Common use of Certain Limitations Clause in Contracts

Certain Limitations. (a) The Stockholders shall not be required to indemnify the Parent Indemnitees with respect to any claim under Section 8.2(a) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims exceeds an amount equal to three hundred fifty thousand dollars ($350,000), in which event the Parent Indemnitees shall be entitled to recover Losses only in excess thereof; provided, that the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g). (b) The sole and exclusive remedy of the Parent Indemnitees with respect to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery). (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered with respect to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warranty.

Certain Limitations. The liability of the Seller, Parent or the Buyer, as applicable, for claims under this Agreement shall be limited by the following: (a) The Stockholders At any time after the applicable Survival Date for a representation and warranty, (i) the Seller shall not be required to indemnify have no further obligations under this Article IX for breaches of such representations and warranties of the Parent Indemnitees Seller, except for Damages with respect to any claim under Section 8.2(a) or Section 8.2(g) unless which the Buyer Indemnitee has timely given the Seller written notice prior to such date in accordance with Sections 8.1 and until the aggregate amount of all Losses for such claims exceeds an amount equal to three hundred fifty thousand dollars ($350,000), in which event the Parent Indemnitees shall be entitled to recover Losses only in excess thereof; provided, that the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or 9.3 and (ii) a claim pursuant the Buyer shall have no further obligations under this Article IX for breaches of such representations and warranties of the Buyer, except for Damages with respect to item 3 on Schedule 8.2(g)which the Seller Indemnitee has given the Buyer written notice prior to such date in accordance with Sections 8.1 and 9.3. (b) The sole and exclusive remedy of Notwithstanding anything to the Parent Indemnitees contrary herein, except with respect to Fraud Claims, any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset claim by a Buyer Indemnitee against the Indemnity Shares Seller pursuant to Section 8.6 9.1(a) shall be payable by Seller only in the event that the accumulated amount of Damages in respect of Seller’s obligations to indemnify the Buyer Indemnitees under this Agreement shall exceed $100,000 in the aggregate (the “Seller Indemnification Threshold”); provided, however, to that at such time as the extent such claim is based upon Fraud and exceeds the aggregate amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with Damages in respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent indemnity obligations of Seller shall exceed the Seller Indemnification Threshold, Seller shall thereafter be liable for all Damages suffered or incurred by the Buyer Indemnitees with respect to in excess of such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7initial $100,000 of Damages. (c) The amount Notwithstanding anything to the contrary herein, except with respect to Fraud Claims (for which there shall be no limitation), in no event shall the maximum aggregate liability of Seller in respect of any Losses claims by the Buyer Indemnitees against Seller pursuant to Section 9.1 (a) for which Damages suffered or incurred by any Buyer Indemnitees exceed 10% of the Parent Indemnitees claim indemnification under this Agreement value of the Purchase Price (as adjusted pursuant to Section 2.4), except that with respect to Damages suffered or incurred by any Buyer Indemnitee due to a breach of Section 3.16 the maximum aggregate liability of Seller shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses 20% of the value of the Purchase Price (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recoveryas adjusted pursuant to Section 2.4). (d) For purposes of Notwithstanding anything to the contrary herein, the limitations contained in this Article VIIISection 9.5 shall not apply to claims for indemnification by Buyer Indemnitees against Seller in pursuant to Sections 9.1(b), 9.1(c), 9.1(d), and 9.1(e); provided, however, that except for the sole purpose of determining Losses actually suffered Fraud Claims, Buyer’s or Parent’s (or any Buyer Indemnitee’s) right to make a claim for indemnification under Sections 9.1(b), 9.1(c), 9.1(d), and 9.1(e) shall expire with respect to any breach of any representation such claims which are not made on or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) prior to the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warrantydate five years following the Closing Date.

Certain Limitations. The indemnification provided for in Section 11.1 and 11.2 shall be subject to the following limitations: (a) The Stockholders Except as provided in Section 11.6(c), Seller shall not be required liable to indemnify the Parent Purchaser Indemnitees with respect to any claim for indemnification under Section 8.2(a11.1(a) or Section 8.2(g) unless and until the aggregate amount of all Losses in respect of indemnification under Section 11.1(a) exceeds $250,000 (the “Deductible”), and thereafter shall be liable only for such claims exceeds an amount equal to three hundred fifty thousand dollars ($350,000), in which event the Parent Indemnitees shall be entitled to recover Losses only in excess thereof; providedof the Deductible, that subject to the foregoing limitation other limitations set forth herein. Notwithstanding the foregoing, the aggregate liability of Seller for indemnification pursuant to Section 11.1(a) shall not exceed $4,000,000 (the “Cap”). Notwithstanding anything to the contrary set forth herein, the limitations set forth in this Section 11.6(a) shall not apply to (i) a claim Losses relating to Excluded Assets or Excluded Liabilities or any other indemnity provided for indemnification to the extent such claim is based upon Fraud, or (ii) a claim herein other than pursuant to item 3 on Schedule 8.2(gSection 11.1(a), and such Losses shall not be counted toward Seller’s Deductible. (b) The sole Buyer shall not be liable to Seller Indemnitees for indemnification under Section 11.2(a) until the aggregate amount of all Losses in respect of indemnification under Section 11.2(a) exceeds the Deductible, and exclusive remedy thereafter shall be liable only for such Losses in excess of the Parent Indemnitees with respect Deductible, subject to the other limitations set forth herein. Notwithstanding the foregoing, the aggregate liability of the Buyer for indemnification pursuant to Section 11.2(a) shall not exceed the Cap. (c) Notwithstanding anything to the contrary set forth herein, the limitations set forth in Sections 11.6(a) and 11.6(b) shall not limit Liability of any Indemnifying Party for breaches of Transactional Reps, a breach of the representations or warranties set forth in Section 5.7(a), intentional breach, intentional misrepresentation or fraud, and all Losses based uponon, resulting from, arising out of, of or related relating to this Agreement or such matters shall not be counted toward the Contemplated Transactions, shall be via offset against the Indemnity Shares Deductible. (d) Payments by an Indemnifying Party pursuant to Section 8.6 11.1 or Section 11.2 in respect of any Losses shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment actually received by the Indemnified Party in respect of any such claim, less any related costs and expenses, including the aggregate cost of pursuing any related insurance claims and any related increases in insurance premiums or other chargebacks (it being agreed that neither party shall have any obligation to seek to recover any insurance proceeds in connection with making a claim under this Article XI and that, promptly after the realization of any insurance proceeds, indemnity, contribution or other similar payment, the Indemnified Party shall reimburse the Indemnifying Party for such reduction in Losses for which the Indemnified Party was indemnified prior to the realization of reduction of such Losses). (e) Notwithstanding anything to the contrary contained herein, in the case of a breach of a representation, warranty or covenant of Seller hereunder that results in Buyer’s complete loss of or inability to operate a Subject Restaurant or that results in the permanent inability to operate a drive-thru at such Subject Restaurant (to the extent such Subject Restaurant had an operating drive-thru at any time during fiscal year 2011), then, in each case, without duplication, Buyer shall be permitted to seek indemnification in an amount equal to the EBITDA for such Subject Restaurant as set forth on Schedule 6.6(a) multiplied by the Valuation Multiple (provided, however, that if the EBITDA for such Subject Restaurant as set forth on Schedule 6.6(a) is zero or negative, then no payment shall be due and owing) and, for the avoidance of doubt, in each instance the applicable Seller Lease and Franchise Agreement shall be terminated with no further obligations thereunder. In addition, a pro-rata portion of any franchise fee paid by Buyer to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that Seller with respect to such Subject Restaurant shall be returned to Buyer as well as any and all Losses based uponunamortized costs incurred by Buyer in connection with any Remodeling Plan at such Subject Restaurant. However, arising out ofif Buyer seeks such indemnity, or related to the Special Indemnity, it shall be the sole and exclusive remedy of the Parent Indemnitees Buyer and any other Purchaser Indemnitee with respect to such breach by Seller and Buyer and any other Purchaser Indemnitee shall not be permitted to seek any additional Losses with respect to such breach. For the avoidance of doubt, the limitations set forth in Sections 11.6(a) and 11.6(b) shall be via offset against not limit the Special Indemnity Shares pursuant to Liability of Seller for Losses based on, resulting from, arising out of or under Section 8.7. (c11.3(b) The amount of any Losses for which the Parent Indemnitees claim indemnification under and this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recoverySection 11.6(e). (df) For purposes of this Article VIII, In connection with any indemnity claim brought by a Purchaser Indemnitee for the sole purpose of determining Losses actually suffered with respect to any a breach of any the representation or and warranty (and not for purposes made by Seller in the second sentence of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III Section 6.6(a), no Purchaser Indemnitee shall not be deemed to be qualified by have suffered any materiality, Company Material Adverse Effect or other similar qualifications Losses if the information contained on Schedule 6.6(a) fairly and accurately presents in or otherwise applicable to such representation or warrantyall material respects the EBITDA for the Subject Restaurants taken as a whole.

Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations: (a) The Stockholders Sellers shall not be required liable to indemnify the Parent Buyer Indemnitees with respect to any claim for indemnification under Section 8.2(a8.02(a) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims sustained by Buyer Indemnitees by reason of inaccuracies in, or breaches of, the representations or warranties made by Sellers in this Agreement, or in any certificate or instrument delivered by or on behalf of Sellers pursuant to this Agreement, exceeds an amount equal to three hundred fifty thousand dollars $491,250.00 ($350,000the “Basket”), in which event the Parent Indemnitees Sellers shall be entitled required to recover indemnify Buyer Indemnitees for all such Losses only in excess thereof; provided, that of the foregoing limitation Basket. The aggregate amount of all Losses for which Sellers (cumulatively) shall be liable pursuant to Section 8.02(a) shall not apply to exceed $491,250.00 (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g“Cap”). (b) The sole and exclusive remedy Buyer shall not be liable to the Sellers Indemnitees for indemnification under Section 8.03(a) until the aggregate amount of all Losses sustained by Seller Indemnitees by reason of inaccuracies in, or breaches of, the representations or warranties made by Buyer in this Agreement, or in any certificate or instrument delivered by or on behalf of Buyer pursuant to this Agreement, exceeds the Basket, in which event Buyer shall be required to indemnify Seller Indemnitees for all such Losses in excess of the Parent Indemnitees with respect to any and Basket. The aggregate amount of all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, for which Buyer shall be via offset against the Indemnity Shares liable pursuant to Section 8.6 provided, however, to 8.03(a) shall not exceed the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7Cap. (c) The amount Notwithstanding the foregoing, the limitations set forth in Section 8.04(a) and Section 8.04(b) shall not (i) apply to Losses resulting from any inaccuracy in or breach of any Losses for which Fundamental Representation; (ii) affect or otherwise limit any claim Buyer may have under the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds R&W Insurance Policy, or other third party reimbursements actually received in connection with such Losses (net iii) apply to the payment of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)the Working Capital Adjustment pursuant to Section 2.04. (d) For purposes of this Article ARTICLE VIII, (including for the sole purpose purposes of determining Losses actually suffered the existence of any inaccuracy in, or breach of, any representation or warranty and for calculating the amount of any Loss with respect to thereto), any inaccuracy in or breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed determined without regard to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications qualification contained in or otherwise applicable to such representation or warranty, except for the references in Sections 3.08(a), 3.09(a)(xiii), and 3.11. (e) Notwithstanding anything to the contrary in this ARTICLE VIII, in the event a party perpetrates a Fraud on the other party in connection with this Agreement or the transactions contemplated hereby, the Party who suffers Losses by reason thereof shall be entitled to seek recovery therefor against the person(s) who perpetrated such Fraud without regard to any limitation set forth in this Agreement (whether a temporal limitation, the Basket, Cap, or otherwise) and such Losses shall not count toward satisfaction of the Basket or Cap; (f) No Seller shall be liable under this Agreement (including this ARTICLE VIII) with respect to any Losses which are taken into account in the determination of Closing Working Capital or the Working Capital Adjustment; (g) The amount of any Losses which are indemnifiable or payable under this ARTICLE VIII by an Indemnifying Party shall be net of any amounts actually recovered by the Indemnified Party in respect of such Losses under applicable insurance policies or from any other third party alleged to be responsible therefor, including, without limitation, the Title Policy. If the Indemnified Party recovers any amounts under applicable insurance policies, or from any other third party alleged to be responsible for any Losses, subsequent to an indemnification payment by the Indemnifying Party, then the Indemnified Party receiving such payment shall promptly reimburse the Indemnifying Party for any portion of such indemnification payment which would not have been payable pursuant to the operation of the immediately preceding sentence had such payment been made after the Indemnified Party had recovered such other amount, net of any expenses reasonably incurred by such Indemnified Party in collecting such amount (including any deductible amounts, attorney’s fees and any increased insurance premiums). If the Indemnified Party receives any payment from an Indemnifying Party in respect of any Losses and the Indemnified Party would reasonably have been expected to have been able to recover all or a part of such Losses from a third party based on the underlying claim asserted against the Indemnifying Party, the Indemnified Party shall assign such of its rights to proceed against such third party as are necessary to permit the Indemnifying Party to recover from such third party the amount of such indemnification payment; (h) No Indemnifying Party shall be liable under this ARTICLE VIII for Losses that are for special or consequential damages, or damages based on a multiple, or for Losses which are exemplary or, except for instances of Fraud, punitive damages, unless such damages are payable to a third party; (i) No Indemnifying Party shall be liable under this ARTICLE VIII for Losses arising from breaches of any representation or warranty pertaining to the title of any owned Real Property, including, without limitation, the representations and warranties set forth in Section 3.10, unless and until Buyer Indemnitees have pursued and exhausted all coverages, claims, rights, and protections set forth in the Title Policy; (j) No Indemnifying Party shall be liable under this ARTICLE VIII for Losses arising from breaches of any representation or warranty pertaining to inventory, accounts receivable, or any other Current Assets or Current Liabilities taken into account for purposes of determining Closing Working Capital, including, without limitation, the representations and warranties set forth in Sections 3.13 and 3.14, unless the amount of the resulting Losses would have caused a Working Capital Adjustment to occur (if such Losses had been known at the time when Closing Working Capital was determined), or, if a Working Capital Adjustment does occur, would have resulted in a different Working Capital Adjustment (if such Losses had been known at the time when Closing Working Capital was determined) (any such Losses, which, if known at the time when Closing Working Capital was determined, would have caused a Working Capital Adjustment to occur, or, if a Working Capital Adjustment does occur, would have resulted in a different Working Capital Adjustment, being referred to herein as “Losses in Excess of Collar”). In the event that Losses in Excess of Collar result from breaches of any representation or warranty pertaining to inventory, accounts receivable, or any other Current Assets or Current Liabilities taken into account for purposes of determining Closing Working Capital (including, without limitation, the representations and warranties set forth in Sections 3.13 and 3.14), the Indemnifying Parties shall only be liable under this ARTICLE VIII for such Losses in Excess of Collar, and shall not be liable for any other such resulting Losses. The terms of this Section shall not affect any other limitation set forth in this Section 8.04. For purposes of clarity, and by way of example, if a Closing Working Capital Deficit exists of $1,000,000 (resulting in no Working Capital Adjustment), and Losses resulting from breaches of a representation or warranty pertaining to inventory, accounts receivable, or any other Current Assets or Current Liabilities taken into account for purposes of determining Closing Working Capital are (i) $500,000, no such Losses would be subject to indemnification hereunder, or (ii) $1,500,000, the Losses in Excess of Collar ($500,000) would be subject to indemnification hereunder. Furthermore, if a Closing Working Capital Surplus exists of $2,500,000 (resulting in a Working Capital Adjustment of $500,000), and Losses resulting from breaches of a representation or warranty pertaining to inventory, accounts receivable, or any other Current Assets or Current Liabilities taken into account for purposes of determining Closing Working Capital are (i) $300,000, the Losses in Excess of Collar ($300,000) would be subject to indemnification hereunder, or (ii) $1,500,000, the Losses in Excess of Collar ($500,000) would be subject to indemnification hereunder; and (k) No Indemnifying Party shall be liable under this ARTICLE VIII for Losses arising from breaches of any representation or warranty pertaining to environmental matters, including, without limitation, the representations and warranties set forth in Sections 3.19, if and to the extent the resulting Losses relate to, result from, or arise out of any matter disclosed in Sections 3.19(b), (e), (f), or (h) of the Disclosure Schedules (the parties acknowledging that Buyer has conducted extensive due diligence relating to the owned Real Property, including, without limitation, conducting the Phase I and Phase II, and that Sellers shall have no liability or indemnification obligations hereunder for Losses relating to, resulting from, or arising out of matters disclosed in the Phase I and/or Phase II). (l) No Indemnifying Party shall be liable under this ARTICLE VIII for Losses arising from the Company’s or Sellers’ failure to obtain consent from, or failure to notify, the State of Kansas (and its related agencies) or InTrust Bank, with respect to the Closing and/or the transactions contemplated hereby.

Certain Limitations. (a) The Stockholders Notwithstanding anything contained herein to the contrary, the maximum aggregate liability of ITTI to all Purchaser Indemnified Parties taken together for all Purchaser Losses under Section 9.1(a)(i) by Purchaser Indemnified Parties shall be limited to a maximum of 50% of the Purchase Price, with the exception of breaches of Section 4.3 or Section 4.7 (with respect to title), with respect to which the maximum aggregate liability of ITTI for all Purchaser Losses shall be limited to the Purchase Price. Notwithstanding anything contained herein to the contrary, the maximum aggregate liability of Purchaser to all ITTI Indemnified Parties taken together for all ITTI Losses under Section 9.1(b)(i) by ITTI Indemnified Parties shall be limited to a maximum of 50% of the Purchaser Price. (b) Notwithstanding anything contained herein to the contrary, ITTI shall not be required obligated to indemnify the Parent Indemnitees with respect to make any claim indemnification payment under Section 8.2(a) or Section 8.2(g9.1(a)(i) unless and until the aggregate amount Purchaser Losses sustained by Purchaser Indemnified Parties collectively (calculated as specified in Section 9.1(a)(i)) exceed 1% of the Purchase Price, and then any indemnification with respect to Purchaser Losses shall be made by ITTI only to the extent of such excess over such 1%, with the exception of breaches of Section 4.16 with respect to which ITTI shall be obligated to make indemnification payments in respect of all Purchaser Losses for such claims exceeds an amount equal above $5 million (other than Purchaser Losses arising in Brazil, as to three hundred fifty thousand dollars ($350,000), in which event the Parent Indemnitees ITTI shall be entitled obligated to recover Losses only make indemnification payments in excess thereof; providedrespect of all Purchaser Losses). Notwithstanding anything contained herein to the contrary, that the foregoing limitation (x) Purchaser shall not apply be 129 121 obligated to make any indemnification payment under Section 9.1(b)(i) unless and until the aggregate ITTI Losses sustained by ITTI Indemnified Parties collectively (calculated as specified in Section 9.1(b)(i) exceed 1% of the Purchase Price, and then any indemnification with respect to ITTI Losses shall be made by Purchaser only to the extent of such excess over such 1%. (i) a claim for indemnification to The representations and warranties of ITTI contained in Section 4.3 of this Agreement shall survive the extent such claim is based upon FraudClosing until the fifth anniversary of the Closing Date, or (ii) a claim pursuant to item 3 on Schedule 8.2(g). (b) The sole the representations and exclusive remedy warranties of the Parent Indemnitees with respect to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to ITTI contained in Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount 4.12 of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or survive the Closing until 60 days after the expiration of the applicable statute of limitations in respect of such tax matters and (iii) all other third party reimbursements actually received representations and warranties of the parties contained in connection with such Losses (net this Agreement shall survive the Closing until the second anniversary of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)the Closing Date. (d) For purposes Claims for Purchaser Losses or ITTI Losses caused by or arising out of breach of warranty or inaccurate or erroneous representation may be made only pursuant to Article IX hereof and only by written notice within the survival period of such representation and warranty provided for in Section 9.2(c). (e) The obligations to indemnify and hold harmless a party hereto pursuant to this Article VIIIIX shall terminate when the applicable representation, for the sole purpose of determining Losses actually suffered warranty, covenant or agreement terminates pursuant to Section 9.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) item as to which the representations and warranties in ARTICLE III shall not be deemed person to be qualified indemnified shall have, before the expiration of the applicable period, previously made a claim by any materiality, Company Material Adverse Effect or other similar qualifications contained delivering a notice (stating in or otherwise applicable reasonable detail the basis of such claim) to such representation or warranty.the indemnifying person. 130 122

Certain Limitations. The indemnification provided for in Section 6.1 and Section 6.2 shall be subject to the following limitations: (a) The Stockholders Upon the terms and subject to the conditions and limitations set forth in this Agreement, Sellers shall not be required liable to indemnify the Parent Purchaser Indemnitees with respect to any claim for indemnification under Section 8.2(a6.1(a) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims in respect of indemnification exceeds an amount equal to three hundred fifty thousand dollars $150,000 ($350,000the “Basket”), in which event the Parent Indemnitees Sellers shall be entitled required to recover pay or be liable for Losses only in excess thereofto the extent (and solely with respect to the amount that) such aggregate Losses exceed the Basket; provided, provided that the foregoing limitation shall not apply in respect of any Losses relating to (i) a claim for indemnification Breach of any Transactional Reps. Upon the terms and subject to the extent such claim is based upon Fraudconditions and limitations set forth in this Agreement, or (ii) a claim the Purchaser Indemnitees shall not be indemnified pursuant to item 3 on Schedule 8.2(gSection 6.1(a) with respect to any Loss if the aggregate amount of all Losses for which the Purchaser Indemnitees have received indemnification pursuant to Section 6.1(a) has exceeded thirty-five percent (35%) of the Transaction Consideration (the “Non-Transactional Cap”). Subject to Section 6.5(c), in no event shall the Purchaser Indemnitees be entitled to indemnification pursuant to Section 6.1 with respect to any Loss if the aggregate amount of all Losses for which the Purchaser Indemnitees have received indemnification pursuant to Section 6.1 has exceeded the Transaction Consideration (the “Transactional Cap” and together with the Non-Transactional Cap, the “Cap”). (b) The sole Upon the terms and exclusive remedy subject to the conditions and limitations set forth in this Agreement, Purchaser shall not be liable to the Seller Indemnitees for indemnification under Section 6.2(a) until the aggregate amount of all Losses in respect of indemnification exceeds the Parent Basket, in which event Purchaser shall be required to pay or be liable for Losses only to the extent (and solely with respect to the amount that) such aggregate Losses exceed the Basket; provided that the foregoing limitation shall not apply in respect of any Losses relating to a Breach of any Transactional Reps. Upon the terms and subject to the conditions and limitations set forth in this AmericasActive:13598183.18 Agreement, the Seller Indemnitees shall not be indemnified pursuant to Section 6.2(a) with respect to any and Loss if the aggregate amount of all Losses based upon, arising out of, or related to this Agreement or for which the Contemplated Transactions, shall be via offset against the Indemnity Shares Seller Indemnitees have received indemnification pursuant to Section 8.6 provided6.2(a) in respect of Non-Transactional Reps has exceeded the Non-Transactional Cap. Subject to Section 6.5(c), however, in no event shall the Seller Indemnitees be entitled to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud indemnification pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that 6.2 with respect to any and Loss if the aggregate amount of all Losses based upon, arising out of, or related to for which the Special Indemnity, the sole and exclusive remedy of the Parent Seller Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares have received indemnification pursuant to Section 8.76.2 has exceeded the Transactional Cap. (c) The amount Notwithstanding anything to the contrary set forth in this Agreement, the limitations set forth in Section 6.5(a) and Section 6.5(b) shall not limit the Liability of any Losses Indemnifying Party for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net i) intentional Breach of any costs covenant set forth herein or expenses incurred any of the other Transaction Documents or fraud or (ii) indemnification with respect to the items set forth in obtaining such insuranceSection 6.1(b) through Section 6.1(j). Additionally, indemnification or reimbursement, including the Basket shall not apply to any increases in insurance premiums or retro-premium adjustments Losses resulting from such recoverya Breach of the representation in the first sentence of Section 2.10(c). (d) For purposes of this Article VIIIFROM AND AFTER THE CLOSING, for the sole purpose of determining Losses actually suffered with respect to any breach of any representation or warranty EXCEPT (and not for purposes of determining whether or not any breaches of representations or warranties have occurredA) the representations and warranties in IN THE CASE OF A FRAUD CLAIM OR A BREACH OF ANY COVENANT TO BE PERFORMED POST-CLOSING SET FORTH HEREIN OR IN ANY OTHER TRANSACTION DOCUMENT, OR (B) WITH RESPECT TO EQUITABLE REMEDIES AVAILABLE TO THE PARTIES, THE SOLE AND EXCLUSIVE REMEDY OF ANY PARTY TO THIS AGREEMENT AND ITS AFFILIATES OR ANY OTHER INDEMNIFIED PARTY WITH RESPECT TO THIS AGREEMENT, THE EVENTS GIVING RISE TO THIS AGREEMENT AND THE OTHER TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT SHALL BE LIMITED TO THE INDEMNIFICATION PROVISIONS SET FORTH IN THIS ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warrantyVI.

Certain Limitations. (a) The Stockholders obligations of the Seller in respect of Purchaser Indemnity Claims pursuant to Section 8.02(a) (other than Purchaser Indemnity Claims in respect of a breach of any Fundamental Representations or Tax Representations or that arise from intentional fraud by the Seller, which shall not be required subject to indemnify the Parent Indemnitees with respect limitations set forth in this Section 8.05(a)) (“Covered Purchaser Indemnity Claims”) shall become operative and effective only if and to any claim under Section 8.2(a) or Section 8.2(g) unless and until the extent that the aggregate amount of all Losses for incurred by the applicable Indemnitees arising from Covered Purchaser Indemnity Claims exceeds $750,000 (the “Basket Amount”). Covered Purchaser Indemnity Claims shall accumulate until such claims time as the aggregate amount of all Losses arising therefrom exceeds an amount equal to three hundred fifty thousand dollars ($350,000)the Basket Amount, in at which event time the Parent Indemnitees Seller shall be entitled obligated to recover Losses indemnify the applicable Indemnitees against such Losses, but only in excess thereof; provided, that the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g)the aggregate amount thereof exceeds the Basket Amount. (b) The sole and exclusive remedy obligations of the Parent Indemnitees with Purchaser in respect to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the of Seller Indemnity Shares Claims pursuant to Section 8.6 8.03(a) (other than Seller Indemnity Claims in respect of a breach of any Fundamental Representations or that arise from intentional fraud by the Purchaser, which shall not be subject to the limitations set forth in this Section 8.05(b)) (“Covered Seller Indemnity Claims”) shall become operative and effective only if and to the extent that the aggregate amount of all Losses incurred by the applicable Indemnitees arising from Covered Seller Indemnity Claims exceeds the Basket Amount. Covered Seller Indemnity Claims shall accumulate until such time as the aggregate amount of all Losses arising therefrom exceeds the Basket Amount, at which time the Purchaser shall be obligated to indemnify the applicable Indemnitees against such Losses, but only to the extent the aggregate amount thereof exceeds the Basket Amount. (i) The maximum obligation of the Seller to provide indemnification in respect of Covered Purchaser Indemnity Claims shall not exceed $7,500,000 (the “Cap Amount”) and (ii) the maximum obligation of the Seller to provide indemnification in respect of Purchaser Indemnity Claims pursuant to Section 8.02(a) and Section 8.02(b) shall not exceed $75,000,000; provided, however, that the limitations in this clause (ii) shall not apply to the extent such claim is based upon Fraud and exceeds the amount of any Purchaser Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud Claim pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that 8.02(b) with respect to any the Seller’s obligations and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to agreements in Section 8.7. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)1.05. (d) For purposes (i) The maximum obligation of the Purchaser to provide indemnification in respect of Covered Seller Indemnity Claims shall not exceed the Cap Amount and (ii) the maximum obligation of the Purchaser to provide indemnification in respect of Seller Indemnity Claims pursuant to Section 8.03(a) and Section 8.03(b) shall not exceed $75,000,000; provided, however, that the limitations in this clause (ii) shall not apply to any Seller Indemnity Claim pursuant to Section 8.03(b) with respect to the Purchaser’s obligations and agreements in Section 1.05 . (e) The obligations of the Seller in respect of Purchaser Indemnity Claims pursuant to Section 8.02(a) shall become operative and effective only if and to the extent that the amount of Loss incurred by the applicable Indemnitees related to each individual Purchaser Indemnity Claim pursuant to Section 8.02(a) or series of aggregated Purchaser Indemnity Claims pursuant to Section 8.02(a) arising out of the same or similar facts, events or circumstances exceeds $50,000 (the “De Minimis Threshold”), and any such Losses below the De Minimis Threshold shall not be counted toward the Basket Amount. (f) The obligations of the Purchaser in respect of Seller Indemnity Claims pursuant to Section 8.03(a) shall become operative and effective only if and to the extent that the amount of Loss incurred by the applicable Indemnitees related to each individual Seller Indemnity Claim pursuant to Section 8.03(a) or series of aggregated Seller Indemnity Claims pursuant to Section 8.03(a) arising out of the same or similar facts, events or circumstances exceeds the De Minimis Threshold, and any such Losses below the De Minimis Threshold shall not be counted toward the Basket Amount. (g) Each of the parties hereby acknowledges and agrees that the limitations provided for in paragraphs (a) and (b) above apply only to Covered Purchaser Indemnity Claims or Covered Seller Indemnity Claims (as the case may be), and do not apply to any other rights to indemnification provided for in this Article VIII, including rights to indemnification against Retained Liabilities or Assumed Liabilities (as the case may be). (h) Any Losses for which any Indemnitee would be entitled to indemnification under this Article VIII shall be reduced by (i) any cash payments, setoffs or recoupment of any payments in each case receivable, realizable or retainable by such Indemnitee (including any amounts recovered or recoverable by the sole purpose Indemnitee under insurance policies, including the Title Policies) or (ii) any Tax Benefit actually realized in the taxable year of determining Losses such Loss or a prior taxable year, in each case as a result of any event giving rise to an Indemnity Claim. Each Indemnitee shall as promptly as practicable pay over to the Indemnitor any amounts actually suffered with recovered (after deducting therefrom the full amount of the expenses incurred by it in procuring such recovery), but not in excess of the sum of any amount previously so paid by the Indemnitor to or on behalf of the Indemnitee in respect of such Loss. (i) The obligations of the Seller in respect of Purchaser Indemnity Claims shall not become operative and effective to the extent arising from (A) the conduct by the Purchaser or any of its Affiliates, employees, representatives or agents of any invasive or destructive sampling or assessment of any soil or groundwater at any of the Real Property unless such sampling or assessment (1) is required to be undertaken pursuant to any breach applicable Environmental Law or Order, (2) arises in the ordinary course of business out of repairs, modifications, maintenance activities, construction or other capital projects, in each case relating to the Assets or Transferred Business and conducted consistent with industry practices, or (3) arises in response to a requirement of a Governmental Authority or a financing source of the Purchaser or its Affiliates; (B) any material change made by the Purchaser in the scope of use of any representation Real Property (including the change resulting from the decommissioning, closure or warranty shutdown of the Terminal) such that the Real Property is no longer used for similar industrial purposes; or (C) any conduct by the Purchaser or any of its Affiliates, employees, representatives or agents not consistent with that of a reasonable and not for purposes prudent business person who owns the applicable Real Property (without consideration of determining whether or not the benefit of any breaches of representations or warranties have occurred) indemnification provided by the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warrantySeller).

Certain Limitations. The issuance and sale of the Shares issuable pursuant to the applicable VWAP Purchase Notice (a) The Stockholders shall not exceed the applicable VWAP Purchase Maximum Amount, (b) shall not cause the Aggregate Limit or the Beneficial Ownership Limitation to be required exceeded, and (c) when such Shares are aggregated with (1) all Initial Commitment Shares, (2) all Initial Purchase Shares, (3) all Additional Commitment Shares issued or issuable by the Company to indemnify the Parent Indemnitees Investor under this Agreement (for purposes of this clause (c) of this Section 7.3(viii), if the applicable VWAP Purchase Condition Satisfaction Time for the applicable VWAP Purchase occurs prior to the Additional Commitment Share Trigger Date, the Company shall assume the maximum of 200,000 Additional Commitment Shares are then issuable to the Investor under this Agreement and shall aggregate all such 200,000 Additional Commitment Shares with respect all other Securities that have been issued by the Company pursuant to any claim under Section 8.2(a) or Section 8.2(g) unless and until the aggregate amount of all Losses this Agreement prior to such VWAP Purchase Condition Satisfaction Time for such claims exceeds an amount equal to three hundred fifty thousand dollars ($350,000applicable VWAP Purchase), in which event and (4) all Shares that have been issued or are issuable by the Parent Indemnitees shall be entitled Company pursuant to recover Losses only in excess thereof; providedall VWAP Purchase Notices delivered prior to the applicable VWAP Purchase Condition Satisfaction Time for the applicable VWAP Purchase, that the foregoing limitation shall not apply to cause the Exchange Cap (i) a claim for indemnification to the extent such claim is based upon Fraudapplicable under Section 3.3) to be exceeded, or (ii) a claim pursuant to item 3 on Schedule 8.2(g). (b) The sole and exclusive remedy unless in the case of the Parent Indemnitees with respect to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7. clause (c) The amount of any Losses for which this Section 7.3(viii), the Parent Indemnitees claim indemnification Company’s stockholders have theretofore approved the issuance of Common Stock under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection excess of the Exchange Cap in accordance with such Losses (net the applicable rules of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)the Trading Market. (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered with respect to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warranty.

Certain Limitations. The issuance and sale of the Shares issuable pursuant to the applicable Purchase Notice (a) The Stockholders shall not exceed the applicable Purchase Maximum Amount, (b) shall not cause the Aggregate Limit or the Beneficial Ownership Limitation to be required exceeded, and (c) when such Shares are aggregated with (1) all Initial Commitment Shares, (2) all Additional Commitment Shares issued or issuable by the Company to indemnify the Parent Indemnitees Investor under this Agreement (for purposes of this clause (c) of this Section 7.3(viii), if the applicable Purchase Condition Satisfaction Time for the applicable Purchase occurs prior to the Additional Commitment Share Trigger Date, the Company shall assume the maximum of 5,244,994 Additional Commitment Shares are then issuable to the Investor under this Agreement and shall aggregate all such 5,244,994 Additional Commitment Shares with respect all other Securities that have been issued by the Company’s pursuant to any claim under Section 8.2(a) or Section 8.2(g) unless and until the aggregate amount of all Losses this Agreement prior to such Purchase Condition Satisfaction Time for such claims exceeds an amount equal applicable Purchase) and (3) all Shares that have been issued or are issuable by the Company pursuant to three hundred fifty thousand dollars ($350,000)all Purchase Notices delivered prior to the applicable Purchase Condition Satisfaction Time for the applicable Purchase, in which event the Parent Indemnitees shall be entitled to recover Losses only in excess thereof; provided, that the foregoing limitation shall not apply to cause the Exchange Cap (i) a claim for indemnification to the extent such claim is based upon Fraudapplicable under Section 3.3) to be exceeded, or (ii) a claim pursuant to item 3 on Schedule 8.2(g). (b) The sole and exclusive remedy unless in the case of the Parent Indemnitees with respect to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7. clause (c) The amount of any Losses for which this Section 7.3(viii), the Parent Indemnitees claim indemnification Company’s stockholders have theretofore approved the issuance of Common Stock under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection excess of the Exchange Cap in accordance with such Losses (net the applicable rules of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)the Trading Market. (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered with respect to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warranty.

