Common use of By the Sellers Clause in Contracts

By the Sellers. After the Closing occurs, and subject to the terms and provisions of this Agreement, Wicks will indemnify the Buyer and hold it harmless against any loss, liability, deficiency, damage or expense (including reasonable legal fees and expenses) which the Buyer may suffer, sustain or become subject to (a "Buyer Loss") as a result of (i) any breach of any representation or warranty made by the Sellers hereunder; (ii) the failure of the Sellers to perform any covenant or agreement hereunder and (iii) any liability of Sellers not expressly assumed by Buyer hereunder. Subject to the other limitations contained in this Agreement, including this Article 15, neither Seller shall be required to indemnify the Buyer with respect to any breaches of representations and warranties: (i) unless the Buyer gives the Sellers written notice of such Buyer Loss in accordance with Article 17, and in case of any claim made by the Buyer by reason of a third party claim, such notice shall be accompanied by a copy of such written notice of the third party claimant, and in the case of any claim made by the Buyer other than by reason of a third party claim, some damages or loss shall have been incurred in good faith at or prior to the date of such notice, and (ii) unless and until the aggregate amount of all Buyer Losses for which the Sellers are liable under this Article 15 exceeds $200,000, if such aggregate amount is calculated prior to the first anniversary of the Closing Date or $300,000 if calculated on or after such first anniversary, and in either such event the Sellers will be liable for all Buyer Losses; provided, that the foregoing threshold shall not apply to Buyer Losses arising out of a breach of an Exempt Rep. Notwithstanding anything to the contrary contained herein, the maximum amount of indemnification for any Buyer Losses for which the Sellers are required to indemnify the Buyer under this Article 15 shall not exceed an amount equal to (i) the Purchase Price less (ii) any amounts previously paid by the Sellers to the Buyer to cover such Buyer Losses in the aggregate.

By the Sellers. After If the Closing occurs, the Sellers, jointly and subject to the terms severally, hereby indemnify and provisions of this Agreement, Wicks will indemnify hold harmless the Buyer and hold it harmless the Company from and against all claims, damages, losses, liabilities, costs and expenses (including, without limitation, settlement costs and any losslegal, liabilityaccounting or other expenses for investigating or defending any actions or threatened actions) (collectively, deficiency, damage or expense (including reasonable legal fees and expenses) which the Buyer may suffer, sustain or become subject to (a "Buyer LossLosses") as a result in connection with each and all of the following, not waived by the Buyer (ia) any misrepresentation or breach of any representation or warranty made by the Sellers hereunder; or the Company in this Agreement (iia "Breach of Warranty"):; (b) the failure any breach of any covenant, agreement or obligation of the Sellers to perform any covenant or agreement hereunder and (iii) any liability of Sellers not expressly assumed by Buyer hereunder. Subject to the other limitations Company contained in this Agreement, including this Article 15, neither Seller shall be required to indemnify the Buyer with respect to any breaches of representations and warranties: Agreement (i) unless the Buyer gives the Sellers written notice of such Buyer Loss in accordance with Article 17, and in case of any claim made by the Buyer by reason of a third party claim, such notice shall be accompanied by a copy of such written notice of the third party claimant, and in the case of any claim made by the Buyer other than by reason of a third party claim, some damages or loss shall have been incurred in good faith at or prior to the date of such notice, and (ii) unless and until the aggregate amount of all Buyer Losses for which the Sellers are liable under this Article 15 exceeds $200,000, if such aggregate amount is calculated prior to the first anniversary of the Closing Date or $300,000 if calculated on or after such first anniversary, and in either such event the Sellers will be liable for all Buyer Losses; provided, that the foregoing threshold Sellers shall not apply to Buyer Losses arising out have no liability for failure of conditions under Section 8, unless such failure otherwise constitutes a breach of an Exempt Rep. Notwithstanding anything such covenant, agreement or obligation), provided, however, that the Sellers shall be obligated to indemnify and hold harmless the Buyer and the Company from Breaches of Warranty only to the contrary contained hereinextent, if any, that the maximum amount liability of indemnification Buyer and/or the Company for claims arising from one or more Breaches of Warranty, (including breach of any covenant, agreement or obligation which also constitutes a Breach of Warranty), other than representations made with actual knowledge of their falsity, exceeds One Hundred Thousand Dollars ($100,000) in the aggregate, and provided, further, that in no event shall any Seller have any responsibility under this Section 10 for any alleged nondisclosure of information actually provided to Buyer Losses for which the Sellers are required to indemnify the Buyer under this Article 15 shall not exceed an amount equal to (i) the Purchase Price less (ii) any amounts previously paid by the Sellers or the Company, or as to which the Buyer has actual knowledge, nor for any alleged breach of any covenant, agreement or obligation, information as to cover such which has actually been provided to Buyer Losses by the Sellers or the Company, or as to which the Buyer has actual knowledge, nor shall the responsibility of any Seller under this Section 10 exceed in the aggregateaggregate the aggregate cash payments received by such Seller pursuant to Section 1.02 of this Agreement.

