Common use of Certain Limitations on Indemnification Clause in Contracts

Certain Limitations on Indemnification. (a) Notwithstanding the provisions of Articles X and XI and except as otherwise provided herein, (i) neither the Primary Indemnitors nor Purchaser shall have any indemnification obligations for Losses under Section 10.2(a)(i) or (ii), Section 10.3(a)(i) or Article XI, (1) for any individual item, or group of related items which shall include claims by unrelated parties arising out of the same or substantially similar factual allegations (e.g., class action claims) to the extent all Losses with respect to such item or series of related items are less than $50,000 (the “Sub-Basket”) and (2) in respect of each item or series of related items for which all Losses are equal to or greater than the Sub-Basket, unless the aggregate amount of all such Losses exceeds $500,000 (the “Basket”), and then only to the extent of such excess, and (ii) in no event shall the aggregate amounts to be paid by the Primary Indemnitors under this Article X, Section 8.19(b) and Article XI exceed $20,000,000 (the “Cap”); provided, however, that (x) none of the foregoing limitations shall apply to any Losses arising out of, resulting from or related to any breach, inaccuracy or failure to be true of any representation or warranty set forth in Sections 5.1 (Organization), 5.2 (Authorization), 5.4 (Capitalization), 5.5 (Subsidiaries), 6.1 (Organization), 6.2 (Authorization), 6.4 (Ownership), 7.1 (Organization) and 7.2 (Authorization) (the “Cap Exceptions”) and (y) any Losses for which tax indemnification is provided in Article XI shall not be subject to the Sub-Basket. (b) Notwithstanding anything herein to the contrary, except as provided in the last sentence of Section 10.5(c), (i) the aggregate amount for which any Primary Indemnitor shall be liable hereunder shall be (x) such Primary Indemnitor’s Indemnification Percentage multiplied by (y) an amount equal to the sum of the Aggregate Equity Value plus the ACAS Warrant Amount; and (ii) the aggregate amount for which any Primary Indemnitor shall be liable with respect to Losses suffered by Purchaser Indemnified Parties pursuant to Section 10.2(a)(i) or (ii) for any breaches or inaccuracies of any representations and warranties in Article V or Article VI (other than representations and warranties included in the definition of Cap Exceptions), Section 8.19(b) or Article XI shall in no event exceed (x) such Primary Indemnitor’s Indemnification Percentage multiplied by (y) the Cap Amount. For the avoidance of doubt, amounts which count toward the limit set forth in clause (ii) above count against the limit in clause (i), but not vice versa. (c) Notwithstanding anything else herein to the contrary, ACAS shall not be liable for any amount with respect to Losses incurred by Purchaser Indemnified Parties pursuant to Section 10.2(a)(i) (other than Sections 6.1 (Organization), 6.2 (Authorization) and 6.3 (Ownership and Transfer of Securities) (each, the “ACAS Cap Exceptions”)), Section 10.2(a)(ii), or Section 8.19(b) in excess of $2,000,000, less amounts paid by ACAS under the ACAS Contribution Agreement (the “ACAS Cap”). In the event Purchaser Indemnified Parties have Losses pursuant to Section 10.2(a)(i) (other than with respect to the ACAS Cap Exceptions) or Section 10.2(a)(ii) in excess of the ACAS Cap, the remaining Primary Indemnitors shall be jointly and severally liable for the full amount ACAS’s Indemnification Percentage of such Losses in excess of the ACAS Cap in accordance with the remaining limitations of this Section 10.5. (d) No Purchaser Indemnified Party shall make any claim for indemnification under this Article X in respect of any matter to the extent that is taken into account in the calculation of any adjustment to the Purchase Price pursuant to Section 3.2. (e) Except as provided in Section 8.19, the Purchaser Indemnified Parties shall not be entitled to indemnification with respect to a breach of the representations and warranties in Section 5.18 to the extent resulting from any investigation of environmental conditions at any Company Property conducted by, or at the direction of, Purchaser other than (i) any such investigation required under applicable Law (including any Law requiring that such testing be completed in connection with any construction, material maintenance activity, expansion or closure of all or any part of any Facility), (ii) any such investigation required by any Governmental Body, (iii) any such investigation in response to any Environmental Claim to the extent reasonably related thereto, (iv) any air or wastewater testing required by Environmental Law in connection with any maintenance or modification of all or any part of any Facility (including any testing required to obtain any Environmental Permit that may be required in connection therewith) or (v) any Phase I assessment or other similar noninvasive environmental audit conducted in preparation for or in connection with any M&A or financing transaction, or securities offering involving Purchaser, the Company or their Affiliates; provided, however, that with respect to this clause (v), the Primary Indemnitors shall have no liability or obligation to the Purchaser Indemnified Parties under this Agreement with respect to any Phase II or other invasive testing (including the results thereof) undertaken by the Purchaser Indemnified Parties as a result of such non-invasive Phase I assessment or other similar noninvasive environmental audit.

Certain Limitations on Indemnification. (a) Notwithstanding Except as set forth in Section 10.5(b), notwithstanding the provisions of Articles X and XI and except as otherwise provided hereinthis Article X, (i) neither the Primary Indemnitors Seller nor Purchaser shall have any indemnification obligations for Losses under Section 10.2(a)(i), Section 10.2(a)(v) or (iias such section relates to Section 10.2(a)(i)), Section 10.3(a)(i) or Article XI, Section 10.3(a)(vi) (1as such section relates to Section 10.3(a)(i)) for any individual item, or group of related items which shall include claims by unrelated parties arising out of the same or substantially similar factual allegations (e.g., class action claims) to the extent all Losses with respect to such item or series of related items are less than $50,000 (the “Sub-Basket”) and (2) in respect of each item or series of related items for which all Losses are equal to or greater than the Sub-Basket, unless the aggregate amount of all such Losses exceeds $500,000 100,000 (the “Basket”), and then only to the extent of such excess. Subject to Section 10.5(b), and (ii) in no event shall the aggregate amounts indemnification to be paid by the Primary Indemnitors Seller under this Article X, X for Losses under Section 8.19(b10.2(a)(i) and Article XI exceed $20,000,000 Section 10.2(a)(v) (the “Cap”as such section relates to Section 10.2(a)(i); provided, however, that ) (x) none of the foregoing limitations shall apply other than with respect to any Losses arising out of, resulting from or related to any breach, inaccuracy or failure to be true of any representation or warranty a breach by Seller of the representations and warranties set forth in Sections 5.1 (Organization), 5.2 (Authorization), 5.4 5.5(a) (CapitalizationTitle), 5.5 5.11 (SubsidiariesLabor), 6.1 5.12 (OrganizationEnvironmental), 6.2 5.17 (AuthorizationTaxes), 6.4 5.22 (OwnershipBenefits), 7.1 and 5.23 (Organization) and 7.2 (Authorization) Financial Advisors)), exceed $8,000,000 (the “Cap ExceptionsCap”) and (y) any Losses for which tax indemnification is provided in Article XI shall not be subject to the Sub-Basket). (b) Notwithstanding anything herein to in this Article X, the contrarylimitation requiring notice of any indemnification claim within a specific time period set forth in Sections 10.1(a) and 10.1(b) and the Cap, except as provided Basket and other limitations set forth in the last sentence of Section 10.5(c10.5(a), (i) shall not apply to claims for indemnification in respect of Losses arising under the aggregate amount for which any Primary Indemnitor shall be liable hereunder shall be (x) such Primary Indemnitor’s Indemnification Percentage multiplied by (y) an amount equal representations and warranties set forth in Sections 5.2, 5.5(a), 5.17, 5.23, 6.2 and 6.5 or related to the sum or arising out of the Aggregate Equity Value plus the ACAS Warrant Amount; and matters set forth in Sections 10.2(a)(ii)-(iv), Section 10.2(a)(v) (ii) the aggregate amount for which any Primary Indemnitor shall be liable with respect to Losses suffered by Purchaser Indemnified Parties pursuant other than as such section relates to Section 10.2(a)(i)), 10.3(a)(ii)-(v) or (iiSection 10.3(a)(vi) for any breaches or inaccuracies of any representations and warranties in Article V or Article VI (other than representations and warranties included in the definition of Cap Exceptionsas such section relates to Section 10.3(a)(i)), Section 8.19(b) or Article XI shall in no event exceed (x) such Primary Indemnitor’s Indemnification Percentage multiplied by (y) the Cap Amount. For the avoidance of doubtto claims alleging fraud, amounts which count toward the limit set forth in clause (ii) above count against the limit in clause (i), but not vice versaintentional misrepresentation or willful misconduct. (c) Notwithstanding anything else herein to the contrary, ACAS Seller shall not be liable for required to indemnify any amount with respect to Losses incurred by Purchaser Indemnified Parties pursuant Party and Purchaser shall not be required to Section 10.2(a)(i) (other than Sections 6.1 (Organization), 6.2 (Authorization) and 6.3 (Ownership and Transfer of