Certain Limitations. The indemnification provided for in Section 8.02, Section 8.03 and Section 8.04 shall be subject to the following limitations: (a) The Seller and the Stockholders shall not be required liable to indemnify the Parent Buyer Indemnitees with respect to any claim for indemnification under Section 8.2(a8.02(a) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims in respect thereof exceeds an amount equal to three hundred fifty thousand dollars $150,000 ($350,000the “Basket”), in at which event the Parent Indemnitees xxxx Xxxxxx and Stockholders shall be entitled required to recover pay or be liable for all indemnified Losses only in excess thereof; providedfrom the first dollar, that regardless of the foregoing limitation Basket. Notwithstanding the foregoing, the Basket shall not apply be applicable to any claims in respect of any Fundamental Representations of Seller and the Stockholders, representations of Seller and Stockholders under Section 4.19 (iTaxes) a claim and Section 4.15 (Environmental Matters), claims for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(gSection 8.02(b), Section 8.02(c), Section 8.02(d) or Fraud Claims. (b) The sole Buyer and exclusive remedy Newpark shall not be liable to the Seller Indemnitees for indemnification under Section 8.03(a) until the aggregate amount of all Losses in respect thereof exceeds the Basket, at which time Buyer and Newpark shall be required to pay or be liable for all indemnified Losses from the first dollar, regardless of the Parent Indemnitees with respect Basket. Notwithstanding the foregoing, the Basket shall not be applicable to any claims in respect of any Fundamental Representations of Buyer and all Losses based uponNewpark, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares claims for indemnification pursuant to Section 8.6 provided, however, to the extent such claim is based upon 8.03(b) or Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7Claims. (c) The No Stockholder shall be liable to Buyer Indemnitees for indemnification under Section 8.04(a) until the aggregate amount of any all Losses for in respect thereof exceeds the Basket, at which time the Parent Indemnitees claim indemnification under this Agreement Stockholder shall be reduced by required to pay or be liable for all indemnified Losses from the first dollar, regardless of the Basket. Notwithstanding the foregoing, the Basket shall not be applicable to any insurance proceeds or other third party reimbursements actually received claims in connection with such Losses (net respect of any costs Fundamental Representations of the Stockholders, claims for indemnification pursuant to Section 8.04(b) or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)Fraud Claims. (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered with respect to any inaccuracy in or breach of any representation or warranty (warranty, and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III damages resulting therefrom shall not be deemed determined without regard to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications qualification contained in or otherwise applicable to such representation or warranty. (e) With respect to Seller’s and the Stockholders’ indemnity obligations under Section 8.02(a), the aggregate liability of Seller and the Stockholders to indemnify Buyer Indemnitees from and against any such Losses under Section 8.02(a) shall not exceed the amount of the Cash Escrow Fund (the “Cap”); provided that the Cap shall not be applicable to any claims in respect of any Fundamental Representations of Seller or Stockholders, representations of Seller and Stockholders under Section 4.19 (Taxes) and Section 4.15 (Environmental Matters), claims for indemnification pursuant to Section 8.02(b), Section 8.02(c), or Section 8.02(d) or Fraud Claims. (f) The source of indemnification of Buyer Indemnitees for any Losses pursuant to Section 8.02(a) that are covered by the R&W Insurance Policy shall (after satisfying the Basket, as and if applicable) be paid (i) first from the Cash Escrow Fund, (ii) then by the R&W Insurance Policy in accordance with the terms thereof and (iii) only to the extent such Losses involve a breach of the Fundamental Representations or a breach of Section 4.19 (Taxes) or Section 4.15 (Environmental Matters), and exceeds the aggregate of both the amount of the remaining Cash Escrow Funds and the policy limit under the R&W Insurance Policy with respect to such claim, jointly and severally from the Seller and Stockholders, provided, that (x) Buyer may elect to seek recovery of such Losses from the Stock Escrow Shares prior to seeking recovery directly from the Seller and the Stockholders, and (y) in no event shall such recovery against a Stockholder exceed the portion of the Purchase Price actually received by such Stockholder (including any Stock Escrow Shares attributable to such Stockholder’s percentage ownership interest in the Seller). (g) The source of indemnification of Buyer Indemnitees for any Losses pursuant to Section 8.02(a) that are not covered by the R&W Insurance Policy, or pursuant to Section 8.02(b), Section 8.02(c) or Section 8.02(d) shall (after satisfying the Basket, as and if applicable) be paid (i) first from the Stock Escrow Shares, (ii) then, at Buyer’s sole discretion, from the Cash Escrow Fund and (iii) jointly and severally from the Seller and Stockholders, provided, that in no event shall such recovery against a Stockholder exceed the portion of the Purchase Price actually received by such Stockholder (including any Stock Escrow Shares attributable to such Stockholder’s percentage ownership in the Seller). For purposes hereof, the number of Stock Escrow Shares to be delivered pursuant to this Section 8.05(g) shall be that number determined by dividing (x) the amount of the Loss, by (ii) the Newpark Volume-Weighted Average Price. (h) With respect to Buyer’s and Newpark’s indemnity obligations under Section 8.03(a), the aggregate liability of Buyer and Newpark to indemnify Seller Indemnitees from and against any Losses shall not exceed the Cap; provided that the Cap shall not be applicable to any claims in respect of Fundamental Representations of Buyer and Newpark, claims for indemnification pursuant to Section 8.03(b) or Fraud Claims.

Certain Limitations. The rights of any party seeking indemnification pursuant to this Article 8 are subject to the following limitations: (a) The Stockholders With respect to any indemnification claims against GAP Partners for Seller Party Warranty Breaches pursuant to Section 8.1(a)(i) (other than Seller Party Warranty Breaches in respect of any Fundamental Representation (as defined below) or in the case of any fraud or intentional misrepresentation by or on behalf of any of the Seller Parties), subject to the further proviso below, (i) the Seller Parties shall not be required to indemnify the Parent Indemnitees with liable for any Buyer Parties' Aggregate Net Loss in respect to of any claim under Section 8.2(a) or Section 8.2(g) such Seller Party Warranty Breaches unless and until the aggregate amount of all Losses for such claims Buyer Parties' Aggregate Net Loss exceeds an amount equal to three hundred fifty thousand dollars $100,000 ($350,000the "Basket"), in which event the Parent Indemnitees GAP Partners shall be entitled required to recover Losses only pay and be liable for the amount of all Buyer Parties' Aggregate Net Loss from the first dollar; and (ii) GAP Partners' maximum liability for all such Seller Party Warranty Breaches shall not, in excess thereof; providedthe aggregate, that exceed an amount equal to: (A) the aggregate number of shares of Buyer Stock issued to GAP Partners on the Closing Date, minus (B) the aggregate amount of Forfeited Shares (if any), multiplied by (C) the number ten (10), multiplied by (D) the price per share of stock issued in connection with the initial closing of the stock offering contemplated by Section 6.6 (determined on an as-converted to Parent Common Stock basis), multiplied by (E) the United States Dollar/Canadian Dollar exchange rate (expressed in United States Dollars) published in the Wall Street Journal on the date of the initial closing of the stock offering contemplated by Section 6.6 (such amount, the "Cap"). For the avoidance of doubt, the foregoing limitation limitations on indemnification shall not apply with respect to (i) a claim for any indemnification claims pursuant to the extent such claim is based upon FraudSection 8.1(a)(ii), Section 8.1(a)(iii), Section 8.1(a)(iv), Section 8.1(a)(v), or (ii) a claim pursuant to item 3 on Schedule 8.2(gSection 8.1(a)(vi). (b) The sole and exclusive remedy With respect to any indemnification claims against any Buyer Party for Buyer Party Warranty Breaches pursuant to Section 8.2(a)(ii) (other than Buyer Party Warranty Breaches in respect of any Fundamental Representation (as defined below) or in the case of any fraud or intentional misrepresentation by or on behalf of the Parent Indemnitees Buyer), subject to the further proviso below, (i) the Buyer Parties shall not be liable for any Sellers' Aggregate Net Loss in respect of any such Buyer Warranty Breaches unless and until the aggregate amount of such Damages exceeds the Basket, in which event the Buyer Parties, jointly and severally, shall be required to pay and be liable for the amount of all such Sellers' Aggregate Net Loss from the first dollar; and (ii) the Buyer Parties' maximum liability for all such Buyer Warranty Breaches shall not, in the aggregate, exceed the Cap. For the avoidance of doubt, the foregoing limitations on indemnification shall not apply with respect to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares indemnification claims pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to 8.2(b)(i) or Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.78.2(b)(iii). (c) Survival (i) The amount representations and warranties of any Losses for which the Parent Indemnitees claim indemnification under parties hereto contained in or made pursuant to this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received survive the Closing and continue in connection with such Losses full force and effect until the eighteen (net 18)-month anniversary of any costs or expenses incurred in obtaining such insurancethe Closing Date; provided, indemnification or reimbursementhowever, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery). that (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered with respect to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurredi) the representations and warranties under Section 3.1, Section 3.2, Section 3.3, Section 3.4, Section 3.5(a), Section 3.13, Section 3.22, Section 4.1, Section 4.2, and Section 4.3 (collectively, the "Fundamental Representations") shall survive the Closing and continue in ARTICLE III full force and effect indefinitely or until the latest date permitted by applicable Law; and (ii) the representations and warranties under Section 3.10(b), Section 3.16, and Section 3.20, Section 3.21, and Section 3.23, (collectively, the "Regulatory Representations") shall not be deemed survive the Closing and continue in full force and effect until the date that is sixty (60) days after the expiration of the applicable statute of limitations period (after giving effect to be qualified by any materialitytolling, Company Material Adverse Effect waiver, mitigation or other similar qualifications extension thereof). (ii) The covenants and agreements of the parties hereto contained in or otherwise made pursuant to this Agreement shall survive the Closing and continue in full force and effect indefinitely or for the shorter period of time explicitly specified therein, except that for such covenants and agreements that survive for a shorter period, breaches thereof shall survive indefinitely or until the latest date permitted by applicable Law. (iii) Notwithstanding Section 8.3(c)(i) and Section 8.3(c)(ii), (i) if written notice of a claim for indemnification shall have been given in accordance with this Agreement on or prior to the expiration of the applicable survival period specified in this Section 8.3(c), the representations, warranties, covenants and agreements that are the subject of such claim shall survive (with respect to such representation claim) until such time as such claim has been fully and finally resolved; and (ii) any claim for indemnification for fraud or warrantyintentional misrepresentation shall survive indefinitely or until the latest date permitted by applicable Law.

Certain Limitations. Subject to the other limitations in this Article VIII, including without limitation Section 8.8(a): (ai) Sellers are to have no obligation to indemnify the Buyer Indemnified Persons pursuant to Section 8.1(a)(i) of this Agreement (except with respect to the Seller Fundamental Representations) unless the aggregate amount of all such Losses incurred or suffered by the Buyer Indemnified Persons exceeds the Basket (at which point Sellers (severally, on the basis of the Pro Rata Percentage of each Seller) shall indemnify and hold harmless the Buyer Indemnified Persons for all such Losses in excess of the Basket, subject to the other limitations set forth in Article VIII). (ii) Except with respect to the Seller Fundamental Representations, the aggregate Liability of Sellers in respect of claims for indemnification pursuant to Section 8.1(a)(i) of this Agreement is not to exceed the Retention Escrow Amount solely to the extent such amount remains available in the Escrow Fund. (iii) The Stockholders aggregate Liability of Sellers in respect of claims for indemnification pursuant to Section 8.1(a)(i) for any breach of, or inaccuracy in, the Seller Fundamental Representations, or for claims for indemnification pursuant to Sections 8.1(a)(iii) and 8.1(a)(iv), shall not exceed $880,000 (less any amounts previously applied against the retention under the R&W Policy with respect to any other claims for indemnification pursuant to Sections 8.1(a)(i) or 8.1(a)(ii)) solely to the extent such amount remains available in the Escrow Fund. (iv) The aggregate Liability of Sellers in respect of claims for indemnification pursuant to Section 8.1(a)(v) of this Agreement is not to exceed the Indemnity Escrow Amount solely to the extent such amount remains available in the Escrow Fund, except that claims for indemnification for New Matters may exceed such amount and be brought after the exhaustion of the Escrow Fund, but not in excess of $1,000,000 individually or in the aggregate. (v) The aggregate Liability of Sellers in respect of claims for indemnification pursuant to Section 8.1(a)(ii) of this Agreement is not to exceed the Aggregate Cap. (vi) For the avoidance of doubt, the limitations set forth in Section 8.1(b)(i) of this Agreement are not to apply to claims for indemnification pursuant to Sections 8.1(a)(ii) through Section 8.1(a)(v) of this Agreement. (vii) Payments by any Sellers pursuant to Section 8.1(a) of this Agreement in respect of any Losses shall be limited to the amount of any Liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment actually received by the applicable Buyer Indemnified Person (excluding however, recoveries under the R&W Policy) within twelve (12) months from when Losses occurred in respect of any such claim (net of costs of recovery and the present value of any associated increase in insurance premiums or retentions). The Buyer Indemnified Persons shall use commercially reasonable efforts to recover under insurance policies; provided, however, that the Buyer Indemnified Persons shall not be required to indemnify the Parent Indemnitees with respect to commence any claim under Section 8.2(a) litigation or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims exceeds an amount equal to three hundred fifty thousand dollars ($350,000), in which event the Parent Indemnitees shall be entitled to recover Losses only in excess thereof; provided, that the foregoing limitation shall bear any expenses not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g). (b) The sole and exclusive remedy of the Parent Indemnitees with respect to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced fully reimbursed by any insurance proceeds or other third party reimbursements actually received Sellers in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)efforts. (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered with respect to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warranty.

Certain Limitations. The indemnification provided for in Section 8.02, Section 8.03 and Section 8.04 shall be subject to the following limitations: (a) The Seller and the Stockholders shall not be required liable to indemnify the Parent Buyer Indemnitees with respect to any claim for indemnification under Section 8.2(a8.02(a) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims in respect thereof exceeds an amount equal to three hundred fifty thousand dollars $20,000 ($350,000the “Basket”), in at which event the Parent Indemnitees xxxx Xxxxxx and Stockholders shall be entitled required to recover pay or be liable for all indemnified Losses only in excess thereof; providedfrom the first dollar, that regardless of the foregoing limitation Basket. Notwithstanding the foregoing, the Basket shall not apply be applicable to any claims in respect of any Fundamental Representations of Seller and the Stockholders, representations of Seller and Stockholders under Section 4.19 (iTaxes) a claim and Section 4.15 (Environmental Matters), claims for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(gSection 8.02(b), Section 8.02(c) or Fraud Claims. (b) The sole Buyer and exclusive remedy Newpark shall not be liable to the Seller Indemnitees for indemnification under Section 8.03(a) until the aggregate amount of all Losses in respect thereof exceeds the Basket, at which time Buyer and Newpark shall be required to pay or be liable for all indemnified Losses from the first dollar, regardless of the Parent Indemnitees with respect Basket. Notwithstanding the foregoing, the Basket shall not be applicable to any claims in respect of any Fundamental Representations of Buyer and all Losses based uponNewpark, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares claims for indemnification pursuant to Section 8.6 provided, however, to the extent such claim is based upon 8.03(b) or Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7Claims. (c) The No Stockholder shall be liable to Buyer Indemnitees for indemnification under Section 8.04(a) until the aggregate amount of any all Losses for in respect thereof exceeds the Basket, at which time the Parent Indemnitees claim indemnification under this Agreement Stockholder shall be reduced by required to pay or be liable for all indemnified Losses from the first dollar, regardless of the Basket. Notwithstanding the foregoing, the Basket shall not be applicable to any insurance proceeds or other third party reimbursements actually received claims in connection with such Losses (net respect of any costs Fundamental Representations of the Stockholders, claims for indemnification pursuant to Section 8.04(b) or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)Fraud Claims. (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered with respect to any inaccuracy in or breach of any representation or warranty (warranty, and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III damages resulting therefrom shall not be deemed determined without regard to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications qualification contained in or otherwise applicable to such representation or warranty. (e) With respect to Seller’s and the Stockholders’ indemnity obligations under Section 8.02(a), the aggregate liability of Seller and the Stockholders to indemnify Buyer Indemnitees from and against any such Losses under Section 8.02(a) shall not exceed the amount of $400,000 (the “Cap”); provided that the Cap shall not be applicable to any claims in respect of any Fundamental Representations of Seller or Stockholders, representations of Seller and Stockholders under Section 4.19 (Taxes) and Section 4.15 (Environmental Matters), claims for indemnification pursuant to Section 8.02(b), Section 8.02(c) or Fraud Claims. (f) The source of indemnification of Buyer Indemnitees for any Losses pursuant to Section 8.02(a), Section 8.02(b) or Section 8.02(c) shall (after satisfying the Basket, as and if applicable) be paid (i) first from the Cash Escrow Fund and (ii) then jointly and severally from the Seller and Stockholders, provided, that in no event shall such recovery against a Stockholder exceed the portion of the Purchase Price actually received by such Stockholder. (g) With respect to Buyer’s and Newpark’s indemnity obligations under Section 8.03(a), the aggregate liability of Buyer and Newpark to indemnify Seller Indemnitees from and against any Losses shall not exceed the Cap; provided that the Cap shall not be applicable to any claims in respect of Fundamental Representations of Buyer and Newpark, claims for indemnification pursuant to Section 8.03(b) or Fraud Claims.

Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 will be subject to the following limitations: (a) The Stockholders shall EWD and EWI will not be required liable to indemnify the Parent Buyer Indemnitees for indemnification under Section 8.02(a) or under Section 8.02(a) of the Stock Purchase Agreement with respect to any claim representations or warranties of EWD hereunder or of EWI and the Company under the Stock Purchase Agreement, other than the Special Representations (as defined herein and in the Stock Purchase Agreement, and excluding Section 3.15(c) and (d) which, for the avoidance of doubt, will be subject to the Basket), until the aggregate amount of such Losses exceeds $75,000 (the “Basket”), in which event EWD and EWI will only be required to pay or be liable for all such Losses in excess of the Basket. (b) The aggregate amount of all Losses for which EWD and EWI will be liable pursuant to Section 8.02(a) and Section 8.02(a) of the Stock Purchase Agreement will not exceed the following: (i) with respect to any representations or warranties of EWD hereunder or of EWI and the Company under the Stock Purchase Agreement other than the Special Representations (as defined herein and in the Stock Purchase Agreement), $2,500,000 (the “Cap”), (ii) with respect to the Special Representations (as defined herein and in the Stock Purchase Agreement), $17,000,000 and (iii) with respect to Post-Closing Events hereunder and all “Post-Closing Events” pursuant to the Stock Purchase Agreement, $750,000. In no event shall EWD and EWI be liable to Buyer Indemnitees for any Losses or other claims relating to or arising out of this Agreement or the other Transaction Documents in excess of $17,000,000. (c) Buyer will not be liable to EWD Indemnitees for indemnification under Section 8.2(a8.03(a) and CLF&P will not be liable to “EWI Indemnitees” for indemnification under Section 8.03(a) of the Stock Purchase Agreement with respect to any representations or Section 8.2(gwarranties of Buyer hereunder or of CLF&P under the Stock Purchase Agreement other than the Special Representations (as defined herein and in the Stock Purchase Agreement) unless and until the aggregate amount of all such Losses for such claims exceeds an amount equal to three hundred fifty thousand dollars ($350,000)the Basket, in which event the Parent Indemnitees shall Buyer will be entitled required to recover pay or be liable for all such Losses only in excess thereof; provided, that of the foregoing limitation shall not apply Basket. (d) The aggregate amount of all Losses for which Buyer will be liable pursuant to Section 8.03(a) and for which CLF&P will be liable pursuant to Section 8.03(a) of the Stock Purchase Agreement (i) a claim for indemnification to other than the extent such claim is based upon Fraud, or Special Representations (as defined herein and in the Stock Purchase Agreement) will not exceed the Cap and (ii) a claim pursuant with respect to item 3 on Schedule 8.2(gthe Special Representations (as defined herein and in the Stock Purchase Agreement), will not exceed $17,000,000. (be) The sole and exclusive remedy determination of the Parent Indemnitees with respect to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery). (d) For purposes of this Article VIII, for VIII will take into account the sole purpose amount of determining Losses actually suffered insurance proceeds payable with respect thereto pursuant to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warrantyinsurance policy.

Certain Limitations. (a) The Stockholders Holder shall not be required sell, transfer, pledge, or ------------------- otherwise dispose of, or reduce Holder's interest in or risk relating to, any shares of Ascend Common Stock issued to indemnify Holder pursuant to the Parent Indemnitees with respect Merger or upon exercise of any Assumed Options until after such time as Ascend has published (within the meaning of SEC Accounting Series Release No. 135, as amended) financial results covering at least 30 days of combined operations of Ascend and StonyBrook. From and after the publication of such results, Holder may sell or otherwise dispose of the shares of Ascend Common Stock registered pursuant to any claim under Section 8.2(a) or Section 8.2(g) unless and until this Agreement, subject to the aggregate amount of all Losses for such claims exceeds an amount equal to three hundred fifty thousand dollars ($350,000), in which event the Parent Indemnitees shall be entitled to recover Losses only in excess thereof; provided, that the foregoing limitation shall not apply to following restrictions: (i) Holder shall not offer, sell, exchange, pledge, transfer or otherwise dispose of or engage in any Sale Equivalent Transaction with respect to, any of the shares of Ascend Common Stock issued or issuable upon exercise of Holder's Assumed Options unless at such time such transaction shall be permitted pursuant to the provisions of SEC Rule 145 under the Securities Act (including any applicable limitations on the amount of Ascend Common Stock to be sold as set forth in Rule 145(d)(1) and the provisions of Rule 144 referred to therein), or Holder shall have furnished to Ascend an opinion of counsel, satisfactory to Ascend, to the effect that no registration under the Securities Act would be required in connection with the proposed offer, sale, exchange, pledge, transfer or other disposition or Sale Equivalent Transaction, or a claim Registration Statement under the Securities Act covering the proposed offer, sale, exchange, pledge, transfer or other disposition or Sale Equivalent Transaction shall be effective under the Securities Act; (ii) Holder shall not offer or sell any of the shares of Ascend Common Stock issued or issuable upon exercise of Holder's Assumed Options except during such periods as directors, officers and Affiliates of Ascend are permitted to purchase and sell Ascend Common Stock pursuant to the xxxxxxx xxxxxxx policies of Ascend (the "Window Periods"); and -------------- (iii) during the effective period of the Registration Statement, Holder shall (A) offer for indemnification sale under the Registration Statement only those shares of Ascend Common Stock which were issued to Holder upon exercise of the Assumed Options and are registered under the Registration Statement; (B) sell such shares in accordance with and subject to the terms, conditions and covenants set forth in this Agreement and in the Registration Statement; (C) to the extent required by applicable law, cause to be furnished to any purchaser of such claim is based upon Fraudshares, and to the broker-dealer, if any, through whom such shares may be offered, a copy of the final prospectus contained in the Registration Statement, as supplemented or amended through the date of the sale (the "Prospectus"); (D) not engage in ---------- any stabilization activity in connection with any Ascend securities other than as permitted under the Exchange Act; and (E) not bid for or purchase any securities of Ascend or any rights to acquire Ascend securities, or attempt to induce any person to purchase any Ascend securities (except for Holder's shares of Ascend Common Stock to be sold to such person by means of the Prospectus) or any rights to acquire Ascend securities other than as permitted under the Exchange Act. The restrictions set forth in subparagraph (ii) a claim pursuant to item 3 on Schedule 8.2(g). (bof this Section 4(b) The sole and exclusive remedy shall cease without further action of the Parent Indemnitees with respect to any parties upon and all Losses based uponin the event of the death of Holder, arising out of, or related to this Agreement or and Ascend shall amend the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, Registration Statement to the extent such claim is based upon Fraud (if any) necessary to permit Holder's estate, personal representative(s), devisees and exceeds heirs, as the amount case may be, to resell Holder's remaining shares of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud Ascend Common Stock pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7this Registration Statement. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery). (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered with respect to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warranty.

Certain Limitations. (a) The Stockholders Parent Indemnitees shall not be required entitled to indemnify the Parent Indemnitees with respect to any claim indemnification under Section 8.2(a6.1(a) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims in respect of indemnification under Section 6.1(a) exceeds an amount equal to three hundred fifty thousand dollars $75,000 ($350,000the “ Basket”), in which event the Parent Indemnitees shall be entitled to recover only the amount of all such Losses only in excess thereof; provided, that of the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g)Basket. (b) The sole and exclusive remedy Shareholder Indemnitees shall not be entitled to indemnification under Section 6.2(a) until the aggregate amount of all Losses in respect of indemnification under Section 6.2(a) exceeds the Basket, in which event the Shareholder Indemnitees shall be entitled to recover only the amount of all such Losses in excess of the Parent Basket. The Shareholder Indemnitees shall not be indemnified pursuant to Section 6.2(a) with respect to any and Loss if the aggregate amount of all Losses based upon, arising out of, or related to this Agreement or for which the Contemplated Transactions, shall be via offset against the Indemnity Shares Shareholder Indemnitees have received indemnification pursuant to Section 8.6 provided6.2(a) has exceeded $2,000,000. (c) The limitations set forth in Sections 6.5(a) and 6.5(b) shall not limit the Liability of any Indemnifying Party for misrepresentations or breaches of Transactional Reps or fraud. Notwithstanding the foregoing, however, to (i) the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant shall not be entitled to Section 8.2 regarding any such excess amount; provided, further, however, that indemnification under this Agreement with respect to any and Loss if the aggregate amount of all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of for which the Parent Indemnitees have received indemnification pursuant to this Agreement, including on account of fraud, has exceeded $14,800,000 and (ii) the Shareholder Indemnitees shall not be entitled to indemnification under this Agreement with respect to such any Loss if the aggregate amount of all Losses shall be via offset against for which the Special Indemnity Shares Shareholder Indemnitees have received indemnification pursuant to Section 8.7this Agreement, including on account of fraud, has exceeded $14,800,000. (cd) There shall be no right of contribution or other recourse against the Company or the Subsidiaries or their respective directors, officers, employees, Affiliates, agents, attorneys, representatives, assigns or successors for any claims asserted by Parent Indemnitees, it being acknowledged and agreed that the covenants and agreements of the Company are solely for the benefit of Parent Indemnitees. (e) The amount of any Losses for which the Parent Indemnitees claim indemnification is provided under this Agreement Article VI shall be reduced net of any amounts recovered by the Indemnified Party or any of such Indemnified Party’s Affiliates under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant to which or under which such Indemnified Party or any of such Indemnified Party’s Affiliates is a party or has rights (collectively, “Alternative Arrangements”) with respect to such Losses. The Indemnified Party shall seek full recovery under all Alternative Arrangements covering any Losses to the same extent as it would if such Losses were not subject to indemnification hereunder. In the event that any proceeds or other third party reimbursements actually recovery is received in connection with such Losses (net of by an Indemnified Party under any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery). (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered Alternative Arrangement with respect to any Losses for which any such Person has already been indemnified hereunder then the Indemnified Party shall promptly reimburse to the Indemnifying Party (i) Escrow Shares or cash (at the election of the Indemnified Party) having an aggregate value equal to such recovery (the number of Escrow Shares to be reimbursed shall be calculated using the same Indemnity Value as was used for the satisfaction of such indemnification claim and the amount of cash to be reimbursed shall be equal to such Indemnity Value of such Escrow Shares that the Indemnified Party has the option to reimburse), if such indemnification claim was initially satisfied in Escrow Shares, or (ii) cash having an aggregate value equal to such recovery if such indemnification claim was initially satisfied in cash. (f) Notwithstanding anything to the contrary in this Agreement, Losses shall be limited to actual and direct Losses. No Party shall, in any event, be liable to any other Person for any consequential, incidental, indirect, special or punitive damages of such other Person, including any consequential, incidental, indirect, special or punitive damages relating to loss of revenue, income or profits, diminution of value or loss of business reputation or opportunity relating to the breach or alleged breach hereof and, in particular, no “multiple of profits” or “multiple of cash flow” or similar valuation methodology shall be used in calculating the amount of any representation or warranty Losses. (and not g) In the event an Indemnified Party fails to take all commercially reasonable measures to mitigate any indemnifiable Losses, the Indemnifying Party shall have no liability for purposes any portion of determining whether or not any breaches of representations or warranties such Losses that reasonably could have occurred) been avoided had the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to Indemnified Party made such representation or warrantyefforts.

Certain Limitations. (a) The Stockholders shall not be required to indemnify the Parent Indemnitees with respect to any claim under Section 8.2(a) or Section 8.2(g) unless and until the aggregate amount of all Losses for such Indemnification claims exceeds an amount equal to three hundred fifty thousand dollars ($350,000), in which event the Parent Indemnitees shall be entitled reduced, by and to recover Losses only in excess thereof; providedthe extent, that the foregoing limitation shall not apply to (i) that an indemnitee shall realize any tax benefit as a result of such Losses has received proceeds under insurance policies, risk sharing pools, or similar arrangements (other than self-insurance) specifically as a result of, and in compensation for, the subject matter of an indemnification claim for indemnification to the extent by such claim is based upon Fraudindemnitee, or (ii) the amount subject to indemnification is reserved against or reflected as a claim pursuant to item 3 liability on Schedule 8.2(g)the Closing Balance Sheet. (b) The sole Purchaser will not be entitled to indemnification pursuant to SECTION 10.2 and exclusive remedy of the Parent Indemnitees Seller will not be entitled to indemnification pursuant to SECTION 10.3 with respect to any and all Losses based upon, arising out of, breach or related to this Agreement misrepresentation of any representation or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent warranty until such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect time as its respective aggregate right to such Losses shall indemnification exceeds $300,000 after which, Purchaser or Seller will be via offset against the Special Indemnity Shares pursuant entitled to Section 8.7such indemnification in excess of such $300,000 threshold. (c) The Solely with respect to Losses arising out of any breach of or any inaccuracy in any representation or warranty set forth in this Agreement (except for any breach of or inaccuracy of representations and warranties relating to title and/or ownership of the Acquired Assets, including SECTION 3.6 hereof), and notwithstanding anything in this ARTICLE X to the contrary, (i) (A) subject to SECTION 10.4(C)(I)(B), the aggregate amount of Losses payable by Seller under SECTION 10.2 shall not under any circumstances exceed $4,000,000 (it being understood that the first $1,500,000 of Losses payable by Seller under SECTION 10.2 with respect to any breach or inaccuracy in the representations and warranties in SECTION 3.9 shall not be counted against the foregoing $4,000,000 limitation), and (B) the aggregate amount of Losses payable by Seller under SECTION 10.2 with respect to any breach or inaccuracy in the representations and warranties in SECTION 3.9 shall not under any circumstances exceed an amount equal to $5,500,000 less the aggregate Losses, if any, for which Seller has indemnified the Parent Indemnitees claim indemnification Indemnified Parties in respect of breaches or inaccuracies in representations or warranties which are subject solely to the $4,000,000 limitation in SECTION 10.4(C)(I)(A) and (ii) the aggregate amount of Losses payable by Purchaser under SECTION 10.3 shall not under any circumstances exceed $4,000,000. Purchaser and Parent, on the one hand, and Seller, on the other hand, acknowledge and agree that (a) the foregoing limitation on the amount of Losses payable provided for in this SECTION 10.4(C) applies only to Losses arising out of any breach of or any inaccuracy in any representation or warranty set forth in this Agreement and (b) the foregoing limitation on the amount of Losses payable provided for in this SECTION 10.4(C) shall be reduced by not limit Losses payable as a result of, relating to, or arising out of (i) a party's breach of or failure to perform any insurance proceeds covenant or obligation set out in this Agreement, (ii) any of the Excluded Assets, (iii) any Excluded Liabilities, or (iv) any breach of or inaccuracy of any representations and warranties relating to title and/or ownership of the Acquired Assets, including SECTION 3.6 hereof; (v) the operation of any business or activity of Seller other than the Business; (vi) the failure to obtain any Consent, license, permit, waiver, approval or other third party reimbursements actually received similar authorization specified in SECTION 7.1(G) of the Disclosure Schedule; and (vi) the Bulk Sales Laws of any jurisdiction in connection with such Losses the transactions contemplated by this Agreement (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recoveryother than Claims by creditors with respect to the Assumed Obligations). (d) For purposes If, after any indemnification payment has been made in respect of this Article VIIIany Loss, the party receiving the indemnification payment shall receive any recovery, whether through insurance or otherwise, of the Loss for which an indemnification payment has been made, the indemnified party shall promptly, but in no event later than 30 days after such recovery is made, reimburse the indemnifying party that portion of the indemnification payment made that relates to the recovered Loss (it being agreed, for this purpose, that any Loss so recovered shall be applied first to the sole purpose of determining Losses actually suffered with deductible amount under SECTION 10.4(B), if and to the extent that such deductible amount was used in calculating the indemnification payment made by the indemnifying party). To the extent that an indemnification payment shall be made by Seller in respect to any breach of any representation or warranty (and accounts receivable from an account debtor which is not collected by Purchaser, then, for purposes of determining whether or not such account receivable has been collected and the indemnification payment recovered, any breaches payments made to the Purchaser in respect of representations or warranties have occurredaccounts receivable by such account debtor shall be applied against the accounts receivable from such account debtor in chronological order of their age (I.E., first, to the oldest accounts receivable), unless the account debtor specifically designates otherwise. (e) Seller, on the representations one hand, and warranties Purchaser and Parent, on the other hand, acknowledge and agree that the foregoing indemnification provisions in this ARTICLE III X shall not be deemed the exclusive remedy of Seller, on the one hand, and Purchaser and Parent, on the other hand, with respect to be qualified the Division and the transactions contemplated by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warrantythis Agreement.

Certain Limitations. The indemnification provided for in Section 8.02 (Indemnification By Shareholders) and Section 8.03 (Indemnification By Buyer and Parent) shall be subject to the following limitations: (a) The Stockholders Shareholders shall not be required liable to indemnify the Parent Buyer Indemnitees with respect to any claim for indemnification under Section 8.2(a8.02 (Indemnification By Shareholders) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims in respect of indemnification under Section 8.02 (Indemnification By Shareholders) exceeds an amount equal to three hundred fifty thousand dollars $150,000 ($350,000the “Basket”), in which event the Parent Indemnitees Shareholders shall be entitled required to recover pay or be liable for all such Losses only in excess thereof; provided, that from the foregoing limitation first dollar. The aggregate amount of all Losses for which Shareholders shall be liable pursuant to Section 8.02 (Indemnification By Shareholders) shall not apply to exceed Three Million Dollars (i$3,000,000) a claim for indemnification to (the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g“Cap”). (b) The sole Buyer shall not be liable to the Shareholder Indemnitees for indemnification under Section 8.03 (Indemnification By Buyer and exclusive remedy Parent) until the aggregate amount of the Parent Indemnitees with respect to any and all Losses based uponin respect of indemnification under Section 8.03 (Indemnification By Buyer and Parent) exceeds the Basket, arising out of, or related to this Agreement or the Contemplated Transactions, in which event Buyer shall be via offset against required to pay or be liable for all such Losses from the Indemnity Shares first dollar. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.6 provided8.03 (Indemnification By Buyer and Parent) shall not exceed the Cap, however, to the extent such claim is based upon Fraud except for breach of Buyer’s obligations in Article II (Purchase and exceeds the amount of Indemnity Shares, Sale) and Parent’s obligations in Section 5.08 (Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Guaranty) for which Losses shall be via offset against not exceed the Special Indemnity Shares pursuant to Section 8.7Aggregate Purchase Price. (c) The amount of Notwithstanding the foregoing, the limitations set forth in Section 8.04(a) and Section 8.04(b) (Certain Limitations) above shall not apply to any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds arising out of or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)related to Intentional Fraud. (d) For purposes of this Article VIIIVIII (Indemnification), for the sole purpose calculation of determining the amount of Losses actually suffered with respect to arising as a result of any inaccuracy in or breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed determined without regard to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications qualification contained in or otherwise applicable to such representation or warranty.