By the Sellers. After From and after the Closing occursClosing, and subject to Section -------------- 7.1, the terms and provisions of this Agreement, Wicks will Sellers agree to indemnify the Buyer and hold it harmless the Purchaser and its officers, directors, employees, agents, representatives, affiliates, successors and assigns (collectively, "Purchaser Indemnitees"), on a joint and several --------------------- basis, from and against any loss, liability, damage, claim, deficiency, damage cost, expense, interest, award, judgment or expense (including penalty, including, without limitation, reasonable legal attorneys' fees and expenses) which other costs and expenses (collectively, "Damages"), incurred or sustained by the Buyer may suffer, sustain or become subject to (a "Buyer Loss") Purchaser Indemnitees as a result of ------- (i) the breach or non-fulfillment by any Seller of any agreement or covenant set forth in this Agreement or the Ancillary Agreements, (ii) the breach of any representation or warranty set forth in this Agreement or made by in any certificate delivered pursuant hereto in connection with the Sellers hereunder; (ii) the failure of the Sellers to perform any covenant or agreement hereunder and Closing, (iii) any liabilities of the Companies or their subsidiaries existing as of the Closing Date (A) that consistent with past practice, would be reflected on a balance sheet of a Seller or Non-Company Affiliate and would not be reflected on a balance sheet of any of the Companies, (B) of which, as of the Closing Date, the Sellers had knowledge, and (C) that are not reflected on the Closing Balance Sheets, (iv) any liabilities of the Companies or their subsidiaries which relate to or arise out (A) plans maintained and sponsored by Waste Management ("Parent Plans"), including retiree medical liability and pension underfunding under the Parent Plans or (B) a complete or partial withdrawal under Title IV of Sellers not expressly assumed ERISA incurred by Buyer hereunder. Subject either of the Companies or any of their subsidiaries prior to the other limitations contained in this Agreement, including this Article 15, neither Seller shall be required Closing Date under a Multiemployer Plan or (C) failure to indemnify make contributions to the Buyer benefit plans listed on Section 2.10 of the Disclosure Letter with respect to any breaches of representations and warranties: (i) unless periods ending prior to the Buyer gives the Sellers written notice of such Buyer Loss in accordance with Article 17, and in case of any claim made by the Buyer by reason of a third party claim, such notice shall be accompanied by a copy of such written notice of the third party claimant, and Closing Date except in the case of each of the preceding clauses (A), (B) and (C), to the extent that any claim made such liabilities are (x) reflected on the Closing Balance Sheets, (y) attributable to participation on and after the Closing Date by a Company Employee who is employed by the Buyer Purchaser, the Companies or their subsidiaries after the Closing Date, in any Parent Plan in which pursuant to the mutual consent of the Sellers and the Purchaser, such Company Employee participates during a transition period after the Closing Date or (z) liabilities for severance of employees of either of the Companies or any of their subsidiaries arising on or after the Closing, (v) the matters identified in Section 7.2.1(A) of the Disclosure Letter, (vi) the matters identified in Section 7.2.1(B) of the Disclosure Letter, (vii) any other environmental liabilities (including, without limitation, environmental regulatory liabilities) that are the result of acts or conditions that occurred or existed prior to the Closing Date relating to the construction, operation, maintenance and partial closure of the Barnwell Facility that are not otherwise covered by the closure or long-term care trust funds or applicable insurance, and (viii) in the event that the Purchaser or one of its affiliates notifies the applicable regulatory authorities of the State of South Carolina in writing that it intends to commence shutdown of the Barnwell Facility and the closure activities and ceases permanently to accept waste for disposal at the Barnwell Facility by a date (such applicable date being referred to herein as the "Shutdown Deadline") no later than the later of (a) June 30, 2000 and (b) ------------------ twenty-eight (28) days after the earlier of (x) the date on which the spring 2000 session or any subsequent special session (called prior to June 30, 2000 in which matters relating to the Barnwell Facility are on the agenda (a "Barnwell -------- Special Session")) of the South Carolina state legislature adjourns and (y) --------------- the date on which the legislation relating to South Carolina joining