Securities) (each, the “ACAS Cap Exceptions”)), Section 10.2(a)(ii), or Section 8.19(b) in excess of $2,000,000, less amounts paid by ACAS under the ACAS Contribution Agreement (the “ACAS Cap”). In the event Purchaser indemnify any Seller Indemnified Parties have Losses pursuant to Section 10.2(a)(i) (other than with respect Party to the ACAS Cap Exceptions) extent of any Losses that a court of competent jurisdiction shall have determined by final judgment to have resulted from the bad faith, gross negligence or Section 10.2(a)(ii) in excess willful misconduct of the ACAS Cap, the remaining Primary Indemnitors shall be jointly and severally liable for the full amount ACAS’s Indemnification Percentage of such Losses in excess of the ACAS Cap in accordance with the remaining limitations of this Section 10.5party seeking indemnification. (d) No Purchaser Indemnified Party shall not make any claim for indemnification under this Article X Agreement in respect of any matter to the extent that is expressly taken into account in the calculation of any adjustment to the Purchase Price pursuant to Section 3.2. (e) Except as provided in Section 8.19, the Purchaser Indemnified Parties Seller shall not be entitled required to indemnification with respect indemnify any Purchaser Indemnified Party under Section 10.2(a)(i) or under Section 10.2(a)(v) (as such section relates to a breach of the representations and warranties in Section 5.18 10.2(a)(i)), to the extent resulting that such obligation arises directly from any investigation an event, fact or circumstance that meets all of environmental conditions at any Company Property conducted by, or at the direction of, Purchaser other than following criteria: (i) any such investigation required under applicable Law (including any Law requiring that such testing be completed in connection with any constructionevent, material maintenance activity, expansion fact or closure of all or any part of any Facility), circumstance arose after the date hereof; (ii) any such investigation required event, fact or circumstance was specifically disclosed in writing by any Governmental Body, Seller to the Purchaser prior to the Closing Date with specific reference to this Section 10.5(e) and (iii) any either (A) it is reasonably apparent from the description of such investigation event, fact or circumstance provided by Seller that such event, fact or circumstance has resulted in response or is reasonably likely to any Environmental Claim to result in a Material Adverse Effect by the extent reasonably related thereto, (iv) any air or wastewater testing required by Environmental Law in connection with any maintenance or modification of all or any part of any Facility (including any testing required to obtain any Environmental Permit that may be required in connection therewith) Closing Date or (vB) any Phase I assessment or other similar noninvasive environmental audit conducted in preparation for or in connection with any M&A or financing transaction, or securities offering involving Purchaser, it is reasonably apparent from the Company or their Affiliates; provided, however, that with respect to this clause (v), the Primary Indemnitors shall have no liability or obligation to the Purchaser Indemnified Parties under this Agreement with respect to any Phase II or other invasive testing (including the results thereof) undertaken by the Purchaser Indemnified Parties as a result description of such non-invasive Phase I assessment event, fact or other similar noninvasive environmental auditcircumstance provided by Seller that such event factor or circumstance will cause Seller’s representation and warranty in Section 5.14 to be untrue as of the Closing Date. Nothing in this Section 10.5(e) shall affect Purchaser’s rights to insist that all conditions set forth in Section 9.1 be satisfied prior to Closing.

Certain Limitations on Indemnification. (aa. Utility will have no liability with respect to matters described in Section 7.2(a) Notwithstanding with respect to any Claims unless and until the provisions total of Articles X and XI and except as otherwise provided herein, (i) neither the Primary Indemnitors nor Purchaser shall have any indemnification obligations for Losses under Section 10.2(a)(i) or (ii), Section 10.3(a)(i) or Article XI, (1) for any individual item, or group of related items which shall include claims by unrelated parties arising out of the same or substantially similar factual allegations (e.g., class action claims) to the extent all Losses Claims with respect to such item or series of related items are less than matters exceeds $50,000 [***] (the “Sub-BasketDeductible”), at which point Utility will be obligated solely for the amount of all Claims in excess of the Deductible, subject to the other limitations of this Article 7; provided, however, this limit shall not apply to (i) and (2) Claims arising in respect of each item or series Sections 3.1 (Organization and Good Standing), 3.2 (Authority and Enforceability), 3.4(a) (Title to the Effective Date Towers), and 3.9 (Taxes) (including in the case of related items for which all Losses are equal Section 3.4(a), Claims relating to or greater than the Sub-BasketLien under the FMB Indenture) (collectively, unless the aggregate amount of all such Losses exceeds $500,000 (the “BasketUtility Fundamental Representations”), and then only to the extent of such excess, and (ii) Claims arising in respect of Sections 3.3(a) (No Conflict), 3.4(b) (Title to the Tower Sites), 3.4(c)(ii), 3.4(c)(iii) (Ground Rights Agreements) 3.7(c)(iii) (Cell Site Contracts) (including (A) in the case of Section 3.3(a), claims relating to any required approval or consent from the California Public Utilities Commission and (B) in the case of Sections 3.4(a), 3.4(b) and 3.7(c)(iii), Claims relating to the Lien under the FMB Indenture) and Section 3.10 (Brokers or Finders) (collectively, the “Utility Specified Representations”) or (iii) Claims arising from fraud or intentional misrepresentation by Utility. b. In no event shall the aggregate amounts liability of Utility with respect to be paid by all Claims of indemnification made pursuant to Section 7.2(a) exceed [***] percent ([***]%) of the Primary Indemnitors under this Article X, Section 8.19(b) and Article XI exceed $20,000,000 Final Purchase Price in the aggregate (the “Cap”); provided, however, that (x) none of the foregoing limitations this limit shall not apply to any Losses arising out of, resulting from or related to any breach, inaccuracy or failure to be true of any representation or warranty set forth in Sections 5.1 (Organization), 5.2 (Authorization), 5.4 (Capitalization), 5.5 (Subsidiaries), 6.1 (Organization), 6.2 (Authorization), 6.4 (Ownership), 7.1 (Organization) and 7.2 (Authorization) (the “Cap Exceptions”) and (y) any Losses for which tax indemnification is provided in Article XI shall not be subject to the Sub-Basket. (b) Notwithstanding anything herein to the contrary, except as provided in the last sentence of Section 10.5(c), (i) the aggregate amount for which any Primary Indemnitor shall be liable hereunder shall be (x) such Primary Indemnitor’s Indemnification Percentage multiplied by (y) an amount equal to the sum Claims in respect of the Aggregate Equity Value plus the ACAS Warrant AmountUtility Fundamental Representations or Utility Specified Representations; and (ii) the aggregate amount for which any Primary Indemnitor shall be liable with respect to Losses suffered by Purchaser Indemnified Parties pursuant to Section 10.2(a)(i) or (ii) for any breaches Claims arising from fraud or inaccuracies of any representations and warranties in Article V or Article VI (other than representations and warranties included in the definition of Cap Exceptions), Section 8.19(b) or Article XI shall in intentional misrepresentation by Utility. c. In no event exceed (x) such Primary Indemnitor’s Indemnification Percentage multiplied by (y) shall the Cap Amount. For the avoidance aggregate liability of doubt, amounts which count toward the limit set forth in clause (ii) above count against the limit in clause (i), but not vice versa. (c) Notwithstanding anything else herein to the contrary, ACAS shall not be liable for any amount Utility with respect to Losses incurred by Purchaser Indemnified Parties all Claims of indemnification made pursuant to Section 10.2(a)(i7.2(a) (other than Sections 6.1 (Organization), 6.2 (Authorization) and 6.3 (Ownership and Transfer of Securities) (each, the “ACAS Cap Exceptions”)), Section 10.2(a)(ii), or Section 8.19(b7.2(b) in excess of $2,000,000, less amounts paid by ACAS under exceed the ACAS Contribution Agreement (the “ACAS Cap”). In the event Purchase Price. d. Purchaser Indemnified Parties will have Losses pursuant to Section 10.2(a)(i) (other than no liability with respect to the ACAS Cap Exceptionsmatters described in Section 7.3(a) or Section 10.2(a)(ii) with respect to any Claims unless and until the total of all Claims with respect to such matters exceeds the Deductible, at which point Purchaser will be obligated for the amount of all Claims in excess of the ACAS CapDeductible, subject to the remaining Primary Indemnitors shall be jointly and severally liable for the full amount ACAS’s Indemnification Percentage of such Losses in excess of the ACAS Cap in accordance with the remaining other limitations of this Section 10.5. Article 7; provided, however, this limit shall not apply to (di) No Purchaser Indemnified Party shall make any claim for indemnification under this Article X Claims arising in respect of any matter to the extent that is taken into account in the calculation of any adjustment to the Purchase Price pursuant to Section 3.2. Sections 4.1 (eOrganization