Certain Limitations. The liability of the Seller or the Buyer, as applicable, for claims under this Agreement shall be limited by the following: (a) The Stockholders At any time after the Survival Date, (i) the Seller shall not be required to indemnify have no further obligations under this Article IX for breaches of representations and warranties of the Parent Indemnitees Seller, except for Damages with respect to any claim under which the Buyer Indemnitee has given the Seller written notice prior to such date in accordance with Section 8.2(a) or Section 8.2(g) unless 9.3 and until the aggregate amount of all Losses for such claims exceeds an amount equal to three hundred fifty thousand dollars ($350,000), in which event the Parent Indemnitees shall be entitled to recover Losses only in excess thereof; provided, that the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant the Buyer shall have no further obligations under this Article IX for breaches of representations and warranties of the Buyer, except for Damages with respect to item 3 on Schedule 8.2(g)which the Seller Indemnitee has given the Buyer written notice prior to such date in accordance with Section 9.3. (b) The sole and exclusive remedy of Notwithstanding anything to the Parent Indemnitees with respect to contrary herein, any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset claim by a Buyer Indemnitee against the Indemnity Shares Seller pursuant to Section 8.6 9.1(a) shall be payable by Seller only in the event that the accumulated amount of Damages in respect of Seller's obligations to indemnify the Buyer Indemnitees under this Agreement shall exceed $200,000 in the aggregate (the "SELLER INDEMNIFICATION THRESHOLD"); provided, however, to that at such time as the extent such claim is based upon Fraud and exceeds the aggregate amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with Damages in respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses indemnity obligations of Seller shall exceed the Seller Indemnification Threshold, Seller shall thereafter be liable for any amount of Damages in excess of $100,000 suffered or incurred by the Buyer Indemnitees, it being the intention of the parties that any amount in excess of $100,000 of Damages comprising the Seller Indemnification Threshold shall be via offset recoverable by Buyer against Seller in the Special Indemnity Shares pursuant to Section 8.7event that the accumulated amount of Damages suffered by the Buyer Indemnitees shall exceed the Seller Indemnification Threshold. (c) The amount Notwithstanding anything to the contrary herein, in the absence of fraud or willful breach of this Agreement (for which there shall be no limitation), in no event shall the maximum aggregate liability of Seller in respect of any Losses claims by the Buyer Indemnitees against Seller pursuant to Section 9.1(a) for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced Damages suffered or incurred by any insurance proceeds or other third party reimbursements actually received in connection with such Losses Buyer Indemnitees exceed 20% of the value of the Purchase Price (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recoveryas adjusted pursuant to Sections 2.4 and 2.5). (d) For purposes Notwithstanding anything to the contrary herein, the limitations contained in this Section 9.5 shall not apply to claims for indemnification by Buyer Indemnitees against Seller in respect of (i) Excluded Liabilities pursuant to Section 9.1(b) or (ii) Taxes pursuant to Section 9.1(c). (e) Notwithstanding anything to the contrary herein, any claim by a Seller Indemnitee against Buyer pursuant to Section 9.2(a) shall be payable by Buyer only in the event and to the extent that the accumulated amount of the Damages in respect of Buyer's obligations to indemnify under this Agreement shall exceed $200,000 in the aggregate (the "BUYER INDEMNIFICATION THRESHOLD"); provided, however, that at such time as the aggregate amount of Damages in respect of the indemnity obligations of Buyer shall exceed the Buyer Indemnification Threshold, Buyer shall thereafter be liable for any amount of Damages in excess of $100,000 suffered or incurred by the Seller Indemnitees, it being the intention of the parties that any amount in excess of $100,000 of Damages comprising the Buyer Indemnification Threshold shall be recoverable by Seller against Buyer in the event that the accumulated amount of Damages suffered by the Seller Indemnitees shall exceed the Buyer Indemnification Threshold. (f) Notwithstanding anything to the contrary herein, the limitations contained in this Section 9.5 shall not apply to claims for indemnification by Seller Indemnitees against Buyer in respect of (i) Assumed Liabilities pursuant to Section 9.2(b) or (ii) Taxes pursuant to Section 9.2(c). (g) Notwithstanding anything to the contrary herein, in no event shall the maximum aggregate liability of Buyer in respect of any claims by the Seller Indemnitees against Buyer pursuant to Section 9.2(a) for Damages suffered or incurred by any Seller Indemnitees exceed 20% of the value of the Purchase Price (as adjusted pursuant to Sections 2.4 and 2.5). (h) Notwithstanding anything to the contrary herein, the limitations contained in this Section 9.5 shall not apply, nor be limited in time to any claim by the Buyer Indemnitees against the Seller in respect of inadequate funding of the Employee Funds by the Seller. (i) Except as set forth in Section 9.4, the provisions of Article VIII, for IX shall be the sole purpose of determining Losses actually suffered with respect remedy to any the Parties for breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warrantycontract.

Certain Limitations. The party making a claim under this ARTICLE VIII is referred to as the “Indemnified Party”, and the party against whom such claims are asserted under this ARTICLE VIII is referred to as the “Indemnifying Party”. The indemnification obligations set forth in this ARTICLE VIII shall be subject to the following limitations: (a) The Stockholders Subject to the next two sentences, the sole source of indemnification of Buyer pursuant to this ARTICLE VIII shall (after satisfying the Mini-Basket and the Threshold, as and if applicable) be paid from the Indemnity Escrow Account (and only to the extent of the Indemnity Escrow Amount and only to the extent such amount remains in the Indemnity Escrow Account). Notwithstanding the foregoing, but only to the extent such Losses involve a claim under Section 8.2(b) or a breach of a Fundamental Representation and exceed the amount of funds remaining in the Indemnity Escrow Account, Buyer may seek indemnification from Seller for such Losses. Notwithstanding anything in this Agreement to the contrary, in no event shall such recovery from Seller exceed the Purchase Price. (b) Seller shall not be required liable to indemnify the Parent Indemnitees with respect to any claim Buyer for indemnification under Section 8.2(a) (other than with respect to breaches of Fundamental Representations or in the case of Seller’s Fraud) until the aggregate amount of all Losses in respect of indemnification thereunder exceeds [*] (the “Threshold”), in which event Seller shall be required to pay or be liable for Losses from the first dollar. No individual claim by Buyer shall be asserted under Section 8.2(g) 8.2 unless and until the aggregate amount of all Losses for that would be payable pursuant to such claims claim (or series of related claims) exceeds an amount equal to three hundred fifty thousand dollars [*] ($350,000), in which event the Parent Indemnitees “Mini-Basket”) (it being understood that any such individual claims (or series of related claims) for amounts less than the Mini-Basket shall be entitled to recover Losses only ignored in excess thereof; provided, that determining whether the foregoing limitation shall not apply to Threshold has been exceeded and thereafter). Seller’s maximum liability hereunder for any indemnification claims under Section 8.2(a) (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g). (b) The sole and exclusive remedy of the Parent Indemnitees other than with respect to any and breaches of Fundamental Representations or in the case of Seller’s Fraud) shall not, when aggregated with all Losses based uponother indemnification obligations hereunder, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7exceed [*]. (c) The Notwithstanding anything in this Agreement to the contrary, Buyer understands, acknowledges and agrees that Seller’s maximum liability hereunder for any indemnification claims under Section 8.2 shall not, when aggregated with all other indemnification obligations hereunder, exceed the Purchase Price. Solely for purposes of determining the amount of any Losses or whether any breach of representation and warranty has occurred that are the subject matter of a claim for which the Parent Indemnitees claim indemnification under indemnification, each representation and warranty in this Agreement shall will be reduced by any insurance proceeds read without regard and without giving effect to the term “material” or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)“Material Adverse Effect”. (d) For purposes Payments by an Indemnifying Party pursuant to this ARTICLE VIII in respect of this Article VIIIany Loss shall be limited to the amount of any Loss that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other payment or reimbursement received or reasonably expected to be received by the Indemnified Party (or the Acquired Companies) in respect of or in connection with any such Loss, less reasonable and documented deductions for costs incurred in, and premium increases directly arising from, obtaining such proceeds or recoveries. Each Indemnified Party shall seek full recovery under all insurance policies covering any Loss to the same extent it would if such Loss were not subject to indemnification hereunder, and each Indemnified Party shall use commercially reasonable efforts to recover under indemnity, contribution or other similar agreements, or collect other reimbursements, for any Losses prior to seeking indemnification under this Agreement. In the sole purpose event that any such proceeds or recoveries are received by an Indemnified Party (or any of determining Losses actually suffered its Affiliates) with respect to any breach Losses after an Indemnifying Party has made a payment to an Indemnified Party with respect thereto, the Indemnified Party shall pay to the Indemnifying Party the amount of such proceeds or recoveries, less reasonable and documented deductions for direct costs incurred in obtaining such proceeds and recoveries, up to the amount the Indemnifying Party has paid with respect to such Losses. (e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any representation event or warranty circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach or set of facts that gives rise to such Loss. (and not for purposes of determining whether or not any breaches of representations or warranties have occurredf) the representations and warranties in ARTICLE III Seller shall not be deemed liable under this ARTICLE VIII for any Losses (and the amount of any such Losses shall not be counted toward the Threshold or the Mini-Basket) to the extent that any such Loss (or applicable portion thereof) is caused or increased by an action or inaction by Buyer or any of its Affiliates (including the Acquired Companies) on or after the Closing Date, except for actions or inactions which Buyer and/or its Affiliates (including any Acquired Company) are required to take or otherwise refrain from under applicable Law. (g) Notwithstanding anything contained elsewhere in this Agreement, the specific amounts that are taken into account in the determination of the Final Closing Statement pursuant to ARTICLE II are subject solely to the adjustment provisions set forth in ARTICLE II and accordingly shall not be qualified subject to any claim by any materialityIndemnified Party for indemnification pursuant to this ARTICLE VIII. Further, Company Material Adverse Effect the Indemnified Party shall not be entitled to more than one recovery with respect to the same Loss, so as to avoid duplication or other similar qualifications contained “double counting” of the same Loss. (h) Except with respect to Buyer’s recourse to the Indemnity Escrow Amount as a source of recovery for indemnifiable Losses pursuant to this ARTICLE VIII, the parties hereto agree that Buyer shall not have any rights to set-off any Loss it may have against any amount due to Seller. (i) If an Indemnified Party is entitled to indemnification under more than one clause or subclause of this Agreement with respect to Losses, then such Indemnified Party shall be entitled to only one indemnification or recovery for such Losses; it being understood that this Section 8.4(i) is solely to preclude a duplicate recovery by an Indemnified Party or recovery in excess of actual damages. (j) Neither Buyer nor any of its Affiliates shall take any action the purpose or otherwise applicable intent of which is to such representation prejudice the defense of any claim subject to indemnification hereunder or warrantyto induce a third party to assert a claim subject to indemnification hereunder. (k) Any indemnification for breach of representations set forth in Section 5.22 shall be limited to Losses incurred with respect to any taxable period (or portion thereof) ending on or before the Closing Date.

Certain Limitations. The indemnification provided for in Sections 7(a) and 7(b) shall be subject to the following limitations: (ai) The Stockholders aggregate of the sum of indemnification obligations of the Sellers under Section 7(b) shall not be required limited to indemnify the Parent Indemnitees Buyer Common Stock constituting the Escrow Amount; provided, however, that in the case of fraud or a breach of the representations and warranties set forth in Sections 3(a)(i), 3(a)(ii), 3(a)(iv), 4(a), 4(b),4(d) and 4(l)(iii) the indemnification obligations of the Sellers under Section 7(b) shall be limited to the value of the entire Purchase Price as of the Closing Date. (ii) The aggregate of the sum of indemnification obligations of the Buyer under Section 7(c) shall be limited to the value of the Buyer Common Stock constituting the Escrow Amount, valued as of the Closing Date; provided, however, that in the case of fraud or a breach of the representations and warranties set forth in Sections 3(b)(i) - (v), the indemnification obligations of the Buyer under Section 7(c) shall be limited to the entire value of the Purchase Price as of the Closing Date. (iii) Notwithstanding anything to the contrary, with respect to any claim under Section 8.2(a) representation, warranty, undertaking, agreement or Section 8.2(g) unless and until obligation of the aggregate Company, each Seller’s liability in respect of any Losses out of any breach or failure indemnified hereunder in respect thereof shall be limited to such Seller’s proportionate share of such Losses determined according to the amount of all Purchase Price actually received by such Seller. The Buyer hereby covenants not to make a claim against any Seller for Losses for with respect to any breach or failure in respect of any representation, warranty, undertaking, agreement or obligation of the Company indemnified hereunder in excess of such claims exceeds an Seller's proportionate share determined according to the amount equal to three hundred fifty thousand dollars of Purchase Price actually received by such Seller. ($350,000), in which event the Parent Indemnitees iv) No Party shall be entitled to recover Losses only in excess thereof; provided, that from any other Party hereunder for the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g)same Loss more than once. (bv) The sole and exclusive remedy Neither the Buyer nor a Seller, as the case may be, shall be entitled to indemnification for any breach of a representation or warranty hereunder if Buyer or Seller, as applicable, had actual knowledge of such breach on or before Closing. (vi) Notwithstanding anything to the Parent Indemnitees contrary, with respect to any and all Losses based uponrepresentation, arising out ofwarranty, undertaking, agreement or obligation of a particular Seller hereunder, as opposed to the Company, the Seller making such representation or warranty, or related subject to this Agreement such undertaking, agreement or the Contemplated Transactionsobligation, shall be via offset against the Indemnity Shares pursuant to Section 8.6 providedsolely liable in respect of any Losses indemnified hereunder in respect of any Losses arising out of any breach or failure. Buyer hereby covenants, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based uponrepresentation, arising out ofwarranty, undertaking, agreement or related obligation of a particular Seller hereunder, as opposed to the Special IndemnityCompany, the sole and exclusive remedy of the Parent Indemnitees with respect not to such make a claim against any Seller for Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery). (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered with respect to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) failure in respect thereof other than against the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to particular Seller making such representation or warranty, or subject to such undertaking, agreement or obligation. (vii) In no event shall Losses include any special, punitive, indirect, incidental or consequential damages whatsoever.

Certain Limitations. (a) The Stockholders shall not be required (i) maximum aggregate Liability pursuant to indemnify Section 10.1(a)(ii) and 10.1(b)(ii), in the Parent Indemnitees aggregate, of the Selling Stockholders, other than with respect to the Tier I Reps, shall in no event exceed the value of the consideration in the Indemnification Escrow Account and (ii) maximum aggregate Liability pursuant to Article X of Buyer shall in no event exceed an amount equal to the aggregate amount of the net proceeds of the Merger Consideration actually paid to the Selling Stockholders. The maximum aggregate Liability, in the aggregate, of the Selling Stockholders together as a group, to the Buyer Group shall in no event exceed the aggregate amount of the Merger Consideration actually paid to the Selling Stockholders and each individual Selling Stockholder’s indemnification obligation shall be several and not joint and in no event shall any claim under Selling Stockholder be liable for Damages, in the aggregate, in an amount greater than the amount of the Merger Consideration, taken as a dollar amount with each share of the stock portion thereof being valued at the Buyer Common Stock Per Share Price, to be received by such Selling Stockholder pursuant to this Agreement (including, as applicable, amounts received pursuant to the Employee Bonus Liquidity Plan). For the avoidance of doubt, all liability of the Selling Stockholders shall be several and not joint and the maximum Liability of any Selling Stockholder in respect of any particular item of Damage for which indemnification is sought by any member of the Buyer Group in accordance with the provisions of this Agreement after the distribution of all of the Indemnification Escrow Shares and Indemnification Escrow Funds held by or for the account of such Selling Stockholder shall not exceed the result obtained by multiplying (A) the aggregate monetary amount of such item of Damage by (B) a fraction, the numerator of which is the aggregate Merger Consideration issued or paid to such Selling Stockholder pursuant to this Agreement (including pursuant to the Employee Bonus Liquidity Plan) and the denominator of which is the Merger Consideration. (b) Except with respect to Damages arising out of a breach of the Tier I Reps and the representations and warranties contained in Sections 6.1, 6.2 and 6.6 (and the certificates referred to above insofar as they relate to such Sections) (the “Non-Threshold Damages”), notwithstanding anything contained herein to the contrary, no indemnification payment shall be made to the Buyer Group pursuant to Section 8.2(a10.1(a)(ii) or 10.1(b)(ii) or to the Stockholder Group pursuant to Section 8.2(g) 10.2(b), unless and until the aggregate amount of all Losses for such claims Damages sustained by the Buyer Group or the Stockholder Group, as the case may be, exceeds an amount equal to three hundred fifty thousand dollars on a cumulative basis $1,000,000 ($350,000the “Threshold”), in at which event time the Parent Indemnitees shall be entitled to recover Losses only in excess thereof; provided, that the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g). (b) The sole and exclusive remedy full aggregate amount of the Parent Indemnitees with respect to any and all Losses based upon, arising out of, or related to this Agreement Damages sustained (including the full amount of Damages that were aggregated in calculating whether the Threshold had been reached) by the Buyer Group or the Contemplated TransactionsStockholder Group, as the case may be, shall be via offset against paid. For the Indemnity Shares pursuant to avoidance of doubt, it is understood and agreed among the Parties that Non-Threshold Damages shall not be taken into account in determining whether the Threshold has been met for purposes of this Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.710.3(b). (c) Each and every representation and warranty of the Company, Buyer, Merger Sub 1 or Merger Sub 2 contained in this Agreement or in any certificate delivered pursuant to Sections 4.8(a)(ii), 4.8(a)(iii) and 4.8(b)(iii) shall survive the Closing Date solely for purposes of this Article X until, and will expire upon, the conclusion of the Escrow Period, and no member of the Buyer Group or the Stockholder Group shall have any Liability whatsoever with respect to any such representations and warranties thereafter, except with respect to claims made in accordance with the terms hereof prior to the conclusion of the Escrow Period. Notwithstanding the foregoing, the Tier I Reps shall survive the Closing Date solely for purposes of this Article X until, and will expire on, the date that is the third anniversary of the Closing Date, other than with respect to claims made prior to such expiration. Each and every covenant contained in this Agreement will survive the Closing Date until, and will expire when, in each case, the applicable statute of limitations has expired. (d) The obligations of each Party to indemnify, defend and hold harmless the other Party and other Persons pursuant to this Agreement (including, without limitation, this Article X) shall terminate (other than with respect to claims made prior to expiration) with respect to Sections 10.1 and 10.2 upon the expiration of the applicable survival periods as set forth in Section 10.3(c). (e) Notwithstanding anything contained in this Agreement, any amounts payable pursuant to the indemnification obligations hereunder shall be paid without duplication, and in no event shall any Party be indemnified under different provisions of this Agreement for the same Damages. Any amounts payable to the Buyer Group as Damages pursuant to this Agreement shall first be paid from the Escrow Account, to the extent available, and shall thereafter be paid directly (severally and not jointly) by the Selling Stockholders in accordance with the limitations set forth in Section 10.3(a). In calculating Damages for purposes of this Article X, any materiality qualifiers (including Material Adverse Effect) contained in the applicable representation and warranty shall be deemed to be deleted and shall be given no force or effect. (f) The amount of any Losses for Damages with respect to which the Parent Indemnitees claim an Indemnified Party may be entitled to indemnification under this Agreement shall be reduced by net of the amount of any insurance proceeds or other contributions from third party reimbursements parties actually received recovered by such Indemnified Party in connection with such Losses (net Damages; provided, however, that notwithstanding the foregoing, no Indemnified Person shall have any obligation or duty to seek to recover any such insurance proceeds of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting contributions from such recovery)third parties. (dg) For purposes of The Parties agree to treat any payment made pursuant to this Article VIIIX as an adjustment of the Merger Consideration for Tax and, for the sole purpose of determining Losses actually suffered with respect if applicable, other purposes and to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified take no position contrary thereto on Tax Returns, unless otherwise required by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warrantyLaw.

Certain Limitations. (a) The Stockholders obligations of the Seller in respect of Purchaser Indemnity Claims pursuant to Section 8.02(a) (other than Purchaser Indemnity Claims in respect of a breach of any Fundamental Representations or Tax Representations or that arise from intentional fraud by the Seller, which shall not be required subject to indemnify the Parent Indemnitees with respect limitations set forth in this Section 8.05(a)) (“Covered Purchaser Indemnity Claims”) shall become operative and effective only if and to any claim under Section 8.2(a) or Section 8.2(g) unless and until the extent that the aggregate amount of all Losses for incurred by the applicable Indemnitees arising from Covered Purchaser Indemnity Claims exceeds one percent (1%) of the Purchase Price (the “Basket Amount”). Covered Purchaser Indemnity Claims shall accumulate until such claims time as the aggregate amount of all Losses arising therefrom exceeds an amount equal to three hundred fifty thousand dollars ($350,000)the Basket Amount, in at which event time the Parent Indemnitees Seller shall be entitled obligated to recover Losses indemnify the applicable Indemnitees against such Losses, but only in excess thereof; provided, that the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g)the aggregate amount thereof exceeds the Basket Amount. (b) The sole and exclusive remedy obligations of the Parent Indemnitees with Purchaser in respect to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the of Seller Indemnity Shares Claims pursuant to Section 8.6 8.03(a) (other than Seller Indemnity Claims in respect of a breach of any Fundamental Representations or that arise from intentional fraud by the Purchaser, which shall not be subject to the limitations set forth in this Section 8.05(b)) (“Covered Seller Indemnity Claims”) shall become operative and effective only if and to the extent that the aggregate amount of all Losses incurred by the applicable Indemnitees arising from Covered Seller Indemnity Claims exceeds the Basket Amount. Covered Seller Indemnity Claims shall accumulate until such time as the aggregate amount of all Losses arising therefrom exceeds the Basket Amount, at which time the Purchaser shall be obligated to indemnify the applicable Indemnitees against such Losses, but only to the extent the aggregate amount thereof exceeds the Basket Amount. (i) The maximum obligation of the Seller to provide indemnification in respect of Covered Purchaser Indemnity Claims shall not exceed ten percent (10%) of the Purchase Price (the “Cap Amount”) and (ii) the maximum obligation of the Seller to provide indemnification in respect of Purchaser Indemnity Claims pursuant to Section 8.02(a) and Section 8.02(b) shall not exceed the Purchase Price; provided, however, that the limitations in this clause (ii) shall not apply to the extent such claim is based upon Fraud and exceeds the amount of any Purchaser Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud Claim pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that 8.02(b) with respect to any the Seller’s obligations and all Losses based upon, arising out of, or related to the Special Indemnity, the sole agreements in Section 1.05 and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)1.06. (d) For purposes (i) The maximum obligation of the Purchaser to provide indemnification in respect of Covered Seller Indemnity Claims shall not exceed the Cap Amount and (ii) the maximum obligation of the Purchaser to provide indemnification in respect of Seller Indemnity Claims pursuant to Section 8.03(a) and Section 8.03(b) shall not exceed the Purchase Price; provided, however, that the limitations in this clause (ii) shall not apply to any Seller Indemnity Claim pursuant to Section 8.03(b) with respect to the Purchaser’s obligations and agreements in Section 1.05, Section 1.06, Section 5.17(c), Section 5.19(e) and Section 5.19(f). (e) The obligations of the Seller in respect of Purchaser Indemnity Claims pursuant to Section 8.02(a) shall become operative and effective only if and to the extent that the amount of Loss incurred by the applicable Indemnitees related to each individual Purchaser Indemnity Claim pursuant to Section 8.02(a) or series of aggregated Purchaser Indemnity Claims pursuant to Section 8.02(a) arising out of the same or similar facts, events or circumstances exceeds $75,000 (the “De Minimis Threshold”), and any such Losses below the De Minimis Threshold shall not be counted toward the Basket Amount. (f) The obligations of the Purchaser in respect of Seller Indemnity Claims pursuant to Section 8.03(a) shall become operative and effective only if and to the extent that the amount of Loss incurred by the applicable Indemnitees related to each individual Seller Indemnity Claim pursuant to Section 8.03(a) or series of aggregated Seller Indemnity Claims pursuant to Section 8.03(a) arising out of the same or similar facts, events or circumstances exceeds the De Minimis Threshold, and any such Losses below the De Minimis Threshold shall not be counted toward the Basket Amount. (g) Each of the parties hereby acknowledges and agrees that the limitations provided for in paragraphs (a) and (b) above apply only to Covered Purchaser Indemnity Claims or Covered Seller Indemnity Claims (as the case may be), and do not apply to any other rights to indemnification provided for in this Article VIII, including rights to indemnification against Retained Liabilities or Assumed Liabilities (as the case may be). (h) Any Losses for which any Indemnitee would be entitled to indemnification under this Article VIII shall be reduced by (i) any cash payments, setoffs or recoupment of any payments in each case receivable, realizable or retainable by such Indemnitee (including any amounts recovered or recoverable by the sole purpose Indemnitee under insurance policies, including the Title Policies) or (ii) any Tax Benefit actually realized in the taxable year of determining Losses such Loss or a prior taxable year, in each case as a result of any event giving rise to an Indemnity Claim. Each Indemnitee shall as promptly as practicable pay over to the Indemnitor any amounts actually suffered with recovered (after deducting therefrom the full amount of the expenses incurred by it in procuring such recovery), but not in excess of the sum of any amount previously so paid by the Indemnitor to or on behalf of the Indemnitee in respect of such Loss. (i) The obligations of the Seller in respect of Purchaser Indemnity Claims shall not become operative and effective to the extent arising from (A) the conduct by the Purchaser or any of its Affiliates, employees, representatives or agents of any invasive or destructive sampling or assessment of any soil or groundwater at any of the Real Property unless such sampling or assessment (1) is required to be undertaken pursuant to any breach applicable Environmental Law or Order, (2) arises in the ordinary course of business out of repairs, modifications, maintenance activities, construction or other capital projects, in each case relating to the Assets or Transferred Business and conducted consistent with industry practices or (3) arises in response to a requirement of a Governmental Authority or a financing source of the Purchaser or its Affiliates; (B) any material change made by the Purchaser in the scope of use of any representation Real Property (including the change resulting from the decommissioning, closure or warranty shutdown of any facility) such that the Real Property is no longer used for similar industrial purposes; or (C) any conduct by the Purchaser or any of its Affiliates, employees, representatives or agents not consistent with that of a reasonable and not for purposes prudent business person who owns the applicable Real Property (without consideration of determining whether or not the benefit of any breaches of representations or warranties have occurred) indemnification provided by the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warrantySeller).

Certain Limitations. (ai) The Stockholders In no event shall not any Buyer Indemnitee be required entitled to indemnify indemnification for any Losses arising from a claim for indemnification pursuant to Section 6.2(a)(i) (A) for any claim or series of related claims arising from the Parent Indemnitees same set of facts with respect to any claim under Section 8.2(a) or Section 8.2(gwhich the aggregate amount of Losses does not exceed $50,000, which Losses shall not count towards the Deductible, and (B) unless and until the aggregate amount of all Losses for such under all claims under Section 6.2(a)(i) exceeds an amount equal to three hundred fifty thousand dollars $500,000 ($350,000the “Deductible”), at which time the Sellers shall only be liable for any Losses in which excess of the Deductible. (ii) In no event shall the Parent Indemnitees aggregate Liability for indemnification by the Sellers pursuant to Section 6.2(a)(i) exceed in the aggregate $7,500,000 and in no event shall the aggregate Liability for indemnification by the Sellers pursuant to this Agreement exceed the Purchase Price. (iii) [Reserved]. (iv) In no event shall any Seller Indemnitee be entitled to recover indemnification for any Losses arising from a claim for indemnification pursuant to Section 6.2(b)(ii) (A) for any claim or series of related claims arising from the same set of facts with respect to which the aggregate amount of Losses does not exceed $50,000, which losses will not count toward the Deductible and (B) unless and until the aggregate amount of all Losses under all claims under Section 6.2(b)(ii) exceeds the Deductible, at which time Buyer shall only be liable for any Losses in excess thereof; providedof the Deductible. (v) In no event shall the aggregate Liability for indemnification by Buyer pursuant to Section 6.2(b)(ii) exceed in the aggregate $7,500,000 and in no event shall the aggregate Liability for indemnification by Buyer pursuant to this Agreement exceed the Purchase Price. (vi) Notwithstanding the foregoing, that the foregoing limitation limitations set forth in Section 6.2(c)(i) to (v) shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, that the Indemnified Party’s Losses result from or (ii) a claim pursuant to item 3 on Schedule 8.2(g)arise out of fraud by the Indemnifying Party. (b) The sole and exclusive remedy of the Parent Indemnitees with respect to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery). (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered with respect to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warranty.

Certain Limitations. Notwithstanding anything otherwise provided in Section 10 or otherwise pursuant to this Agreement: (a) The Stockholders Except for Losses arising as a result of Actual Fraud, as to which the limitations of this Section 10.6(a) shall not be required apply, KCCO will not have any obligation to indemnify the Parent Indemnitees with and hold harmless PHIL pursuant to this Section 10 in respect to any claim of Losses arising under Section 8.2(a) or Section 8.2(g) 10.1 unless and until the amount of the aggregate Losses claimed by PHIL exceeds Five Hundred Sixteen Thousand Five U.S. Dollars ($516,005) (the “Basket”), whereupon KCCO shall indemnify, defend, protect and hold harmless the other party for the amount of all Losses in excess of the Basket, and KCCO’s aggregate liability in respect of claims for such claims exceeds an amount equal indemnification pursuant to three hundred fifty thousand dollars Section 10.1 shall not exceed Twenty-Five Million Eight Hundred Thousand Two Hundred Sixty-Six U.S. Dollars ($350,000), in which event the Parent Indemnitees shall be entitled to recover Losses only in excess thereof; provided, that the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g25,800,266). (b) The sole Except for Losses arising as a result of Actual Fraud, as to which the limitations of this Section 10.6(b) shall not apply, PHIL will not have any obligation to indemnify and exclusive remedy hold harmless KCCO pursuant to this Section 10 in respect of Losses arising under Section 10.2 unless the aggregate amount of all such Losses incurred or suffered by KCCO exceeds the Basket at which point PHIL will indemnify KCCO for all Losses in excess of the Parent Indemnitees with Basket, and PHIL’s aggregate liability in respect to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares of claims for indemnification pursuant to Section 8.6 provided, however, to 10.2 will not exceed the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7Purchase Price. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement an Indemnifying Party shall be reduced by liable hereunder shall be determined after deducting therefrom (a) the amount of any insurance proceeds or actually received from a third-party insurer and any other amounts actually recovered from a third party reimbursements actually received pursuant to indemnification or otherwise, in connection with such Losses (each case net of any costs or and expenses incurred in obtaining such insurance(including collection expenses, indemnification or reimbursementpremium increases, including any increases in insurance premiums or retro-premium adjustments resulting from premiums and any retention amounts), and (b) the amount of any net cash tax benefit actually realized as a result of such recovery)Loss in the current or any prior taxable year. (d) For purposes of this Article VIIIExcept with respect to injunctive and other non-monetary equitable relief, for PHIL and KCCO each acknowledge and agree that, from and after the Closing, their sole purpose of determining Losses actually suffered and exclusive remedy with respect to any breach and all claims for money damages pursuant to this Agreement shall be pursuant to the provisions of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warrantythis Section 10.

Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations: (a) The Stockholders Seller shall not be required liable to indemnify the Parent Buyer Indemnitees with respect to any claim for indemnification under Section 8.2(a8.02(a) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims in respect of indemnification under Section 8.02(a) exceeds an amount equal to three hundred fifty thousand dollars $25,000.00 ($350,000the “Basket”), in which event Seller shall be required to pay or be liable for all such Losses from the Parent first dollar. The aggregate amount of all Losses for which Seller Indemnitees shall be entitled liable pursuant to recover Losses only in excess thereof; provided, that the foregoing limitation Section 8.02 shall not apply to exceed the Escrow Share Amount held in Escrow at that such time (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g“Cap”). (b) The sole and exclusive remedy Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 8.03(a) until the aggregate amount of the Parent Indemnitees with respect to any and all Losses based uponin respect of indemnification under Section 8.03(a) exceeds the Basket, arising out of, or related to this Agreement or the Contemplated Transactions, in which event Buyer shall be via offset against required to pay or be liable for all such Losses from the Indemnity Shares first dollar. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.6 provided8.03(a) shall not exceed the Cap. (c) Notwithstanding anything else set forth in this Agreement, howeverexcept as set forth in Section 8.04(d) and Section 8.09 hereof, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, Escrow Share Amount held in escrow by Escrow Agent shall be the sole and exclusive remedy for Buyer Indemnitees for all Losses for which Seller shall be liable. (d) Notwithstanding the foregoing, the limitations set forth in Section 8.04(a) and Section 8.04(b) shall not apply to Losses based upon claims arising out of the Parent Indemnitees with respect to fraud, criminal activity or willful misconduct, in which case such Losses shall be via offset against limited solely to the Special Indemnity Seller and, provided that Seller and the Seller Affiliates did not participate in or have knowledge of such fraud prior to the date hereof, solely up to the Consideration Shares pursuant to Section 8.7actually received by the Seller. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery). (de) For purposes of this Article VIII, for the sole purpose calculation of determining any Losses actually suffered with respect to as a result of any inaccuracy in or breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed determined without regard to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications qualification contained in or otherwise applicable to such representation or warranty.

Certain Limitations. (a) The Stockholders Except with respect to claims for indemnification based on breaches of or inaccuracies in the representations and warranties contained in Section 3.3 and 3.7 the Seller shall not be required to indemnify the Parent Buyer Indemnitees with respect to any claim under for indemnification pursuant to Section 8.2(a) or Section 8.2(g9.1(a) unless and until the aggregate amount of all its Losses for such claims exceeds an amount equal to three hundred fifty thousand dollars $50,000 ($350,000the “Threshold Amount”), in which event the Parent Indemnitees Seller shall be entitled to recover Losses only in excess thereof; providedresponsible for the full amount of such Losses, including the Threshold Amount, provided that the foregoing limitation aggregate liability of the Seller to the Buyer Indemnitees under Section 9.1(a) shall not apply to exceed 75% of the Final Purchase Price (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g“Cap”). (b) The sole and exclusive remedy of the Parent Indemnitees with With respect to any claims for indemnification based on breaches of or inaccuracies in the representations and all warranties contained in Sections 3.3 and 3.7, the Seller agrees to indemnify the Buyer Indemnitees from and against the entirety of any Losses based uponthe Buyer Indemnitees may suffer resulting from, arising out of, relating to, in the nature of, or related to this Agreement caused by such breaches or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, inaccuracies up to the extent such claim is based upon Fraud and exceeds the full amount of Indemnity Sharesthe Purchase Price. (c) Except with respect to claims for indemnification based on breaches of or inaccuracies in the representations and warranties contained in Sections 4.1 and 4.5, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant Buyer shall not be required to Section 8.2 regarding any such excess amount; provided, further, however, that indemnify the Seller with respect to any claim for indemnification pursuant to Section 9.2(a) unless and all until the aggregate amount of Seller’s Losses exceeds the Threshold Amount, in which event the Buyer shall be responsible for the full amount of such Loss, including the Threshold Amount, provided that the aggregate liability of the Buyer to the Seller under Section 9.2(a) shall not exceed the Cap. With respect to any claims for indemnification based uponon breaches of or inaccuracies in the representations and warranties contained in Sections 4.1 and 4.5, the Buyer agrees to indemnify the Seller Indemnitees from and against the entirety of any Losses the Seller Indemnitees may suffer resulting from, arising out of, relating to, in the nature of, or related caused by such breaches or inaccuracies up to the Special Indemnity, the sole and exclusive remedy full amount of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)Purchase Price. (d) For purposes of this Article VIIIIX, any breach of or inaccuracy in any representation or warranty shall be determined without regard to any materiality or Material Adverse Effect or similar qualification or exception and any qualification or requirement that a matter be or not be reasonably expected to occur. (e) Except as set forth in Section 7.1 above, the rights to indemnification provided for in this Article IX shall be the sole purpose and exclusive remedy of determining Losses actually suffered with respect to the Buyer or the Seller, as the case may be, after the Closing for any breach breaches of or inaccuracy of any representation or warranty (and not for purposes of determining whether the Seller or not the Buyer, respectively, herein; provided that nothing herein shall limit in any breaches way any such party’s remedies in respect of representations fraud, gross negligence or warranties have occurred) willful misconduct by the representations and warranties other party in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect connection herewith or other similar qualifications contained in or otherwise applicable to such representation or warrantythe transactions contemplated hereby.