the Atlantic Low-Level Radioactive Waste Compact and the repeal of the contingent annual license tax imposed on the Barnwell Facility shall either (A) have become effective or (B) have been rejected and no longer be on the agenda for the spring 2000 session or a Barnwell Special Session, provided that in no event shall the Shutdown Deadline be later than December 31, 2000, any liability for the contingent annual license tax imposed on the Barnwell Facility, or the operator thereof, by the State of South Carolina with respect to periods or portions thereof beginning after June 30, 2000, provided that if the Purchaser or any of its affiliates, successors or assigns accepts any waste at the Barnwell A. plus two percent (2%) per annum from the date of payment by the Sellers until the date of repayment by the Purchaser. There shall not be any duplicative payments or indemnities by any Seller under this Section 7.2.1. The rights of the Purchaser Indemnitees to indemnification under this Section 7 shall be limited as follows: (a) The amount of any Damages incurred by the Purchaser Indemnitees shall be reduced by the net amount of the Tax benefits actually realized by the Purchaser Indemnitees or any of their affiliates by reason of a third such Damage. (b) The amount of any Damages incurred by the Purchaser Indemnitees shall be reduced by the net amount the Purchaser Indemnitees recovers (after deducting all attorneys' fees, expenses and other costs of recovery) from any insurer or other party claimliable for such Damages, some damages or loss and the Purchaser, on behalf of the Purchaser Indemnitees, shall have been incurred in good faith at or prior use reasonable efforts to effect any such recovery. (c) The Purchaser Indemnitees shall be entitled to indemnification under Section 7.2.1(ii), (iv) and (vii) only to the date of such notice, and (ii) unless and until extent that the aggregate amount of all Buyer Losses such Damages (reduced as provided in paragraphs (a) and (b) above) exceeds $750,000 and then only for which the amount of such excess. In no event will the Purchaser Indemnitees be entitled to indemnification exceeding the aggregate purchase price received by the Sellers are liable under this Article 15 exceeds $200,000Agreement and the Escrow Agreement other than Section 5(i) thereof (the "Purchase Price"), if such aggregate except as -------------- expressly provided in this Section 7.2.1(c). The Sellers will indemnify the Purchaser Indemnitees for the amount is calculated prior to the first anniversary of the Closing Date Purchaser Indemnitees' Damages pursuant to Sections 7.2.1(i), (iii) and (viii) without limitation or $300,000 if calculated on or after such first anniversarydeduction, and in either any such event the Sellers will be liable for all Buyer Losses; provided, that the foregoing threshold Damages shall not apply count toward the aggregate limitation on indemnifiable Damages referred to Buyer Losses arising out in the second sentence of a breach this Section 7.2.1(c). For the purposes of an Exempt Rep. Notwithstanding anything to applying the contrary contained hereinmaximum limitation set forth in this Section 7.2.1(c), the maximum amount of indemnification for any Buyer Losses for which the Sellers are required to indemnify the Buyer under this Article 15 shall not exceed an amount equal to (i) the Purchase Price less (ii) any amounts previously Damages paid by the Sellers and Non-Company Affiliates shall be deemed to include the amount of all losses, claims, liabilities and damages (including reasonable attorneys' fees and other costs and expenses) incurred by the Sellers and Non-Company Affiliates for which the Purchaser would have been responsible under Sections 4.8 or 5 but for its rights to indemnification under this Section 7.2.1. (d) If the Purchaser gives the notice referred to in Section 7.2.1(viii), the Purchaser agrees that it will contribute up to an aggregate of $1.0 million, on a dollar-for-dollar basis with Sellers and the Non-Company Affiliates, solely for out-of-pocket legal expenses paid to unaffiliated third parties associated with contesting liability for the tax referred to in Section 7.2.1(viii). (e) If a Purchaser Indemnitee is or becomes entitled to recover by contribution from a third party or otherwise any amount of Damages incurred by a Purchaser Indemnitee as a result of a matter for which the Purchaser Indemnitees have received indemnification payments from the Sellers pursuant to this Section 7, the Purchaser Indemnitees hereby assign to the Buyer Sellers all right to cover claim and receive any such Buyer Losses in amount, and the aggregatePurchaser Indemnitees shall promptly pay over any such amount received by them to the Sellers, to the extent of the indemnification payments received from the Sellers.