and Good Standing), 4.2 (Authority and Enforceability) Except as provided in Section 8.19(collectively, the “Purchaser Indemnified Parties shall not be entitled to indemnification with respect to a breach of the representations and warranties in Section 5.18 to the extent resulting from any investigation of environmental conditions at any Company Property conducted by, or at the direction of, Purchaser other than (i) any such investigation required under applicable Law (including any Law requiring that such testing be completed in connection with any construction, material maintenance activity, expansion or closure of all or any part of any FacilityFundamental Representations”), (ii) any such investigation required by any Governmental Body, Claims arising in respect of Section 4.4 (Brokers or Finders) or (iii) any such investigation in response Claims arising from fraud or intentional misrepresentation by Purchaser. e. In no event shall the aggregate liability of Purchaser with respect to any Environmental Claim all Claims of indemnification made pursuant to Section 7.3(a) exceed the extent reasonably related thereto, (iv) any air or wastewater testing required by Environmental Law in connection with any maintenance or modification of all or any part of any Facility (including any testing required to obtain any Environmental Permit that may be required in connection therewith) or (v) any Phase I assessment or other similar noninvasive environmental audit conducted in preparation for or in connection with any M&A or financing transaction, or securities offering involving Purchaser, the Company or their AffiliatesCap; provided, however, that this limit shall not apply to (i) Claims in respect of Purchaser Fundamental Representations or (ii) Claims arising from fraud or intentional misrepresentation by Purchaser. f. In no event shall the aggregate liability of Purchaser with respect to this clause (v)all Claims of indemnification made pursuant to Section 7.3(a) or Section 7.3(b) exceed the Purchase Price. g. In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, the Primary Indemnitors shall have no liability incidental, consequential, special or obligation indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the Purchaser breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple. h. Each Indemnified Parties under this Agreement with respect Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Phase II Claim upon becoming aware of any event or other invasive testing (circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the results thereof) undertaken by minimum extent necessary to remedy the Purchaser Indemnified Parties as a result of breach that gives rise to such non-invasive Phase I assessment or other similar noninvasive environmental auditClaim.

Certain Limitations on Indemnification. (a) Notwithstanding the provisions of Articles X and XI and except as otherwise provided hereinthis Article X, (i) neither the Primary Indemnitors Selling Stockholders nor Purchaser Purchasers shall have any indemnification obligations for Losses (other than for Losses set forth in Section 10.5(b)) (i) under Section 10.21(a)(i) or Section 10.3(a)(i), or (ii) arising out of or resulting from or in connection with the breach of any covenant set forth in Article VIII under Section 10.2(a)(ii) or Section 10.3(a)(ii), unless and until the cumulative aggregate amount of such Losses exceeds $1,000,000 (the “Deductible”), at which point the Selling Stockholders or Purchasers, as the case may be, shall be obligated to indemnify the Purchaser Indemnified Parties or the Selling Stockholder Indemnified Parties, respectively, for all such Losses in excess of the Deductible. (b) Notwithstanding the provisions of this Article X, neither the Selling Stockholders nor Purchasers shall have any indemnification obligations for Losses (i) arising out of or resulting from or in connection with the breach of any of the representations and warranties set forth in Sections 5.1(b) (Authorization of Agreement), 5.1(d) (Ownership and Transfer of Shares), 5.1(f) (Financial Advisors), 5.2(b) (Authorization of Agreement), 5.2(d) (Ownership and Transfer of Shares), 5.2(f) (Financial Advisors), 6.1 (Organization) solely with respect to the organization of the Company, 6.2 (Authorization of Agreement), 6.4 (Capitalization), 6.7 (Taxes) and 6.17 (Financial Advisors) hereof or (ii) arising out of or resulting from or in connection with fraud, under Section 10.2(a)(i) or (iiSection 10.3(a)(i), Section 10.3(a)(i) or Article XI, (1) for any individual item, or group of related items which shall include claims by unrelated parties arising out of unless and until the same or substantially similar factual allegations (e.g., class action claims) to the extent all Losses with respect to such item or series of related items are less than $50,000 (the “Sub-Basket”) and (2) in respect of each item or series of related items for which all Losses are equal to or greater than the Sub-Basket, unless the cumulative aggregate amount of all such Losses exceeds $500,000 1,000,000 (the “BasketThreshold”), and then only at which point the Selling Stockholders or Purchasers, as the case may be, shall be obligated to indemnify the Purchaser Indemnified Parties or the Selling Stockholder Indemnified Parties, respectively, for all such Losses (including the amount comprising the Threshold). (c) Except as set forth in Section 10.5(d), the indemnification obligations of the Selling Stockholders for any Losses shall be payable by the Selling Stockholders out of the Indemnification Hold-Back pursuant to the Escrow Agreement; provided, that to the extent any portion of the Indemnification Hold-Back is released to the Selling Stockholders, the Purchaser Indemnified Parties shall be entitled to recover such excess, and released amounts if a claim was properly brought prior to the expiration of the applicable Survival Period. (iid) in no event The aggregate liability of the Selling Stockholders for any Losses shall not exceed the aggregate amounts to be paid by amount of the Primary Indemnitors under this Article X, Section 8.19(b) and Article XI exceed $20,000,000 (the “Cap”)Indemnification Hold-Back; provided, however, that such limitation shall not apply to the indemnification obligations of the Selling Stockholders for Losses (x) none of the foregoing limitations shall apply to any Losses arising out of, of or resulting from or related to any breach, inaccuracy or failure to be true in connection with the breach of any representation or warranty of the representations and warranties set forth in Sections 5.1 5.1(b) (OrganizationAuthorization of Agreement), 5.2 5.1(d) (AuthorizationOwnership and Transfer of Shares) 5.1(f) (Financial Advisors), 5.4 5.2(b) (CapitalizationAuthorization of Agreement), 5.5 5.2(d) (SubsidiariesOwnership and Transfer of Shares), 5.2(f) (Financial Advisors), 6.1 (Organization)) solely with respect to the organization of the Company, 6.2 (AuthorizationAuthorization of Agreement), 6.4 (OwnershipCapitalization), 7.1 6.7 (OrganizationTaxes), 6.12 (Employee Benefits Plans) and 7.2 6.17 (AuthorizationFinancial Advisors) (the “Cap Exceptions”) and hereof or (y) any Losses for which tax indemnification is provided arising out of or resulting from or in Article XI connection with fraud. (e) The Selling Stockholders shall not be subject required to indemnify any Purchaser Indemnified Party and Purchasers shall not be required to indemnify any Selling Stockholder Indemnified Party to the Sub-Basketextent of any Losses that a court of competent jurisdiction or an arbitrator shall have determined by final judgment to have resulted from the willful misconduct of the party seeking indemnification. (bf) Notwithstanding anything herein to the contrary, except as provided no Selling Stockholder shall be liable for, following extinguishment of the Indemnification Hold-Back, any amount in excess of his pro rata share of the last sentence Purchase Price. (g) in calculating the amount of Section 10.5(c), Losses of any party hereunder: (i) after the aggregate amount Deductible has been satisfied by any single claim or any number of claims, no party shall have any recourse against any other party for which any Primary Indemnitor shall be liable hereunder shall be (x) such Primary Indemnitor’s Indemnification Percentage multiplied by (y) an amount equal Loss that is subject to the sum of the Aggregate Equity Value plus the ACAS Warrant Amountindemnification limitations set forth in Section 10.5(a) that individually totals $50,000 or less; and or (ii) after the aggregate amount for which Threshold has been satisfied by any Primary Indemnitor single claim or any number of claims, no party shall be liable with respect to Losses suffered by Purchaser Indemnified Parties pursuant to Section 10.2(a)(i) or (ii) have any recourse against any other party for any breaches or inaccuracies of any representations and warranties in Article V or Article VI (other than representations and warranties included in Loss that is subject to the definition of Cap Exceptions), Section 8.19(b) or Article XI shall in no event exceed (x) such Primary Indemnitor’s Indemnification Percentage multiplied by (y) the Cap Amount. For the avoidance of doubt, amounts which count toward the limit indemnification limitations set forth in clause (iiSection 10.5(b) above count against the limit in clause (i), but not vice versathat individually totals $50,000 or less. (c) Notwithstanding anything else herein to the contrary, ACAS shall not be liable for any amount with respect to Losses incurred by Purchaser Indemnified Parties pursuant to Section 10.2(a)(i) (other than Sections 6.1 (Organization), 6.2 (Authorization) and 6.3 (Ownership and Transfer of Securities) (each, the “ACAS Cap Exceptions”)), Section 10.2(a)(ii), or Section 8.19(b) in excess of $2,000,000, less amounts paid by ACAS under the ACAS Contribution Agreement (the “ACAS Cap”). In the event Purchaser Indemnified Parties have Losses pursuant to Section 10.2(a)(i) (other than with respect to the ACAS Cap Exceptions) or Section 10.2(a)(ii) in excess of the ACAS Cap, the remaining Primary Indemnitors shall be jointly and severally liable for the full amount ACAS’s Indemnification Percentage of such Losses in excess of the ACAS Cap in accordance with the remaining limitations of this Section 10.5. (d) No Purchaser Indemnified Party shall make any claim for indemnification under this Article X in respect of any matter to the extent that is taken into account in the calculation of any adjustment to the Purchase Price pursuant to Section 3.2. (e) Except as provided in Section 8.19, the Purchaser Indemnified Parties shall not be entitled to indemnification with respect to a breach of the representations and warranties in Section 5.18 to the extent resulting from any investigation of environmental conditions at any Company Property conducted by, or at the direction of, Purchaser other than (i) any such investigation required under applicable Law (including any Law requiring that such testing be completed in connection with any construction, material maintenance activity, expansion or closure of all or any part of any Facility), (ii) any such investigation required by any Governmental Body, (iii) any such investigation in response to any Environmental Claim to the extent reasonably related thereto, (iv) any air or wastewater testing required by Environmental Law in connection with any maintenance or modification of all or any part of any Facility (including any testing required to obtain any Environmental Permit that may be required in connection therewith) or (v) any Phase I assessment or other similar noninvasive environmental audit conducted in preparation for or in connection with any M&A or financing transaction, or securities offering involving Purchaser, the Company or their Affiliates; provided, however, that with respect to this clause (v), the Primary Indemnitors shall have no liability or obligation to the Purchaser Indemnified Parties under this Agreement with respect to any Phase II or other invasive testing (including the results thereof) undertaken by the Purchaser Indemnified Parties as a result of such non-invasive Phase I assessment or other similar noninvasive environmental audit.

Certain Limitations on Indemnification. (a) Notwithstanding Except as set forth in Section 10.5(b), notwithstanding the provisions of Articles X and XI and except as otherwise provided hereinthis Article X, (i) neither the Primary Indemnitors Seller nor Purchaser shall have any indemnification obligations for Losses under Section 10.2(a)(i) or (ii), Section 10.3(a)(i) or Article XI, (1) for any individual item, or group of related items which shall include claims by unrelated parties arising out of the same or substantially similar factual allegations (e.g., class action claims) to the extent all Losses with respect to such item or series of related items are less than $50,000 (the “Sub-Basket”) and (2) in respect of each item or series of related items for which all Losses are equal to or greater than the Sub-Basket, unless the aggregate amount of all such Losses exceeds $500,000 230,000 (the “Basket”), and then only to the extent of such excess. Subject to Section 10.5(b), and (ii) in no event shall the aggregate amounts indemnification to be paid by the Primary Indemnitors (i) Seller or Purchaser under this Article XX for Losses under Section 10.2(a)(i) or Section 10.3(a)(i) (other than with respect to Losses arising out of a breach by Seller of the representations and warranties set forth in Sections 5.5(a) (Title), Section 8.19(b) 5.11 (Labor), 5.12 (Environmental), 5.17 (Taxes), and Article XI 5.22 (Benefits), exceed $20,000,000 5,750,000 (the “Cap”); provided, however, that (xii) none of the foregoing limitations shall apply to any Seller under this Article X for Losses arising out of, resulting from or related to any breach, inaccuracy or failure to be true of any representation or warranty a breach by Seller of the representations and warranties set forth in Sections 5.1 5.11 (Organization), 5.2 (Authorization), 5.4 (Capitalization), 5.5 (Subsidiaries), 6.1 (Organization), 6.2 (Authorization), 6.4 (Ownership), 7.1 (OrganizationLabor) and 7.2 5.22 (AuthorizationBenefits) (together with all other claims made by Purchaser under Section 10.2(a)(i)) exceed $11,500,000, or (iii) Seller under this Article X for Losses arising out of a breach by Seller of the “Cap Exceptions”representations and warranties set forth in Sections 5.12 (Environmental) and 5.17 (yTaxes) any Losses for which tax indemnification is provided in Article XI shall not be subject to (together with all other claims made by Purchaser under Section 10.2(a)(i)) exceed the Sub-BasketPurchase Price. (b) Notwithstanding anything herein to in this Article X, the contrary, except as provided limitation requiring notice of any indemnification claim within a specific time period set forth in the last sentence of Section 10.5(cSections 10.1(a) and 10.1(b), (i) and the aggregate amount Cap, Basket and other limitations set forth in Section 10.5(a), shall not apply to claims for which any Primary Indemnitor shall be liable hereunder shall be (x) such Primary Indemnitor’s Indemnification Percentage multiplied by (y) an amount equal to indemnification in respect of Losses arising under the sum of the Aggregate Equity Value plus the ACAS Warrant Amount; and (ii) the aggregate amount for which any Primary Indemnitor shall be liable with respect to Losses suffered by Purchaser Indemnified Parties pursuant to Section 10.2(a)(i) or (ii) for any breaches or inaccuracies of any representations and warranties in Article V or Article VI (other than representations and warranties included in the definition of Cap Exceptions), Section 8.19(b) or Article XI shall in no event exceed (x) such Primary Indemnitor’s Indemnification Percentage multiplied by (y) the Cap Amount. For the avoidance of doubt, amounts which count toward the limit set forth in clause (ii) above count against the limit in clause (iSections 5.1, 5.2, 5.5(a), but not vice versa5.23, 6.1, 6.2 and 6.5 or related to or arising out of the matters set forth in Sections 10.2(a)(iii)-(iv), 10.3(a)(iii)-(v), or to claims alleging fraud or willful misconduct. (c) Notwithstanding anything else herein to the contrary, ACAS Seller shall not be liable for required to indemnify any amount with respect to Losses incurred by Purchaser Indemnified Parties pursuant Party and Purchaser shall not be required to Section 10.2(a)(i) (other than Sections 6.1 (Organization), 6.2 (Authorization) and 6.3 (Ownership and Transfer of Securities) (each, the “ACAS Cap Exceptions”)), Section 10.2(a)(ii), or Section 8.19(b) in excess of $2,000,000, less amounts paid by ACAS under the ACAS Contribution Agreement (the “ACAS Cap”). In the event Purchaser indemnify any Seller Indemnified Parties have Losses pursuant to Section 10.2(a)(i) (other than with respect Party to the ACAS Cap Exceptions) extent of any Losses that a court of competent jurisdiction shall have determined by final judgment to have resulted from the bad faith, gross negligence or Section 10.2(a)(ii) in excess willful misconduct of the ACAS Cap, the remaining Primary Indemnitors shall be jointly and severally liable for the full amount ACAS’s Indemnification Percentage of such Losses in excess of the ACAS Cap in accordance with the remaining limitations of this Section 10.5party seeking indemnification. (d) No Purchaser Indemnified Party shall not make any claim for indemnification under this Article X Agreement in respect of any matter to the extent that is taken into account in the calculation of any adjustment to the Purchase Price pursuant to Section 3.23.3. (e) Except as provided in Section 8.19, the Purchaser Indemnified Parties shall not be entitled to indemnification with respect to a breach of the representations and warranties in Section 5.18 to the extent resulting from any investigation of environmental conditions at any Company Property conducted by, or at the direction of, Purchaser other than (i) any such investigation required under applicable Law (including any Law requiring that such testing be completed in connection with any construction, material maintenance activity, expansion or closure of all or any part of any Facility), (ii) any such investigation required by any Governmental Body, (iii) any such investigation in response to any Environmental Claim to the extent reasonably related thereto, (iv) any air or wastewater testing required by Environmental Law in connection with any maintenance or modification of all or any part of any Facility (including any testing required to obtain any Environmental Permit that may be required in connection therewith) or (v) any Phase I assessment or other similar noninvasive environmental audit conducted in preparation for or in connection with any M&A or financing transaction, or securities offering involving Purchaser, the Company or their Affiliates; provided, however, that with respect to this clause (v), the Primary Indemnitors shall have no liability or obligation to the Purchaser Indemnified Parties under this Agreement with respect to any Phase II or other invasive testing (including the results thereof) undertaken by the Purchaser Indemnified Parties as a result of such non-invasive Phase I assessment or other similar noninvasive environmental audit.