Certain Limitations. The indemnification provided for in Section 9.02 and Section 9.04 shall be subject to the following limitations: (a) The Stockholders Indemnified Party shall not be take reasonable steps to mitigate any Loss to the extent required to indemnify the Parent Indemnitees with respect to any claim under Section 8.2(aby Law. (b) or Section 8.2(g) unless and until the The maximum aggregate amount of all Losses for such claims which the Equityholders shall be liable herein shall not exceed the Total Indemnification Cap. (c) Other than with respect to Losses due to Parent’s failure to pay the Parent Merger Shares, Earnout Consideration, or Refunded Liability Amounts as required hereunder, the maximum aggregate amount of all Losses for which Parent, Merger Sub, and/or the Surviving Corporation shall be collectively liable in the aggregate shall not exceed the Total Consideration, less (ii) the aggregate amount of all advances made to the Company by Parent, Liabilities, Earnout Consideration, and Refunded Liability Amounts and any indemnification payments or other Losses, in each case paid by Parent, Merger Sub and the Surviving Corporation as of the applicable date. (d) Other than with respect to Losses due to Parent’s failure to pay the Parent Merger Shares, Earnout Consideration, or Refunded Liability Amounts as required hereunder, no Equityholder Indemnitee shall be entitled to recover indemnifiable Losses unless and until the total amount of all Losses that have been suffered or incurred by one or more of the Equityholder Indemnitees exceeds an amount equal to three hundred fifty thousand dollars Oxx Xxxxxxx Xxxxxxxx Xxxxxx Xxxxxx Dollars ($350,000100,000), after which time, subject to the terms and conditions of this Article IX, Equityholder Indemnitees shall be entitled to recover for all indemnifiable Losses pursuant to Section 9.04(a) in excess thereof. No Parent Indemnitee shall be entitled to recover indemnifiable Losses unless and until the total amount of all Losses that have been suffered or incurred by one or more of the Parent Indemnitees exceeds Oxx Xxxxxxx Xxxxxxxx Xxxxxx Xxxxxx Dollars ($100,000), after which event time, subject to the terms and conditions of this Article IX, Parent Indemnitees shall be entitled to recover for all indemnifiable Losses only pursuant to Section 9.02(a) in excess thereof; provided. (e) Subject to Section 9.05(d), that the foregoing limitation shall not apply to (i) a claim all Losses for indemnification claims under Section 9.02 shall be satisfied solely by set-off against the payment of any Earnout Consideration, if applicable, and only to the extent such claim is based upon FraudEarnout Consideration has not yet been paid to Equityholders. A Parent Indemnitee has no right to satisfy indemnification claims for Losses pursuant to Section 9.02 out of Earnout Consideration to the extent actually paid to an Equityholder, or (ii) a claim pursuant to item 3 on Schedule 8.2(g)seek indemnification for Losses that exceeds the amount of Earnout Consideration not yet paid to the Equityholders. (bf) None of the limitations set forth herein shall apply to any claim determined by a court of competent jurisdiction or arbitrator to constitute fraud, intentional misrepresentation or willful misconduct. If a court of competent jurisdiction or arbitrator determines that any Equityholder has engaged in fraud, intentional misrepresentation or willful misconduct in connection with this Agreement or any of the Transaction Documents (“Culpable Equityholder”), then none of the limitations set forth in this Section 9.05 shall apply to any Culpable Equityholder. A Parent Indemnitee has no right to satisfy indemnification claims for Losses pursuant to this Section 9.05(f) against any Equityholder other than a Culpable Equityholder, or to seek indemnification for Losses that exceeds the amount of Additional Payments unpaid to such non-culpable Equityholder. (g) The sole and exclusive remedy of the Equityholders shall not be obligated to indemnify any Parent Indemnitees Indemnitee with respect to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, Loss to the extent such claim is based upon Fraud and exceeds that the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from such Loss was reflected as a current liability or reserve and actually subtracted in the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy calculation of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7final Payoff Liabilities. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery). (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered with respect to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warranty.

Certain Limitations. The indemnification provided for in Section 8.2 and Section 8.3 shall be subject to the following limitations: (a) The Stockholders Other than in respect of Intellectual Property Losses as set out in Section 8.4(c) below, the Seller Parties shall not be required liable to indemnify the Parent Buyer Indemnitees with respect to any claim for indemnification under Section 8.2(a) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims in respect of indemnification under Section 8.2(a) exceeds an amount equal to three hundred fifty thousand dollars $42,000 ($350,000the “Basket”), in which event the Parent Indemnitees Seller Parties shall be entitled required to recover pay or be liable for all such Losses only in excess thereof; provided, that from the foregoing limitation first Dollar. The aggregate amount of all Losses for which the Seller Parties shall be liable pursuant to Section 8.2(a) shall not apply to exceed $4,400,000 (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g“Cap”). (b) Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 8.3(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.3(a) exceeds the Basket, in which event Buyer shall be required to pay or be liable for all such Losses from the first Dollar. The sole aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.3(a) shall not exceed the Cap. (c) The Seller Parties shall only be liable to the Buyer Indemnitees for indemnification under Section 8.2(a) and exclusive remedy / or Section 8.2(c) in respect of Losses arising from the Intellectual Property Assets and Intellectual Property Agreements included in the Purchased Assets (the “Intellectual Property Losses”) from the Closing Date until the third anniversary of the Parent Closing Date in an amount that shall not exceed the aggregate of: (i) the Holdback Amount, to the extent such amount has not been released to Seller or otherwise used to satisfy any Loss and (ii) the value of the Genasys Common Stock as follows (A) for the period that is from the Closing Date until the first anniversary of the Closing Date, up to the full value of the Genasys Common Stock as of such date; (B) for the period that is from the first anniversary of the Closing Date to the second anniversary of the Closing Date, up to two-thirds of the full value of the Genasys Common Stock as of such date; (C) for the period that is from the second anniversary of the Closing Date to the third anniversary of the Closing Date, up to one-third of the full value of the Genasys Common Stock as of such date; and (D) for the period that is from the third anniversary of the Closing Date and onwards, none of the value of the Genasys Common Stock as of such date; and in each case, as not otherwise already used to satisfy any Loss (the “Intellectual Property Cap”). For greater certainty, from the third anniversary of the Closing Date and onwards, the Seller Parties shall not be liable to the Buyer Indemnitees with pursuant to Section 8.2(a) and / or Section 8.2(c) in respect of any Intellectual Property Losses and the Intellectual Property Cap shall be deemed to be zero dollars for such period. In addition, at no time shall the Seller Parties be liable for any Intellectual Property Losses in respect of a Non-Practicing Entity Claim. (d) Notwithstanding the foregoing, the limitations set forth in Section 8.4(a) and all Section 8.4(b) shall not apply to Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7. (c) The amount by reason of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds inaccuracy in or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery). (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered with respect to any breach of any representation or warranty in Section 4.1, Section 4.2, Section 4.8, Section 4.9, Section 4.19, Section 4.21, Section 4.24, Section 5.1, Section 5.2 and Section 5.4. (and not for e) For purposes of determining whether this ARTICLE VIII, any inaccuracy in or not breach of any breaches of representations representation or warranties have occurred) the representations and warranties in ARTICLE III warranty shall not be deemed determined without regard to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications qualification contained in or otherwise applicable to such representation or warranty. (f) Any insurance proceeds actually received by an Indemnified Party under any insurance policy in connection with a claim, net of any deductibles, premiums increases and any other costs or expenses incurred in connection with securing or obtaining such insurance proceeds, shall be taken into account in calculating the amount of any Losses associated with such claim. (g) No Indemnified Party shall be entitled to claim as a Loss any special, consequential or punitive damages (including damages for loss of profits) except to the extent such damages are awarded to a third party in connection with a Third Party Claim. (h) An Indemnified Party shall not be entitled to double recovery for any Loss even though such Loss may have resulted from the breach of one or more representations, warranties or covenants in this Agreement, and no claim can be made by any such Indemnified Party in respect of any matter for which an adjustment to the Purchase Price has been made pursuant hereto. (i) No claim for indemnity pursuant to this Agreement may be made after the survival date for the applicable representation, warranty or covenant as set out in Section 8.1. (j) Nothing in this Agreement shall in any way restrict or limit the general obligation at Law of an Indemnified Party to mitigate any Losses which it may suffer or incur by reason of the breach by an Indemnifying Party of any representation, warranty, agreement or covenant of the Indemnifying Party under this Agreement or any Ancillary Document.

Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations: (a) The Stockholders Subject to Section 2.06, Sellers shall not be liable to the Buyer Indemnitees for indemnification under Section 8.02(a) (i) for any Loss until the amount of such Loss exceeds $1,000 in which event Sellers shall be required to indemnify pay or be liable for the Parent Indemnitees with respect to any claim under Section 8.2(aentire such Loss, and (ii) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims in respect of indemnification under Section 8.02(a) exceeds an amount equal to three hundred fifty thousand dollars $100,000, in the aggregate ($350,000the “Baskets”), in which event Sellers shall be required to pay or be liable for all such Losses from the Parent first dollar. Notwithstanding anything to the contrary contained in the foregoing, Sellers shall not be liable to Buyer for any Losses in an aggregate amount in excess of $1,500,000 except that such limitation shall not apply to the extent that it is exceeded on account of (A) actual fraud by Sellers or the Individual Guarantors, (B) the failure of Sellers to convey to Buyer good title free from Encumbrances as to the LLC Interests other than Permitted Interest Encumbrances, and (C) any matter disclosed on Sections 3.16(a) or 3.16(d) of the Disclosure Schedule or any inaccuracy in or breach of the representations set forth in Sections 3.16(a) or 3.16(d) above (it being understood, however, that the maximum aggregate amount for which the Buyer Indemnitees shall be entitled to recover Losses only in excess thereof; provided, that the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim from any Seller pursuant to item 3 on Schedule 8.2(gthis Article VIII shall in no event exceed the portion of the Purchase Price actually received by such Seller). (b) The sole Buyer shall not be liable to Seller Indemnitees for indemnification under Section 8.03(a) until the individual amount of any Loss and exclusive remedy the aggregate amount of the Parent Indemnitees with respect to any and all Losses based uponin respect of indemnification under Section 8.03(a) exceeds the Baskets, arising out of, or related to this Agreement or the Contemplated Transactions, in which event Buyer shall be via offset against required to pay or be liable for all such Losses from the Indemnity Shares pursuant first dollar. Notwithstanding anything to Section 8.6 providedthe contrary in the foregoing, however, Buyer shall not be liable to Sellers for any amount in excess of $1,500,000 except that such limitation shall not apply to the extent such that it is exceeded on account of a claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7involving actual fraud by Buyer. (c) The Solely for purposes of calculating the amount of any Losses for which Loss resulting from a breach of the Parent Indemnitees claim indemnification under this Agreement representations or warranties set forth herein, “materiality” and Material Adverse Effect qualifications shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with disregarded, but such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery). (d) For purposes of this Article VIIIqualifications shall not, for the sole purpose avoidance of determining Losses actually suffered with respect to any breach of any representation or warranty (and not doubt, be disregarded for purposes of determining whether or not any breaches of representations or warranties have a breach has occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warranty.

Certain Limitations. (a) The Stockholders Seller Parties shall not be required liable to indemnify the Parent Buyer Indemnitees with respect to any claim for indemnification under Section 8.2(a7.2(a) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims in respect of indemnification under Section 7.2(a) exceeds an amount equal to three hundred fifty thousand dollars Thirty Thousand Dollars ($350,00030,000) (the “Basket”), in which event the Parent Indemnitees Seller Parties shall be entitled to recover liable for all such Losses only in excess thereofof the Basket. The aggregate amount of all Losses for which the Seller Parties shall be liable pursuant to Section 7.2(a) shall not exceed the Value of the Acquired Shares (the “Cap”); provided, however, that the foregoing limitation aggregate amount of all Losses for which the Seller Parties shall be liable pursuant to Section 7.2(a) (except in the case of fraud) shall not apply to (i) a claim for indemnification to exceed the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g)Purchase Price. (b) The sole Buyer Indemnitees will seek to recover on indemnification claims first from the Holdback Shares valued at the Per Share Value and, only if and exclusive remedy of to the Parent Indemnitees with respect to any and all Losses based uponextent such funds are insufficient, arising out of, or related to this Agreement or from the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 Seller Parties; provided, however, that the foregoing shall not preclude a Buyer Indemnitee from filing an Action against one or more Seller Parties to the extent such claim is based upon Fraud preserve its legal rights and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7remedies. (c) No Shareholder shall be liable to the Buyer Indemnitees for indemnification under Section 7.2(a) by reason of an inaccuracy in or breach of a representation and warranty of Seller for more than such Shareholders pro rata share of the Loss. (d) The amount of any Losses for on account of which the Parent Seller Parties would otherwise be required to indemnify the Buyer Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds (net of any deductibles or co-payments and reasonable attorney’s fees and other third party reimbursements expenses actually received incurred by the Buyer Indemnitees in connection with such Losses (net of recovery) received by the Buyer Indemnitees from any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including insurance provided by any increases in insurance premiums or retro-premium adjustments resulting from such recovery). (d) For purposes of this Article VIIIcompany not Affiliated therewith and, for the sole purpose avoidance of determining Losses actually suffered with respect to doubt, excluding any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materialityself-insurance, Company Material Adverse Effect risk management program or other similar qualifications contained funds set aside by such Person in or otherwise applicable to such representation or warrantyconnection therewith.

Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations: (a) The Stockholders HSH shall not be required liable to indemnify the Parent HSMG Indemnitees with respect to any claim for indemnification under Section 8.2(a) or Section 8.2(g) unless and 8.02 until the aggregate amount of all Losses for such claims in respect of indemnification under Section 8.02 exceeds an amount equal to three hundred fifty thousand dollars $100,000 ($350,000the “Basket”), in which event the Parent Indemnitees HSH shall be entitled required to recover pay or be liable for all such Losses only in excess thereof; provided, that of the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g)Basket. (b) The sole and exclusive remedy of HSMG shall not be liable to the Parent HSH Indemnitees for indemnification under Section 8.03 (other than with respect to any and all Losses a claim for indemnification based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to or by reason of any and inaccuracy in or breach of any of Surviving Representations (the “Basket Exclusions”)) until the aggregate amount of all Losses in respect of indemnification under Section 8.03(a) (other than those based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to or by reason of the Basket Exclusions) exceeds the Basket, in which event HSMG shall be required to pay or be liable for all such Losses shall be via offset against in excess of the Special Indemnity Shares pursuant to Section 8.7Basket. (c) The amount Parties acknowledge and agree that the maximum liability of any Losses HSH, on the one hand, and HSMG, on the other hand, for which the Parent Indemnitees claim indemnification under pursuant to this Agreement Article VIII shall be reduced by the sum of $1,000,000 (the “Cap”), and neither HSMG, on the one hand, nor HSH, on the other hand, shall have any insurance proceeds or liability to the other third party reimbursements actually received in connection with such Losses (net excess of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)the Cap. (d) For purposes All liabilities and obligations of this Article VIIIHSMG that may arise under Section 8.03 (“HSMG Indemnification Liabilities”), for if any, will be satisfied via the sole purpose issuance by HSMG of determining Losses actually suffered shares of HSMG Common Stock to the Shareholders of a number of shares of HSMG Common Stock valued at the Assumed HSMG Common Stock Value, as is equal in value to the amount of the HSMG Indemnification Liabilities, to be allocated amongst the Shareholders pro rata according to the number of shares of HSH Common Stock held by each Shareholder as of the Effective Time. Such transfer, and assignment will be deemed in full payment and satisfaction of the HSMG Indemnification Liabilities with respect to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warrantywhich payment is being made.

Certain Limitations. The indemnification provided for in Section 11.2 and Section 11.3 shall be subject to the following limitations: (a) The Stockholders Each party’s liability with respect to Losses pursuant to Section 11.2 and Section 11.3 shall be limited in the aggregate to an amount equal to the Purchase Price. Notwithstanding the foregoing, Losses arising from claims based upon Fraud shall not capped. (b) No Buyer Indemnitee will be entitled to indemnification under this Agreement for any Loss arising from a breach of any representation or warranty set forth in this Agreement (and the amount of any Loss incurred in respect of such breach will not be included in the calculation of any limitation on indemnification set forth in this Agreement) to the extent that such Loss or Liability (A) is accurately and specifically accrued, provided or reserved for, or otherwise reflected or taken into account in the Interim Financial Statements (but only to the extent of such accrual or reserve); (B) arises from any item or matter that is included or otherwise taken into account in or was specifically raised as part of the settlement of items of the Adjustment Statement (including, for the avoidance of doubt, those items set forth in the balance sheet included therewith delivered pursuant to Section 3.2(a)); or (C) arises out of changes in accounting principles or applicable Laws, rules, or regulations or interpretations thereof announced after the Closing Date. (c) Seller will not be required to indemnify any Buyer Indemnitee to the Parent Indemnitees extent of any Losses that are determined by Final Adjudication to have resulted from the Fraud of a Buyer Indemnitee. (d) Seller will not be required to indemnify any Buyer Indemnitee to the extent any Loss is contingent, unless and until such contingent Loss becomes an actual Loss of such Buyer Indemnitee that is due and payable; provided that, the foregoing shall not release Seller from its obligation under Article 11 (subject in all respects to the terms, conditions and limitations of this Article 11) to indemnify Buyer for the cost of defending any Third Party Claims with respect to any claim under Section 8.2(a) or Section 8.2(g) unless contingent Losses which are brought and until noticed in accordance with the aggregate amount requirements of all Losses for such claims exceeds an amount equal this Article 11 prior to three hundred fifty thousand dollars ($350,000)the expiration of the applicable survival period, in which event the Parent and Buyer Indemnitees shall be entitled have the right to recover Losses only in excess thereof; provided, that the foregoing limitation shall not apply to (i) make a claim for indemnification with respect to a contingent Loss prior to the expiration of the applicable survival period set forth in Section 11.1, and if and to the extent such claim is based upon Fraudduly noticed and the applicable Buyer Indemnitee states and advances the substance of the underlying claim (but not, for the avoidance of doubt, the amount of Losses, if the Losses remain contingent at such time) pursuant to the indemnification procedures set forth in this Article 11 prior to the expiration of the applicable survival period, Buyer Indemnitee shall be entitled to indemnification in respect of actual Loss incurred in respect of such claim following the expiration of the applicable survival period, subject in all respects to the other terms of Article 11, notwithstanding the expiration of the applicable survival period. No Buyer Indemnitee will have the right to assert and (A) claim for indemnification of a Loss or (iiB) a claim pursuant to item 3 on Schedule 8.2(g). (b) The sole and exclusive remedy of the Parent Indemnitees with respect to any and all Losses based upon, arising out of, which such person has taken action (or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery). (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered with respect to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed caused action to be qualified by any materiality, Company Material Adverse Effect taken) to accelerate the time period in which such matter is asserted or other similar qualifications contained in or otherwise applicable to such representation or warrantypayable.

Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations: (a) The Stockholders aggregate amount of Losses for which the Buyer Indemnified Parties or Seller Indemnified Parties, as applicable, shall be entitled to indemnification pursuant to this Article VIII shall not exceed $100,000 (the “Indemnification Cap”), other than with respect to the following: claims based on Fraud, criminal activity or willful misconduct of Seller (the claims described in clauses (i), (ii), and (iii), the “Seller Special Indemnification Matters”) and claims based on Fraud, criminal activity or willful misconduct of Buyer (the claims described in clauses (i), (ii) and (iii), the “Buyer Special Indemnification Matters”). (b) Seller shall not be required liable to indemnify the Parent Indemnitees with respect to any claim Buyer Indemnified Parties for indemnification under Section 8.2(a) or Section 8.2(g) 8.02 unless and until the aggregate amount of all Losses for such claims exceeds an amount equal to three hundred fifty thousand dollars in respect of indemnification under Section 8.02 exceed $50,000 (the “Threshold”) (provided that any individual or series of related Losses which do not exceed $350,00050,000 (“De-Minimis Losses”) shall not be counted towards the Threshold), in at which event time the Parent Indemnitees Buyer Indemnified Party shall be entitled to recover indemnified for the amount of Losses only in excess thereof; provided, that of the foregoing limitation shall not apply to (i) a claim for indemnification Threshold up to the extent such claim is based upon FraudCap, or (ii) a claim pursuant to item 3 on Schedule 8.2(g). (b) The sole and exclusive remedy including, for the avoidance of the Parent Indemnitees with respect to any and all Losses based upondoubt, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 De-Minimis Losses; provided, however, that such Losses to the extent such claim is based upon Fraud and exceeds the amount be paid solely from return of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amountshares of stock held by Seller in Buyer; provided, further, that the Threshold and the exclusion of De-Minimis Losses shall not be applicable with respect to, and each Buyer Indemnified Party shall be entitled to be indemnified for, all Losses arising out of or resulting from the indemnification obligation with respect to Seller Special Indemnification Matters. Buyer shall not be liable to the Seller Indemnified Parties for indemnification under Section 8.03 unless and until the aggregate amount of Losses in respect of indemnification under Section 8.03 exceeds the Threshold (provided that De-Minimis Losses shall not be counted towards the Threshold), at which time the Seller Indemnified Party shall be indemnified for the amount of Losses in excess of the Threshold, including, for the avoidance of doubt, De-Minimis Losses; provided, however, that the Threshold and the exclusion of De-Minimis Losses shall not be applicable with respect to, and each Seller Indemnified Party shall be entitled to be indemnified for, all Losses arising out of or resulting from the indemnification obligation with respect to any and all Losses based upon, arising out of, or related to the Buyer Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7Indemnification Matters. (c) The Payments by the Indemnifying Party (as defined in Section 8.05) pursuant to Article VIII in respect of any Loss shall be limited to the amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other third party reimbursements similar payment actually received by the Indemnified Party (as defined in connection with such Losses (net Section 8.05) in respect of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)claim. (d) For purposes Notwithstanding the foregoing, in no event shall the Indemnifying Party be liable to the Indemnified Party for any punitive, incidental, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Article VIIIAgreement, for or any damages based on any type of multiple except to the sole purpose of determining Losses actually suffered extent adjudicated and owed to a third party with respect to a Third Party Claim. (e) Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any breach Loss, including by pursuing insurance claims and claims against third parties, and shall reasonably consult and cooperate with the Indemnifying Party with a view toward mitigating Losses upon becoming aware of any representation event or warranty (and not for purposes of determining whether circumstance that would be reasonably expected to, or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed does, give rise to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warrantyLosses.

Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 (and with respect to Section 8.04(d), the indemnification provided for in Section 7.03(a)(i)) shall be subject to the following limitations: (a) The Stockholders Sellers shall not be required liable to indemnify the Parent Buyer Indemnitees with respect to any claim under Section 8.2(a) or Section 8.2(g) unless and for indemnification for Company/Seller Warranty Breaches until the aggregate amount of all Losses for such claims in respect of Company/Seller Warranty Breaches exceeds an amount equal to three hundred fifty thousand dollars US$60,000 ($350,000the “Basket”), in which event the Parent Indemnitees Sellers shall be entitled required to recover pay or be liable for all Losses only in excess thereofof the Basket; provided, that the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g). (b) The sole and exclusive remedy of the Parent Indemnitees with respect to any and all Losses based upon, arising out of, with respect to or related to this Agreement by reason of any inaccuracy in or breach of the Company Fundamental Warranties, or the Contemplated TransactionsSeller Fundamental Warranties, or in the case of fraud. (b) The aggregate amount of all Losses for which the Sellers shall be via offset against liable for Company/Seller Warranty Breaches shall not exceed US$2,500,000 (the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount“General Cap”); provided, further, however, that with respect the foregoing limitation shall not apply to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against or by reason of any inaccuracy in or breach of the Special Indemnity Shares pursuant to Section 8.7Company Fundamental Warranties, the Seller Fundamental Warranties, or the Company Business Warranties, or in the case of fraud. (c) The aggregate amount of any all Losses for which the Parent Indemnitees claim indemnification under this Agreement Sellers shall be reduced by any insurance proceeds liable for Company/Seller Warranty Breaches in respect of Company Business Warranties shall not exceed US$2,500,000; provided, the foregoing limitation shall not apply in the case of fraud. For clarity, the foregoing limitation does not apply to Company/Seller Warranty Breaches in respect of the Company Fundamental Warranties, or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)the Seller Fundamental Warranties. (d) The aggregate amount of all Losses for which the Sellers shall be liable pursuant to Section 7.03(a)(i) and Section 8.02 shall not exceed the Purchase Price (the “Aggregate Cap”); provided, the foregoing limitation shall not apply in the case of fraud. (e) The Buyer shall not be liable to the Seller Indemnitees for indemnification for Buyer Warranty Breaches until the aggregate amount of all Losses in respect of Buyer Warranty Breaches exceeds the Basket, in which event the Buyer shall be required to pay or be liable for all Losses in excess of the Basket; provided, the foregoing limitation shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of the Buyer Fundamental Warranties or in the case of fraud. (f) The aggregate amount of all Losses for which the Buyer shall be liable for Buyer Warranty Breaches shall not exceed the General Cap; provided, the foregoing limitation shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of the Buyer Fundamental Warranties or in the case of fraud. (g) The aggregate amount of all Losses for which the Buyer shall be liable pursuant to Section 8.03 shall not exceed the Aggregate Cap; provided, the foregoing limitation shall not apply in the case of fraud. (h) For purposes of this Article VIIIdetermining whether there has been any misrepresentation or breach of a representation or warranty, and for the sole purpose purposes of determining the amount of Losses actually suffered with respect to any breach of resulting therefrom, all qualifications or exceptions in any representation or warranty (and not for purposes referring to the terms “material,” “materiality,” “in all material respects,” “Material Adverse Effect” or words of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III similar import shall be disregarded, except such words shall not be deemed disregarded in uses of the defined terms “Material Contracts”. (i) Payments by an Indemnifying Party pursuant to Section 8.02 or Section 8.03 in respect of any Loss shall be qualified by limited to the amount of any materialityliability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, Company Material Adverse Effect contribution or other similar qualifications contained in or otherwise applicable payment actually received by the Indemnified Party (increased by any costs and expenses incurred by the Indemnified Party with respect to such representation recovery, and increased by Taxes of the Indemnified Party (or warrantythe Company, in the case of a Buyer Indemnitee) attributable to the receipt of any such proceeds) by the Indemnified Party (or the Company, in the case of a Buyer Indemnitee) in respect of any such Loss. (j) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, but such Indemnified Party will not have a duty to incur any material costs in connection with the foregoing, and any out-of-pocket costs incurred by such Indemnified Party in connection with such mitigation shall constitute Losses that may be recovered by such Indemnified Party.

Certain Limitations. (ai) The Stockholders shall not Notwithstanding the foregoing, (1) no claim may be required made by the Buyer Indemnitees pursuant to indemnify the Parent Indemnitees with respect to any claim under Section 8.2(a) or Section 8.2(g) 6.2(a)(i), unless and until the aggregate amount of all Losses in respect of indemnification under Section 6.2(a)(i) exceeds $100,000 (the “Basket Amount”), and thereafter, the Seller Indemnifying Parties shall be required to pay or be liable for all Losses in excess of the Basket Amount, until the aggregate amount of such claims Losses is $200,000 (the “Deductible Amount”). (2) From and after the time that the aggregate amount of all Losses in respect of indemnification under Section 6.2(a)(i) exceeds the Deductible Amount, Buyer, on the one hand, and the Seller Indemnifying Parties, on the other hand, shall bear an equal portion of the Losses until the aggregate total amount for all Losses is equal to three hundred fifty thousand dollars the Retention Amount; provided that the Seller Indemnifying Parties shall be solely responsible for all Losses arising from or related to Fraud committed by a Seller Indemnifying Party. ($350,000ii) The indemnification obligation of the Seller Indemnifying Parties pursuant to Section 6.2(a)(i), in which event the Parent Indemnitees shall be entitled to recover Losses only in excess thereof; provided, that the foregoing limitation shall not apply to (i) other than a claim for indemnification to the extent such claim is based upon arising from any breach or inaccuracy of any IP Representations, any Fundamental Representation, or Fraud, or shall be limited to sums held in the Indemnity Escrow Account. (iiiii) a claim pursuant Other than for Fraud, the aggregate amount of Losses recoverable from the Seller Indemnifying Parties for IP Claims shall be limited to item 3 on Schedule 8.2(g$20,000,000 (the “IP Cap”). (biv) The sole and exclusive remedy Other than for Fraud, the aggregate amount of Losses recoverable from the Parent Indemnitees with respect to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, Seller Indemnifying Parties for an Agreed Indemnity Event shall be via offset against limited to $2,000,000 (the “Agreed Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recoveryEvent Cap”). (dv) For purposes Notwithstanding anything in the foregoing, the aggregate amount of Losses recoverable from the Seller Indemnifying Parties for any claim for indemnification pursuant to this Article VIIIAgreement, for including Fundamental Claims and Fraud, shall be limited to the sole purpose of determining Losses actually suffered with respect to any breach of any representation or warranty Purchase Price (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warranty“Purchase Price Cap”).

Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations: (a) The Stockholders Company Holders shall not be required liable to indemnify the Parent Indemnitees with respect to any claim for indemnification under Section 8.2(a8.02(a) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims in respect of indemnification under Section 8.02(a) exceeds an amount equal to three hundred fifty thousand dollars $92,500 ($350,000the “Basket”), in which event the Parent Indemnitees Company Holders shall be entitled required to recover pay or be liable for all such Losses only in excess thereof; provided, that from the foregoing limitation first dollar. The aggregate amount of all Losses for which the Company Holders shall be liable pursuant to Section 8.02(a) shall not apply to exceed the Holdback Amount (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g“Cap”). (b) The sole and exclusive remedy Parent shall not be liable to the Company Holder Indemnitees for indemnification under Section 8.03(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.03(a) exceeds the Basket, in which event the Parent Indemnitees with respect shall be required to any pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which the Parent shall be liable pursuant to Section 8.03(a) shall not exceed the Cap. (c) Notwithstanding the foregoing, the limitations set forth in Section 8.04(a) and all Section 8.04(b) shall not apply to Losses based upon, arising out of, with respect to, or related to this Agreement by reason of fraud or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, any inaccuracy in or breach of any Fundamental Representation. (d) Notwithstanding anything to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Sharescontrary contained in this Agreement, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that except with respect to any claims for equitable remedies, and all Losses claims based uponon fraud or willful breach or intentional misrepresentation, arising out of, or related to payment from the Special Indemnity, Holdback Amount shall be the sole and exclusive remedy source of recovery by the Parent Indemnitees. Except for indemnifiable Losses arising directly from a Company Holder’s own fraud, the liability of each Company Holder for indemnifiable Losses pursuant to this Article VIII or Article VI shall not exceed the amount of the Parent Indemnitees with respect total Merger Consideration payable to such Company Holder. Except in the case of indemnifiable Losses shall arising directly as a result of fraud or willful breach or intentional misrepresentation committed by such Company Holder, any payment required to be via offset against the Special Indemnity Shares pursuant to Section 8.7. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification made by a Company Holder under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting made from such recovery)Company’s Holder’s share of the Holdback Amount. (de) For purposes of this Article ARTICLE VIII, for the sole purpose of determining Losses actually suffered with respect to any inaccuracy in or breach of any representation or warranty (and not for purposes the amount of determining whether any Losses incurred or not any breaches of representations suffered in connection with such breach or warranties have occurred) the representations and warranties in ARTICLE III inaccuracy shall not be deemed determined without regard to be qualified by any materiality, Company Material Adverse Effect Effect, or other similar qualifications qualification contained in or otherwise applicable to such representation or warranty.

Certain Limitations. (a) The Stockholders Nothing in this Agreement shall be deemed to require any Sublessor Entity to indemnify any TowerCo Indemnitee for or in respect of any of the Real Estate Representations. Without limiting the generality of the foregoing, the sole remedies of TowerCo or TowerCo Parent in respect of a breach of any Real Estate Representation by any Sublessor Entity shall be to cause (i) such Sublessor Entity to continue to use reasonable efforts to cure such breach, as contemplated by Section 4.5, until the Final Closing Date, or (ii) the Site as to which such Real Estate Representation is breached to be, at the applicable Sublessor Entity's election, an Excluded Site or to defer the Closing of such Site to a later Closing Date, provided that the failure of any such deferred Site to become an Included Site on or prior to the Final Closing shall not be required constitute a default under this Agreement or give TowerCo Parent or TowerCo any remedy. (b) Notwithstanding anything to indemnify the Parent contrary contained herein, no Sublessor Entity shall have any obligation under this Section 13 to TowerCo Indemnitees with respect to any claim under Section 8.2(athe breach of representations, warranties, covenants or agreements by SBCW, unless, until and only to the extent that the aggregate of all TowerCo Indemnified Losses from all such breaches exceeds on a cumulative basis one percent (1%) or Section 8.2(g) unless and until of the aggregate amount of all Losses for such claims exceeds an amount equal Rent having been paid to three hundred fifty thousand dollars ($350,000), in SBCW or any other Sublessor Entity under the Sublease as of the date on which event the Parent Indemnitees shall be entitled to recover Losses only in excess thereof; provided, that the foregoing limitation shall not apply to (i) a claim for indemnification arose (the "Deductible Amount"), and then only to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g). (b) The sole and exclusive remedy of the Parent Indemnitees with respect to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7. (c) The amount of Anything in this Agreement to the contrary notwithstanding, in no event shall any Losses for which the Parent Indemnitees claim indemnification Sublessor Entity be liable under this Agreement shall be reduced for any indemnification obligation pursuant to this Section 13 in excess of 25% of the aggregate amount of the Rent having been paid to SBCW or such Sublessor Entity under the SBCW Sublease on account of the Site(s) owned by any insurance proceeds or other third party reimbursements actually received in connection with such Losses Sublessor Entity as of the date on which the claim for indemnification arose (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recoverythe "Maximum Indemnification"). (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered with respect to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warranty.

Certain Limitations. The liability of the Vendors or Buyers, as applicable, for claims under this Agreement shall be limited by the following: (a) The Stockholders At any time after the Survival Date, (i) the Vendors shall have no further obligations under this Article XII for breaches of representations and warranties of the Vendors, except for Damages with respect to which the Buyers Indemnitee has given the Vendor written notice prior to such date in accordance with Section 12.3 above; and (ii) the Buyers shall have no further obligations under this Article XII for breaches of representations and warranties of the Buyers, except for Damages with respect to which the Vendors Indemnitee has given the Buyers written notice prior to such date in accordance with Section 12.3. (b) Notwithstanding anything to the contrary herein, Buyers Indemnitees shall not be required entitled to indemnify the Parent Indemnitees with respect recover Damages from Vendors pursuant to any claim under Section 8.2(a) or Section 8.2(g12.1(a) unless and until the accumulated aggregate amount of all Losses for such claims exceeds Damages shall exceed an amount equal to three hundred fifty thousand dollars which is the equivalent of E 150,000 ($350,000the "VENDOR INDEMNIFICATION THRESHOLD"), in which event the Parent Indemnitees shall be entitled to recover Losses only in excess thereof; provided, that the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g). (b) The sole and exclusive remedy of the Parent Indemnitees with respect to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to that at such time as the extent such claim is based upon Fraud and exceeds the aggregate amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with Damages in respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent indemnity obligations of Vendors shall exceed the Vendors Indemnification Threshold, Vendors shall thereafter indemnify any of the Buyers Indemnitees with respect to such Losses shall be via offset from all and against the Special Indemnity Shares pursuant to Section 8.7all Damage in excess of equivalent E 10,000. (c) The Notwithstanding anything to the contrary herein, in the absence of fraud or willful breach of this Agreement (for which there shall be no limitation), in no event shall the maximum aggregate liability of Vendors in respect of any claims by the Buyers Indemnitees against Vendors pursuant to Section 12.1(a) for Damages suffered or incurred by any Buyers Indemnitee exceed the maximum amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)E 100,000,000. (d) For purposes of this Article VIIINotwithstanding anything to the contrary contained herein, any claim for the sole purpose of determining Losses actually suffered with respect to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified indemnity made by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable Buyer Indemnitee relating to such representation or warranty.Taxes is subject to the condition that :

Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 will be subject to the following limitations: (a) The Stockholders shall EWI and EWD will not be required liable to indemnify the Parent Buyer Indemnitees for indemnification under Section 8.02(a) or under Section 8.02(a) of the Asset Purchase Agreement with respect to any claim representations or warranties of EWI or the Company hereunder or EWD under the Asset Purchase Agreement other than the Special Representations (as defined herein and in the Asset Purchase Agreement and excluding Section 3.15(c) and (d) which, for the avoidance of doubt, will be subject to the Basket) until the aggregate amount of such Losses exceeds $75,000 (the “Basket”), in which event EWI and EWD will only be required to pay or be liable for all such Losses in excess of the Basket. (b) The aggregate amount of all Losses for which EWD and EWI will be liable pursuant to Section 8.02(a) and Section 8.02(a) of the Asset Purchase Agreement will not exceed the following: (i) with respect to any representations or warranties of EWI or the Company hereunder or of EWD under the Asset Purchase Agreement other than the Special Representations (as defined herein and in the Asset Purchase Agreement), $2,500,000 (the “Cap”), (ii) with respect to the Special Representations (as defined herein and in the Asset Purchase Agreement), $17,000,000 and (iii) with respect to Post-Closing Events hereunder and all “Post-Closing Events” pursuant to the Asset Purchase Agreement, $750,000. In no event shall EWI and EWD be liable to Buyer Indemnitees for any Losses or other claims relating to or arising out of this Agreement or the Transaction Documents in excess of $17,000,000. (c) Buyer will not be liable to EWI Indemnitees for indemnification under Section 8.2(a8.03(a) and BHEP will not be liable to “EWD Indemnitees” for indemnification under Section 8.03(a) of the Asset Purchase Agreement with respect to any representations or Section 8.2(gwarranties of Buyer hereunder or BHEP under the Asset Purchase Agreement other than the Special Representations (as defined herein and in the Asset Purchase Agreement) unless and until the aggregate amount of all such Losses for such claims exceeds an amount equal to three hundred fifty thousand dollars ($350,000)the Basket, in which event the Parent Indemnitees shall Buyer will be entitled required to recover pay or be liable for all such Losses only in excess thereof; provided, that of the foregoing limitation shall not apply Basket. (d) The aggregate amount of all Losses for which Buyer will be liable pursuant to Section 8.03(a) hereunder and for which BHEP will be liable pursuant to Section 8.03(a) of the Asset Purchase Agreement (i) a claim for indemnification to other than the extent such claim is based upon Fraud, or Special Representations (as defined herein and in the Asset Purchase Agreement) will not exceed the Cap and (ii) a claim pursuant with respect to item 3 on Schedule 8.2(gthe Special Representations (as defined herein and in the Asset Purchase Agreement), will not exceed $17,000,000. (be) The sole and exclusive remedy determination of the Parent Indemnitees with respect to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery). (d) For purposes of this Article VIII, for VIII will take into account the sole purpose amount of determining Losses actually suffered insurance proceeds payable with respect thereto pursuant to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warrantyinsurance policy.