By the Sellers. After the Closing occursEach Seller shall, on demand, indemnify, -------------- defend and subject to the terms and provisions hold each of this Agreement, Wicks will indemnify the Buyer and hold it Vivra and their employees, agents, representatives, successors, and assigns, harmless from, against and in respect of any lossand all claims, liabilitylosses, deficiencycosts, damage or expense (expenses, liabilities, and damages, including interest, penalties, and reasonable legal attorneys' fees and expenses) which the Buyer may suffercosts (collectively, sustain "Claims"), that any of them shall incur or become subject to (a "Buyer Loss") as a result of suffer in connection with (i) the claims of any third party, including but not limited to the Sellers' employees, against any of them for alleged obligations or liabilities of the Sellers arising out of the Sellers' operation of the business of the Companies prior to the Closing Date, except for those obligations and liabilities of the Company; or (ii) the breach by such Seller of any covenant or agreement made by him or the inaccuracy of any representation or warranty made by such Seller herein; provided, however, that the Sellers hereunder; (ii) the failure of the Sellers to perform any covenant or agreement hereunder and (iii) any liability of Sellers not expressly assumed by Buyer hereunder. Subject to the other limitations contained in this Agreement, including this Article 15, neither Seller shall be required have no obligation to indemnify Vivra or the Buyer with respect to any breaches of representations and warranties: under this paragraph 9.1.1 (iA) unless the Buyer gives the Sellers written notice of such Buyer Loss in accordance with Article 17, and in case of any claim made by the Buyer by reason of a third party claim, such notice shall be accompanied by a copy of such written notice of the third party claimant, and in the case of any claim made by the Buyer other than by reason of a third party claim, some damages or loss shall have been incurred in good faith at or prior to the date of such notice, and (ii) unless and until --------------- the aggregate amount of all Buyer Losses for Vivra and the Buyer's Claims exceed $50,000 (at which the Sellers are liable under this Article 15 exceeds $200,000, if such aggregate amount is calculated prior to the first anniversary of the Closing Date or $300,000 if calculated on or after such first anniversary, and in either such event point the Sellers will be liable for obligated to indemnify Vivra and the Buyer from all Claims relating back to the first dollar, or thereafter (B) to the extent the aggregate of Vivra and the Buyer's Claims exceed the Purchase Price (after which point the Seller will have no obligation to indemnify Vivra and the Buyer Lossesfrom and against further Claims); provided, further, however, that each Seller's obligations to indemnify Vivra and the Buyer shall be limited to his relative proportion of the Purchase Price set forth on Schedule 1.2; provided, further, that the foregoing threshold Buyer and ------------ Vivra shall not apply seek indemnification from Xxxxxxxx with respect to Buyer Losses arising out of a the breach of an Exempt Rep. Notwithstanding anything any representation or warranty contained in paragraph 2 other than with respect to paragraphs 2.1, 2.2, 2.5, 2.14, 2.15, 2.17, 2.18, 2.23, and 2.26, as each of such paragraphs pertains to Xxxxxxxx or his Seller's Shares, until the Buyer and Vivra have exhausted (pursuant to the contrary contained hereinimmediately preceding proviso) their right to indemnification, if any, against Xxxxxx. Notwithstanding the maximum amount of indemnification for any Buyer Losses for which the Sellers are required to foregoing, Xxxxxx shall indemnify the Buyer under this Article 15 shall not exceed an amount equal against any Claims relating to (i) that certain mortgage with Allied Capital securing the Purchase Price less (ii) any amounts previously paid by the Sellers to the Buyer to cover such Buyer Losses Hopedale facility in the aggregateapproximate aggregate principal amount of $238,000.

By the Sellers. After the Closing occursThe Sellers, jointly and subject severally, covenant and agree to the terms defend, indemnify and provisions of this Agreement, Wicks will indemnify hold harmless the Buyer and hold it harmless against any losseach of its affiliates, liabilitydirectors, deficiencyofficers, damage agents and employees ("REPRESENTATIVES") from and against, and pay or expense (including reasonable legal fees and expenses) which reimburse promptly the Buyer may sufferfor, sustain any and all claims, liabilities, obligations, losses, fines, costs, royalties, proceedings, deficiencies, orders, directives or become subject to damages (a whether absolute, accrued, conditional or otherwise and whether or not resulting from third party claims), including out-of-pocket expenses and reasonable attorneys' fees incurred in the investigation or defense of any of the same or in asserting any of their rights hereunder (collectively, "Buyer LossLOSSES") as a result of ), resulting from or arising out of: (i) any Excluded Asset or Excluded Liability; (ii) any misrepresentation in or breach of any representation or warranty made by the Sellers hereunderof Xxxx set forth in this Agreement; and (iiiii) the failure breach of any covenant, agreement or other obligation of the Sellers to perform any