or adverse impact upon the Seller without the consent of the Seller, which it may grant or withhold in its sole and complete discretion. If the Buyer fails to notify the Seller within thirty (30) days after receipt of the notice of a Third Party Claim, the Seller shall be entitled to assume the defense of such Third Party Claim (and the Seller need not consult with, or obtain the consent of the Buyer) and in the Seller's sole discretion prosecute, litigate, settle and perform such other actions as the Seller may deem necessary in order fully to protect the Seller's interests, and the Buyer will remain responsible for indemnification of the Seller to the full extent provided in this Article X.Purchase Price.

Buyer Indemnification. 7.2.1 Notwithstanding the Closing or the delivery of the Purchase PriceBuyer Parties shall, the Buyer agrees that it will indemnifyjointly and severally, defend and hold harmless indemnify the Seller and its respective successors and permitted assigns (the "Seller Indemnified Parties") from and against all claims, damages, other liabilities, actions, suits, proceedings, demands, assessments, adjustments, costs and expenses, including reasonable attorneys' fees and expenses of investigation whether absolute, accrued, conditional or otherwise, and whether or not resulting from Third Party Claims (collectively, the "Damages")“Seller Parties”) and hold each of them harmless from and against and pay on behalf of or reimburse the Seller Parties in respect of any Loss which such Seller Party suffers, incurred sustains or sustained by any Seller Indemnified Party becomes subject to, arising from or as a the result of: (i) the breach by either Buyer Party of any representation or warranty made by such Buyer Party contained in this Agreement, any other Transaction Document or any certificate delivered by Buyer to the Seller pursuant hereto; (ii) the breach of any covenant or agreement to be performed by either Buyer Party contained in connection this Agreement or the other Transaction Documents; (iii) the arrangement of the Debt Financing (including any action taken in accordance with Section 8.9); or (iv) the operations, conduct, errors or because omissions of the Company after the Closing Date; provided, that with respect to any claim for indemnification by Buyer pursuant to Section 9.2(b)(i) (other than with regard to Fundamental Representations or claims for Actual Fraud in the making of the representations and warranties of the Buyer Parties in this Agreement): (A) Buyer shall have no liability for such claim unless the aggregate amount of Losses with respect to all indemnification claims made pursuant to Section 9.2(b)(i) exceeds the Deductible and then only to the extent the Losses relating to such claims exceed the Deductible; provided, further, that in calculating whether the Deductible has been exceeded, only claims (or series of claims arising from the same or substantially similar facts or circumstances) for Losses in excess of the Mini-Basket shall be considered, and (B) Buyer’s maximum liability for all such claims shall not exceed the Cap; provided, that such limitation shall not apply to, and each Seller Party shall be entitled to make, claims for indemnification in respect of (i) Losses arising out of any inaccuracy in, or breach or violation of any representation, warranty, covenant or agreement made by Fundamental Representation and (ii) Losses arising out of Actual Fraud in the Buyer making of the representations and warranties in this Agreement. 7.2.2 In the event that the Seller desires to make a claim against the Buyer under Section 7.2.1 in connection with any action, suit, proceeding or demand at any time instituted against, or made upon, the Seller by any third party for which the Seller may seek indemnification hereunder (a "Third Party Claim"), the Seller shall promptly notify the Buyer of such Third Party Claim and of the Seller's claim of indemnification with respect thereto; provided, however, that no reasonable delay on the part of the Seller in notifying the Buyer shall relieve the Buyer from any obligation hereunder. The Buyer shall have thirty (30) days after receipt of such notice to notify the Seller if it has elected to assume the defense of such Third Party Claim. If the Buyer timely elects to assume the defense of such Third Party Claim, the Buyer shall be entitled at its own expense to conduct and control the defense and settlement of such Third Party Claim through counsel of its own choosing, provided that (a) the Seller may participate in the defense of such Third Party Claim with its or their own counsel at its or their own expense, (b) the Buyer must conduct the defense of the Third Party Claim actively and diligently in order to preserve its rights in this regard and (c) the Buyer may not settle any claim or matter which imposes a material obligation or adverse impact upon the Seller without the consent of the Seller, which it may grant or withhold in its sole and complete discretion. If the Buyer fails to notify the Seller within thirty (30) days after receipt of the notice of a Third Party Claim, the Seller shall be entitled to assume the defense of such Third Party Claim (and the Seller need not consult with, or obtain the consent of the Buyer) and in the Seller's sole discretion prosecute, litigate, settle and perform such other actions as the Seller may deem necessary in order fully to protect the Seller's interests, and the Buyer will remain responsible for indemnification of the Seller to the full extent provided in this Article X.