Certain Limitations on Indemnification. (a) Notwithstanding the provisions of Articles X and XI and except as otherwise provided hereinthis Article X, (i) neither the Primary Indemnitors Seller nor Purchaser shall have any indemnification obligations for Losses under Section 10.2(a)(i) or (iiand Section 10.3(a)(i), Section 10.3(a)(i) or Article XI, respectively (1i) for any individual item, or group of related items which shall include claims by unrelated parties arising out of the same or substantially similar factual allegations (e.g.event, class action claims) to where the extent all Losses with respect to such item or series of related items are Loss relating thereto is less than $50,000 (the “"Sub-Basket”") and (2ii) in respect of each item individual item, or series group of related items for which all Losses are arising out of the same event, where the Loss relating thereto is equal to or greater than the Sub-Basket, unless the aggregate amount of all such Losses exceeds $500,000 1,000,000 (the “"Basket”"), and then only to the extent of such excess, and (ii) in . In no event shall the aggregate amounts indemnification to be paid by the Primary Indemnitors Seller under this Article XSection 10.2(a)(i), together with any and all costs and expenses incurred by Seller pursuant to Section 8.19(b8.5(c) and Article XI exceed fifteen million dollars ($20,000,000 15,000,000) (the “"Cap”"); provided, however, that (x) none the Basket and the Cap shall not apply to inaccuracies in or breaches of any of the foregoing limitations shall apply to any Losses arising out of, resulting from representations or related to any breach, inaccuracy or failure to be true of any representation or warranty set forth warranties contained in Sections 5.1 (OrganizationOrganization and Good Standing), 5.2 (AuthorizationAuthorization of Agreement), 5.4 (Capitalization), 5.5 (Subsidiaries), 5.20 (Financial Advisors), 6.1 (OrganizationOrganization and Good Standing), 6.2 (AuthorizationAuthorization of Agreement), 6.4 (OwnershipOwnership and Transfer of Shares), 6.6 (Financial Advisors), 7.1 (OrganizationOrganization and Good Standing), 7.2 (Authorization of Agreement) and 7.2 7.6 (Authorization) (the “Cap Exceptions”) and (y) any Losses for which tax indemnification is provided in Article XI shall not be subject to the Sub-BasketFinancial Advisors). (b) Notwithstanding anything herein Seller shall not be required to indemnify any Purchaser Indemnified Party and Purchaser shall not be required to indemnify any Seller Indemnified Party to the contraryextent of any Losses that a court of competent jurisdiction shall have determined by final judgment to have resulted from the bad faith, except as provided in the last sentence of Section 10.5(c), (i) the aggregate amount for which any Primary Indemnitor shall be liable hereunder shall be (x) such Primary Indemnitor’s Indemnification Percentage multiplied by (y) an amount equal to the sum gross negligence or willful misconduct of the Aggregate Equity Value plus the ACAS Warrant Amount; and (ii) the aggregate amount for which any Primary Indemnitor shall be liable with respect to Losses suffered by Purchaser Indemnified Parties pursuant to Section 10.2(a)(i) or (ii) for any breaches or inaccuracies of any representations and warranties in Article V or Article VI (other than representations and warranties included in the definition of Cap Exceptions), Section 8.19(b) or Article XI shall in no event exceed (x) such Primary Indemnitor’s Indemnification Percentage multiplied by (y) the Cap Amount. For the avoidance of doubt, amounts which count toward the limit set forth in clause (ii) above count against the limit in clause (i), but not vice versaparty seeking indemnification. (c) Notwithstanding anything else herein to the contrary, ACAS Purchaser shall not be liable for any amount with respect to Losses incurred by Purchaser Indemnified Parties pursuant to Section 10.2(a)(i) (other than Sections 6.1 (Organization), 6.2 (Authorization) and 6.3 (Ownership and Transfer of Securities) (each, the “ACAS Cap Exceptions”)), Section 10.2(a)(ii), or Section 8.19(b) in excess of $2,000,000, less amounts paid by ACAS under the ACAS Contribution Agreement (the “ACAS Cap”). In the event Purchaser Indemnified Parties have Losses pursuant to Section 10.2(a)(i) (other than with respect to the ACAS Cap Exceptions) or Section 10.2(a)(ii) in excess of the ACAS Cap, the remaining Primary Indemnitors shall be jointly and severally liable for the full amount ACAS’s Indemnification Percentage of such Losses in excess of the ACAS Cap in accordance with the remaining limitations of this Section 10.5. (d) No Purchaser Indemnified Party shall make any claim for indemnification under this Article X in respect of any matter to the extent that such matter is taken into account in the calculation of any adjustment to the Purchase Price pursuant to Section 3.23.3. (ed) Except as provided Notwithstanding anything to the contrary set forth in this Agreement, Purchaser's right to indemnification pursuant to Section 8.1910.2(a)(ii) or Section 10.2(a)(iii) shall be subject to the Cap, the Purchaser Indemnified Parties shall not be entitled to indemnification with respect to a breach of Basket and the representations and warranties in Section 5.18 Sub-Basket to the extent resulting from any investigation of environmental conditions at any Company Property conducted by, that the facts supporting or at the direction of, relating to such claim for indemnification would also entitle Purchaser other than (i) any such investigation required under applicable Law (including any Law requiring that such testing be completed in connection with any construction, material maintenance activity, expansion or closure of all or any part of any Facilityto indemnification pursuant to Section 10.2(a)(i), (ii) any such investigation required by any Governmental Body, (iii) any such investigation in response to any Environmental Claim to the extent reasonably related thereto, (iv) any air or wastewater testing required by Environmental Law in connection with any maintenance or modification of all or any part of any Facility (including any testing required to obtain any Environmental Permit that may be required in connection therewith) or (v) any Phase I assessment or other similar noninvasive environmental audit conducted in preparation for or in connection with any M&A or financing transaction, or securities offering involving Purchaser, the Company or their Affiliates; provided, however, that with respect to this clause (v), the Primary Indemnitors shall have no liability or obligation to the Purchaser Indemnified Parties under this Agreement with respect to any Phase II or other invasive testing (including the results thereof) undertaken by the Purchaser Indemnified Parties as a result of such non-invasive Phase I assessment or other similar noninvasive environmental audit.