covenant or agreement hereunder and (iii) any liability of Sellers not expressly assumed by Buyer hereunder. Subject to the other limitations contained set forth in this Agreement. Notwithstanding the foregoing, including this Article 15, neither Seller (1) the Sellers shall be required not have any obligation to indemnify or to reimburse the Buyer under Section 8.2(a)(ii) except to the extent such obligation (calculated for these purposes net of insurance proceeds) exceeds in the aggregate $150,000, in which event the Sellers shall reimburse the Buyer for all Losses exceeding $150,000, subject to the limitations set forth herein, and (2) the Sellers' aggregate indemnification obligation to the Buyer with respect to any breaches of representations and warranties: claims made under Section 8.2(a)(ii) (i) unless the Buyer gives the Sellers written notice of such Buyer Loss in accordance with Article 17, and in case of any claim made by the Buyer by reason of a third party claim, such notice shall be accompanied by a copy of such written notice of the third party claimant, and in the case of any claim made by the Buyer other than by reason of a third party claim, some damages or loss shall have been incurred in good faith at or prior to the date of such notice, and (ii) unless and until the aggregate amount of all Buyer Losses for which the Sellers are liable under this Article 15 exceeds $200,000, if such aggregate amount is calculated prior to the first anniversary of the Closing Date or $300,000 if calculated on or after such first anniversary, and in either such event the Sellers will be liable for all Buyer Losses; provided, that the foregoing threshold shall not apply to Buyer Losses excluding claims arising out of a breach of an Exempt Rep. Notwithstanding anything to the contrary contained herein, the maximum amount of Off-site Environmental Representations) shall be $2,000,000. The Sellers' indemnification for any Buyer Losses for which the Sellers are required to indemnify the Buyer under this Article 15 shall not exceed an amount equal to (i) the Purchase Price less (ii) any amounts previously paid by the Sellers obligation to the Buyer for claims arising under Sections 8.2(a)(i) and (a)(iii) (calculated for these purposes net of insurance proceeds) shall not be subject to cover such the limitations described in clauses (1) and (2) above, notwithstanding that the Buyer's rights to indemnification could also be claimed under Section 8.2(a)(ii). The Sellers' indemnification obligation to the Buyer Losses for claims arising out of the Off-site Environmental Representations (calculated for these purposes net of insurance proceeds) shall not be subject to the limitations described in clause (2) above, notwithstanding that the aggregateBuyer's right to indemnification could also be claimed under Section 8.2(a)(ii).

By the Sellers. After the Closing occurs, and subject (a) Subject to the terms and provisions conditions of this AgreementArticle 9, Wicks will X.X. Xxxxxx and the other Sellers (but, in the case of such other Sellers, only to the extent of amounts held in the Escrow), covenant and agree to defend, indemnify and hold harmless the Buyer and hold it harmless against any loss, liability, deficiency, damage or expense its Affiliates (including reasonable legal fees the Company following the Closing), directors, officers, equityholders, members, managers, employees and expensestheir respective successors and assigns (collectively, the “Buyer Indemnitees”) which from and against, and pay or reimburse the Buyer may sufferIndemnitees for, sustain any and all Losses resulting from or become subject to (a "Buyer Loss") as a result of arising out of: (i) any misrepresentation or breach of any representation or warranty made by the Sellers hereundercontained in Article 4 or by Sellers or the Company contained in Article 5; provided, however, that no claim for indemnification under this clause (a) (i) may be made after the eighteen (18)-month anniversary of the Closing Date, excepting only that (x) any claim for misrepresentation or breach of warranty under Section 5.10 (the “Tax Representation”) may be made no later than a date thirty (30) days from and after the expiration of the period of the applicable statute of limitations, (y) any claim for misrepresentation or breach of warranty under Section 5.15 (the “Government Contracts Representation”) may be made no later than thirty (30) months from the Closing Date (other than with respect to audits commenced prior to such thirty (30)-month anniversary), and (z) any claim for misrepresentation or breach of warranty under Sections 4.1, 4.2, 5.1, 5.2, 5.3, and 5.8 (collectively, the “Fundamental Representations”) may be made indefinitely; (ii) the any failure of the Sellers to perform any covenant or agreement hereunder and of the Sellers made or contained herein or fulfill any obligation in respect thereof; (iii) any liability of Sellers not expressly assumed by Buyer hereunder. Subject and all Indemnified Taxes; (iv) any Indebtedness, except to the other limitations contained in this Agreementextent paid at or prior to the Closing or otherwise shown and taken into account on the Discharges for purposes of determining Net Working Capital; (v) any Damages, including any amount paid or payable to a Governmental Authority, arising from or in connection with any rate or cost adjustment required by a Governmental Authority (including as