Certain Limitations. The indemnification provided for in Section 7.02 and Section 7.03 shall be subject to the following limitations: (a) The Stockholders Except with respect to claims for inaccuracies or breaches of Fundamental Representations (for which no such limitation shall apply), Sellers shall not be required liable to indemnify the Parent Buyer Indemnitees with respect to any claim for indemnification under Section 8.2(a7.02(a) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims in respect of indemnification under Section 7.02(a) exceeds an amount equal to three hundred fifty thousand dollars $59,000 ($350,000the “Basket”), in which event the Parent Indemnitees Sellers shall be entitled required to recover pay or be liable for all such Losses only in excess thereof; providedfrom the first dollar, that without consideration of the foregoing limitation Basket. Except with respect to claims for inaccuracies or breaches of Fundamental Representations, the aggregate amount of all Losses for which Sellers shall be liable pursuant to Section 7.02(a) shall not apply exceed $1,350,000 (the “Cap”). Sellers’ maximum aggregate liability to (i) a claim the Buyer Indemnitees for indemnification to the extent such claim is based upon Fraudunder Section 7.02(a), for inaccuracies or breaches of Fundamental Representations, or (ii) a claim pursuant to item 3 on Schedule 8.2(gSection 7.02(b), for any breach or non-fulfillment of any covenant, agreement or obligation, shall not exceed the Purchase Price. (b) The sole and exclusive remedy of the Parent Indemnitees Except with respect to any and claims for inaccuracies or breaches of Fundamental Representations (for which no such limitation shall apply), Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 7.03(a) until the aggregate amount of all Losses based uponin respect of indemnification under Section 7.03(a) exceeds the Basket, arising out of, or related to this Agreement or the Contemplated Transactions, in which event Buyer shall be via offset against required to pay or be liable for all such Losses from the Indemnity Shares first dollar, without consideration of the Basket. Except with respect to claims for inaccuracies or breaches of Fundamental Representations, the aggregate amount of all Losses for which Sellers shall be liable pursuant to Section 8.6 provided, however, 7.03(a) shall not exceed the Cap. Buyer’s maximum aggregate liability to the extent such claim is based upon Fraud and exceeds the amount Seller Indemnitees for indemnification under Section 7.03(a), for inaccuracies or breaches of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out ofFundamental Representations, or related to Section 7.03(b), for any breach or non-fulfillment of any covenant, agreement or obligation, shall not exceed the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7Purchase Price. (c) The amount Notwithstanding the foregoing, the limitations set forth in Section 7.04(a) and Section 7.04(b) shall not apply in any case of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)fraud. (d) For purposes of this Article VIIISection 7.02(a), for the sole purpose of determining any Losses actually suffered with respect to any resulting from an inaccuracy in or breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed determined without regard to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications qualification contained in or otherwise applicable to any such representation or warranty.

Certain Limitations. (a) The Stockholders No Buyer Losses shall not be required to indemnify asserted by the Parent Indemnitees Buyer with respect to any claim under Section 8.2(a) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims exceeds an amount equal to three hundred fifty thousand dollars ($350,000)matter which is covered by insurance, in which event the Parent Indemnitees shall be entitled to recover Losses only in excess thereof; provided, that the foregoing limitation shall not apply to (i) a claim for indemnification to the extent proceeds of such claim is based upon Fraudinsurance are received (net of any additional costs incurred by reason of such recovery) by the Buyer. The Buyer shall, or (ii) and shall cause other Buyer Indemnitees to, use its best efforts to recover all insurance recoverable in respect of a claim pursuant to item 3 on Schedule 8.2(g)particular Buyer Loss. (b) The sole and exclusive remedy of No claim may be made against the Parent Indemnitees Seller for indemnification pursuant to Section 8.1 hereto with respect to any individual item of Buyer Losses, and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Buyer Losses shall be via offset against not include any individual item, unless such item exceeds $1,000 (the Special Indemnity Shares pursuant to Section 8.7"De Minimis Exclusion"). (c) The amount Seller shall be obligated to indemnify the Buyer Indemnitees for Buyer Losses with respect to any matters under Section 8.1(a) of any Losses for which the Parent Indemnitees claim indemnification under this Agreement when, and only when, the aggregate of all such Buyer Losses with respect to all matters exceeds $75,000, and then the Seller shall be reduced by any insurance proceeds liable for such Buyer Losses only to the extent that they exceed such amount (the "Threshold"). The Seller's obligation to indemnify the Buyer Indemnitees for Buyer Losses with respect to all matters shall be limited to an amount, or other third party reimbursements actually received amounts in connection with such Losses the aggregate, equal to forty percent (net 40%) of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recoverythe Purchase Price (the "Cap"). (d) For purposes Notwithstanding the foregoing, neither Section 8.5(b) or (c) above shall apply to, and the Seller shall indemnify Buyer Indemnitees for all Buyer Losses with respect to, indemnification claims for a breach of this Article VIIIthe representations and warranties contained in Section 3.3 (Title) and in Section 3.13 (Taxes), for the sole purpose of determining it being further understood that all Buyer Losses actually suffered with respect to any such breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed applied against, or used to reduce, the Threshold. (e) Notwithstanding any other provision hereof, in no event shall the Seller be qualified liable for or obligated to indemnify any Buyer Indemnitee (i) to the extent such Buyer Losses relate to actions taken by such Buyer Indemnitee or any materialityof its affiliates, Company Material Adverse Effect or (ii) from and against any consequential, indirect or special damages, including, without limitation, lost profits, business interruption and loss of business opportunities or goodwill (other than any such consequential, indirect or special damages resulting from claims from customers, vendors or employees of the Business, which claims would be subject to the provisions of Sections 8.5(b) and (c) above). This exclusion of consequential, indirect or special damages shall apply whether an action for recovery of damages is sought based on contract, tort (including sole, concurrent or other similar qualifications contained in negligence or otherwise applicable to such representation strict liability), statute or warrantyotherwise. To the extent permitted by law, any statutory remedies which are inconsistent with this Section 8.5(a) are hereby waived by the Buyer.

Certain Limitations. The Party making a claim under this Section 10.3 is referred to as the “Indemnified Party”, and the Party against whom such claims are asserted under this Section 10.3 is referred to as the “Indemnifying Party.” The indemnification provided for in Section 10.1 and Section 10.2 shall be subject to the following limitations: (a) The Stockholders Sellers shall not be required liable to indemnify the Parent Indemnitees Buyer Indemnified Parties for indemnification under Section 10.1(a) with respect to any claim under Section 8.2(abreaches of representations and warranties (other than Fundamental Seller Representations) or Section 8.2(g) unless and until the aggregate amount of all Losses for that would be payable pursuant to such claims claim exceeds an amount equal to three hundred fifty thousand dollars Four Million Six Hundred Twenty-Five Thousand Dollars ($350,0004,625,000) (the “Deductible”), in which event the Parent Indemnitees Sellers shall be entitled required to recover pay or be liable for Losses only in excess thereof; provided. (b) After the Closing, that the foregoing limitation Buyer Indemnified Parties’ sole and exclusive remedy for, and sole and exclusive source of funds for payment of, any Losses (whether such Losses result from a claim framed in tort, contract or otherwise) arising out of or in connection with this Agreement, any of the Transaction Documents, or the transactions contemplated hereby and thereby shall not apply to be (i) a claim for indemnification against the Post-Closing Escrow Amount for which the Buyer Indemnified Parties are entitled to indemnification from Sellers, the Company, or the Stockholder Representative pursuant to this ARTICLE 10, which shall constitute a cap on the maximum total liability of Sellers, the Company, or the Stockholder Representative with respect to the extent such claim is based upon Fraudtransactions contemplated by this Agreement (except with respect to the matters specified in item (ii) of this sentence), or and (ii) a claim for indemnification pursuant to item 3 this ARTICLE 10, which shall not exceed the Purchase Price with respect to the matters set forth in Section 10.1(f). In connection with the release of any portion of the Post-Closing Escrow Amount pursuant to this Agreement, the Stockholder Representative and Buyer shall promptly execute and deliver to the Escrow Agent in accordance with the Escrow Agreement written instructions instructing the Escrow Agent to make the payments set forth in this Section 10.3(b) and Section 1.5 above. Notwithstanding any other provision of this Agreement to the contrary, the Sellers will have no obligation to indemnify any Buyer Indemnified Party from and against any Losses (i) for Taxes of any Person for any taxable period (or portion thereof) beginning after the Closing Date (or any other Losses directly related to any such Taxes), except to the extent such Taxes constitute Indemnified Divestiture Taxes, result from a breach of Sections 3.7(f), 3.7(g), 3.7(l) or 3.7(m) or are Taxes with respect to advance payments, deferred revenue or other prepaid amounts as set forth in clause (a) of Indemnified Taxes or are penalties or interest with respect to Taxes for a Tax period of portion thereof ending on Schedule 8.2(gor before the Closing Date, (ii) included in the Divestiture Tax Adjustment or Net Working Capital (each as finally determined), or (iii) that are attributable to (A) any transaction outside the ordinary course of business entered into by Buyer or the Company on the Closing Date after the Closing, (B) any financing or refinancing arrangements entered into at any time by or at the direction of the Buyer or any liability for Taxes resulting from an election under Section 338 or Section 336 of the Code (or any similar provision of state, local, or non-U.S. Law) with respect to the Transaction or (C) the unavailability in any Taxable period (or portion hereof) beginning after the Closing Date of any net operating losses, capital losses, Tax carryforwards, or Tax credits. (bc) Payments by an Indemnifying Party pursuant to Section 10.1 or Section 10.2 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds (if applicable) and any indemnity, contribution or other similar payment received by the Indemnified Party in respect of any such claim (netted against costs or expenses incurred by the Indemnified Party in connection with such recovery). The Indemnified Party shall use its commercially reasonable efforts to recover under any such insurance policies, for any Losses; provided, however no Indemnified Party shall be required to commence or engage in litigation or initiate any other Action against any insurance carrier. (d) Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to mitigate the breach that gives rise to such Loss. (e) The sole and exclusive remedy amount of the Parent Indemnitees any indemnity provided under this ARTICLE 10, other than indemnity with respect to any and all Losses based upon, arising out of, or related claims which are not subjected to this Agreement or the Contemplated TransactionsDeductible, shall be via offset against reduced (but not below zero) by the Indemnity Shares amount of any actual net reduction in cash payments for Taxes (calculated on a with and without basis) recognized by the Indemnified Parties as a result of the Losses giving rise to such indemnity claim to the extent such reduction is recognized prior to or in the same year as such Losses are paid or incurred. (f) Notwithstanding anything to the contrary in this Agreement, the Sellers shall not have any liability for any otherwise indemnifiable Loss to the extent that the matter giving rise to such Loss had been reserved for in the Closing Statement or the Buyer Indemnified Parties have been otherwise compensated through an adjustment to the Estimated Purchase Price pursuant to Section 8.6 provided1.4. (g) For the purposes of determining the amount of any Losses suffered by any Buyer Indemnified Parties, howeverthe representations, warranties and covenants of Sellers and the Company set forth in this Agreement shall be considered without regard to any materiality or Material Adverse Effect qualification therein. (h) Notwithstanding anything to the contrary contained in this Agreement, none of the parties hereto shall have any liability under any provision of this Agreement for any punitive or exemplary damages, any consequential, special or indirect damages, and any damages for loss of future profits, revenue or income, damages based on any multiple of revenue or income, loss from diminution in value, or loss of business reputation or opportunity except, in each case, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant damages are actually awarded to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7a third Person. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery). (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered with respect to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warranty.

Certain Limitations. (a) The Stockholders Other than Sellers' obligation to indemnify for Buyer Losses under Section 11.1(a) of this Agreement arising out of a breach of representation or warranty contained in Section 4.2 (capitalization) or Section 4.12 (brokers), Sellers' obligation to indemnify for Buyer Losses under Section 11.1(a) of this Agreement shall not accrue until the aggregate of all such Buyer Losses exceeds [*] Dollars ($[*]) (the "Loss Threshold") and then Sellers shall be required liable for all such Buyer Losses in excess of such initial $[*] and shall be limited to indemnify [*] Dollars ($[*]) in the Parent Indemnitees aggregate. There shall be no Loss Threshold or limit on liability with respect to any claim Sellers' obligations to indemnify under Section 8.2(aSections 11.1(b) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims exceeds an amount equal to three hundred fifty thousand dollars through ($350,000), in which event the Parent Indemnitees shall be entitled to recover Losses only in excess thereof; provided, that the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(gd). (b) The sole and exclusive remedy of In no event shall any punitive, exemplary, special, indirect, incidental or consequential damages whatsoever be recoverable by any indemnitee under Article 11 hereof; except that, if punitive, exemplary, special, indirect, incidental or consequential damages have been asserted by a third party against a Seller Indemnitee or Buyer Indemnitee, the Parent Indemnitees with respect to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, indemnifying party shall be via offset against liable therefor under the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount provisions of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7this Article 11. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification Any payment required under this Agreement Article 11 paid to any Buyer Indemnitee or any Seller Indemnitee, as the case may be, shall be reduced treated by the Buyer and the Sellers as an adjustment of the Purchase Price; provided, however, that no Buyer Losses indemnified hereunder shall be considered payment by Sellers for Net Assets or Facility Costs, and Buyer shall have no obligation to pay any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery). (d) For purposes of this amounts to Sellers under Article VIII, for the sole purpose of determining Losses actually suffered 2 with respect to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warrantyBuyer Losses.

Certain Limitations. The party making a claim under this Article VIII is referred to as the “Indemnified Party”, and the party against whom such claims are asserted under this Article VIII is referred to as the “Indemnifying Party”. The indemnification provided for in Section 8.02, Section 8.03 and Section 8.08 shall be subject to the following limitations: (a) The Stockholders Sellers shall not be required liable to indemnify the Parent Indemnitees with respect to any claim Buyer Indemnified Parties for indemnification under Section 8.2(a8.02(a), Section 8.02(d) or and/or Section 8.2(g) unless and 8.08 until the aggregate amount of all Losses for such claims which the Sellers are required to indemnify the Buyer Indemnified Parties under Section 8.02(a), Section 8.02(d) and Section 8.08 exceeds an amount equal to three hundred fifty thousand dollars Ten Million Dollars ($350,00010,000,000) (the “Deductible”), in which event the Parent Indemnitees Sellers shall only be entitled required to recover pay or be liable for such Losses only in excess thereof; provided, that of the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g)Deductible. (b) The sole and exclusive remedy Buyers shall not be liable to the Seller Indemnified Parties for indemnification under Section 8.03(a) until the aggregate amount of all Losses for which the Buyers are required to indemnify the Seller Indemnified Parties under Section 8.03(a) exceeds the Deductible in which event the Buyers shall only be required to pay or be liable for such Losses in excess of the Parent Indemnitees Deductible. (c) Notwithstanding anything in this Agreement or the CIT Bank Agreement or any Delivered Lost Note Affidavit to the contrary, with respect to any and claims as to which the Buyer Indemnified Parties may be entitled to indemnification under Section 8.02(a), Section 8.02(d) and/or Section 8.08, if the aggregate Losses (excluding any attorneys’ fees relating to such Losses) relating to any single Transferred Interest or CIT Bank Transferred Interest are less than Sixty Five Thousand Dollars ($65,000) (such amount, the “Per Claim Threshold”), none of such Losses shall be counted toward the Deductible. For the avoidance of doubt, the Per Claim Threshold shall not apply once the Deductible has been satisfied. (d) At the end of each three (3)-month period during the period from the October Closing Date through the date on which the Deductible has been satisfied, each Party shall provide written notice (along with reasonable supporting documentation) to the other Parties of the incurrence of any all Losses based uponduring such three (3)-month period which will, or can be reasonably expected to, count toward the Deductible after taking into account the limitations set forth in this Section 8.04. (e) Notwithstanding anything in this Agreement, the CIT Bank Agreement or any Lost Note Affidavit to the contrary, in no event shall Sellers be required to indemnify the Buyer Indemnified Parties for or on account of Losses resulting from, arising out ofof or relating to any Covered Repair or Denial Actions (even if any such Losses are also covered by any indemnity in Section 8.08 hereof or in any Lost Note Affidavit or are alleged to have resulted from, arisen out of or related relate to this Agreement a breach by Sellers or CIT Bank of any of their representations, warranties, covenants or agreements set forth herein or in the Contemplated Transactions, shall be via offset against CIT Bank Agreement) for any amount in excess of eight million five hundred thousand dollars ($8,500,000) (the Indemnity Shares pursuant to Section 8.6 “Repair and Denial Cap”) after the Deductible has been satisfied; provided, however, that if the Final Purchase Price Adjustment Calculation reflects a Missing Remaining Required Document Percentage of more than twenty percent (20%), then the Repair and Denial Cap shall be automatically increased to ten million dollars ($10,000,000) without any further action of the extent Parties hereto. Any such claim is based upon Fraud increase in the Repair and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, Denial Cap shall be the sole and exclusive remedy of the Parent Indemnitees with respect Buyer Indemnified Parties for any failure of the Applicable Sellers to such Losses deliver to Buyers any Remaining Required Documents or other documents relating to the Transferred Loans and neither Sellers nor any of their Affiliates shall be via offset against required to indemnify, hold harmless or otherwise compensate or reimburse any Buyer Indemnified Parties, pursuant to Article VIII hereof, pursuant to any Lost Note Affidavit, or otherwise, for any Losses incurred or sustained by, or imposed upon, any Buyer Indemnified Party as a result of, related to or arising out of any failure of the Special Indemnity Shares Applicable Sellers to deliver to Buyers any Remaining Required Documents or other documents relating to the Transferred Loans. (f) The aggregate amount of all Losses for which an Indemnifying Party shall be liable pursuant to Section 8.7. 8.02(a), Section 8.03(a) or Section 8.08 (c) The amount which liability shall not include any Losses resulting from, arising out of or relating to any Covered Repair or Denial Actions even if any such Losses are also covered by any indemnity in Section 8.08 hereof or in any Lost Note Affidavit or are also alleged to have resulted from, arisen out of or relate to a breach by Sellers or CIT Bank of any Losses for which of their representations or warranties set forth herein or in the Parent Indemnitees claim indemnification under this Agreement CIT Bank Agreement), as the case may be, shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses not exceed thirty three million dollars (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery$33,000,000). (dg) For purposes of this Article VIIIPayments by an Indemnifying Party pursuant to Section 8.02, for the sole purpose of determining Losses actually suffered with Section 8.03 or Section 8.08 in respect to any breach of any representation Loss shall be limited to the amount of any liability or warranty (damage that remains after deducting therefrom any insurance proceeds and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materialityindemnity, Company Material Adverse Effect contribution or other similar qualifications contained payment received or reasonably expected to be received by the Indemnified Party in respect of any such claim; provided, however, such payments shall include the amount of any out-of-pocket expenses incurred in connection with pursuing recovery under such insurance or indemnity, contribution or other similar agreement. The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any Losses prior to seeking indemnification under this Agreement. (h) In no event shall any Indemnifying Party be liable to indemnify any Indemnified Party pursuant to this Article VIII for any punitive, incidental, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity or diminution of value or any damages based on any type of multiple (except, in the case of punitive, special, or exemplary damages, to the extent that such damages are actually paid or awarded to a third-party in connection with a Third Party Claim). (i) Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss. (j) Notwithstanding anything in this Agreement or the CIT Bank Agreement to the contrary, (a) the Property Taxes Deduct shall be the sole and exclusive remedy of the Buyer Indemnified Parties for any Losses or diminution in value of the Purchased Assets resulting from, caused by or arising out of any Tax-related Encumbrances on or against any real estate Collateral securing any Transferred Loan or any Transferred CIT Bank Loan or any REO Property relating to any Transferred Loan or Transferred CIT Bank Loan (collectively, “Tax Lien Losses”), and (ii) the Other Charges Deduct shall be the sole and exclusive remedy of the Buyer Indemnified Parties for any Losses or diminution in value of the Purchased Assets or the CIT Bank Purchased Assets resulting from, caused by or arising out of any other Encumbrances on or against any real estate Collateral securing any Transferred Loan or any Transferred CIT Bank Loan or any REO Property relating to any Transferred Loan or Transferred CIT Bank Loan (collectively, “Other Lien Losses”) and (b) in no event shall the Applicable Sellers be required to indemnify any Buyer Indemnified Party for any Tax Lien Losses or Other Lien Losses pursuant to this Article VIII or otherwise applicable pursuant to such representation this Agreement or warrantythe CIT Bank Agreement.

Certain Limitations. The indemnification provided for in Section 10.2 and Section 10.3 shall be subject to the following limitations: (a) The Stockholders Sellers shall not be required liable to indemnify the Parent Buyer Indemnitees with respect to any claim for indemnification under Section 8.2(a10.2(a) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims in respect of indemnification under Section 10.2(a) exceeds an amount equal to three hundred fifty thousand dollars $100,000 ($350,000the “Basket”), in which event the Parent Indemnitees Sellers shall only be entitled required to recover pay or be liable for Losses only in excess thereofof the Basket. The aggregate amount of all Losses for which Sellers may be liable pursuant to Section 10.2(a) shall not exceed fifteen percent (15%) of the Purchase Price actually received by the Sellers (the “Cap”); provided, provided that the foregoing such limitation shall not apply to any such Losses (i) a claim with respect to breaches of Company Fundamental Reps, for indemnification which the maximum amount recoverable by the Buyer Indemnitees shall be limited to the extent such claim is based upon Fraud, or Purchase Price actually received by the Sellers and (ii) with respect to breaches of the Intellectual Property Reps, for which the maximum amount recoverable by the Buyer Indemnitees shall be limited to thirty percent (30%) of the Purchase Price actually received by the Sellers. The aggregate Liability of a claim particular Seller in respect of any Loss for which such Seller indemnifies the Buyer Indemnitees pursuant to item 3 on Schedule 8.2(g)Section 10.2 shall not exceed an amount equal to the Purchase Price actually received by such Seller pursuant to this Agreement. (b) The sole and exclusive remedy Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 10.3(a) until the aggregate amount of all Losses in respect of indemnification under Section 10.3(a) exceeds the Basket, in which event Buyer shall only be required to pay or be liable for Losses in excess of the Parent Indemnitees Basket. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 10.3(a) shall not exceed the Cap; provided that such limitation shall not apply to any such Losses with respect to breaches of Buyer Fundamental Reps, for which the maximum amount recoverable by any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, Seller Indemnitee shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, limited to the extent Purchase Price actually received by such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7Seller. (c) The For purposes of calculating the monetary amount of Losses for which any Legal Action may be made against any Indemnifying Party, (i) the amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery). (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered with respect corresponding to any inaccuracy in or breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed determined without regard to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications qualification contained in or otherwise applicable to such representation or warranty, (ii) there shall be no duplication of recovery by reason of the state of facts giving rise to such Losses constituting a breach of more than one representation, warranty, covenant or agreement (and no Indemnified Party will be entitled to indemnification or reimbursement under any provision of this Agreement for any amount to the extent such Indemnified Party or its Affiliate has received indemnification payments for or been reimbursed for such amount under any other provision of this Agreement or any other document executed in connection with this Agreement (i.e., no double recovery)) and (iii) such monetary amount shall be decreased to the extent of any amounts actually recovered by an Indemnified Party under applicable insurance policies. Each Indemnified Party agrees that it shall, and cause its Affiliates to, use commercially reasonable efforts to (x) make or cause to be made all reasonable claims for insurance under insurance policies that may be applicable to the matter giving rise to the indemnification claim hereunder, and (y) mitigate any Losses after becoming aware of such Losses or any event or condition that could reasonably be expected to give rise to any such Losses. (d) Except with respect to an action for which specific performance is sought (and solely to the extent such action seeks such relief), each Party acknowledges and agrees that its sole and exclusive remedy with respect to all claims relating to any breach, inaccuracy, or nonfulfillment of any representation, warranty, covenant or agreement in this Agreement or otherwise relating to the transactions contemplated hereby shall be in accordance with, and limited by, the indemnification provisions set forth in this ARTICLE X. In furtherance of the foregoing, except with respect to Section 12.11, each Party hereby waives, to the fullest extent permitted under Law, any and all rights, claims and causes of action for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement it may have against the other parties hereto and their Affiliates and each of their respective Representatives arising under or based upon any Law, except pursuant to the indemnification provisions set forth in this ARTICLE X.

Certain Limitations. The liability of the Vendor or Buyers, as applicable, for claims under this Agreement shall be limited by the following: (a) The Stockholders At any time after the Survival Date, (i) the Vendor shall not be required to indemnify have no further obligations under this Article XIII for breaches of representations and warranties of the Parent Indemnitees Vendor, except for Damages with respect to any claim under which the Buyers Indemnitee has given the Vendor written notice prior to such date in accordance with Section 8.2(a) or Section 8.2(g) unless 13.3 above; and until the aggregate amount of all Losses for such claims exceeds an amount equal to three hundred fifty thousand dollars ($350,000), in which event the Parent Indemnitees shall be entitled to recover Losses only in excess thereof; provided, that the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant Buyers shall have no further obligations under this Article XIII for breaches of representations and warranties of Buyers, except for Damages with respect to item 3 on Schedule 8.2(g)which the Vendor Indemnitee has given Buyers written notice prior to such date in accordance with Section 13.3. (b) The sole and exclusive remedy of Notwithstanding anything to the Parent contrary herein, Buyers Indemnitees with respect shall not be entitled to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares recover Damages from Vendor pursuant to Section 8.6 13.1 unless and until the accumulated aggregate amount of Damages shall exceed an amount which is the equivalent of E115,000 (the "VENDOR INDEMNIFICATION THRESHOLD"); provided, however, to that at such time as the extent such claim is based upon Fraud and exceeds the aggregate amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with Damages in respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent indemnity obligations of Vendor shall exceed the Vendor Indemnification Threshold, Vendor shall thereafter indemnify any of the Buyers Indemnitees with respect to such Losses shall be via offset from all and against the Special Indemnity Shares pursuant to Section 8.7all Damage in excess of equivalent E10,000. (c) The Notwithstanding anything to the contrary herein, in the absence of fraud or willful breach of this Agreement (for which there shall be no limitation), in no event shall the maximum aggregate liability of Vendor in respect of any claims by the Buyers Indemnitees against Vendor pursuant to Section Section 13.1 for Damages suffered or incurred by any Buyers Indemnitee exceed the maximum amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)E75,000,000. (d) For purposes Notwithstanding anything to the contrary contained herein, any claim for indemnity made by any Buyer Indemnitee relating to Taxes is subject to the condition that: (i) Buyers and/or the Acquired Companies shall authorize and permit the tax advisers of this Article VIIIVendor at Vendor's sole cost and expense to conduct, for direct and process all dealings with the sole purpose Tax Authorities in respect of determining Losses actually suffered all matters and/or all fiscal years and/or all assessments pertaining to the period prior to the Closing Date, in close co-operation with the accountants and tax advisers of the Buyers and the Acquired Companies, provided that neither the Vendor nor its tax advisers shall enter into any settlement or take any action before the courts, or otherwise compromise any tax matter that affects or may affect the tax liabilities of Buyers or any of the Acquired Companies, without the prior written consent of the Buyers, which consent shall not be unreasonably withheld or delayed; and (ii) with respect to any of claims which are not based upon a breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the Vendor's representations and warranties given under Section 5.16 above, the Tax Liability in ARTICLE III respect of which the claim for indemnity is made (including penalties and late payment interest) does not result from a change adopted by Buyers and/or the Acquired Companies in the accounting and/or tax policies of the Acquired Companies which has, directly or indirectly, retroactive effect to the period preceding the Closing Date. (e) Notwithstanding anything to the contrary herein, the limitations contained in Section 13.5(b) shall not apply to claims for indemnification by Buyers Indemnitees against Vendor in respect of (i) the indemnities specified in Section 13.1(b) to Section 13(k) inclusive above; and (ii) the special indemnities specified in Section 13.6 below; (f) Notwithstanding anything to the contrary herein, Vendor Indemnitees shall not be deemed entitled to be qualified recover Damages from Buyers unless and until the accumulated aggregate amount of Damages shall exceed an amount which is the equivalent of E115,000 (the "BUYER INDEMNIFICATION THRESHOLD"); provided, however, that at such time as the aggregate amount of Damages in respect of the indemnity obligations of Buyers shall exceed the Buyers Indemnification Threshold, Buyers shall thereafter indemnify any of the Vendor Indemnitees from all and against all Damage in excess of equivalent E10,000. (g) Notwithstanding anything to the contrary herein, the limitations contained in Section 13.5(f) shall not apply to claims for indemnification by Vendor Indemnitees against Buyers in respect of the indemnities specified in Section 13.2(b) and 13.2(c) above; (h) Notwithstanding anything to the contrary herein, in no event shall the maximum aggregate liability of Buyers in respect of any claims by the Vendor Indemnitees against Buyers pursuant to Section 13.2 for Damages suffered or incurred by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warranty.Vendor Indemnitees exceed E75,000,000

Certain Limitations. The indemnification provided for in Section 6.2 and Section 6.3 shall be subject to the following limitations: (a) The Stockholders Sellers shall not be required liable to indemnify the Parent Purchaser Indemnitees with respect to any claim for indemnification under Section 8.2(a6.2(a) or Section 8.2(g) unless and until the aggregate amount of all Losses in respect of indemnification under Section 6.2(a) exceeds $200,000, exclusive of claims or groups of related claims for such claims exceeds an amount equal to three hundred fifty thousand dollars Losses not exceeding $10,000 ($350,000the “Deductible”), in which event case the Parent Indemnitees Sellers shall be entitled to recover liable under Section 6.2(a) only for such Losses only in excess thereof; provided, that exceed the foregoing limitation Deductible. The Purchaser shall not apply be liable to (i) a claim Seller Indemnitees for indemnification to under Section 6.3(a) until the extent aggregate amount of all Losses in respect of indemnification under Section 6.3(a) exceeds the Deductible, in which case the Purchaser shall be liable under Section 6.3(a) only for such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g)Losses that exceed the Deductible. (b) The sole and exclusive remedy of the Parent Purchaser Indemnitees shall not be entitled to indemnification pursuant to Section 6.2(a) with respect to any and all aggregate Losses based upon, arising out of, or related in excess of an amount equal to this Agreement or $4,350,000 (the Contemplated Transactions, “General Cap”). The Purchaser Indemnitees shall not be via offset against the Indemnity Shares entitled to indemnification pursuant to Section 8.6 provided, however, 6.2(b) or Section 6.2(c) with respect to the extent such claim is based upon Fraud and exceeds the aggregate Losses in excess of an amount of Indemnity Shares, Parent equal to $43,500,000. Seller Indemnitees may seek recovery directly from the Stockholder who committed such Fraud shall not be entitled to indemnification pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that 6.3(a) with respect to any and all aggregate Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy in excess of the Parent General Cap. Seller Indemnitees shall not be entitled to indemnification pursuant to Section 6.3(b) or Section 6.3(c) with respect to such aggregate Losses shall be via offset against the Special Indemnity Shares pursuant in excess of an amount equal to Section 8.7$43,500,000. (c) Notwithstanding anything to the contrary in this Agreement or any other Transaction Document, there shall be no deductible, cap or other limitation or restriction on, and nothing herein shall impair, any claim based upon fraud, intentional misrepresentation or willful misconduct. (d) The Purchaser Indemnitees will not be indemnified, and the Sellers will have no liability hereunder, for (i) any Losses to the extent of any amount with respect thereto that is set forth on the Closing Statement, the Closing Payoff Certificate or Section 2.5(b) of the Disclosure Schedule and taken into account as a deduction in determining the Closing Cash Consideration or (ii) any Losses constituting punitive damages except to the extent actually awarded to a third party. (e) The amount of any Losses for which the Parent Indemnitees claim indemnification is provided under this Agreement Section 6.2 or Section 6.3 shall be reduced by (i) any amounts that are actually recovered by the Indemnified Party from any third party with respect to such Losses and (ii) any insurance proceeds or other third party reimbursements cash receipts or source of reimbursement that are actually received in connection by an Indemnified Party with respect to such Losses (net of reasonable costs of recovery or collection and any costs retention or expenses incurred deductible related to an insurance claim in obtaining respect of Losses thereof); provided, however, that no Indemnified Party shall have any obligation to claim, seek or otherwise obtain any such insurancethird party recoveries or insurance proceeds or other reimbursement to which it may be entitled. (f) With respect to any claim brought by a the Purchaser Indemnitee against any Seller relating to this Agreement, the Sellers expressly waive any right of subrogation, contribution, advancement, indemnification or reimbursement, including other claim against any increases in insurance premiums or retro-premium adjustments resulting from such recovery). (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered Purchaser Indemnified Party with respect to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified amounts owed by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable Seller to such representation or warrantyany the Purchaser Indemnitee.

Certain Limitations. The indemnification provided for in Section 8.2 shall be subject to the following limitations: (a) The Stockholders aggregate amount of all Losses for which the Seller shall be liable pursuant to Section 8.2 shall not be required to indemnify exceed $3,750,000.00 (the Parent Indemnitees with respect to any claim under Section 8.2(a) or Section 8.2(g) unless and until “Cap”). After the first anniversary of the Closing Date, the aggregate amount of all Losses for such claims exceeds which Seller shall be liable pursuant to Section 8.2 shall not exceed $2,500,000.00 (the “Adjusted Cap”); provided that Buyer Indemnitees have not incurred Losses in an aggregate amount equal in excess of the Adjusted Cap prior to three hundred fifty thousand dollars the first anniversary of the Closing Date. If, prior to the first anniversary of the Closing Date, Buyer Indemnitees have incurred aggregate Losses in excess of the Adjusted Cap, but less than the Cap ($350,000the “First Year Losses”), in which event then the Parent Buyer Indemnitees shall be entitled to recover will have no further recourse against Seller for Losses only incurred under Section 8.2 in excess thereof; provided, that of the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g)First Year Losses. (b) The sole and exclusive remedy No Buyer Indemnitee will be entitled to any indemnification pursuant to Section 8.2 (except for claims arising from any breach or inaccuracy of the Parent representations or warranties contained in Section 3.20) unless the aggregate of all Losses would exceed on a cumulative basis an amount equal to $330,000.00 (the “Basket”), in which in which event the Seller will be required to pay or be liable for all such Losses from the first dollar. (c) Nothing in this Section 8.3 shall limit or restrict any of the Buyer Indemnitees’ right to maintain any action or claim or recover any Losses against or from a Person that has committed Fraud. In no event shall Seller be liable for any Losses in excess of the Cash Proceeds. (d) The Seller shall have no right of contribution from any of the Buyer Indemnitees with respect to any and all Losses based upon, arising out of, or related Loss for which Seller is required to indemnify such Buyer Indemnitee pursuant to this Agreement or the Contemplated Transactions, shall Article VIII. (e) No Buyer Indemnitee will be via offset against the Indemnity Shares pursuant entitled to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that indemnification hereunder for Losses with respect to any and all Losses based upon, arising out of, or related Liability to the Special Indemnity, extent (i) such matter was taken into account in determining the sole and exclusive remedy of Final Cash Consideration or (ii) such matter was reserved for in the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7Financial Statements. (cf) The amount of any and all Losses under this Article VIII and indemnified Taxes under Article VII will be determined net of any Tax Benefits inuring to any Buyer Indemnitee or any of its Affiliates on the account of such Loss. If the Buyer Indemnitee receives a Tax Benefit after an indemnification payment is made to it that was not taken into account at the time the indemnification payment was made, such Buyer Indemnitee shall promptly, but in no event later than ten (10) days after such time that such Tax Benefit is actually realized, pay to the indemnifying party the amount of such Tax Benefit at such time or times as and to the extent that such Tax Benefit is actually realized by the Buyer Indemnitee. A Tax Benefit shall be actually realized by the Buyer Indemnitee upon the receipt of a refund of Taxes paid or the filing of a Tax Return, including an estimated Tax Return, showing a Tax Benefit (or, if earlier, the date when such a Tax Return should have been timely filed, including properly obtained extensions). For purposes hereof, “Tax Benefit” shall mean (i) any refund or credit of Taxes paid or (ii) the amount such Buyer Indemnitee’s liability for Taxes through a taxable period, calculated by excluding the relevant amount of credit, deduction or Loss, would exceed such Buyer Indemnitee’s actual liability for Taxes through such period, calculated by taking into account the relevant amount of credit, deduction or Loss, in each case computed at the highest marginal Tax rates applicable to the recipient of such benefit. (g) The amount of any and all Losses under this Article VIII will be determined net of any amounts actually recovered by any Buyer Indemnitee or any of such Buyer Indemnitee’s Affiliates under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant to which or under which such Buyer Indemnitee or such Buyer Indemnitee’s Affiliates is a party or has rights (each a “Policy”). To the extent a Loss is clearly recoverable or for which there is a right of recovery under any such Policy, the Parent Indemnitees Buyer Indemnitee agrees to submit a claim for coverage under such Policy coincident with making a claim for indemnification under pursuant to this Agreement Article VIII. The final amount to which Seller is obligated to indemnify Buyer Indemnitee shall be reduced by calculated after the Buyer Indemnitee receives payment from the insurer under such Policy with respect to the claim or a determination that there is no coverage under such Policy, and then such amount shall be paid in accordance with Section 8.5 of this Agreement. Notwithstanding the foregoing and subject to the Basket, Seller shall reimburse Buyer Indemnitee for the deductible or any insurance proceeds or other third party reimbursements actually received reasonable out-of-pocket expenses paid in connection with the submission of the claim for coverage under any such Losses (net Policy, which payment will be made in accordance with Section 8.5 of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)this Agreement. (dh) For purposes of Nothing in this Article VIII, for the sole purpose of determining Losses actually suffered with respect Agreement will be interpreted to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in restrict or otherwise applicable limit any party’s common law duty to such representation mitigate a Loss it may suffer or warrantyincur as a result of an event that may give rise to an indemnification claim under this Agreement.

Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations: (a) The Stockholders (i) Seller Indemnitors shall not be required liable to indemnify the Parent Buyer Indemnitees with respect to any claim for indemnification under Section 8.2(a8.02(a) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims in respect of indemnification under Section 8.02(a) exceeds an amount equal to three hundred fifty thousand dollars ($350,00050,000) (the “Tipping Basket”), in which event the Parent Indemnitees Seller Indemnitors shall be entitled required to recover pay or be liable for all such Losses only from the first dollar, and (ii) the aggregate amount of all Losses for which Seller Indemnitors shall be liable pursuant to Section 8.02(a), other than with respect to a breach of the Fundamental Representations, shall not exceed eight million dollars ($8,000,000) (the “Cap”) and (iii) the aggregate amount of all Losses for which Seller Indemnitors shall be liable pursuant to a breach of the Fundamental Representations in excess thereof; providedSection 8.02(a) and Section 8.02(b) shall not exceed the Purchase Price, that including the foregoing limitation Migration Payment Amount, to the extent actually paid to Sellers. (i) Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 8.03(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.03(a) exceeds the Tipping Basket, in which event Buyer shall be required to pay or be liable for all such Losses from the first dollar, and (ii) the aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.03 shall not exceed the Cap. (c) Notwithstanding the foregoing, the limitations set forth in Section 8.04(a) and Section 8.04(b) shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g). (b) The sole and exclusive remedy of the Parent Indemnitees with respect to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7. (c) The amount by reason of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds inaccuracy in or other third party reimbursements actually received in connection with such Losses (net breach of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)Fundamental Representations. (d) For purposes of this Article ARTICLE VIII, for the sole purpose of determining Losses actually suffered with respect to any inaccuracy in or breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed determined without regard to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications qualification contained in or otherwise applicable to such representation or warranty. (e) Each Party agrees to mitigate its respective Losses after becoming aware of any claim as required by applicable Law.

Certain Limitations. (a) The Stockholders Shareholders shall not be required to indemnify the Parent Indemnitees Indemnified Parties for those portions of any Damages that were specifically accrued or deducted in determining any adjustments pursuant to Article III. Parent shall not be required to indemnify the Shareholder Indemnified Parties for those portions of any Damages (i) that were specifically accrued or deducted in determining any adjustments pursuant to Article III or (ii) to the extent directly resulting from any breach of the Company’s obligations under this Agreement. No Person shall be indemnified more than once for the same Damages. (b) Except in the case of claims of Fraud, no Shareholder shall have any liability to the Parent Indemnified Parties under Section 9.1(a) (other than with respect to any claim under Section 8.2(athe Fundamental Representations and Warranties) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims Damages exceeds an amount equal to three hundred fifty thousand dollars $1,050,000 ($350,000the “Deductible”), in which event the Parent Indemnitees shall be entitled to recover Losses and then only in excess thereof; provided, that the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon FraudDamages exceed the Deductible. Notwithstanding the foregoing sentence, or (ii) a claim pursuant to item 3 on Schedule 8.2(g). (b) The sole the Fundamental Representations and exclusive remedy of the Parent Indemnitees with respect to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, Warranties shall not be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, subject to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7Deductible. (c) The Except in the case of claims of Fraud, Parent shall not have any liability to the Shareholder Indemnified Parties under Section 9.2(a) until the aggregate amount of any Losses for which all Damages exceeds the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with Deductible, and then only to the extent such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)Damages exceed the Deductible. (d) For purposes Except in the case of claims of Fraud and subject to Section 11.7, the Shareholders’ aggregate liability under Section 9.1(a) and Section 9.1(f) shall not exceed the amount of the Indemnification Escrow Amount. Notwithstanding anything herein to the contrary, except in the case of claims of Fraud and subject to Section 11.7, the Shareholders’ shall have no liability under Section 9.1(a) and Section 9.1(f) following the release of the Indemnification Escrow Amount in accordance with Section 9.7 other than for any Continuing Claim. This clause (d) shall in no way limit the Parent Indemnified Parties entitlement to any recovery under the Special Indemnification Escrow Fund. (e) Except in the case of claims of Fraud and subject to Section 11.7, the Shareholders’ aggregate liability under Section 9.1(g) shall not exceed the sum of the Special Indemnification Escrow Amount and the Indemnification Escrow Amount. (f) Except in the case of claims of Fraud and subject to Section 11.7, Parent’s aggregate liability under Section 9.2(a) shall not exceed the amount of the Indemnification Escrow Amount. (g) Except in the case of claims of Fraud against the Shareholder who committed such Fraud or if such Shareholder had actual knowledge of Fraud committed by (x) the Company or any of its Subsidiaries or (y) any other Shareholder, the aggregate liability of each Shareholder under this Article VIIIAgreement, or in connection with the transactions contemplated by this Agreement, shall not exceed the portion of the Purchase Price actually received by such Shareholder. (h) Except in the case of claims of Fraud against Parent or Merger Sub, the aggregate liability of Parent under this Agreement shall not exceed the Purchase Price actually paid by or on behalf of Parent. (i) Except in the case of claims of Fraud against the Company Shareholder who committed such Fraud or if such Shareholder had actual knowledge of Fraud committed by (x) the Company or any of its Subsidiaries or (y) any other Shareholder, any amounts owed by the Shareholders for indemnification to the sole purpose Parent Indemnified Parties under Section 9.1(a) and Section 9.1(f) shall be satisfied as follows: (i) first, as a payment by the Escrow Agent from the Indemnification Escrow Fund (on a several, and not joint, basis by the Shareholders to the extent of determining Losses actually suffered such funds) and, after such Indemnification Escrow Fund has been exhausted, (ii) second, against the R&W Policy; provided that this clause (i) shall in no way limit the Buyer Indemnified Parties entitlement to any recovery under the Special Indemnification Escrow Fund. (j) Any amounts owed by the Shareholders for indemnification to the Parent Indemnified Parties under Section 9.1(b)-(e) shall be satisfied as follows: (x) first, as a payment by the Escrow Agent from the Indemnification Escrow Fund (on a several and not joint basis by the Shareholders to the extent of such funds) and, after such Indemnification Escrow Fund has been exhausted, (y) second, directly against the Shareholders on a several, and not joint, liability basis in accordance with their Pro Rata Portion, subject to the limitation set forth in Section 9.5(d); provided that, in the case of claims of Fraud against such Shareholder who committed such Fraud or if such Shareholder had knowledge of Fraud committed by (x) the Company or any of its Subsidiaries or (y) any other Shareholder, the Parent Indemnified Parties shall not be required to comply with the limitation contained in this Section 9.5(j) solely with respect to such Shareholder. (k) Any amounts owed by the Shareholders for indemnification to the Parent Indemnified Parties under Section 9.1(g) shall be satisfied as follows: (x) first, as a payment by the Escrow Agent from the Special Indemnification Escrow Fund (on a several and not joint basis by the Shareholders to the extent of such funds) and, after such Indemnification Escrow Fund has been exhausted, (y) second, as a payment by the Escrow Agent from the Indemnification Escrow Fund (on a several and not joint basis by the Shareholders to the extent of such funds). (l) Any indemnity payment made by the Shareholders to any Parent Indemnified Party, on the one hand, or by Parent to any Shareholder Indemnified Party, on the other hand, pursuant to this Article IX shall be reduced by (A) an amount equal to any insurance proceeds actually received by such indemnified party in respect of such claim (other than proceeds received under the R&W Policy with respect to claims subject to the Initial Retention (as defined in the R&W Policy)) minus the sum of (i) any out-of-pocket expenses (including reasonable and documented attorneys’ fees and expenses) relating to the recovery of such proceeds and (ii) any deductibles and increases in premiums as a result of such claim and (B) the actual and permanent cash Income Tax savings recognized in the taxable year in which the applicable Damages are incurred by the Parent Indemnified Party or Shareholder Indemnified Party, as applicable, that results from the Damages giving rise to such indemnity payment, determined using a “with and without” methodology (as determined in good faith by the Parent Indemnified Party or Shareholder Indemnified Party, as applicable). If any actual and permanent cash Income Tax savings described in the preceding sentence is not recognized until after an applicable indemnification payment is payable, such indemnification payment shall not be reduced by the anticipated cash Tax savings but when such actual and permanent cash Income Tax savings is recognized, the Parent Indemnified Party or Shareholder Indemnified Party, as applicable, shall promptly make a cash payment to the indemnifying party in an amount equal to such actual cash Income Tax savings. (m) Notwithstanding anything to the contrary set forth in this Agreement, a Party’s indemnification obligations pursuant to Section 9.1 or Section 9.2 (for the purposes of determining the existence of any inaccuracy or breach of any representation and warranty and calculation of the Damages attributable to such inaccuracy or breach) shall be determined without giving effect to any qualification or exception with respect to “material,” “materiality,” “materially,” “Material Adverse Effect” or similar language with respect to materiality contained in any representation or warranty set forth in Article IV; provided, however, that such qualifications will not be disregarded with respect to Section 4.6(a) and (b) and the definition of “Material Contract”. (n) Notwithstanding anything to the contrary set forth in this Agreement, in the case of a claim of Fraud perpetrated by any Shareholder (solely in its capacity as a Shareholder and not for purposes as a director, officer or employee of determining whether or the Company and not any breaches in connection with the Company’s making of representations or warranties have occurred) the representations and warranties in ARTICLE III this Agreement), such Shareholder shall be solely responsible for any Damages arising therefrom. Any Fraud perpetrated by a Shareholder (solely in its capacity as a Shareholder and not as a director, officer or employee of the Company and not in connection with the Company’s making of reps and warranties in this Agreement) will not be imputed to any other Shareholder that did not commit the Fraud; provided that the foregoing shall not alleviate the indemnification obligations of the Shareholders to any Parent Indemnified Party for Fraud committed by (x) the Company or any of its Subsidiaries or (y) any other Shareholder, or if such Shareholder had knowledge of such Fraud committed by the Company or any of its Subsidiaries, as otherwise set forth in this Article IX. (o) The waiver of any condition based upon the accuracy of any representation or warranty, or on the performance of or compliance or non-compliance with any covenant or obligation, will not affect the right to indemnification, compensation or other remedy based upon such representations, warranties, covenants and obligations. (p) Each Shareholder hereby agrees that (i) the availability of indemnification of the Parent Indemnified Parties under this Article IX shall be determined without regard to any right to indemnification, advancement, contribution or reimbursement that such Shareholder may have from the Company or any of its Subsidiaries (whether such rights may arise from or pursuant to applicable Law, Contract, the organizational documents of the Company or any of its Subsidiaries or otherwise), and (ii) such Shareholder shall not be deemed entitled to any indemnification, advancement, contribution or reimbursement from Parent, the Company or any Subsidiary of the Company, or any of their respective Affiliates for amounts for which Parent Indemnified Parties would be entitled to indemnification under this Article IX (determined without regard to any thresholds, deductibles, caps, survival periods or other limitations). (q) Notwithstanding anything in this Article IX to the contrary, if a claim may be characterized in multiple ways in accordance with this Article IX such that such claim may or may not be subject to different caps, time limitations and other limitations depending on such characterization, then an indemnified party shall have the right to characterize such claim in a manner that maximizes the recovery and time to assert claims permitted in accordance with this Article IX, and may assert the claim under multiple bases for recovery hereunder; provided, however, that the foregoing shall not be interpreted to allow double recovery for the same claim. (r) Notwithstanding the foregoing, any Parent Indemnified Party seeking indemnification shall use its reasonable best efforts to pursue recovery under the R&W Policy, directors’ and officers’ tail policy or cyber tail policy, as applicable, with respect to Damages for which they may seek to be qualified indemnified pursuant to this Article IX, only to the extent that such Damages are covered by such policies. (s) Solely to the extent required by applicable Law, each indemnified party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any materialityDamages upon becoming aware of any event or circumstance that would be reasonably expected to, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warrantydoes, give rise thereto. The reasonable costs and expenses of mitigation hereunder shall constitute indemnifiable Damages under this Agreement.

Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations: (a) The Stockholders Seller and EcoArk shall not be required liable to indemnify the Parent Buyer Indemnitees with respect to any claim for indemnification under Section 8.2(a8.02(a) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims in respect of indemnification under Section 8.02(a) exceeds an amount equal to three hundred fifty thousand dollars $50,000 ($350,000the "Basket"), in which event the Parent Indemnitees Seller and EcoArk shall be entitled required to recover pay or be liable for all such Losses only in excess thereof; provided, that from the foregoing limitation first dollar. The aggregate amount of all Losses for which Seller and EcoArk shall be liable pursuant to Section 8.02(a) shall not apply exceed $500,000 (the "Cap"). (b) Seller and EcoArk shall not be liable to the Buyer Indemnitees for indemnification under Section 8.02 where the Losses are the result of (i) a claim for indemnification acts, actions or inaction of Xxxxxxx Xxxxx and/or Xxx Xxxx prior to the extent such claim is based upon FraudClosing Date that constitute negligence or misconduct by either of them in the performance of their duties for Seller, or (ii) a claim breach of a representation or warranty of Seller contained in this Agreement, the other Transaction Documents or in any certificate or instrument delivered by or on behalf of Seller pursuant to item 3 on Schedule 8.2(g)this Agreement and Xxxxxxx Xxxxx and/or Xxx Xxxx had actual knowledge of facts and circumstances giving rise to such breach but failed to disclose such facts and circumstances to Seller prior to the Closing Date. (bc) Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 8.03(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.03(a) exceeds the Basket, in which event Buyer shall be required to pay or be liable for all such Losses from the first dollar. The sole aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.03(a) shall not exceed the Cap. Notwithstanding the foregoing, the limitations set forth in Section 8.04(a) and exclusive remedy of the Parent Indemnitees with respect Section 8.04(c) shall not apply to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7. (c) The amount by reason of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds inaccuracy in or other third party reimbursements actually received in connection with such Losses (net breach of any costs representation or expenses incurred warranty in obtaining such insuranceSection 4.01, indemnification or reimbursementSection 4.02, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)Section 4.08, Section 4.14, Section 4.16, Section 4.17, Section 5.01, Section 5.02 and Section 5.04. (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered with respect to any inaccuracy in or breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed determined without regard to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications qualification contained in or otherwise applicable to such representation or warranty.

Certain Limitations. (a) The Stockholders SP Parties shall not be required obligated to indemnify and hold harmless the Parent Indemnitees Retrocessionaire Indemnified Persons under Section 7.2(a)(i) with respect to any claim under Section 8.2(a) or Section 8.2(g) claim, unless and until the aggregate amount of all Indemnifiable Losses for such claims of the Retrocessionaire Indemnified Persons under Section 7.2(a)(i) exceeds an amount equal to three hundred fifty thousand dollars USD [*****] ($350,000the “Deductible”), in at which event point the Parent Indemnitees SP Parties shall be entitled liable to recover Losses only the Retrocessionaire Indemnified Persons for the value of claims under Section 7.2(a)(i) that are in excess thereofof the Deductible, subject to the limitations set forth in this Article VII; provided, provided that the foregoing limitation maximum aggregate liability of the SP Parties to all the Retrocessionaire Indemnified Persons for any or all Indemnifiable Losses under Section 7.2(a)(i) shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g)exceed USD [*****]. (b) The sole and exclusive remedy maximum aggregate liability of the Parent Indemnitees with respect SP Parties to all the Retrocessionaire Indemnified Persons for any or all Indemnifiable Losses due to any and breach of the covenants in Article V only under Section 7.2(a)(iii) shall not exceed USD [*****]. The maximum aggregate liability of the Retrocessionaire to all the SP Indemnified Persons for any or all Indemnifiable Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect due to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy breach of the Parent Indemnitees with respect to such Losses covenants in Article V only under Section 7.2(b)(iii) shall be via offset against the Special Indemnity Shares pursuant to Section 8.7not exceed USD [*****]. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement Each Indemnitee shall be reduced by any insurance proceeds use commercially reasonable efforts to mitigate or other third party reimbursements actually received in connection with prevent such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)Indemnifiable Losses. (d) For No Retrocessionaire Indemnified Person shall be entitled to indemnification with respect to any particular Indemnifiable Loss to the extent the related damages, losses, liabilities, obligations, costs, or expenses can be shown to have been provided for or reserved against in the calculation of the Net Premium. (e) In the event a claim or any Action for indemnification under this Article VII has been finally determined, the amount of such final determination shall be paid (i) if the Indemnitee is a Retrocessionaire Indemnified Person, by the SP Parties to the Retrocessionaire Indemnified Person and, (ii) if the Indemnitee is a SP Indemnified Person, by the Retrocessionaire to a SP Indemnified Person, in each case on demand by wire transfer of immediately available funds to an account designated by the SP Parties or the Retrocessionaire, as applicable. A claim or an Action, and the liability for and amount of damages therefor, shall be deemed to be “finally determined” for purposes of this Article VIIIVII when the Parties have so determined by mutual agreement or, for the sole purpose of determining Losses actually suffered if disputed, when a final non-appealable Order has been entered into with respect to such claim or Action. (f) Notwithstanding anything contained in this Agreement to the contrary, in the event that any fact, event, or circumstance that results in an adjustment under Section 2.4 would also constitute a breach of or inaccuracy in any representation of the SP Parties’ representations, warranties, covenants, or warranty agreements under this Agreement, the SP Parties shall have no obligation to 1008797259v13 indemnify any Retrocessionaire Indemnified Person with respect to such breach or inaccuracy provided the relevant adjustment has been made. (g) The Parties acknowledge and not for purposes of determining whether or not any breaches of representations or warranties have occurredagree that, except (i) the representations as provided in Section 2.4 and warranties in ARTICLE III shall Section 9.7(g), (ii) equitable remedies that cannot be deemed waived as a matter of law, or (iii) in the event that a Party is finally determined by a court of competent jurisdiction to have committed a fraud regarding such Party’s representations, warranties, covenants or other agreements set forth in this Agreement or in any certificate furnished in connection with the Closing, if the Closing occurs, their sole and exclusive remedy following the Closing at law or equity with respect to this Agreement, the transactions contemplated hereby, or any other matter relating to any Party or its Affiliates prior to the Closing, in each case regardless of the legal theory under which such liability or obligation may be sought to be qualified by any materialityimposed, Company Material Adverse Effect whether sounding in contract or other similar qualifications contained in tort, whether at law or otherwise applicable in equity, or otherwise, shall be pursuant to such representation or warrantythe provisions set forth in this Article VII.

Certain Limitations. (a) The Stockholders Buyer Indemnitees shall not be required entitled to indemnify the Parent Indemnitees indemnification pursuant to Section 12.3 with respect to any claim under Section 8.2(a) or Section 8.2(g) for indemnification unless and until the aggregate amount of all Losses incurred or sustained by, or imposed upon, the Buyer Indemnitees exceeds $1,000,000 (the “Deductible”). The aggregate amount of Losses for such claims exceeds an amount equal to three hundred fifty thousand dollars ($350,000), in which event the Parent Buyer Indemnitees shall be entitled to recover Losses only indemnification pursuant to this Article XII will not exceed the Indemnity Escrow Amount (the “Cap”). The Indemnity Escrow Amount then remaining in excess thereof; provided, that the foregoing limitation Indemnity Escrow Account shall not apply to (i) a serve as the sole and exclusive source of payment of any claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g)Section 12.3. Notwithstanding the foregoing, neither the Deductible nor the Cap shall apply to any Losses resulting from Fraud. (b) The sole and exclusive remedy of No individual Losses may be claimed by the Parent Buyer Indemnitees with respect to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares claim for indemnification pursuant to Section 8.6 provided12.3, however, to the extent such claim is based upon Fraud and exceeds unless the amount of Indemnity Sharessuch Losses, Parent Indemnitees may seek recovery directly from together with all other Losses arising out of the Stockholder who committed same facts and circumstances, exceeds $50,000 (the “De Minimus Basket”) (and such Fraud pursuant to Section 8.2 regarding any such excess amount; providedLosses that are less than the De Minimus Basket shall apply towards satisfaction of the Deductible). Notwithstanding the foregoing, further, however, that with respect the De Minimus Basket shall not apply to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7resulting from Fraud. (c) The amount of No Buyer Indemnitee shall be entitled to indemnification for any Losses to the extent that such matter was included or reflected in the determination of the Closing Date Net Working Capital, Closing Date Funded Debt, Closing Date Cash and Closing Date Unpaid Company Transaction Expenses and the resulting Adjustment Amount derived therefrom in accordance with Section 3.4(d), such that a Buyer Indemnitee would have already been compensated for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)Losses. (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered with respect to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warranty.

Certain Limitations. (a) The Stockholders Notwithstanding anything contained herein to the contrary, the maximum aggregate liability of Seller to all Purchaser Indemnified Parties taken together for all Purchaser Losses under Section 10.1(a) by Purchaser Indemnified Parties shall be limited to a maximum of 33?% of the Purchase Price. (b) Notwithstanding anything contained herein to the contrary, Seller shall not be required obligated to indemnify the Parent Indemnitees with respect to make any claim indemnification payment under Section 8.2(aSections 10.1(a)(i) or Section 8.2(g10.1(a)(iv) unless and until the aggregate amount of Purchaser Losses sustained by Purchaser Indemnified Parties (calculated as specified in Section 10.2(a)) for all Losses for such claims exceeds an amount equal to three hundred fifty thousand dollars that meet or exceed $100,000 (the "Minimum Claim ------------- Threshold") exceed $350,0005,000,000 (the "Deductible"), in which event the Parent Indemnitees and then any indemnification --------- ---------- with respect to Purchaser Losses shall be entitled to recover Losses made by Seller only in excess thereof; provided, that the foregoing limitation shall not apply to (i) a claim for indemnification to the extent that such claim Purchaser Losses meeting the Minimum Claim Threshold exceed the Deductible; provided that once the Deductible is based upon Fraudsatisfied, or (ii) a claim pursuant to item 3 on Schedule 8.2(g)indemnification claims meeting the Minimum Claim Threshold shall be made by Seller for the full amount of each such claim. (bc) The sole Notwithstanding anything contained herein to the contrary, Purchaser shall not be obligated to make any indemnification payment under Section 10.1(b)(i) unless and exclusive remedy of until the Parent Indemnitees aggregate Seller Losses sustained by Seller Indemnified Parties (calculated as specified in Section 10.2(a)) for all claims that meet or exceed $100,000 (the "Minimum Claim Threshold") exceed ----------------------- $5,000,000 (the "Deductible"), and then any indemnification with respect to any ---------- Seller Losses shall be made by Purchaser only to the extent that such Seller Losses meeting the Minimum Claim Threshold exceed the Deductible; provided that once the Deductible is satisfied, indemnification claims meeting the Minimum Claim Threshold shall be made by Purchaser for the full amount of each such claim. (d) The representations and all Losses based upon, arising out of, or related to warranties of Seller contained in this Agreement or shall survive for 18 months following the Contemplated TransactionsClosing Date or, shall be via offset against in the Indemnity Shares pursuant to Section 8.6 case of the Hydro Assets, for 18 months following the date of transfer of such Hydro Assets; provided, however, to that the extent such claim is based upon Fraud representations and exceeds warranties set forth in Sections 4.6(a), 4.6(c) and 4.11 and the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that representations and warranties with respect to any and all Losses based upon, arising out of, or related title contained in 4.6(b) shall survive until the expiration of the statute of limitations relating to the Special Indemnity, subject matter of such representations and warranties and that the representations and warranties set forth in Section 4.14 shall survive until the third anniversary of the Closing Date. (e) The remedies provided for in this Article X constitute the sole and exclusive remedy for claims for Purchaser Losses or Seller Losses caused by or arising out of the Parent Indemnitees with respect to such Losses shall breach of warranty or inaccurate or erroneous representation. Such claims may be via offset against the Special Indemnity Shares made only pursuant to Article X and only by written notice within the survival period of such representation and warranty provided for in Section 8.7. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery10.2(d). (df) For purposes of The obligations to indemnify and hold harmless a party hereto pursuant to this Article VIIIX shall terminate when the applicable representation and warranty terminates pursuant to Section 10.2(d); provided, for the sole purpose of determining Losses actually suffered however, that -------- ------- such obligations to indemnify and hold harmless shall not terminate with respect to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) item as to which the representations and warranties in ARTICLE III shall not be deemed person to be qualified indemnified shall have, before the expiration of the applicable period, previously made a claim by any materiality, Company Material Adverse Effect or other similar qualifications contained delivering a notice (stating in or otherwise applicable reasonable detail the basis of such claim) to such representation or warrantythe indemnifying person.

Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations: (a) The Stockholders Seller shall not be required liable to indemnify the Parent Buyer Indemnitees for indemnification under Section 8.02(a) (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any claim under inaccuracy in or breach of any representation or warranty in Section 8.2(a4.01 (Organization and Qualifications of Seller), Section 4.02 (Authority of Seller), Section 4.08 (Title to Purchased Assets), Section 4.09 (Condition and Sufficiency of Assets), Section 4.20 (Environmental Matters), Section 4.23 (Taxes) or and Section 8.2(g4.24 (Brokers) unless and (the “Buyer Basket Exclusions”)), until the aggregate amount of all Losses for such claims exceeds an amount equal to three hundred fifty thousand dollars in respect of indemnification under Section 8.02(a) ($350,000), in which event the Parent Indemnitees shall be entitled to recover Losses only in excess thereof; provided, that the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g). (b) The sole and exclusive remedy of the Parent Indemnitees with respect to any and all Losses other than those based upon, arising out of, with respect to or related by reason of the Buyer Basket Exclusions) exceeds $625,000 (the “Deductible”) (at which point Seller will be obligated to this Agreement or indemnify the Contemplated Transactions, shall be via offset against Buyer Indemnitees solely for such indemnifiable Losses in excess of the Indemnity Shares pursuant to Section 8.6 Deductible); provided, however, that Seller shall not be liable to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Buyer Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to for indemnification under Section 8.2 regarding any such excess amount; provided, further, however, that 8.02(a) (other than with respect to any the Buyer Basket Exclusions) with respect to individual indemnifiable Losses or several related indemnifiable Losses of $25,000 (the “De Minimis”) or less each, and all such indemnifiable Losses based uponshall not be counted toward the Deductible or the Cap (as defined below). Furthermore, Seller’s obligations to indemnify the Buyer Indemnitees for Losses (i) under Section 8.02(a) (other than for Losses arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses or by reason of the Buyer Basket Exclusions) shall be via offset against the Special Indemnity Shares pursuant to Section 8.7. (c) The not exceed an aggregate amount of $7,812,500 (the “Cap”) and (ii) in no event will the aggregate Liability of Seller to indemnify the Buyer Indemnitees from and against any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery). (dSection 8.02(a) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered with respect to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warranty.or

Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations: (a) The Stockholders Subject to Section 8.04(f) below, Buyer Indemnitees shall not be required indemnified pursuant to indemnify the Parent Indemnitees Section 8.02 with respect to any claim under Section 8.2(a) or Section 8.2(g) unless and until indemnifiable Loss if the aggregate amount of all payments from Sellers Parties for Losses for such claims exceeds an amount equal which Buyer Indemnitees are indemnified pursuant to three hundred fifty thousand dollars ($350,000)Section 8.02 has exceeded the Purchase Price. Notwithstanding the foregoing, in which event the Parent Buyer Indemnitees shall be entitled to recover indemnified for all indemnifiable Losses only in excess thereof; provided, of the Purchase Price that arise from or are related to fraud or a deliberate or willful breach or intentional misrepresentation on the foregoing limitation shall not apply to (i) a claim for indemnification to part of any Seller Party in connection with the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g)transactions contemplated by this Agreement. (b) The sole and exclusive remedy of the Parent Subject to Section 8.04(f) below, Seller Indemnitees shall not be indemnified pursuant to Section 8.03 with respect to any and indemnifiable Loss if the aggregate of all payments from Buyer or Advance America for Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares for which Seller Indemnitees are indemnified from Buyer pursuant to Section 8.6 provided8.03 has exceeded the Purchase Price. Notwithstanding the foregoing, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Seller Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such shall be indemnified for all indemnifiable Losses in excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees Purchase Price that arise from fraud or a deliberate or willful breach or intentional misrepresentation on the part of Buyer or Advance America in connection with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7transactions contemplated by this Agreement. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery). (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered and other than with respect to the representations and warranties set forth in Section 3.06, Section 3.08(a), Section 3.09(a)(xiii), Section 3.10(a), and Section 3.18(c), any inaccuracy in or breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed determined without regard to be qualified by any materiality, Company Material Adverse Effect Effect, or other similar qualifications qualification contained in or otherwise applicable to such representation or warranty. For all purposes of this Agreement, “Losses” shall be net of (i) any insurance or other recoveries actually received by the Indemnified Party or its Affiliates in connection with the facts giving rise to the right of indemnification, but taking into account the present value of any reasonably anticipated premium adjustments, deductibles and other costs associated therewith, and (ii) any Tax benefit actually received by the Indemnified Party or its Affiliates, net of any Tax costs actually incurred by the Indemnified Party or its Affiliates, arising in connection with the accrual, incurrence, or payment of such Losses. (d) No indemnification shall be made for any Loss already previously indemnified by payment by an Indemnifying Party to any Indemnified Party or for any Loss for which a Post-Closing Adjustment was made. (e) Notwithstanding anything herein to the contrary, no Indemnifying Party shall be required to indemnify any Indemnified Party pursuant to Section 8.02 or 8.03, as applicable, until all Losses incurred by the Indemnified Party have exceeded One Hundred Thousand Dollars ($100,000.00) (the “Indemnification Threshold”), at which point the Indemnifying Party shall be obligated to indemnify the Indemnified Party from and against all Losses relating back to the first dollar; provided, however, that the Indemnification Threshold shall not apply to any CAM charges, rent, utilities, or property taxes that are Retained Liabilities and Parent shall promptly pay all such items that are Retained Liabilities and reimburse Buyer within ten Business Days to the extent Buyer pays any such items. (f) With respect to each Seller, the obligation of such Seller and Parent to indemnify Buyer Indemnitees shall be limited to the amount of such Seller’s Indemnification Cap as shown on Schedule 8.02. Notwithstanding the foregoing, for purposes of determining whether Buyer Indemnitees have reached the Indemnification Threshold, all Losses incurred by Buyer Indemnitees shall be aggregated; Buyer Indemnitees shall not have to reach the Indemnification Threshold with respect to each Seller individually to be entitled to indemnification from such Seller.

Certain Limitations. The party making a claim under this Section 9 is referred to as the “Indemnified Party”, and the party against whom such claims are asserted under this Section 9 is referred to as the “Indemnifying Party”. The indemnification provided for in this Section 9 and shall be subject to the following limitations: (a) The Stockholders shall not be required liable to indemnify the Parent Indemnitees with respect to any claim Alarm Indemnified Parties for indemnification under Section 8.2(a9(a)(i) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims exceeds an amount equal to three hundred fifty thousand dollars $175,000 ($350,000the “Basket”), in which event the Parent Indemnitees Stockholders shall be entitled to recover Losses only in excess thereof; provided, that liable for the foregoing limitation shall not apply to (i) a claim for indemnification to the extent full amount of such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g)Losses. (b) The sole and exclusive remedy Except for claims arising out of fraud, willful breach or breach of the Parent Indemnitees with Fundamental Representations, the aggregate amount of all Losses for which all Stockholders in the aggregate shall be liable pursuant to this Section 9 shall not exceed the Escrow Amount and the recourse of the Alarm Indemnified Parties shall be solely to the Escrow Amount. With respect to any and claims arising out of fraud, willful breach or breach of the Fundamental Representations, (i) the aggregate amount of all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, for which all Stockholders shall be via offset against liable shall not exceed the Indemnity Shares pursuant to Section 8.6 providedaggregate amount of the Merger Consideration actually received by the Stockholders, however, to (ii) the extent such claim is based upon Fraud and exceeds indemnification obligation of each Stockholder shall in no event exceed the amount of Indemnity Sharesthe Merger Consideration actually received by such Stockholder, Parent Indemnitees may seek recovery directly from the and (iii) in no event shall any Stockholder who committed such Fraud pursuant to Section 8.2 regarding be liable for any such excess amount; providedindemnification obligations of any other Stockholder. Further, further, however, that with respect to any and all Losses based upon, arising out of, or related notwithstanding anything to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification under contrary in this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net the case of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery). (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered with respect to any a breach of any representation or warranty (made severally and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified jointly by any materialityStockholder in such Stockholder’s Letter of Transmittal, the indemnification obligations of the Stockholders are several and no Stockholder shall be liable for any losses suffered by Alarm as a result of any breach of such representation by any other Stockholder. Further still, in no event shall any Common Holder who acquired his or her shares by virtue of exercise of stock options pursuant to the Company Material Adverse Effect Stock Option Plan have any liability pursuant to the indemnification provisions of this Agreement or with respect to the Merger on account of such shares of common stock other than arising out of or with respect to his or her own representations, warranties and covenants expressly set forth in his or her Letter of Transmittal. To the extent a Common Holder also holds shares of Preferred Stock, such Common Holder also shall be subject to the indemnification provisions of this Agreement and other obligations of Holders of Preferred Stock set forth in this Agreement with respect to shares of Preferred Stock held by such Holder. (c) Payments by an Indemnifying Party pursuant to this Section 9 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting there from any insurance proceeds, and any indemnity, contribution or other similar qualifications payment received by the Indemnified Party (or the Company) in respect of any such claim. (d) Except in the case of a breach of representation or warranty contained in the Letter of Transmittal of each applicable Stockholder for which the Indemnified Party may pursue the applicable Stockholder directly without first making a claim against the escrow, unless and until the assets remaining in the Escrow are insufficient to satisfy the outstanding indemnification claims, all claims for indemnification by the Alarm Indemnified Parties shall first be made against the Escrow Amount. (e) Notwithstanding anything herein to the contrary, no party shall be entitled to indemnification pursuant to this Article IX for any Losses to the extent such party has been indemnified or otherwise applicable to reimbursed for such representation or warrantyLosses under any other provision of this Agreement including Section 2.3 hereof.

Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations: (a) The Stockholders Company Shareholder shall not be required liable to indemnify the Parent Indemnitees for indemnification under Section 8.02(a) (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any claim under Section 8.2(a) inaccuracy in or Section 8.2(g) unless and breach of any of the Company Surviving Representations (the “Parent’s Basket Exclusions”)), until the aggregate amount of all Losses for such claims exceeds an amount equal to three hundred fifty thousand dollars in respect of indemnification under Section 8.02(a) ($350,000), in which event the Parent Indemnitees shall be entitled to recover Losses only in excess thereof; provided, that the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g). (b) The sole and exclusive remedy of the Parent Indemnitees with respect to any and all Losses other than those based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and or by reason of the Parent’s Basket Exclusions) exceeds $100,000, in which event the Company Shareholder shall be required to pay or be liable for all such Losses in excess of such amount. (b) Parent shall not be liable to the Company Shareholder Indemnitees for indemnification under Section 8.03(a) (other than with respect to a claim for indemnification based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to or by reason of any inaccuracy in or breach of any of the Parent’s Surviving Representations (the “Company Shareholder’s Basket Exclusions”)) until the aggregate amount of all Losses in respect of indemnification under Section 8.03(a) (other than those based upon, arising out of, with respect to or by reason of the Company Shareholder’s Basket Exclusions) exceeds $100,000, in which event Parent shall be required to pay or be liable for all such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7in excess of such amount. (c) The amount Parties acknowledge and agree that the maximum liability of any Losses the Company Shareholder, on the one hand, and the Parent, on the other hand, for which the Parent Indemnitees claim indemnification under pursuant to this Agreement Article VIII shall be reduced by the sum of $1,000,000 (the “Cap”), and neither the Parent, on the one hand, nor the Company Shareholder, on the other hand, shall have any insurance proceeds or liability to the other third party reimbursements actually received in connection with such Losses (net excess of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)the Cap. (d) For purposes All liabilities and obligations of this Article VIIIthe Company Shareholder that may arise under Section 8.02(a) (“Parent Indemnification Liabilities”), for if any, will be satisfied only out of Merger Consideration received by the sole purpose Company Shareholder; and the Company Shareholder will be liable to return, transfer, and assign to Parent, irrevocably, that number of determining Losses actually suffered shares of Parent Common Stock included in the Merger Consideration, valued at the Assumed Parent Common Stock Value, as is equal in value to the Parent Indemnification Liabilities then being paid. Such return, transfer, and assignment will be deemed in full payment and satisfaction of the Parent Indemnification Liabilities with respect to which payment is being made. (e) Subject to the notice, dispute and other procedures herein, Parties hereby agree that any amounts due to Parent as required to satisfy the Company Shareholder’s indemnification obligations with respect to any breach claim for Losses required to be paid by the Company Shareholder pursuant to this Article VIII shall be paid via the delivery by the Company Shareholder to the Parent of a number of shares of Parent Common Stock equal to (1) the amount owed divided by (2) the Assumed Buyer Common Stock Value, and the Company Shareholder agrees to return to Parent the Company Shareholder’s pro rata portion of any representation or warranty (and not for purposes such required return of determining whether or not any breaches shares of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warrantyParent Common Stock.

Certain Limitations. The indemnification provided for in Section 11.2 and Section 11.3 shall be subject to the following limitations: (a) The Stockholders Seller shall not be required liable to indemnify the Parent Purchaser Indemnitees with respect to any claim for indemnification under Section 8.2(a11.2(a) or Section 8.2(g) unless and until the aggregate amount of all Losses Damages in respect of indemnification under Section 11.2(a) exceeds $2,531,250 (the “Indemnification Threshold”), and once the Indemnification Threshold has been exceeded, Seller shall only be required to pay or be liable for all such claims exceeds Damages in excess of the Indemnification Threshold. The aggregate amount of all Damages for which Seller shall be liable pursuant to Section 11.2(a) shall not exceed an amount equal to three hundred fifty thousand dollars ($350,000)which is, together with amounts recovered under the R&W Insurance Policy, in which event excess of $101,250,000 (the Parent Indemnitees shall be entitled to recover Losses only in excess thereof; provided, that the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g“Cap”). (b) The sole Purchaser shall not be liable to the Seller Indemnitees for indemnification under Section 11.3(a) until the aggregate amount of all Damages in respect of indemnification under Section 11.3(a) exceeds the Indemnification Threshold, and exclusive remedy once the Indemnification Threshold has been exceeded, Purchaser shall only be required to pay or be liable for all such Damages in excess of the Parent Indemnitees with respect Indemnification Threshold. The aggregate amount of all Damages for which Purchaser shall be liable pursuant to any Section 11.3(a) shall not exceed the Cap. (c) Notwithstanding the foregoing, the limitations set forth in Section 11.4(a) and all Losses Section 11.4(b) shall not apply to Damages based upon, arising out of, with respect to or related to this Agreement by reason of any inaccuracy in or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 breach of any representation or warranty of any Fundamental Representations; provided, however, to the extent such claim is based upon Fraud and exceeds the aggregate amount of Indemnity Shares, Parent Damages that may be recovered by the Purchaser Indemnitees may seek recovery directly or the Seller Indemnitees under Section 11.2(a) or under Section 11.3(a) arising from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out breach of, or related to misrepresentation or inaccuracy in, any Fundamental Representations shall not exceed an amount which is, together with amounts recovered under the Special IndemnityR&W Insurance Policy, the sole and exclusive remedy in excess of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)Super Cap. (d) For purposes of this Article VIIIXI, for the sole purpose of determining Losses actually suffered with respect to any inaccuracy in or breach of any representation or warranty (warranty, and not for purposes the calculation of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III Damages with respect thereto, shall not be deemed determined without regard to be qualified by any materiality, Company Seller Material Adverse Effect or Purchaser Material Adverse Effect or other similar qualifications qualification contained in or otherwise applicable to such representation or warranty. (e) The representations, warranties and covenants of the Indemnifying Party, and the Indemnified Party's right to indemnification with respect thereto, shall not be affected or deemed waived by reason of any investigation made by or on behalf of the Indemnified Party (including by any of its Representatives) or by reason of the fact that the Indemnified Party or any of its Representatives knew or should have known that any such representation or warranty is, was or might be inaccurate or by reason of the Indemnified Party's waiver of any condition set forth in Section 9.1. (f) Except in the case of fraud by the Seller, in no event shall the Purchaser Indemnitees have the right under this Agreement to recover from Seller any amount which is, together with amounts recovered under the R&W Insurance Policy, in excess of the Super Cap. (g) All Damages for which any Seller Indemnitee or Purchaser Indemnitee would otherwise be entitled to indemnification under this Article XI shall be reduced by recovery under the R&W Insurance Policy and other third-party recoveries actually received by such Seller Indemnitee or Purchaser Indemnitee in respect of any Damages incurred by such Seller Indemnitee or Purchaser Indemnitee (net of the out-of-pocket costs reasonably incurred of pursuing or obtaining such recovery). In the event any Seller Indemnitee or Purchaser Indemnitee is or may be entitled to any insurance proceeds, indemnity payments or any third-party recoveries in respect of any Damages for which such Seller Indemnitee or Purchaser Indemnitee is entitled to indemnification pursuant to this Article XI, such Seller Indemnitee or Purchaser Indemnitee shall use commercially reasonable efforts to obtain, receive or realize such proceeds, benefits, payments or recoveries; provided, however, that “commercially reasonable efforts” with respect to (i) the R&W Insurance Policy shall not include an obligation to seek “recovery” from Purchaser’s policies or programs of insurance, and (ii) any other Person shall not (x) include the commencement of any Legal Proceeding in respect of such recovery, (y) require any prolonged, continuous or repetitive efforts, and (z) include an obligation to seek recovery from any insurance carrier or program. To the extent permissible under applicable Governmental Rules and Contracts, any unsuccessful claim for recovery notwithstanding commercially reasonable efforts against a third-party that is not a customer or vendor, or a potential customer or vendor of such Seller Indemnitee or Purchaser Indemnitee, as applicable, shall be assigned in subrogation upon collection under this Agreement of the full amount of applicable Damages claimed. In the event that any such insurance proceeds, indemnity payments or other third-party recoveries are realized by a Seller Indemnitee or Purchaser Indemnitee subsequent to receipt by such Seller Indemnitee or Purchaser Indemnitee of any indemnification payment hereunder in respect of the claims to which such insurance proceeds, indemnity payments or other third-party recoveries relate, corresponding refunds shall be made promptly by the relevant Seller Indemnitee or Purchaser Indemnitee of all or the relevant portion of such indemnification payment (net of the out-of-pocket costs reasonably incurred of pursuing or obtaining such insurance proceeds, deductibles and any increased premium amounts attributable to such claim). (h) The Seller Indemnitees and Purchaser Indemnitees shall not be entitled to recover more than once for the same Damages. (i) No indemnity may be sought hereunder in respect of any Damages to the extent such Damages (but only to the extent that the amount of such Damages) is included in the calculations of the Net Working Capital, as finally determined, such that the party claiming indemnification received Purchase Price credit for such amount of Damages.

Certain Limitations. (a) The Stockholders 9.3.1 Seller shall not be required to indemnify the Parent Buyer Indemnitees with respect to any claim under for indemnification pursuant to Section 8.2(a9.1.1 (excluding any such claim with respect to a breach of any Seller Fundamental Representation with respect to which the limits set forth in clauses (i) and (ii) shall not apply): (i) for any Loss (or Section 8.2(gLosses relating to the same facts and circumstances) if the amount of such Loss is less than $100,000 (a “De Minimis Loss”); (ii) unless and until the aggregate amount of all such Losses for such claims (excluding any De Minimis Loss) exceeds an amount equal to three hundred fifty thousand dollars ($350,000)the Deductible Amount, in which event the Parent Indemnitees case Seller shall only be entitled to recover Losses only in excess thereof; provided, that the foregoing limitation shall not apply to (i) a claim responsible for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g). (b) The sole and exclusive remedy of the Parent Indemnitees with respect to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such Losses in excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Deductible Amount; provided that the aggregate liability of Seller to Buyer Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to under Section 8.7. 9.1.1 (c) The amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery). (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered excluding liability with respect to any breach of any representation Seller Fundamental Representation) shall in no event exceed the Warranty Cap. The aggregate liability of Seller to Buyer Indemnitees under Section 9.1 shall in no event exceed the Cap. 9.3.2 Buyer shall not be required to indemnify Seller Indemnitees with respect to any claim for indemnification pursuant to Section 9.2.1 (excluding any such claim with respect to a breach of any Buyer Fundamental Representation with respect to which the limits set forth in clauses (i) and (ii) shall not apply): (i) for any De Minimis Loss; and (ii) unless and until the aggregate amount of all such Losses (excluding any De Minimis Loss) exceeds the Deductible Amount, in which case Buyer shall only be responsible for the amount of such Losses in excess of the Deductible Amount; provided that the aggregate liability of Buyer to Seller under Section 9.2.1 (excluding liability with respect to any Buyer Fundamental Representation) shall in no event exceed the Warranty Cap. The aggregate liability of Buyer to Seller Indemnitees under Section 9.2 shall in no event exceed the Cap. 9.3.3 Buyer shall not be entitled to indemnification for those portions of any Losses: (i) other than in connection with Section 9.1.3, reserved or warranty accrued on the financial statements or master book referred to in Section 3.7 in a manner that permits reasonable determination as to the portion of such Loss reserved or accrued; (ii) that have arisen as a result of any act or omission by Buyer or any of its Affiliates or Representatives on or after the Closing Date (including resulting from any change in their respective accounting principles, practices or methodologies and any Losses arising from any breach of its obligations under this Agreement), provided that the foregoing shall not preclude indemnification under Section 9.1.3 except to the extent that any Covered Taxes that would otherwise have been indemnifiable thereunder result from an action of Buyer that caused Taxes (other than Taxes described in clause (viii) of the definition of Covered Taxes) that otherwise would have been in respect of a tax period beginning after the Closing Date (or the portion of the Straddle Period beginning after the Closing Date) to be a Covered Tax (except if such action, in Buyers’ reasonable discretion, was required by applicable Law); or (iii) that were taken into account (a) in respect of Taxes, in the calculation of Quasi-Indebtedness or Working Capital for purposes of determining whether the Final Purchase Price (except to the extent resulting from a breach of Section 5.1.1(e)) or not (b) in respect of any breaches other amount, in any adjustment to the Final Purchase Price pursuant to Section 2.4. For the avoidance of representations or warranties have occurred) doubt, no Indemnified Party shall be compensated more than once for the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warrantysame Loss.

Certain Limitations. (ai) The Stockholders shall Seller will not have any Liability under Section 3.3(c)(i) for any indemnification (A) for any individual Claim unless the amount with respect to such Claim exceeds $[***] (the “De Minimis Threshold”), and (B) until and unless the aggregate amount of all Claims for which Claim Notices are delivered by Buyer that exceed the De Minimis Threshold exceeds an amount equal to [***]% of the Purchase Price (the “Indemnity Deductible”), after which point Seller will only be liable for such indemnification to the extent such Claims that exceed the De Minimis Threshold exceed the Indemnity Deductible; provided, however, that the limitations on Seller’s Liability in this Section 3.3(h)(i) will not apply to: (x) Seller’s Liability for breaches of its Fundamental Representations or the representations and warranties in Section 5.1(g); (y) Seller’s Liability for breaches of any covenant to be performed at or following the Closing, and (z) Seller’s Liability under Section 3.3(c)(iii) for the Retained Obligations, Section 3.3(c)(iv) for any Seller Taxes and Section 3.3(c)(v) for the Excluded Assets. (ii) Notwithstanding anything to the contrary contained in this Agreement, Seller will not be required to indemnify the Parent Indemnitees with respect to any claim Buyer for aggregate Liabilities under Section 8.2(a3.3(c)(i) or Section 8.2(g3.3(c)(ii) unless and until the aggregate amount in excess of all Losses for such claims exceeds an amount equal to three hundred fifty thousand dollars ($350,000), in which event 10% of the Parent Indemnitees shall be entitled to recover Losses only in excess thereofPurchase Price; provided, however, that the foregoing limitation shall limitations on Seller’s Liability in this Section 3.3(h)(ii) will not apply to (iA) a claim Seller’s Liability for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g). (b) The sole and exclusive remedy of the Parent Indemnitees with respect to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery). (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered with respect to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) its Fundamental Representations and the representations and warranties in ARTICLE III shall not be deemed Section 5.1(g), (B) Seller’s Liability for breaches of any covenant to be qualified by performed at or following the Closing, and (C) Seller’s Liability under Section 3.3(c)(iii) for the Retained Obligations, Section 3.3(c)(iv) for any materiality, Company Material Adverse Effect or other similar qualifications Seller Taxes and Section 3.3(c)(v) for the Excluded Assets. (iii) Notwithstanding anything to the contrary contained in or this Agreement, Seller’s aggregate Liabilities under this Agreement will not exceed the Purchase Price. (iv) The obligations set forth in Sections 3.3(b) and 3.3(c) will not apply to (A) any amount that was taken into account as an adjustment to the Purchase Price pursuant to the provisions hereof, (B) except as otherwise applicable provided in this Agreement, any Party’s costs and expenses with respect to such representation or warrantythe negotiation and consummation of this Agreement and the purchase and sale of the Assets, and (C) any amount that would result in a double recovery.

Certain Limitations. The indemnification provided for in Section 9(b) and Section 9(c) shall be subject to the following limitations: 66 (ai) The Stockholders Seller shall not be required liable to indemnify the Parent Buyer Indemnitees with respect to any claim for indemnification under Section 8.2(a9(b)(i) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims in respect of indemnification under Section 9(b)(i) exceeds an amount equal to three hundred fifty thousand dollars one percent ($350,0001%) of the Premium (the “Basket”), in which event the Parent Buyer Indemnitees shall be entitled required to recover pay and be liable for all Losses only in excess thereofup to the Basket and Seller shall be required to pay and be liable for all such Losses that equal or exceed the Basket; provided, however, that the foregoing limitation aggregate amount of all Losses for which Seller shall be liable, in the aggregate, pursuant to Section 9(b)(i) shall not exceed Seven Hundred Fifty Thousand Dollars ($750,000) (the “Cap”). For the avoidance of doubt, the Cap does not include any Losses paid by Buyer up to the Basket. (ii) Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 9(c)(i) until the aggregate amount of all Losses in respect of indemnification under Section 9(c)(i) exceeds the Basket, in which event the Seller Indemnitees shall be required to pay and be liable for all Losses up to the Basket and Buyer shall be required to pay and be liable for all such Losses that equal or exceed the Basket; provided, however, that the aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 9(c)(i) shall not exceed the Cap. For the avoidance of doubt, the Cap does not include any Losses paid by Seller up to the Basket. (iii) Notwithstanding the foregoing, Section 9(d)(i) and Section 9(d)(ii) shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, Losses under Section 9(b)(i) or (iiSection 9(c)(i) a claim pursuant to item 3 on Schedule 8.2(g). (b) The sole and exclusive remedy of the Parent Indemnitees with respect to any and all Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Fundamental Representations, Losses arising out of or related to this Agreement any fraud or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out ofintentional misrepresentation, or related to the Special Indemnityany Losses under Section 9(b)(iii) and Section 9(c)(ii), the sole and exclusive remedy of the Parent Indemnitees with respect to instead such Losses shall be via offset against not in the Special Indemnity Shares pursuant aggregate with all other Losses under Section 9(b)(i) or Section 9(c)(i), as applicable, exceed an amount equal to Section 8.7the Purchase Price; or (ii) attorneys’ fees and costs. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery). (div) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered with respect to Section 9 any inaccuracy in or breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed determined with respect to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications qualification, but once there is such inaccuracy or breach, the amount of any resulting Losses shall be calculated without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty.

Certain Limitations. The liability of Seller or Buyer, as applicable, for claims under this Agreement shall be limited by the following: (a) The Stockholders If the Closing shall not be required have occurred, recovery of Buyer pursuant to indemnify the Parent Indemnitees with respect to any claim under Section 8.2(a) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims exceeds an amount equal to three hundred fifty thousand dollars ($350,000), in which event the Parent Indemnitees 11.1 shall be entitled limited to recover Losses only actual out-of-pocket expenses and shall in excess thereof; providedno event include any special, that the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraudindirect, incidental or (ii) a claim pursuant to item 3 on Schedule 8.2(g)consequential damages whatsoever. (b) The sole two (2) years after the Closing Date, except for obligations in respect of payment of taxes and exclusive remedy of compliance with ERISA requirements which shall continue for their respective statutory periods following the Parent Indemnitees Closing Date, and except for Seller's obligation to indemnify Buyer under Section 11.1(c) with respect to any and all Losses based uponthe claims made by the USEPA regarding the Florida Petroleum Reprocessors, arising out ofDavie, Florida Site (the "Florida Petroleum Reprocessor Site") Seller shall have no further obligations under this Article 11 or related to this Agreement or the Contemplated Transactionsotherwise, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that except for Damages in each case with respect to any and all Losses based upon, arising out of, or related to which the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect Buyer Indemnitee has given Seller written notice prior to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7date. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification Damages otherwise recoverable under this Agreement Article 11 shall be reduced to the extent to which any Federal, state, local or foreign tax liabilities of the Seller Indemnitee or Buyer Indemnitee, as applicable, or any of their respective Affiliates is decreased by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net reason of any costs Damage in respect of which such Seller Indemnitee or expenses incurred in obtaining such insuranceBuyer Indemnitee, indemnification or reimbursementas applicable, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)shall be entitled to indemnity under this Agreement. (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered No Damages shall be asserted by a Seller Indemnitee or Buyer Indemnitee with respect to any breach matter which is covered by insurance, to the extent proceeds of any representation such insurance are paid. (e) Except in respect of the matters set forth in Sections 11.1 (c) and (d) and 11.2 (b) hereof, (i) no claim or warranty (claims shall be asserted by a Seller Indemnitee or Buyer Indemnitee pursuant to the provisions of this Article 11 unless the amount of such Indemnitee's Damages equals at least $250,000 in the aggregate and not for purposes of determining whether or not any breaches of representations or warranties have occurred) then only to the representations and warranties extent such Damages exceed $250,000 in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warranty.the aggregate; and

Certain Limitations. The liability of Sellers or Buyer, as applicable, for claims under this Agreement shall be limited by the following: (a) The Stockholders At any time after the applicable Survival Date for a representation and warranty, (i) Sellers shall not be required to indemnify the Parent Indemnitees have no further obligations under this Article IX for breaches of such representations and warranties of Sellers, except for Damages with respect to any claim under Section 8.2(a) or Section 8.2(g) unless which Buyer Indemnitee has timely given Sellers written notice prior to such date in accordance with Sections 8.1 and until the aggregate amount of all Losses for such claims exceeds an amount equal to three hundred fifty thousand dollars ($350,000), in which event the Parent Indemnitees shall be entitled to recover Losses only in excess thereof; provided, that the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or 9.3 and (ii) a claim pursuant Buyer shall have no further obligations under this Article IX for breaches of such representations and warranties of Buyer, except for Damages with respect to item 3 on Schedule 8.2(g)which Seller Indemnitee has given Buyer written notice prior to such date in accordance with Sections 8.1 and 9.3. (b) The sole and exclusive remedy of Notwithstanding anything to the Parent Indemnitees contrary herein, except with respect to Fraud Claims, any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset claim by a Buyer Indemnitee against the Indemnity Shares Sellers pursuant to Section 8.6 9.1(a) shall be payable by Sellers only in the event that Damages for any single breach of the representations, warranties and covenants exceeds Twenty Thousand Dollars ($20,000) (the “Per Occurrence Threshold”) and the accumulated amount of Damages in respect of Sellers’ obligations to indemnify the Buyer Indemnitees under this Agreement shall exceed One Hundred Thousand Dollars ($100,000) in the aggregate (the “Seller Indemnification Threshold”); provided, however, that at such time as the aggregate amount of Damages in respect of the indemnity obligations of Sellers shall exceed the Seller Indemnification Threshold, Seller shall thereafter be liable for all Damages suffered or incurred by the Buyer Indemnitees in excess of such Seller Indemnification Threshold, subject to the extent maximum aggregate liability cap set forth in Section 9.5(c) below. The foregoing notwithstanding, for purposes of determining the Per Occurrence Threshold, a breach of a representation and warranty set forth in Section 3.16 related to Inventory shall be considered a single breach if such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly breach arises from the Stockholder who committed same root cause even if such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy breach affects more than one item of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7Inventory. (c) The amount Notwithstanding anything to the contrary herein, except with respect to Fraud Claims (for which there shall be no limitation), in no event shall the maximum aggregate liability of Sellers in respect of any Losses claims by Buyer Indemnitees against Sellers pursuant to Section 9.1(a) for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced Damages suffered or incurred by any insurance proceeds or other third party reimbursements actually received in connection with such Losses Buyer Indemnitees exceed Eighteen Million Dollars (net $18,000,000) of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recoverythe value of the Purchase Price (as adjusted pursuant to Section 2.4). (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered Except with respect to any breach of any representation or warranty (Fraud Claims, a Buyer Indemnitee’s right to make a claim for indemnification under Sections 9.1(b), 9.1(c), 9.1(d) and not for purposes of determining whether or not any breaches of representations or warranties have occurred9.1(e) the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable expire with respect to such representation claims which are not made on or warrantyprior to the date five (5) years following the Closing Date. (e) IN NO EVENT THAT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, WHETHER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY ANCILLARY AGREEMENT, BREACH OF WARRANTY, AN EXCLUDED LIABILITY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHER TORT. FURTHERMORE, ANY DAMAGES PURSUANT TO ARTICLE IX RELATED TO INVENTORIES SHALL BE LIMITED TO THE AMOUNT PAID FOR SUCH INVENTORIES PURSUANT TO THIS AGREEMENT.

Certain Limitations. The indemnification provided for in Section 9.02, Section 9.03 and Section 9.04 shall be subject to the following limitations: (a) The Stockholders Seller and the Company shall not be required liable to indemnify the Parent Buyer Indemnitees with respect to any claim for indemnification under Section 8.2(a9.02(a) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims in respect of indemnification under Section 9.02(a) exceeds an amount equal to three hundred fifty thousand dollars $50,000 ($350,000the “Basket”), in which event the Parent Indemnitees Seller and Company shall be entitled required to recover pay or be liable for all such Losses only in excess thereof; provided, that the foregoing limitation shall not apply to (i) a claim for indemnification subject to the extent such claim is based upon Fraud, or (iilimitations contained in Section 9.05(d) a claim pursuant to item 3 on Schedule 8.2(gand Section 9.05(e)) from the first dollar. (b) The sole and exclusive remedy Seller shall not be liable to the Buyer Indemnitees for indemnification under Section 9.03(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.03(a) exceeds the Parent Basket, in which event Seller shall be required to pay or be liable for all such Losses (subject to the limitations contained in Section 9.05(e)) from the first dollar. (c) Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 9.04(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.04(a) exceeds the Basket, in which event Buyer shall be required to pay or be liable for all such Losses from the first dollar. (d) Company shall not be liable to the Buyer Indemnitees for indemnification under Section 9.02(a) to the extent the aggregate amount of all Losses in respect of indemnification under Section 9.02(a) exceeds the Company Purchase Price. (e) Seller shall not be liable to the Buyer Indemnitees for indemnification under Section 9.02, except for under Section 9.02(b) with respect to any covenants, agreements or obligations to be performed on or prior to the Closing Date or Section 9.03, except for under Section 9.03(b) with respect to covenants, agreements or obligations to be performed on or prior to the Closing Date, to the extent the aggregate amount of all Losses of the Buyer Indemnitees in respect of indemnification under Section 9.02, except for under Section 9.02(b) with respect to covenants, agreements or obligations to be performed on or prior to the Closing Date or Section 9.03, except for under Section 9.03(b) with respect to covenants, agreements or obligations to be performed on or prior to the Closing Date, exceeds Ten Thousand Dollars ($10,000.00). (f) Notwithstanding the foregoing, the limitations set forth in Section 9.05(a), Section 9.05(c), and all Section 9.05(d) and Section 9.05(e) shall not apply to Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7. (c) The amount by reason of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds inaccuracy in or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery). (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered with respect to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III with respect to Fundamental Representations, but provided that Seller shall not be deemed liable to be qualified the Buyer Indemnities for indemnification under Section 9.02(a) solely for or by reason of any materiality, Company Material Adverse Effect or other similar qualifications contained inaccuracy in or otherwise applicable to such breach of any representation or warrantywarranty with respect to Fundamental Representations set forth in Article III to the extent the aggregate amount of all such Losses solely for or by reason of any inaccuracy in or breach of any representation or warranty with respect to Fundamental Representations set forth in Article III exceeds fifty percent (50%) of the Vicis Purchase Price and Company shall not be liable to the Buyer Indemnitees for indemnification under Section 9.02(a) solely for or by reason of any inaccuracy in or breach of the representation or warranty set forth in Section 3.26 to the extent the aggregate amount of all Losses solely for or by reason of any inaccuracy in or breach of the representation or warranty set forth in Section 3.26 exceeds the Company Purchase Price.

Certain Limitations. The party making a Claim under this ARTICLE VII is referred to as the “Indemnified Party”, and the party against whom such Claims are asserted under this Article VII is referred to as the “Indemnifying Party”. The indemnification provided for in Section 7.02 and Section 7.03 shall be subject to the following limitations: (a) The Stockholders Other than (i) in the event of actual fraud or willful intent to deceive, or (ii) in connection with any indemnification obligation relating to Taxes, the Shareholders shall not be required liable to indemnify the Parent Buyer Indemnitees with respect to any claim for indemnification under Section 8.2(a7.02(a)(i) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims in respect of indemnification under Section 7.02(a)(i) exceeds an amount equal to three hundred fifty thousand dollars $50,000 ($350,000the “Deductible”), in which event the Parent Indemnitees Shareholders shall only be entitled required to recover pay or be liable for Losses only in excess thereof; provided, that of the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g)Deductible. (b) The sole and exclusive remedy In the absence of actual fraud or willful intent to deceive by a Shareholder, the maximum aggregate amount of the Parent liability of such Shareholder and of all of the Shareholders for Losses incurred or sustained by, or imposed upon, Buyer Indemnitees with respect to any and all Losses based upon, arising out of, with respect to or related to by reason of any and all breach or inaccuracy of: (i) any representations or warranties of the Company contained in this Agreement (other than the Surviving Company Reps for which the restrictions set out in this Section 7.04(b)(i) shall not apply), and/or any failure to perform any covenant hereunder (other than Section 5.07A, Section 5.08 and Section 5.14 for which the breaching Shareholder shall have sole liability and for which the restrictions set out in this Section 7.04(b)(i) shall not apply), is the amount of funds available in the Escrow under the Escrow Agreement at the time the Third-Party Claim or Direct Claim is made in accordance with this Agreement, it being acknowledged that since the Contemplated TransactionsFounders are funding the Indemnity Escrow and Founder Retention Escrow, the liability of the remaining Shareholders for any and all breach or inaccuracy of the representations and warranties set forth in this Agreement (other than in respect of the Surviving Company Reps), shall be via offset against limited to the Indemnity Shares pursuant Holdback Amount in the absence of actual fraud or willful intent to Section 8.6 deceive by such Shareholder, provided, however, however that if such Third-Party Claim or Direct Claim is made in accordance with this Agreement following the first (1st) anniversary of the Closing Date but prior to the extent such claim is based upon Fraud and exceeds second (2nd) anniversary of the Closing Date, then the maximum aggregate amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy liability of the Parent Indemnitees with respect to Founders for any such Losses shall be via offset against the Special Indemnity Shares sum of (1) the amount of funds available in the Escrow under the Escrow Agreement at the time the Third-Party Claim or Direct Claim is made, plus (2) any amount previously released or required to be released to such Founders pursuant to Section 8.71.05(d)(i); and (ii) without limiting the provisions of Section 7.04(b)(i), the Surviving Company Reps, the Surviving Shareholder Reps made by such Shareholder or the representations or warranties made by such Shareholder under Section 7.02(b)(i) and any closing certificate delivered pursuant to Section 6.02(d)(i) or otherwise required to be presented by such Shareholder at Closing, shall not exceed the proceeds received by such Shareholder from the sale of such Shareholder's Shares to the Buyer (after giving effect to any prior Claims paid and to the extent applicable, amounts forfeited pursuant to Section 1.05(c) and this Section 7.04(b)(i), by such Shareholder). (c) The amount Payments by an Indemnifying Party pursuant to Section 7.02 or Section 7.03 in respect of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by limited to the amount of Losses that remain after deducting therefrom any insurance proceeds and any indemnity, contribution or other third party reimbursements similar payment actually received by the Indemnified Party (or the Company) in connection with such Losses (net respect of any such Claim (after deducting therefrom the amount of the reasonable out-of-pocket costs or and expenses incurred by such Indemnified Party in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from procuring such recovery). In any case where an Indemnified Party actually receives any insurance proceeds and any indemnity, contribution or other similar payment in respect of a matter for which such Indemnified Party was previously indemnified hereunder, such Indemnified Party shall promptly pay over to the Indemnifying Party the amount so received (after deducting therefrom the amount of the reasonable out-of-pocket costs and expenses, incurred by such Indemnified Party in procuring such recovery), but not in excess of the aggregate amount previously paid by the Indemnifying Party to the Indemnified Party hereunder in respect of such matter. (d) For purposes Payments by an Indemnifying Party pursuant to Section 7.02 or Section 7.03 in respect of any Losses shall be reduced by an amount equal to any net Tax benefit actually realized in cash or applied against cash Taxes payable arising from (and that would not have arisen but for) the payment or incurrence of any such Losses. In furtherance (and without duplication) of the immediately preceding sentence, to the extent that the Claim with respect to which an indemnity obligation arises has not given rise to an actual net Tax benefit in a prior year or in the year in which the indemnity payment is to be made, but gives rise to an actual net Tax benefit payable with respect to the Indemnified Party in any of the tax years following the payment or incurrence of such Losses, the Indemnified Party shall pay to the Indemnifying Party an amount equal to the net Tax benefit within twenty (20) business days after such Tax benefit is actually received in cash or is applied against cash Taxes payable if such benefit is actually realized after the indemnity payment is made. Notwithstanding any other provision of this Agreement, the obligations under this Section 7.04(d) shall survive until the exhaustion or expiration of any carryforward or other Tax attribute that was created by a Loss and that could result in a net Tax benefit. (e) Other than in the event of actual fraud or willful intent to deceive, in no event shall any Indemnifying Party be liable to any Indemnified Party for any Excluded Damages. (f) Each Indemnified Party shall take, and cause its Affiliates to take, reasonable steps to mitigate any Losses upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, provided that an Indemnified Party shall not be required to incur any costs or expenses for the purpose of mitigating such Losses or remedying the breach that gives rise to such Losses unless the Indemnifying Party agrees to cover such costs and expenses. (g) The Shareholders shall not be liable under this ARTICLE VII for any Losses to the extent said Losses are reflected as a liability in the calculation of Net Working Capital, as finally determined in the Final Closing Statement. Following the determination of Net Working Capital, Shareholders shall have no liability under this ARTICLE VII for a breach of the representations contained in Section 2.20. (h) If a Buyer Indemnitee is entitled to indemnification under more than one clause or subclause of this Article VIII, for the sole purpose of determining Losses actually suffered VII with respect to any breach Losses, then the Buyer Indemnitees shall be entitled to only one indemnification or recovery for such Losses to the extent it arises out of any representation or warranty the same circumstances and events; it being understood that this sentence is solely to preclude a duplicate recovery by Buyer Indemnitees (and not for purposes i.e. recovery in excess of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warrantyLosses).

Certain Limitations. The indemnification provided for in Section 6.2 and Section (a) The Stockholders Sellers shall not be required liable to indemnify the Parent Purchaser Indemnitees with respect to any claim for indemnification under Section 8.2(a6.2(a) or Section 8.2(g) unless and until the aggregate amount of all Losses in respect of indemnification under Section 6.2(a) exceeds $200,000, exclusive of claims or groups of related claims for such claims exceeds an amount equal to three hundred fifty thousand dollars Losses not exceeding $10,000 ($350,000the “Deductible”), in which event case the Parent Indemnitees Sellers shall be entitled to recover liable under Section 6.2(a) only for such Losses only in excess thereof; provided, that exceed the foregoing limitation Deductible. The Purchaser shall not apply be liable to (i) a claim Seller Indemnitees for indemnification to under Section 6.3(a) until the extent aggregate amount of all Losses in respect of indemnification under Section 6.3(a) exceeds the Deductible, in which case the Purchaser shall be liable under Section 6.3(a) only for such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g)Losses that exceed the Deductible. (b) The sole and exclusive remedy of the Parent Purchaser Indemnitees shall not be entitled to indemnification pursuant to Section 6.2(a) with respect to any and all aggregate Losses based upon, arising out of, or related in excess of an amount equal to this Agreement or $4,350,000 (the Contemplated Transactions, “General Cap”). The Purchaser Indemnitees shall not be via offset against the Indemnity Shares entitled to indemnification pursuant to Section 8.6 provided, however, 6.2(b) or Section 6.2(c) with respect to the extent such claim is based upon Fraud and exceeds the aggregate Losses in excess of an amount of Indemnity Shares, Parent equal to $43,500,000. Seller Indemnitees may seek recovery directly from the Stockholder who committed such Fraud shall not be entitled to indemnification pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that 6.3(a) with respect to any and all aggregate Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy in excess of the Parent General Cap. Seller Indemnitees shall not be entitled to indemnification pursuant to Section 6.3(b) or Section 6.3(c) with respect to such aggregate Losses shall be via offset against the Special Indemnity Shares pursuant in excess of an amount equal to Section 8.7$43,500,000. (c) Notwithstanding anything to the contrary in this Agreement or any other Transaction Document, there shall be no deductible, cap or other limitation or restriction on, and nothing herein shall impair, any claim based upon fraud, intentional misrepresentation or willful misconduct. (d) The Purchaser Indemnitees will not be indemnified, and the Sellers will have no liability hereunder, for (i) any Losses to the extent of any amount with respect thereto that is set forth on the Closing Statement, the Closing Payoff Certificate or Section 2.5(b) of the Disclosure Schedule and taken into account as a deduction in determining the Closing Cash Consideration or (ii) any Losses constituting punitive damages except to the extent actually awarded to a third party. (e) The amount of any Losses for which the Parent Indemnitees claim indemnification is provided under this Agreement Section 6.2 or Section 6.3 shall be reduced by (i) any amounts that are actually recovered by the Indemnified Party from any third party with respect to such Losses and (ii) any insurance proceeds or other third party reimbursements cash receipts or source of reimbursement that are actually received in connection by an Indemnified Party with respect to such Losses (net of reasonable costs of recovery or collection and any costs retention or expenses incurred deductible related to an insurance claim in obtaining respect of Losses thereof); provided, however, that no Indemnified Party shall have any obligation to claim, seek or otherwise obtain any such insurancethird party recoveries or insurance proceeds or other reimbursement to which it may be entitled. (f) With respect to any claim brought by a the Purchaser Indemnitee against any Seller relating to this Agreement, the Sellers expressly waive any right of subrogation, contribution, advancement, indemnification or reimbursement, including other claim against any increases in insurance premiums or retro-premium adjustments resulting from such recovery). (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered Purchaser Indemnified Party with respect to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified amounts owed by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable Seller to such representation or warrantyany the Purchaser Indemnitee.