Buyer Indemnification. 7.2.1 Notwithstanding If, but only if, the Closing or shall occur, but subject to the delivery of the Purchase Pricelimitations contained in Sections 10.13 and 10.14, the Buyer agrees that it will indemnifydefend, defend indemnify and hold harmless the Seller and its respective successors and assigns (the "Seller Indemnified Parties") from and against all claimsLosses based upon, damages, other liabilities, actions, suits, proceedings, demands, assessments, adjustments, costs and expenses, including reasonable attorneys' fees and expenses arising out of investigation whether absolute, accrued, conditional or otherwise, and whether or not resulting from Third Party Claims otherwise in respect of any of the following: (collectively, the "Damages"), incurred or sustained by a) any Seller Indemnified Party as a result breach of, in connection with or because of any inaccuracy in, any representation or warranty made by Buyer in Article IV of this Agreement (whether at the date of this Agreement or the Closing Date). (b) any breach or violation by Buyer of any representationcovenant, warranty, covenant agreement or agreement made by the obligation of Buyer in this Agreement. 7.2.2 In the event (c) any final, nonappealable determination by a court of competent jurisdiction (or settlement approved in writing by Buyer) that the payment of the purchase price was invalid or illegal under, in violation of, or can be set aside or give rise to any award of damages, sanctions or other liability against Seller desires under applicable bankruptcy, fraudulent conveyance or transfer or similar law or the Act (as defined in Section 5.11 hereof) or other applicable law of similar effect as a result of the Closing Date Financing; provided that the Losses shall be limited to make the amount of the purchase price, if any, that Seller shall be so required to return or disgorge, the out-of-pocket damages, sanctions or other liability imposed on Seller and the reasonable expenses incurred by Seller directly related thereto. (d) any liability of Seller to any Person (other than the Deco Companies or another Person that is a claim against the Buyer under Section 7.2.1 party to this Agreement or any Related Person of Seller) as determined by any final, nonappealable judgment of a court of competent jurisdiction (or settlement approved in writing by Buyer) arising in connection with any action, suit, proceeding the Closing Date Financing on account of information provided by or demand at any time instituted against, or made upon, the on behalf of Seller by any third party for which the Seller may seek indemnification hereunder (a "Third Party Claim"), the Seller shall promptly notify the Buyer of such Third Party Claim and of the Seller's claim of indemnification with respect thereto; provided, however, that no reasonable delay on the part of the Seller in notifying the Buyer shall relieve the Buyer from any obligation hereunder. The Buyer shall have thirty (30) days after receipt of such notice pursuant to notify the Seller if it has elected to assume the defense of such Third Party Claim. If the Buyer timely elects to assume the defense of such Third Party Claim, the Buyer shall be entitled at its own expense to conduct and control the defense and settlement of such Third Party Claim through counsel of its own choosingSection 5.9 hereof, provided that the responsibility of Buyer to Seller under this subsection shall not relieve Seller of any liability that Seller would otherwise have to Buyer under this Agreement, if any, on account of the same conduct that gives rise to Buyer's responsibility hereunder, and provided further that the Losses shall be limited to the direct out-of-pocket payments made by Seller to such Person and reasonable expenses incurred by Seller directly related thereto. As an example of the foregoing, if (ai) Seller's liability to such Person is $300,000, (ii) Seller's liability to such Person also constitutes a violation of Seller's obligations to Buyer hereunder, (iii) the Seller may participate Total Threshold (as defined in Section 10.14(i)(iii) below) would apply to such violation, and (iv) Seller has not otherwise breached this Agreement, Buyer shall indemnify Seller for the entire $300,000 and such indemnification shall count against the Seller Total Threshold; but if, in the defense same circumstances, Seller's liability si $700,000, Buyer shall indemnify Seller for only $500,000 of such Third Party Claim with its or their own counsel at its or their own expenseliability, (b) the Buyer must conduct the defense of the Third Party Claim actively and diligently in order to preserve its rights in this regard and (c) the Buyer may not settle any claim or matter which imposes a material obligation or adverse impact upon the Seller without the consent of the Seller, which it may grant or withhold in its sole and complete discretion. If the Buyer fails to notify the Seller within thirty (30) days after receipt of the notice of a Third Party Claim, the Seller shall be entitled to assume pay the defense of such Third Party Claim (remaining $200,000 and the Seller need not consult withTotal Threshold shall be exhausted. If, or obtain the consent of the Buyer) and in the situation described in the preceding sentence, Seller's sole discretion prosecuteliability to such Person does not constitute a violation of Seller's obligations to Buyer hereunder, litigateBuyer shall indemnify Seller for the entire $300,000 and $700,000, settle respectively, and perform no such other actions as indemnification shall count against the Seller may deem necessary in order fully to protect the Seller's interests, and the Buyer will remain responsible for indemnification of the Seller to the full extent provided in this Article X.Total Threshold.