a result of an audit by the GSA or other cognizant audit agency or otherwise) under any of the Company’s Government Contracts with respect to (x) any accounting period ending on or before the Closing Date and (y) any accounting periods beginning before but ending after the Closing Date but only to the extent any adjustment or claim related to the portion of such period prior to Closing; (vi) enforcing the indemnification rights of the Buyer Indemnities provided for under this Article 15, neither Seller Section 9.1; (vii) the matters disclosed on Schedules 5.8(k) and 5.16(b)(ii); and (viii) any Damages (including indemnification obligations) based on or resulting from any claims brought by the Sellers related to the activities conducted pursuant to the Xxxxxxxx Letter. (b) The Sellers shall not be required to indemnify the Buyer Indemnitees with respect to any breaches claim for indemnification resulting from or arising out of representations and warranties: matters described in Section 9.1(a)(i) (i) unless the Buyer gives the Sellers written notice of such Buyer Loss in accordance with Article 17, and in case other than any claim for indemnification resulting from or arising out of any claim made by the Buyer by reason of a third party claim, such notice shall be accompanied by a copy of such written notice misrepresentation or breach of the third party claimant, and in Fundamental Representations or the case of any claim made by the Buyer other than by reason of a third party claim, some damages or loss shall have been incurred in good faith at or prior to the date of such notice, and (iiTax Representation) unless and until the aggregate amount of all Buyer Losses for which claims against the Sellers are liable under this Article 15 exceeds $200,000, if such aggregate an amount is calculated prior equal to the first anniversary 1% of the Closing Date or $300,000 if calculated on or after such first anniversaryPurchase Price (the “Threshold Amount”), and in either such event which case the Sellers will shall be liable for all Buyer Losses; provided, that the foregoing threshold shall not apply to Buyer Losses arising out of a breach of an Exempt Rep. Notwithstanding anything to the contrary contained herein, the maximum amount of indemnification for any Buyer Losses for which the Sellers are required to indemnify the Buyer under Indemnitees for the amount of all such claims inclusive of the Threshold Amount, subject to the other limitations in this Article 15 9. (c) Notwithstanding the foregoing or any other provision of this Agreement to the contrary, however, the maximum aggregate amount of indemnification obligations of the Sellers from time to time under Sections 9.1(a)(i) (other than indemnification obligations arising out of a misrepresentation or breach of warranty of the Fundamental Representations, the Tax Representation or the Government Contracts Representation, for which the maximum aggregate amount of indemnification obligations of the Sellers in the case of the Fundamental Representations and the Tax Representation shall not exceed an amount equal to (i) the Purchase Price less (ii) any amounts previously paid by the Sellers to the Buyer to cover such Buyer Losses then-applicable Received Seller Payment Amount and in the aggregatecase of the Government Contracts Representation shall not exceed 25% of the then-applicable Received Seller Payment Amount) shall not exceed 15% of the then-applicable Received Seller Payment Amount.

By the Sellers. After The Sellers shall deliver or cause to be delivered to Buyer at the Closing: (i) stock certificates representing the Shares, duly endorsed (if applicable) in negotiable form or accompanied by stock transfer powers, duly executed by the record holders of such shares, in blank; (ii) certificates of the appropriate public officials to the effect that the Sellers and the Companies are validly existing corporations or limited liability companies in good standing (or equivalent status) in their jurisdictions of organization and in each jurisdiction in which they are qualified to do business, as of a date not more than ten Business Days prior to the Closing occurs, Date; (iii) true and subject to the terms and provisions of this Agreement, Wicks will indemnify the Buyer and hold it harmless against any loss, liability, deficiency, damage or expense (including reasonable legal fees and expenses) which the Buyer may suffer, sustain or become subject to (a "Buyer Loss") as a result correct copies of (i) any breach the Governing Documents of any representation or warranty made each of the Companies certified by the Sellers hereunder; (ii) the failure Secretary of the Sellers to perform any covenant or agreement hereunder and (iii) any liability of Sellers not expressly assumed by Buyer hereunder. Subject to the other limitations contained in this Agreementeach such Company, including this Article 15, neither Seller shall be required to indemnify the Buyer with respect to any breaches of representations and warranties: (i) unless the Buyer gives the Sellers written notice of such Buyer Loss in accordance with Article 17, and in case of any claim made by the Buyer by reason of a third party claim, such notice shall be accompanied by a copy of such written notice of the third party claimant, and in the case of any claim made by the Buyer other than by reason of a third party claim, some damages or loss shall have been incurred in good