Certain Limitations on Indemnification. (a) Notwithstanding the provisions of Articles X and XI and except as otherwise provided hereinthis Article XI, (i) neither the Primary Indemnitors Seller nor Purchaser Buyer shall have any indemnification obligations for Losses under Section 10.2(a)(i) or (ii11.2(a)(i), Section 10.3(a)(i11.2(a)(ii) or Article XISection 11.3(a)(i), (1i) for any individual item, or group of related items which shall include claims by unrelated parties arising out of the same or substantially similar factual allegations (e.g., class action claims) to the extent all Losses with respect to such item or series of related items are similar facts, conditions or events, where the aggregate amount of Losses relating thereto is less than $50,000 (the “Sub-Basket”) Basket and (2) in respect where the aggregate amount of each item or series of related items for which all Losses are relating thereto is equal to or greater than exceeds the Sub-Basket, the Buyer Indemnified Parties or Seller Indemnified Parties, as the case may be, shall be entitled to indemnification for the full amount of such individual item (or group of items as set forth above), subject to clause (ii) below, and (ii) unless the aggregate amount of all such Losses on a cumulative basis suffered by Buyer Indemnified Parties or Seller Indemnified Parties, as the case may be, exceeds $500,000 (the “Basket”)Deductible, and then only to the extent of such excess, and (ii) in . In no event shall the aggregate amounts to be paid by the Primary Indemnitors indemnification for which Seller is obligated under this Article X, Section 8.19(b11.2(a)(i) and Article XI Section 11.2(a)(ii) exceed $20,000,000 (the “Cap”); provided, however, provided that (xthe limitations on indemnification set forth in this Section 11.5(a) none shall not apply to Losses based upon or resulting from the failure of any of the foregoing limitations shall apply to any Losses arising out of, resulting from Fundamental Representations of the Company or related to any breach, inaccuracy of Seller or failure the Specified Representations to be true of any representation or warranty set forth and correct in Sections 5.1 (Organization), 5.2 (Authorization), 5.4 (Capitalization), 5.5 (Subsidiaries), 6.1 (Organization), 6.2 (Authorization), 6.4 (Ownership), 7.1 (Organization) all respects at and 7.2 (Authorization) (the “Cap Exceptions”) and (y) any Losses for which tax indemnification is provided in Article XI shall not be subject to the Sub-Basket. (b) Notwithstanding anything herein to the contrary, except as provided in the last sentence of Section 10.5(c), (i) the aggregate amount for which any Primary Indemnitor shall be liable hereunder shall be (x) such Primary Indemnitor’s Indemnification Percentage multiplied by (y) an amount equal to the sum of the Aggregate Equity Value plus the ACAS Warrant Amount; date hereof and (ii) the aggregate amount for which any Primary Indemnitor shall be liable with respect to Losses suffered by Purchaser Indemnified Parties pursuant to Section 10.2(a)(i) or (ii) for any breaches or inaccuracies of any representations and warranties in Article V or Article VI (other than representations and warranties included in the definition of Cap Exceptions), Section 8.19(b) or Article XI shall in no event exceed (x) such Primary Indemnitor’s Indemnification Percentage multiplied by (y) the Cap Amount. For the avoidance of doubt, amounts which count toward the limit set forth in clause (ii) above count against the limit in clause (i), but not vice versa. (c) Notwithstanding anything else herein to the contrary, ACAS shall not be liable for any amount with respect to Losses incurred by Purchaser Indemnified Parties pursuant to Section 10.2(a)(i) (other than Sections 6.1 (Organization), 6.2 (Authorization) and 6.3 (Ownership and Transfer of Securities) (each, the “ACAS Cap Exceptions”)), Section 10.2(a)(ii), or Section 8.19(b) in excess of $2,000,000, less amounts paid by ACAS under the ACAS Contribution Agreement (the “ACAS Cap”). In the event Purchaser Indemnified Parties have Losses pursuant to Section 10.2(a)(i) (other than with respect to the ACAS Cap Exceptions) or Section 10.2(a)(ii) in excess as of the ACAS Cap, the remaining Primary Indemnitors shall be jointly and severally liable for the full amount ACAS’s Indemnification Percentage of such Losses in excess of the ACAS Cap in accordance with the remaining limitations of this Section 10.5Closing Date. (d) No Purchaser Indemnified Party shall make any claim for indemnification under this Article X in respect of any matter to the extent that is taken into account in the calculation of any adjustment to the Purchase Price pursuant to Section 3.2. (e) Except as provided in Section 8.19, the Purchaser Indemnified Parties shall not be entitled to indemnification with respect to a breach of the representations and warranties in Section 5.18 to the extent resulting from any investigation of environmental conditions at any Company Property conducted by, or at the direction of, Purchaser other than (i) any such investigation required under applicable Law (including any Law requiring that such testing be completed in connection with any construction, material maintenance activity, expansion or closure of all or any part of any Facility), (ii) any such investigation required by any Governmental Body, (iii) any such investigation in response to any Environmental Claim to the extent reasonably related thereto, (iv) any air or wastewater testing required by Environmental Law in connection with any maintenance or modification of all or any part of any Facility (including any testing required to obtain any Environmental Permit that may be required in connection therewith) or (v) any Phase I assessment or other similar noninvasive environmental audit conducted in preparation for or in connection with any M&A or financing transaction, or securities offering involving Purchaser, the Company or their Affiliates; provided, however, that with respect to this clause (v), the Primary Indemnitors shall have no liability or obligation to the Purchaser Indemnified Parties under this Agreement with respect to any Phase II or other invasive testing (including the results thereof) undertaken by the Purchaser Indemnified Parties as a result of such non-invasive Phase I assessment or other similar noninvasive environmental audit.

Certain Limitations on Indemnification. (a) Notwithstanding Except as set forth in Section 10.5(b) and (c), notwithstanding the provisions of Articles X and XI and except as otherwise provided hereinthis Article X, (i) neither the Primary Indemnitors Seller nor Purchaser shall have any indemnification obligations for Losses under Section 10.2(a)(i) Sections 10.2 or (ii), Section 10.3(a)(i) or Article XI10.3, (1i) for any individual item, or group of related items which shall include claims by unrelated parties arising out of or related to the same event or substantially similar factual allegations (e.g., class action claims) to the extent all Losses with respect to such item circumstances or series of related items are events or circumstances, where the Loss relating thereto is less than Ten Thousand and no/100 Dollars ($50,000 10,000.00), at which point the indemnifying party shall become liable for the entire amount of the Loss, and not just the amount in excess of Ten Thousand and no/100 Dollars ($10,000.00) (the “Sub-Basket”) and (2ii) in respect of each item or series of related items for which all Losses are equal to or greater than the Sub-Basket, unless the aggregate amount of all such Losses (following the application of clause (i)) exceeds Twenty-Two Thousand Five Hundred Dollars ($500,000 22,500.00) (the “Basket”), and then only to the extent of such excessamounts in excess of the Basket. (b) Subject to Section 10.5(c), and (ii) in no event shall the aggregate amounts indemnification to be paid by the Primary Indemnitors Seller under this Article X, Section 8.19(b10.2(a) or Purchaser under Section 10.3(a) exceed Eight Hundred and Article XI exceed Ninety Thousand and no/100 Dollars ($20,000,000 890,000) (the “Cap”); provided, however, that (x) none of the foregoing limitations shall apply to any Losses arising out of, resulting from or related to any breach, inaccuracy or failure to be true of any representation or warranty set forth in Sections 5.1 (Organization), 5.2 (Authorization), 5.4 (Capitalization), 5.5 (Subsidiaries), 6.1 (Organization), 6.2 (Authorization), 6.4 (Ownership), 7.1 (Organization) and 7.2 (Authorization) (the “Cap Exceptions”) and (y) any Losses for which tax indemnification is provided in Article XI shall not be subject to the Sub-Basket. (b) Notwithstanding anything herein to the contrary, except as provided in the last sentence of Section 10.5(c), (i) the aggregate amount for which any Primary Indemnitor shall be liable hereunder shall be (x) such Primary Indemnitor’s Indemnification Percentage multiplied by (y) an amount equal to the sum of the Aggregate Equity Value plus the ACAS Warrant Amount; and (ii) the aggregate amount for which any Primary Indemnitor shall be liable with respect to Losses suffered by Purchaser Indemnified Parties pursuant to Section 10.2(a)(i) or (ii) for any breaches or inaccuracies of any representations and warranties in Article V or Article VI (other than representations and warranties included in the definition of Cap Exceptions), Section 8.19(b) or Article XI shall in no event exceed (x) such Primary Indemnitor’s Indemnification Percentage multiplied by (y) the Cap Amount. For the avoidance of doubt, amounts which count toward the limit set forth in clause (ii) above count against the limit in clause (i), but not vice versa. (c) Notwithstanding anything else herein to in this Article X, the contraryCap, ACAS Basket and Sub-Basket limitations set forth in Sections 10.5(a) and 10.5(b) shall not be liable for any amount with respect apply to Losses incurred by Purchaser Indemnified Parties pursuant to Section 10.2(a)(i) (other than Sections 6.1 (Organization), 6.2 (Authorization) and 6.3 (Ownership and Transfer of Securities) (each, the “ACAS Cap Exceptions”)), Section 10.2(a)(ii), or Section 8.19(b) in excess of $2,000,000, less amounts paid by ACAS under the ACAS Contribution Agreement (the “ACAS Cap”). In the event Purchaser Indemnified Parties have Losses pursuant to Section 10.2(a)(i) (other than with respect to the ACAS Cap Exceptions) or Section 10.2(a)(ii) in excess of the ACAS Cap, the remaining Primary Indemnitors shall be jointly and severally liable for the full amount ACAS’s Indemnification Percentage of such Losses in excess of the ACAS Cap in accordance with the remaining limitations of this Section 10.5. (d) No Purchaser Indemnified Party shall make any claim claims for indemnification under this Article X in respect of any matter Losses related to the extent that is taken into account in the calculation of any adjustment to the Purchase Price pursuant to Section 3.2. (e) Except as provided in Section 8.19, the Purchaser Indemnified Parties shall not be entitled to indemnification with respect to a breach or arising out of the representations and warranties in Section 5.18 to the extent resulting from any investigation of environmental conditions at any Company Property conducted by, or at the direction of, Purchaser other than (i) any such investigation required under applicable Law (including any Law requiring that such testing be completed in connection with any construction, material maintenance activity, expansion or closure of all or any part of any Facility)Specified Representations, (ii) any such investigation required by any Governmental BodyPost Closing Covenants, including Seller’s covenant under Section 7.9(b), (iii) any such investigation in response to any Environmental Claim to the extent reasonably related theretothird party claims, (iv) any air Seller’s or wastewater testing required by Environmental Law Purchaser’s claims for the other’s failure or refusal to close in connection with any maintenance or modification violation of all or any part of any Facility (including any testing required to obtain any Environmental Permit that may be required in connection therewith) or this Agreement or, (v) any Phase I assessment claims for indemnification in respect of Losses related to or other similar noninvasive environmental audit conducted in preparation for arising out of fraud, willful misconduct or in connection with any M&A or financing transaction, or securities offering involving Purchaser, the Company or their Affiliates; provided, however, that with respect to this clause (v), the Primary Indemnitors shall have no liability or obligation to the Purchaser Indemnified Parties under this Agreement with respect to any Phase II or other invasive testing (including the results thereof) undertaken by the Purchaser Indemnified Parties as a result of such non-invasive Phase I assessment or other similar noninvasive environmental auditintentional misrepresentation.

Certain Limitations on Indemnification. (a) Notwithstanding the provisions of Articles X and XI and except as otherwise provided hereinthis Article X, (i) neither the Primary Indemnitors Sxxxxxx nor Purchaser shall have any indemnification obligations for Losses under Section Sections 10.2(a)(i) and 10.2(a)(ii) or (iiSections 10.3(a) and 10.3(b), Section 10.3(a)(i) or Article XI, (1) for any individual item, or group of related items which shall include claims by unrelated parties arising out of the same or substantially similar factual allegations (e.g., class action claims) to the extent all Losses with respect to such item or series of related items are less than $50,000 (the “Sub-Basket”) and (2) in respect of each item or series of related items for which all Losses are equal to or greater than the Sub-Basketevent, unless the aggregate amount of all such Losses exceeds $500,000 450,000 (the “Basket”), ) and then only to for Losses in excess of the extent of such excess, and (ii) in Basket. In no event shall the aggregate amounts indemnification to be paid by the Primary Indemnitors Sxxxxxx or Purchaser under this Article X, Section 8.19(b) and Article XI X exceed $20,000,000 12,000,000 (the “Cap”); provided. Notwithstanding the foregoing, however, that (x) none of neither the foregoing limitations Basket nor the Cap shall apply to any Losses arising out of, resulting from based upon or related to any (i) fraud, criminal wrongdoing or willful breach, inaccuracy (ii) any matter subject to indemnification pursuant to Sections 10.2(a)(iii) through 10.2(a)(vi), or (iii) the failure to be true and correct of any representation or warranty of the representations and warranties set forth in Sections Section 5.1 (Organization), 5.2 (Authorization), 5.4 (Capitalization), 5.5 5.9 (SubsidiariesTaxes), 5.14(e) through 5.14(j) (Employee Benefit Plans), 5.15(c)(ii) - 5.15(c)(iv), 6.1 (Organization), 6.2 (Authorization), 6.4 (Ownership), 6.6 (Financial Advisors), 7.1 (Organization) and ), 7.2 (Authorization) or 7.6 (the “Cap Exceptions”Financial Advisors) and (y) any Losses for which tax indemnification is provided in Article XI shall not be subject to the Sub-Baskethereof. (b) Notwithstanding anything herein No Indemnifying Party shall be required to indemnify the Indemnified Party to the contraryextent of any Losses that a court of competent jurisdiction shall have determined by final judgment to have resulted from the bad faith, except as provided in the last sentence of Section 10.5(c), (i) the aggregate amount for which any Primary Indemnitor shall be liable hereunder shall be (x) such Primary Indemnitor’s Indemnification Percentage multiplied by (y) an amount equal to the sum gross negligence or willful misconduct of the Aggregate Equity Value plus the ACAS Warrant Amount; and (ii) the aggregate amount for which any Primary Indemnitor shall be liable with respect to Losses suffered by Purchaser Indemnified Parties pursuant to Section 10.2(a)(i) or (ii) for any breaches or inaccuracies of any representations and warranties in Article V or Article VI (other than representations and warranties included in the definition of Cap Exceptions), Section 8.19(b) or Article XI shall in no event exceed (x) such Primary Indemnitor’s Indemnification Percentage multiplied by (y) the Cap Amount. For the avoidance of doubt, amounts which count toward the limit set forth in clause (ii) above count against the limit in clause (i), but not vice versaParty. (c) Notwithstanding anything else herein to the contrary, ACAS shall not be liable for any amount The indemnification obligations set forth in this Article X with respect to a breach of a particular representation, warranty, agreement or covenant shall survive the Closing for a period of 21 months from the Closing Date; provided, however, that Sxxxxxx’ obligation to indemnify the Purchaser for any Losses incurred by Purchaser Indemnified Parties based upon or related to (i) fraud, criminal wrongdoing or willful breach, (ii) any matter subject to indemnification pursuant to Section 10.2(a)(iSections 10.2(a)(iii) (other than Sections 6.1 (Organization), 6.2 (Authorization) and 6.3 (Ownership and Transfer of Securities) (each, the “ACAS Cap Exceptions”)), Section 10.2(a)(iithrough 10.2(a)(vi), or Section 8.19(b(iii) in excess the failure to be true and correct of $2,000,000, less amounts paid by ACAS under the ACAS Contribution Agreement (the “ACAS Cap”). In the event Purchaser Indemnified Parties have Losses pursuant to Section 10.2(a)(i) (other than with respect to the ACAS Cap Exceptions) or Section 10.2(a)(ii) in excess any of the ACAS Caprepresentations and warranties set forth in Sections 5.2 (Authorization), 5.4 (Capitalization), 5.9 (Taxes) and 6.4 (Ownership) shall survive the remaining Primary Indemnitors shall be jointly and severally liable for the full amount ACAS’s Indemnification Percentage of such Losses in excess Closing Date until expiration of the ACAS Cap in accordance with the remaining limitations applicable statute of this Section 10.5limitations. (d) No Absent fraud, Purchaser Indemnified Party shall not make any claim for indemnification under this Article X in respect of any matter to the extent that is taken into account in the calculation of any adjustment to the Purchase Price pursuant to Section 3.23.3. (e) Except as provided in Section 8.19, the Purchaser Indemnified Parties shall not be entitled to indemnification with respect to a breach of the representations and warranties in Section 5.18 to the extent resulting from any investigation of environmental conditions at any Company Property conducted by, or at the direction of, Purchaser other than (i) any such investigation required under applicable Law (including any Law requiring that such testing be completed in connection with any construction, material maintenance activity, expansion or closure of all or any part of any Facility), (ii) any such investigation required by any Governmental Body, (iii) any such investigation in response to any Environmental Claim to the extent reasonably related thereto, (iv) any air or wastewater testing required by Environmental Law in connection with any maintenance or modification of all or any part of any Facility (including any testing required to obtain any Environmental Permit that may be required in connection therewith) or (v) any Phase I assessment or other similar noninvasive environmental audit conducted in preparation for or in connection with any M&A or financing transaction, or securities offering involving Purchaser, the Company or their Affiliates; provided, however, that with respect to this clause (v), the Primary Indemnitors shall have no liability or obligation to the Purchaser Indemnified Parties under this Agreement with respect to any Phase II or other invasive testing (including the results thereof) undertaken by the Purchaser Indemnified Parties as a result of such non-invasive Phase I assessment or other similar noninvasive environmental audit.