faith at or prior to the date of such noticerespectively, and (ii) unless and until the aggregate amount bylaws of all Buyer Losses for which each of the Sellers are liable under this Article 15 exceeds $200,000, if such aggregate amount is calculated prior to the first anniversary Companies as of the Closing Date or $300,000 if calculated on or after Date, certified by the Secretary of each such first anniversary, and in either such event the Sellers will be liable for all Buyer Losses; provided, that the foregoing threshold shall not apply to Buyer Losses arising out Company; (iv) certificate of a breach of an Exempt Rep. Notwithstanding anything to the contrary contained herein, the maximum amount of indemnification for any Buyer Losses for which the Sellers are required to indemnify the Buyer under this Article 15 shall not exceed an amount equal to (i) the Purchase Price less Secretary of each of the Sellers setting forth all resolutions of the Boards of Directors or equivalent body of each of the Sellers and, if necessary, the stockholders, authorizing the execution and delivery of this Agreement and the performance by each of the Sellers of the transactions contemplated hereby and (ii) any amounts previously paid the Secretary of each of the Companies stating that the Governing Documents of each such Company delivered pursuant to Section 7.3(a)(iii) were in effect at the date of adoption of such resolutions, the date of execution of this Agreement and the Closing Date; (v) a certificate issued by the Sellers Sellers, dated on the Closing Date, certifying to the Buyer fulfillment of the conditions set forth in paragraphs (a) and (b) of Section 7.1; (vi) opinions of independent counsel, as Argentina, Chile, Colombia and Mexico counsel, to cover such Buyer Losses the Sellers, addressed to Buyer, in substantially the form of Exhibit E attached hereto; (vii) an opinion of independent counsel, as Netherlands counsel to the Sellers organized in the aggregate.Netherlands, addressed to Buyer, in substantially the form of Exhibit F attached hereto; (viii) an opinion of Xxxxxx & Xxxxxx, LLP, as New York counsel to the Sellers addressed to Buyer, in substantially the form of Exhibit G attached hereto; (ix) the Non-Competition Agreements; (x) the Transition Services Agreement; (xi) the Asset Purchase Agreement; (xii) certificates of incumbency of the signing officers acting on behalf of each of the Companies and the Sellers; (xiii) the true, complete and then current minute books, stock ledgers and corporate seal of each of the Companies; (xiv) resignations of the directors of each of the Companies effective at the Closing; (xv) a letter from the Process Agent, in form and substance satisfactory to Buyer, accepting appointment as agent of the Sellers and Intangible Assets, LLC for service of Process pursuant to Section 9.3(c) of this Agreement, and pursuant to the Asset Purchase Agreement and the Transition Services Agreement; and (xvi) all the documents required under local Law as indicated by Buyer’s local counsel and referenced in Exhibit B.

By the Sellers. After From and after the Closing occursClosing, and subject to the terms and provisions of this Agreementlimitations set forth below, Wicks will the Sellers shall indemnify the Buyer and hold it harmless the Purchaser, each Company, and all of their subsidiaries, stockholders, officers, directors, agents and representatives (collectively, the "PURCHASER INDEMNITEES") from and against any loss, liability, deficiencydamage, damage charge, claim or expense (cost, including reasonable legal attorneys' fees and expenses) which the Buyer may sufferother costs and expenses (collectively, sustain "LOSSES"), incurred or become subject to (a "Buyer Loss") sustained by any Purchaser Indemnitee as a result of the breach by the Sellers of (ia) any covenant set forth in this Agreement, PROVIDED that, after the Closing, the Sellers shall not be liable for the breach of any covenant other than with respect to the withholding obligations of the Sellers in Section 2.15 and those contained in Sections 1, 4.6, 4.7, 4.14, 4.15, 7, 8.5, 8.6 and 8.14 or, (b) subject to Section 7.1, any representation or warranty set forth in this Agreement or made in any certificate delivered pursuant to Section 6.4; PROVIDED that, notwithstanding any other provision of this Agreement to the contrary, the Sellers shall indemnify and hold harmless each Purchaser Indemnitee from and against any Loss incurred as a result of those certain claims by X.X. Xxxxxxxx Biscuit Company, Inc., against AQF; and FURTHER PROVIDED that there shall not be any duplicative payments or indemnities by the Sellers. The rights of the Purchaser Indemnitees to indemnification under this Section 7 shall be limited as follows: (1) No indemnification shall be required to be made by the Sellers hereunder; (ii) the failure of the Sellers to perform any covenant or agreement hereunder and (iii) any liability of Sellers not expressly assumed by Buyer hereunder. Subject to the other limitations contained in this Agreement, including this Article 15, neither Seller shall be required to indemnify the Buyer with respect to any for breaches of representations and warranties: (ior warranties under Section 7.2.1(b) unless the Buyer gives the Sellers written notice of such Buyer Loss in accordance with Article 17, and in case of any claim made by the Buyer by reason of a third party claim, such notice shall