Certain Limitations on Indemnification. (a) Notwithstanding any provision of this Article IX to the provisions of Articles X and XI and except as otherwise provided hereincontrary, (i) neither the Primary Indemnitors Seller nor the Purchaser shall have any indemnification obligations for Losses under Section 10.2(a)(i9.2(a) or (ii), Section 10.3(a)(i) or Article XI, (1) 9.3(a): for any individual item, or group of related items which shall include claims by unrelated parties arising out of the same or substantially similar factual allegations (e.g.event, class action claims) to where the extent all Losses with respect to such item or series of related items are Loss relating thereto is less than $50,000 (the “"Sub-Basket”) "); provided that the Sub-Basket shall be inapplicable with respect to any claim for breach of any representation or warranty set forth herein in the event such representation or warranty is qualified by the word or words "knowledge," "material," "in all material respects," "material adverse effect," "Material Adverse Effect," or any similar qualifying language; and (2) in respect of each item individual item, or series group of related items for which all Losses are arising out of the same event, where the Loss relating thereto is equal to or greater than the Sub-BasketBasket (to the extent the Sub-Basket is applicable), unless the aggregate amount of all such Losses exceeds $500,000 750,000 (the “"Basket”"), and then only to the extent of such excess. Notwithstanding the foregoing, and the limitations set forth in this Section 9.5(a) shall not apply to (i) Losses arising from any breach or inaccuracy of the Specified Representations, (ii) in no event shall Section 4.10(f) (except to the aggregate amounts to be paid by the Primary Indemnitors under this Article X, Section 8.19(b) and Article XI exceed $20,000,000 (the “Cap”); provided, however, that (x) none of the foregoing limitations shall apply to any Losses arising out of, resulting from or related to any breach, inaccuracy or failure to be true of any representation or warranty extent set forth in Sections 5.1 (OrganizationSchedule 4.10(f), 5.2 (Authorization), 5.4 (Capitalization), 5.5 (Subsidiaries), 6.1 (Organization), 6.2 (Authorization), 6.4 (Ownership), 7.1 (Organization) and 7.2 (Authorization) (the “Cap Exceptions”) and (y) any Losses for which tax indemnification is provided in Article XI shall not be subject to the Sub-Basket. (b) Notwithstanding anything herein to the contrary, except as provided in the last sentence of Section 10.5(c), (iiii) the aggregate amount for which any Primary Indemnitor shall be liable hereunder shall be (x) such Primary Indemnitor’s Indemnification Percentage multiplied by (y) an amount equal to the sum of the Aggregate Equity Value plus the ACAS Warrant Amount; and (ii) the aggregate amount for which any Primary Indemnitor shall be liable with respect to Losses suffered by Purchaser Indemnified Parties pursuant to Section 10.2(a)(i) or (ii) for any breaches or inaccuracies of any representations and warranties in Article V or Article VI (other than representations and warranties included in the definition of Cap Exceptions), Section 8.19(b) or Article XI shall in no event exceed (x) such Primary Indemnitor’s Indemnification Percentage multiplied by (y) the Cap Amount. For the avoidance of doubt, amounts which count toward the limit set forth in clause (ii) above count against the limit in clause (i), but not vice versa. (c) Notwithstanding anything else herein to the contrary, ACAS shall not be liable for any amount with respect to Losses incurred by Purchaser Indemnified Parties pursuant to Section 10.2(a)(i) (other than Sections 6.1 (Organization), 6.2 (Authorization) and 6.3 (Ownership and Transfer of Securities) (each, the “ACAS Cap Exceptions”)), Section 10.2(a)(ii), or Section 8.19(b) in excess of $2,000,000, less amounts paid by ACAS under the ACAS Contribution Agreement (the “ACAS Cap”). In the event Purchaser Indemnified Parties have Losses pursuant to Section 10.2(a)(i4.10(b) (other than with respect to clause (v) thereof), (c), (d), (e) and (g) (with respect to any representations regarding Real Property Leases for which Estoppel Certificates are not obtained within 45 days of the ACAS Cap ExceptionsClosing), (iv) Section 4.10(l) (with respect to any Real Property Leases for which there is no Non-Disturbance Agreement in place as of the Closing) or (v) Section 10.2(a)(ii4.25. In no event shall the aggregate indemnification to be paid by the Seller under Section 9.2(a) in excess exceed an amount equal to $10 million (the "Cap"), provided, however, that the Cap shall not apply to or limit (i) the Seller's responsibilities for any such Losses based upon, attributable to or resulting from the failure of the ACAS CapSpecified Representations to be true and correct, or (ii) the Seller's obligation to indemnify the Purchaser Indemnified Parties under Section 7.10(b). Xxxxxxx US shall take, and shall cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event which would reasonably be expected to, or does, give rise thereto. The amount of any Losses for which indemnification is provided under this Article IX and Section 7.10 shall be net of any amounts actually recovered by the indemnified party under insurance policies or otherwise with respect to such Losses (net of any expenses incurred in connection with such recovery). In the event and to the extent any Loss is covered by insurance, the remaining Primary Indemnitors shall be jointly and severally liable for parties agree to notify their respective insurance carriers of the full amount ACAS’s Indemnification Percentage existence of such Losses Loss, but shall not be under any obligation to prosecute such claim. Notwithstanding anything to the contrary in excess this Agreement, none of the ACAS Cap in accordance with the remaining limitations of this Section 10.5. (d) on indemnification obligations set forth hereby shall apply to claims based on fraud or intentional breaches. No Purchaser Indemnified Party shall make any claim for be entitled to indemnification under this Article X in pursuant to Section 9.2(a) with respect of to any matter to the extent (i) that is taken into account in the calculation of any adjustment to the Purchase Price pursuant to Section 3.2. (e) Except as provided in Section 8.19, the Purchaser Indemnified Parties shall not be entitled to indemnification with respect to a breach of the representations and warranties in Section 5.18 to the extent resulting from any investigation of environmental conditions at any Company Property conducted by, 2.4 or at the direction of, Purchaser other than (i) any such investigation required under applicable Law (including any Law requiring that such testing be completed in connection with any construction, material maintenance activity, expansion or closure of all or any part of any Facility), (ii) any such investigation required by any Governmental Body, (iii) any such investigation of which a Purchaser Indemnified Party had waived in response to any Environmental Claim writing prior to the extent reasonably related thereto, (iv) any air or wastewater testing required by Environmental Law in connection with any maintenance or modification of all or any part of any Facility (including any testing required to obtain any Environmental Permit that may be required in connection therewith) or (v) any Phase I assessment or other similar noninvasive environmental audit conducted in preparation for or in connection with any M&A or financing transaction, or securities offering involving Purchaser, the Company or their Affiliates; provided, however, that with respect to this clause (v), the Primary Indemnitors shall have no liability or obligation to the Purchaser Indemnified Parties under this Agreement with respect to any Phase II or other invasive testing (including the results thereof) undertaken by the Purchaser Indemnified Parties as a result of such non-invasive Phase I assessment or other similar noninvasive environmental auditClosing.