be accompanied by a copy of such written notice of the third party claimant, and in the case of any claim made by the Buyer other than by reason of a third party claim, some damages or loss shall have been incurred in good faith at or prior to the date of such notice, and (ii) unless and until the aggregate amount of all Buyer Losses for which the Sellers are liable under this Article 15 resulting from such breaches exceeds $200,0001.0 million; PROVIDED that, if such the aggregate amount is calculated prior of such Losses exceeds such amount, indemnification shall be made only with respect to the first anniversary of the Closing Date or aggregate amount which exceeds $300,000 if calculated on or after such first anniversary, and in either such event the Sellers will be liable for all Buyer Losses; provided, that the foregoing threshold shall not apply to Buyer Losses arising out of a breach of an Exempt Rep. Notwithstanding anything to the contrary contained herein, the maximum amount of indemnification for any Buyer Losses for which the Sellers are required to indemnify the Buyer under this Article 15 shall not exceed an amount equal to (i) the Purchase Price less (ii) any amounts previously paid by the Sellers to the Buyer to cover such Buyer Losses in the aggregate.1.0

By the Sellers. After From and after the Closing occursClosing, the Sellers, on a joint and subject several basis, agree to the terms and provisions of this Agreement, Wicks will indemnify the Buyer and hold it harmless the Purchaser and its affiliates (including the Companies and their subsidiaries) and each of their respective directors, officers, employees and stockholders (the "PURCHASER INDEMNITEES") from and against any loss, liability, deficiency, damage or expense (cost, including reasonable legal attorneys' fees and expenses) which the Buyer may sufferother costs and expenses (collectively, sustain "DAMAGES"), incurred or become subject to (a "Buyer Loss") sustained by such indemnified party arising from, under or as a result of: (a) the breach by any Seller of (i) any breach of covenant set forth in this Agreement or, subject to Section 7.1, any representation or warranty set forth in this Agreement or made by in any certificate delivered pursuant hereto in connection with the Closing, provided that for purposes of the Purchaser Indemnitees' right to indemnification pursuant to this Section 7.2.1(a), all references to materiality and Material Adverse Effect in the representations and warranties of Sellers contained herein (except in the first sentence of Section 2.15) shall be ignored; (i) Environmental Liabilities resulting from Existing Subsurface Contamination at 1108 Xxx Xxxxx Xxxxxx, Xxxxx, Xxx Xxxx 00000 (xxe "NYOFCO FACILITY") in excess of $25,000 in any 12-month period (the "NYOFCO THRESHOLD"), provided that the Sellers hereunder; (ii) the failure of the Sellers to perform any covenant or agreement hereunder and (iii) any liability of Sellers not expressly assumed by Buyer hereunder. Subject to the other limitations contained in this Agreement, including this Article 15, neither Seller shall only be required to indemnify the Buyer Purchaser Indemnitees for two-thirds of every dollar up to $300,000 of such Environmental Liabilities in excess of the NYOFCO Threshold during each 12-month period following the Closing Date. The Sellers shall indemnify the Purchaser Indemnitees for 100% of such Environmental Liabilities in excess of $325,000 in each such 12-month period. (ii) The Sellers' indemnification obligations under this Section 7.2.1(b) shall be terminated (A) if the Purchaser or any of its affiliates purchases the NYOFCO Facility, (B) if the lessor under the lease for the real property at the NYOFCO Facility (as in effect on the date hereof, without giving effect to any amendment, modification, waiver or extension or renewal beyond June 30, 2013, the "NYOFCO LEASE") agrees in writing that the Companies have no further liability under Sections 29.08, 29.09 and 29.10 of the NYOFCO Lease with respect to any breaches of representations and warranties: Existing Subsurface Contamination or (iC) unless the Buyer gives the Sellers written notice of such Buyer Loss in accordance with Article 17on July 31, and in case of any claim made by the Buyer by reason of a third party claim2013, such notice shall be accompanied by a copy of such written notice of the third party claimant, and in the case of any claim made by the Buyer other than by reason of a third party claim, some damages or loss shall have been incurred in good faith at or prior to the date of such notice, and (ii) unless and until the aggregate amount of all Buyer Losses for which the Sellers are liable under this Article 15 exceeds $200,000, if such aggregate amount is calculated prior to the first anniversary of the Closing Date or $300,000 if calculated on or after such first anniversary, and in either such event the Sellers will be liable for all Buyer Losses; provided, that the foregoing threshold shall not apply to Buyer Losses arising out of a breach of an Exempt Rep. Notwithstanding anything to the contrary contained herein, the maximum amount of indemnification for any Buyer Losses for which the Sellers are required to indemnify the Buyer under this Article 15 shall not exceed an amount equal to (i) the Purchase Price less (ii) any amounts previously paid by the Sellers to the Buyer to cover such Buyer Losses in the aggregate.