Certain Limitations. Notwithstanding anything to the contrary contained herein, the indemnification provided for in Section 8.2 and Section 8.3 shall be subject to the following limitations: (a) The Stockholders Sellers shall not be required liable to indemnify the Parent Buyer Indemnitees with respect to any claim for indemnification under Section 8.2(a) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims in respect of indemnification under Section 8.2(a) exceeds an amount equal to three hundred fifty thousand dollars $337,500 ($350,000the “Deductible”), in which event the Parent Indemnitees Seller Indemnitors shall only be required to pay or be liable for Losses in excess of the Deductible. The aggregate amount of all Losses for which the Seller Indemnitors shall be entitled liable pursuant to recover Losses only in excess thereof; provided, that the foregoing limitation Section 8.2(a) shall not apply to exceed $337,500 (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g“Cap”). (b) The sole and exclusive remedy of Notwithstanding the Parent Indemnitees with respect foregoing, the limitations set forth in Section 8.4(a) shall not apply to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to or by reason of any and inaccuracy in or breach of any Fundamental Representation or any Seller Fraud. The aggregate amount of all Losses based upon, arising out of, or related to for which the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses Seller Indemnitors shall be via offset against the Special Indemnity Shares liable pursuant to Section 8.7this Article VIII (excluding any claims based on any Seller Fraud) shall not exceed the Purchase Price. (c) The amount None of the parties will have any liability to another party under this Article VIII for any Loss to the extent (i) that the aggrieved party has actually recovered such Loss under any insurance policy (including, in the case of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced recovery by any insurance proceeds or other third party reimbursements actually received Buyer Indemnitees, the Rep & Warranty Policy) (solely to the extent of such “double recovery”), but net of costs collection and, in the case of recoveries from insurers, net of the deductible and any premiums increased for such policies as a result of such claim. In addition, in the event that any Losses are reasonably likely to be recovered by Buyer under the Rep & Warranty Policy in connection with any breach of any representations and warranties of Seller in Article III of this Agreement in an amount that exceeds the Rep & Warranty Policy Retention Amount, then Buyer shall not be entitled to bring any indemnification claim hereunder with respect to such claim for Loss in excess of the Rep & Warranty Policy Retention Amount until such time that Buyer has submitted a claim for such breach in accordance with the terms of the Rep & Warranty Policy. In addition, none of the parties will have any liability to another party under this Article VIII for any Loss to the extent that such amount was expressly included in the Final Working Capital or otherwise expressly included in the calculation of the Adjusted Closing Payment, as finally determined pursuant to Section 2.2 if the effect thereof was to reduce dollar-for-dollar the amount of the Final Working Capital and/or the Adjusted Closing Payment, as applicable, as compared to what it would have been absent such adjustment (with the intent of the provision to merely avoid “double counting”); provided, however, that for the avoidance of doubt, the foregoing shall not limit any claim for Losses arising out of or resulting from the claim giving rise to such Losses (net by a dollar-for-dollar reduction in the Final Working Capital and/or the Adjusted Closing Payment, as applicable, in accordance with the terms of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)this Article VIII. (d) For purposes The amount of any liability of the Sellers under Section 5.11 or this Article VIII, for the sole purpose of determining Losses actually suffered VIII with respect to any breach Loss of the Foreign Companies (the “Foreign Company Losses”) shall be reduced by the amount of any representation actual net reduction in cash payments for income Taxes realized by the parent entity of Buyer or warranty its controlled Affiliates (the “Buyer Group”) as a result of the Foreign Company Losses giving rise to such indemnification payment. If the indemnification payment is paid prior to the Buyer Group realizing any actual reduction in cash payments for income Taxes in connection with the Foreign Company Losses giving rise to such payment, and the Buyer Group subsequently realizes such actual reduction in cash payments for income Taxes within or with respect to the taxable year in which the Foreign Company Losses arise, then the Buyer shall pay the amount of such actual reduction in cash payments for Taxes to the Sellers in cash within ten (10) days of the Buyer Group’s realization of such actual reduction in cash payments for income Taxes (but not for in excess of the indemnification payment received from the Sellers with respect to such Foreign Company Losses). For purposes of determining whether or not any breaches of representations or warranties have occurredthe preceding two sentences, (i) the representations Buyer Group shall be deemed to have realized an actual reduction in cash payments for income Taxes with respect to a taxable year if, and warranties to the extent that, the Buyer Group’s cumulative liability for income Taxes from the Closing Date through the end of such taxable year, calculated by excluding any Tax items attributable to the Foreign Company Losses and the receipt of any related indemnification payment for all taxable years, exceeds the Buyer Group’s actual cumulative liability for Taxes through the end of such taxable year, calculated by taking into account any Tax items attributable to the Foreign Company Losses and the receipt of any related indemnification payment for all taxable years (to the extent permitted by relevant Tax law and treating such Tax items as the last items claimed for any taxable year). (e) Notwithstanding anything to the contrary in ARTICLE III this Agreement, the Seller Indemnitors shall not be deemed liable for any Losses relating to be qualified by any materialityTaxes, Company Material Adverse Effect Tax positions or other similar qualifications contained Tax attributes in taxable periods (or otherwise applicable to such representation or warrantyportions thereof) beginning after the Closing Date.

Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations: (a) The Stockholders Other than with respect to Losses resulting from Fraud or a breach of Fundamental Representations, Seller and the Seller Related Parties shall not be required liable to indemnify the Parent Buyer Indemnitees with respect to any claim for indemnification under Section 8.2(a8.02(a) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims in respect of indemnification under Section 8.02(a) exceeds an amount equal to three hundred fifty thousand dollars $796,250 ($350,000the “Deductible”), in which event Seller and Seller Related Parties in the Parent Indemnitees aggregate shall be entitled required to recover pay or be liable only for all such Losses only in excess thereof; providedof the Deductible. Other than with respect to Losses resulting from Fraud or a breach of Fundamental Representations, that the foregoing limitation shall not apply to (i) a claim for any amount of Losses payable to any Buyer Indemnitee in respect of indemnification to under Section 8.02(a) shall be paid solely and exclusively from the extent such claim is based upon Fraud, or Indemnification Escrow Fund in accordance with the terms hereof and of the Escrow Agreement; and (ii) a claim Seller’s and Seller Related Parties’ liability for indemnification of Losses pursuant to item 3 on Schedule 8.2(gSection 8.02(a) shall be limited, in the aggregate, to the Indemnification Escrow Fund (the “Cap”). Notwithstanding anything contained herein to the contrary Seller and Seller Related Parties maximum aggregate liability for indemnification for Losses in respect of indemnification under Section 8.02(a), including from a breach of any Fundamental Representation, or Article VI (other than Losses resulting from Fraud), shall not exceed, in the aggregate, the Base Purchase Price. (b) The sole and exclusive remedy Without limiting the effect of any other limitation contained in this Article VIII, for purposes of computing the Parent Indemnitees with respect to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7. (c) The amount of any Losses for which incurred by the Parent Buyer Indemnitees claim indemnification under this Agreement Article VIII, there shall be reduced by deducted an amount equal to the amount of any insurance proceeds proceeds, indemnification payments, contribution payments or other third party reimbursements actually received by Buyer Indemnitees in connection with such Losses or any of the circumstances giving rise thereto (it being understood that the Buyer Indemnitees shall use commercially reasonable efforts to obtain such proceeds, payments or reimbursements, but the possibility of recovering such amounts shall in no way delay the resolution or payment of any indemnification under this Article VIII), net of any costs or and expenses incurred by the Buyer Indemnitees in obtaining connection with such insurancerecoveries. If the Buyer Indemnitees receive any insurance proceeds, indemnification payments, contribution payments or reimbursement, including reimbursements for any increases in insurance premiums or retro-premium adjustments resulting from such recovery). (d) For purposes of Losses subsequent to an applicable indemnification payment under this Article VIII, then such member of the Buyer Indemnitees shall promptly reimburse Seller for any indemnification payment previously made up to the sole purpose of determining Losses actually suffered with respect to any breach amount received by the Buyer Indemnitees, net of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) expenses incurred by the representations and warranties Buyer Indemnitees in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to collecting such representation or warrantyamount.

Certain Limitations. The indemnification provided for in Sections 9.2 and 9.3 shall be subject to the following limitations: (a) The Stockholders aggregate amount of all Losses for which the Parent Shareholder Indemnitees shall be indemnified pursuant to Section 9.2 shall not be required exceed an amount equal to seventy-five million dollars $75,000,000 (the “Cap”). (b) Notwithstanding any other provision of this Agreement, Parent shall not have any obligation to indemnify the any Parent Indemnitees with respect Shareholder Indemnitee pursuant to any claim under Section 8.2(a) or Section 8.2(g) 9.2, unless and until the aggregate amount of all such individual Losses for incurred or sustained by all Parent Shareholder Indemnitees with respect to which the Parent Shareholder Indemnitees would otherwise be entitled to indemnification under Section 9.2 exceeds five million dollars $5,000,000 (the “Threshold Amount”), and then only to the extent such claims exceeds Losses exceed the Threshold Amount. Only Losses that exceed an amount equal to three one hundred fifty thousand dollars $100,000 ($350,000), in which event the Parent Indemnitees “Minimum Loss Amount”) shall be entitled to recover Losses only in excess thereof; provided, that the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g). (b) The sole and exclusive remedy counted towards satisfaction of the Parent Indemnitees with respect to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7Threshold Amount. (c) The aggregate amount of any all Losses for which the Parent Company Shareholder Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)indemnified pursuant to Section 9.3 shall not exceed an amount equal to the Cap. (d) Notwithstanding any other provision of this Agreement, Parent shall not have any obligation to indemnify any Company Shareholder Indemnitee pursuant to Section 9.3 unless and until the aggregate amount of all such individual Losses incurred or sustained by all Company Shareholder Indemnitees with respect to which the Company Shareholder Indemnitees would otherwise be entitled to indemnification under Section 9.3 exceeds the Threshold Amount, and then only to the extent such Losses exceed the Threshold Amount. (e) For purposes of this Article VIII, for determining the sole purpose of determining Losses actually suffered with respect to any breach amount of any Losses that are the subject matter of a claim for indemnification hereunder, each representation or and warranty (in this Agreement shall be read without regard and not for purposes of determining whether or not any breaches of representations or warranties have occurred) without giving effect to the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materialityterms “material”, Company “Material Adverse Effect Effect” or other any similar qualifications contained in or otherwise applicable to qualifier, as if such words and surrounding related words were deleted from such representation or and warranty.

Certain Limitations. The liability of Vendor or Purchaser, as applicable, for claims under this Preliminary Agreement shall be limited by the following: (a) The Stockholders At any time after the Survival Date, (i) Vendor shall not be required to indemnify the Parent Indemnitees have no further obligations under this Article XVI for breaches of representations and warranties of Vendor, except for Damages with respect to any claim under which the Purchaser Indemnitee has given Vendor written notice prior to such date in accordance with Section 8.2(a) or Section 8.2(g) unless 16.3 above; and until the aggregate amount of all Losses for such claims exceeds an amount equal to three hundred fifty thousand dollars ($350,000), in which event the Parent Indemnitees shall be entitled to recover Losses only in excess thereof; provided, that the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant the Purchaser shall have no further obligations under this Article XVI for breaches of representations and warranties of the Purchaser, except for Damages with respect to item 3 on Schedule 8.2(g)which Vendor Indemnitee has given the Purchaser written notice prior to such date in accordance with Section 16.3. (b) The sole and exclusive remedy of Notwithstanding anything to the Parent contrary herein, Purchaser Indemnitees with respect shall not be entitled to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares recover Damages from Vendor pursuant to Section 8.6 16.1 unless and until the accumulated aggregate amount of Damages in respect of any Development Company shall exceed an amount which is the equivalent of E125,000 (the "VENDOR INDEMNIFICATION THRESHOLD"); provided, however, to that at such time as the extent such claim is based upon Fraud and exceeds the aggregate amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with Damages in respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent indemnity obligations of Vendor shall exceed Vendor Indemnification Threshold, Vendor shall thereafter indemnify any of the Purchaser Indemnitees with respect to such Losses shall be via offset from all and against the Special Indemnity Shares pursuant to Section 8.7all Damage in excess of equivalent E10,000. (c) The Notwithstanding anything to the contrary herein, in the absence of fraud or willful breach of this Preliminary Agreement (for which there shall be no limitation), in no event shall the maximum aggregate liability of Vendor in respect of any claims by the Purchaser Indemnitees against Vendor pursuant to Section Section 16.1 for Damages suffered or incurred by any Purchaser Indemnitee in respect of any Development Company exceed the maximum amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)E80,000,000. (d) For purposes of this Article VIIINotwithstanding anything to the contrary contained herein, any claim for the sole purpose of determining Losses actually suffered with respect to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified indemnity made by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable Buyer Indemnitee relating to such representation or warranty.Taxes is subject to the condition that: (i)

Certain Limitations. The indemnification provided for in Section 7.2 and Section 7.3 shall be subject to the following limitations: (a) The Stockholders Vendor Indemnifying Parties shall not be required liable to indemnify the Parent Purchaser Indemnitees with respect to any claim for indemnification under Section 8.2(a7.2(a) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims in respect of indemnification under Section 7.2(a) exceeds an amount equal to three hundred fifty thousand dollars $25,000 ($350,000the “Basket”), in which event event, the Parent Indemnitees Vendor Indemnifying Parties shall be entitled required to recover pay or be liable for all such Losses only in excess thereof; provided, that from the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g)first dollar. (b) The sole and exclusive remedy any indemnification obligations of the Parent Indemnitees with respect to any and all Losses based upon, arising out of, or related to Vendor Indemnifying Parties under this Agreement or the Contemplated Transactions, Article VII shall be via offset against the Indemnity Shares pursuant to Section 8.6 providedseveral, howeverand not joint and several, to the extent in accordance with such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7Vendor Indemnifying Parties’ Pro Rata Portion. (c) The the aggregate amount of all Losses in respect of indemnification under Section 7.2(a) in which any of the Vendor Indemnifying Parties shall be liable to the Purchaser Indemnitees arising therefrom shall not exceed such Vendor Indemnifying Parties’ Pro Rata Portion. (d) Purchaser shall not be liable to the Vendor Indemnitees for indemnification under Section 7.3(a) until the aggregate amount of all Losses in respect of indemnification under Section 7.3(a) exceeds the Basket, in which event Purchaser shall be required to pay or be liable for all such Losses from the first dollar. (e) Notwithstanding the foregoing, the maximum aggregate amount for which the Vendor Indemnifying Parties will be required to indemnify Purchaser in respect of any and all Losses for which the Vendor Indemnifying Parties shall be liable under Section 7.2(a) for inaccuracy in or breach of any representations and warranties that are not Fundamental Representations shall not exceed twenty five (25%) of the value of the Purchase Price; provided, however, that solely for the purpose of this Section 7.4(e), the value associated with the Parent Indemnitees Shares in determining the Purchase Price will be calculated based on the official closing price of the Parent Common Stock as reported by the Nasdaq Capital Market, or such other national exchange or quotation medium on which the Parent’s common stock is then trading, as of the date on which a claim indemnification is asserted under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)Article VII. (df) Notwithstanding the foregoing, the maximum aggregate amount for which the Vendor Indemnifying Parties will be required to indemnify Purchaser in respect of any and all Losses for which the Vendor Indemnifying Parties shall be liable under Section 7.2(a) for inaccuracy in or breach of any Fundamental Representations shall not exceed the value of the Purchase Price; provided, however, that solely for the purpose of this Section 7.4(f), the value associated with the Parent Shares in determining the Purchase Price will be calculated based on the official closing price of the Parent’s common stock as reported by the Nasdaq Capital Market, or such other national exchange or quotation medium on which the Parent Common Stock is then trading, as of the date on which a claim is asserted under this Article VII. (g) For purposes of this Article VIIIVII, for the sole purpose of determining Losses actually suffered with respect to any inaccuracy in or breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed determined without regard to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications qualification contained in or otherwise applicable to such representation or warranty. (h) Notwithstanding anything to the contrary in this Agreement, the Vendor Indemnifying Parties acknowledge and agree that any amounts for which the Vendor Indemnifying Parties are liable to the Purchaser Indemnitees for indemnification under this Agreement that are in excess of the Aggregate Cash Consideration will be apportioned amongst themselves in accordance with each Vendor Indemnifying Parties’ Pro Rata Portion.

Certain Limitations. The indemnification provided for in Section 6.02 and Section 6.03 shall be subject to the following limitations: (a) The Stockholders Except with respect to claims for inaccuracies or breaches of Fundamental Representations (for which no such limitation shall apply), Seller shall not be required liable to indemnify the Parent Buyer Indemnitees with respect to any claim for indemnification under Section 8.2(a6.02(a) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims in respect of indemnification under Section 6.02(a) exceeds an amount equal to three hundred fifty thousand dollars $65,000 ($350,000the “Basket”), in which event the Parent Indemnitees Seller shall be entitled required to recover pay or be liable for all such Losses only in excess thereof; providedfrom the first dollar, that without consideration of the foregoing limitation Basket. Except with respect to claims for inaccuracies or breaches of Fundamental Representations, the aggregate amount of all Losses for which Seller shall be liable pursuant to Section 6.02(a) shall not apply exceed $1,300,000 (the “Cap”). Seller’ maximum aggregate liability to (i) a claim the Buyer Indemnitees for indemnification to under Section 6.02(a) for inaccuracies or breaches of Fundamental Representations shall not exceed the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g)Purchase Price. (b) The sole and exclusive remedy of the Parent Indemnitees Except with respect to any and claims for inaccuracies or breaches of Fundamental Representations (for which no such limitation shall apply), Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 6.03(a) until the aggregate amount of all Losses based uponin respect of indemnification under Section 6.03(a) exceeds the Basket, arising out of, or related to this Agreement or the Contemplated Transactions, in which event Buyer shall be via offset against required to pay or be liable for all such Losses from the Indemnity Shares first dollar, without consideration of the Basket. Except with respect to claims for inaccuracies or breaches of Fundamental Representations, the aggregate amount of all Losses for which Seller shall be liable pursuant to Section 8.6 provided, however, 6.03(a) shall not exceed the Cap. Buyer’s maximum aggregate liability to the extent such claim is based upon Fraud and exceeds Seller Indemnitees for indemnification under Section 6.03(a) for inaccuracies or breaches of Fundamental Representations shall not exceed the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7Purchase Price. (c) The amount Notwithstanding the foregoing, the limitations set forth in Section 6.04(a) and Section 6.04(b) shall not apply in any case of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)fraud. (d) For purposes of this Article VIIISection 6.02(a), for the sole purpose of determining Losses actually suffered with respect to any inaccuracy in or breach of any representation or warranty (warranty, and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III Losses resulting therefrom, shall not be deemed determined without regard to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications qualification contained in or otherwise applicable to such representation or warranty.

Certain Limitations. (ai) The Stockholders Notwithstanding anything to the contrary contained in this Agreement: (A) no Buyer Indemnified Party shall not be required entitled to indemnify the Parent Indemnitees with respect recover any Losses (other than Losses that relate to any claim under Taxes) pursuant to Section 8.2(a) or Section 8.2(g9.2(a) unless and until the aggregate amount of all Losses for such claims exceeds an amount equal actually incurred or suffered by the Buyer Indemnified Parties pursuant to three hundred fifty thousand dollars Section 9.2(a) is in excess of $2,000,000 in the aggregate ($350,000the “Deductible”), in which event and then only to the Parent Indemnitees extent that such Losses exceed the Deductible; and (B) no Buyer Indemnified Party shall be entitled to recover any Losses only (other than Losses that relate to Taxes) pursuant to Section 9.2(a) in excess thereofrespect of any single claim if the amount of such Losses is less than $50,000 (the “Minimum Loss Amount”), and no such Losses that are less than the Minimum Loss Amount shall be included in calculating the aggregate Losses for purposes of determining if the Deductible has been met in this Section 9.2(b); provided, that in each case all related single claims and losses will be aggregated in determining whether the foregoing limitation Minimum Loss Amount is met. The limitations in this Section 9.2(b)(i) shall not apply to (i) a claim Losses attributable to claims for indemnification to the extent such claim is based upon Fraud, breaches of Section 3.12 or Excluded Claims. (ii) a claim Notwithstanding anything to the contrary contained in this Agreement: (A) except with respect to Losses attributable to Excluded Claims, the Buyer Indemnified Parties shall have no right to receive any indemnification payments from the Indemnifying Parties for any claims for Losses pursuant to item 3 on Schedule 8.2(gSection 9.2(a) in excess of the amount then remaining in the Escrow Account; (B) the Buyer Indemnified Parties shall have no right to receive any indemnification from the Indemnifying Parties for any claims for Losses pursuant to Section 9.2(a) (including Excluded Claims) in excess of the amount of Aggregate Stockholder Cash Proceeds and Aggregate Option Cash Proceeds received by the Indemnifying Parties; and (C) no Indemnifying Party shall be liable for an amount in excess of such Indemnifying Party’s pro rata portion (calculated in the manner set forth in Section 9.2(a)) of any Losses that are indemnifiable hereunder. (biii) The sole and exclusive remedy For the purpose of quantifying Buyer Indemnified Party’s Losses under this Article 9 only (but not for determining whether any representation, warranty, covenant or agreement has been breached or is inaccurate), any representation, warranty, covenant or agreement given or made by the Parent Indemnitees with respect Company that is qualified in scope as to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, materiality (including a Company Material Adverse Effect) shall be via offset against deemed to be made or given without such qualifications. (iv) For the Indemnity Shares pursuant to Section 8.6 providedpurpose of this Article 9 only, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to Loss shall be reduced by (A) any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees insurance proceeds actually received by a Buyer Indemnified Party with respect to such Losses shall be via offset against Loss and (B) any amounts actually recovered by a Buyer Indemnified Party from another Person in respect of such Losses. In addition, for purposes of determining the Special Indemnity Shares pursuant to Section 8.7. (c) The amount of any Losses for which Loss attributable to Taxes of the Parent Indemnitees claim indemnification under this Agreement Company or any of its Subsidiaries in any Pre-Closing Taxable Period, the amount of any such Loss shall be reduced by any insurance proceeds correlative tax savings or benefit actually recognized by a Buyer Indemnified Party as a result of incurring such Loss on or before the end of the taxable year after the tax year in which such Loss is incurred or in which the amount of such Loss is finally determined in accordance with this Agreement. (v) Anything herein to the contrary notwithstanding, no Indemnifying Party shall have any liability under any provision of this Agreement for, and Losses shall not include, any punitive, exemplary or other similar damages, unless the applicable Buyer Indemnified Party is required to pay such damages to a third party reimbursements actually received as part of a third party claim against such Buyer Indemnified Party that is otherwise indemnifiable hereunder. (vi) Notwithstanding anything to the contrary set forth in this Agreement, no Indemnifying Party shall have any Liability for Taxes incurred by the Company or any Subsidiary of the Company resulting from the transactions contemplated by this Agreement (including any Employment Transaction Taxes or Transfer Taxes, which shall be the responsibility of Buyer), other than Taxes that would not have been incurred but for a breach of any of the representations, warranties and covenants contained in Section 3.12, Section 3.13, Section 3.20, Section 5.5, Section 5.6 and Section 5.11. (vii) In no event shall an Indemnified Party be indemnified for any indemnifiable Losses pursuant to this Article 9 related to or arising from the amount, value or condition of any Tax asset or attribute (e.g., net operating loss carry-forward (including, but not limited to, any such carry-forward attributable to payment of the aggregate Option Consideration with respect to all Vested Options and amounts required to be paid at the Closing under the management transaction incentive plan or other arrangements described on Section 1.1(a) of the Schedule of Exceptions) or Tax credit carry-forward) of the Company or the ability of Buyer or the Surviving Corporation to utilize any such Tax asset or attribute for any taxable period commencing after the Effective Time, other than Losses that arise in connection with such Losses (net a breach or inaccuracy of any costs or expenses incurred in obtaining such insuranceof the representations, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery). (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered with respect to any breach of any representation or warranty (warranties and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications covenants contained in Section 3.13(d), Section 3.13(i), Section 3.13(j), Section 3.13(k) or otherwise applicable to such representation or warrantySection 5.6.

Certain Limitations. (a) The Stockholders obligations of the Sellers in respect of Purchaser Indemnity Claims pursuant to Section 8.02(a) (other than Purchaser Indemnity Claims in respect of a breach of any Fundamental Representations or that arise from fraud by or on behalf of any Seller, which shall not be required subject to indemnify the Parent Indemnitees with respect limitations set forth in this Section 8.05) (“Covered Purchaser Indemnity Claims”) shall become operative and effective only if and to any claim under Section 8.2(a) or Section 8.2(g) unless and until the extent that the aggregate amount of all Losses for incurred by the applicable Indemnitees arising from Covered Purchaser Indemnity Claims exceeds $5,000,000 (the “Basket Amount”). Covered Purchaser Indemnity Claims shall accumulate until such claims time as the aggregate amount of all Losses arising therefrom exceeds an amount equal to three hundred fifty thousand dollars ($350,000)the Basket Amount, in at which event time the Parent Indemnitees Sellers shall be entitled obligated to recover Losses indemnify the applicable Indemnitees against such Losses, but only in excess thereof; provided, that the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g)the aggregate amount thereof exceeds the Basket Amount. (b) The sole and exclusive remedy obligations of the Parent Indemnitees with and the Purchaser in respect to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the of Seller Indemnity Shares Claims pursuant to Section 8.6 provided8.03(a) (other than Seller Indemnity Claims in respect of a breach of any Fundamental Representations or that arise from fraud or an intentional and material misrepresentation by or on behalf of the Purchaser or the Parent, however, which shall not be subject to the limitations set forth in this Section 8.05) (“Covered Seller Indemnity Claims”) shall become operative and effective only if and to the extent such claim is based upon Fraud and that the aggregate amount of all Losses incurred by the applicable Indemnitees arising from Covered Seller Indemnity Claims exceeds the Basket Amount. Covered Seller Indemnity Claims shall accumulate until such time as the aggregate amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based uponarising therefrom exceeds the Basket Amount, arising out ofat which time the Parent and the Purchaser shall be obligated to indemnify the applicable Indemnitees against such Losses, or related but only to the Special Indemnity, extent the sole and exclusive remedy of aggregate amount thereof exceeds the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7Basket Amount. (c) The amount maximum obligation of any Losses for which the Parent Indemnitees claim Sellers to provide indemnification under this Agreement in respect of Covered Purchaser Indemnity Claims shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses not exceed $56,000,000 (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recoverythe “Cap Amount”). (d) The maximum obligation of the Parent and the Purchaser to provide indemnification in respect of Covered Seller Indemnity Claims shall not exceed the Cap Amount. (e) The obligations of the Sellers in respect of any Covered Purchaser Indemnity Claim shall not apply if the amount of Loss incurred by the applicable Indemnitees related to such individual Covered Purchaser Indemnity Claim, together with all related Covered Purchaser Indemnity Claims, totals less than $45,000 (the “De Minimis Threshold”). (f) The obligations of the Parent and the Purchaser in respect of Covered Seller Indemnity Claims shall become operative and effective only if and to the extent that the amount of Loss incurred by the applicable Indemnitees related to each individual Covered Seller Indemnity Claim or series of related Covered Purchaser Indemnity Claims exceeds the De Minimis Threshold. (g) Each of the parties hereby acknowledges and agrees that the limitations provided for in Section 8.05(a) through Section 8.05(f) above apply only to Covered Purchaser Indemnity Claims or Covered Seller Indemnity Claims (as the case may be), and do not apply to any other rights to indemnification provided for in this Article VIII, including rights to indemnification against Retained Liabilities or Assumed Liabilities (as the case may be). (h) Notwithstanding anything to the contrary contained in this Article VIII, the Sellers shall have no obligation to indemnify the Purchaser or its Affiliates under Section 8.02(a) or Section 8.02(c) with respect to any liabilities or obligations arising from the Release of Materials of Environmental Concern to the Environment if such liabilities or obligations constitute Excluded Pre-Closing Environmental Liabilities. In addition, the obligation of the Sellers to provide indemnification pursuant to Section 8.02(a) or Section 8.02(c) with respect to any clean up costs or costs of remediation arising from the Release of Materials of Environmental Concern to the Environment shall be limited to costs associated with clean up and remediation actions that are (i) required by applicable Environmental Law or an Order issued by a Governmental Authority, reasonably necessary in order to avoid a Legal Proceeding threatened by a Governmental Entity or other Person under any Environmental Law or reasonably necessary in order to prevent or mitigate an imminent and substantial endangerment to human health or the environment and (ii) taken in good faith and in a manner consistent with the actions that would be taken by a reasonable and prudent business person who owns the applicable Real Property (without consideration of the benefit of any indemnification provided by the Sellers). (i) Any Losses for which any Indemnitee would be entitled to indemnification under this Article VIII shall be reduced by (i) the amount of insurance proceeds actually received or recovered under any insurance policies for the benefit of such Indemnitee (including the Title Policies) and any cash payments, setoffs or recoupment of any payments recovered by such Indemnitee in respect of such Losses (other than pursuant to any indemnification or similar arrangements that the Indemnitee has purchased following the Closing Date), and (ii) any Tax Benefit. To the extent required by principles of applicable Delaware contract law, each Indemnitee shall use commercially reasonable efforts to mitigate losses for which such Indemnitee is subject to indemnification under this Article VIII. Notwithstanding anything to the contrary in the previous Section, if an Indemnitee believes that coverage for Losses is likely to be available under the Title Policies, such Indemnitee shall use commercially reasonable efforts to pursue any insurance proceeds available to such Indemnitee pursuant to any Title Policies. If, after the Indemnitor has made an indemnification payment to an Indemnitee in satisfaction of its obligations under this Article VIII with respect to any Third-Party Claim or Direct Claim pursuant to this Article VIII, the Indemnitee actually recovers from any third parties amounts in respect of such Losses of the type described in the first sentence of this Section 8.05(i), it shall as promptly as practicable forward to the Indemnitor such amounts (less the full amount of expenses incurred in procuring such recovery, including any applicable deductibles or retentions), but not in excess of the indemnification payment received by the Indemnitee. (j) For purposes the avoidance of doubt, if any Loss was included as a current liability in the calculation of the Final Working Capital in accordance with the provisions of Section 1.05, the amount of such Loss may not be recovered under this Article VIII, but the amount, if any, of any such Loss that exceeds the amount included as a current liability in the calculation of Final Working Capital may be recovered on and subject to the terms and conditions of this Article VIII, for the sole purpose of determining Losses actually suffered with respect to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warranty.

Certain Limitations. The party making a claim under this Article VII is referred to as the “Indemnified Party”, and the party against whom such claims are asserted under this Article VII is referred to as the “Indemnifying Party”. Notwithstanding any other provision of this Agreement, the indemnification provided for in Section 7.2 and Section 7.3 shall be subject to the following limitations: (a) The Stockholders Buyer Indemnified Parties shall not be required entitled to indemnify the Parent Indemnitees with respect indemnification pursuant to any claim under Section 8.2(a) or Section 8.2(g7.2(a) unless and until the aggregate amount of all Losses for with respect to such claims Buyer’s Indemnifiable Claims exceeds an amount equal to three hundred fifty thousand dollars $1,500,000.00 ($350,000the “Deductible”), in which event the Parent Indemnitees indemnity provided for in Section 7.2(a) shall apply only to the amount of Losses that exceeds the Deductible; provided, that the Deductible shall not apply to Losses arising from any inaccuracy in or breach of the Fundamental Representations or the Tax Representation. Without limiting the generality of the foregoing, any indemnification claim involving Losses of less than $25,000.00 shall not be entitled to recover indemnification under Section 7.2(a) and shall not be counted toward satisfaction of the Deductible. (b) The maximum aggregate Liability of Seller for the Buyer Indemnified Parties’ Losses only in excess thereofwith respect to Buyer’s Indemnifiable Claims pursuant to Section 7.2(a) shall not exceed an amount equal to $25,000,000.00; provided, that the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, Losses arising from any inaccuracy in or (ii) a claim pursuant to item 3 on Schedule 8.2(g). (b) The sole and exclusive remedy breach of the Parent Indemnitees with respect to any and all Losses based upon, arising out of, or related to this Agreement Fundamental Representations or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7Tax Representation. (c) The Buyer Indemnified Parties shall not be entitled to indemnification pursuant to Section 7.2(b) unless the aggregate amount of any Losses with respect to such Buyer’s Indemnifiable Claims exceeds $2,000,000.00 (the “HC Deductible”), in which event the indemnity provided for which in Section 7.2(b) shall apply only to the Parent Indemnitees claim indemnification under this Agreement amount of Losses that exceeds the HC Deductible. The HC Deductible shall be reduced determined by taking into account (i) all amounts paid by any insurance proceeds Buyer Indemnified Party in respect of the retention or other third party reimbursements actually received in connection with deductible required pursuant to the Representation and Warranty Policy for all claims made thereunder whether or not such claims specifically include claims for criminal Liability, criminal penalties or criminal fines plus (ii) all Losses (net of any costs or expenses incurred Buyer Indemnified Party that in obtaining such insurance, indemnification or reimbursement, including the absence of the HC Deductible would be recoverable by any increases in insurance premiums or retro-premium adjustments resulting from such recoveryBuyer Indemnified Party pursuant to Section 7.2(b). (d) The maximum aggregate Liability of Seller for the Buyer Indemnified Parties’ Losses with respect to Buyer’s Indemnifiable Claims pursuant to Section 7.2(b) shall not exceed an amount equal to $30,000,000.00 which shall be determined by taking into account (i) all amounts recovered by any Buyer Indemnified Party pursuant to the Representation and Warranty Policy for all claims made thereunder whether or not such claims specifically include claims for criminal Liability, criminal penalties or criminal fines plus (ii) all amounts paid by Seller pursuant to Section 7.2(b). (e) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be limited to the amount of any Liability or damage that remains after deducting therefrom any insurance proceeds (other than proceeds from the Representation and Warranty Policy to be obtained by Buyer at Closing) or any indemnity, contribution or other similar payment, in each case, actually received by the Indemnified Party (or any of its Affiliates) in respect of any such claim (net of premium increases and collection costs relating thereto). The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar Contracts for any Losses (it being agreed that if insurance or indemnification, contribution or similar proceeds in respect of such Losses are recovered by the Indemnified Party subsequent to the Indemnifying Party’s making of an indemnification payment in satisfaction of its applicable indemnification obligation, such proceeds shall be promptly remitted to the Indemnifying Party to the extent of the lesser of the indemnification payment made by the Indemnifying Party or the excess of such payments over Losses sustained by the Indemnified Party); provided, however, that no Indemnified Party shall have an obligation to seek recoveries against a Person that was a customer of Buyer or a member of the Company Group within the one (1) year period prior to such claim. (f) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Loss shall be reduced by an amount equal to any net Tax benefit realized as a result of such Loss by the Indemnified Party in the tax year the Loss is incurred. For purposes this purpose, the party entitled to indemnification shall be deemed to recognize a net Tax benefit with respect to a taxable year if, and to the extent that, the hypothetical Tax Liability, if any, of this Article VIIIthe Indemnified Party (or any affiliated, combined, consolidated or unitary group of which the Indemnified Party is a member) for such taxable year, calculated without taking into account any Tax items attributable to the indemnifiable Loss (and, for the sole purpose avoidance of determining Losses actually suffered doubt, without taking into account any net operating loss carryovers or carrybacks attributable to an indemnifiable Loss incurred in any prior or subsequent taxable year), exceeds the actual Tax liability, if any, of the Indemnified Party (or any affiliated, combined, consolidated or unitary group of which the Indemnified Party is a member) for such taxable year, calculated by taking into account any Tax items attributable to such indemnifiable Loss (including, for the avoidance of doubt, any net operating loss carryovers or carrybacks attributable to a indemnifiable Loss incurred in any prior or subsequent taxable year (determined by treating such indemnifiable Loss as the last item claimed in any prior or subsequent taxable year)). (g) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, special or indirect damages, or consequential damages which are not reasonably forseeable at the time of breach or alleged breach, except to the extent paid or required to be paid to a third party. (h) The Buyer Indemnified Parties shall not be entitled to indemnification with respect to any amounts that have been taken into account in connection with determining the Purchase Price, including, without limitation, amounts taken into account in determining the Closing Date Working Capital. (i) The right of a Buyer Indemnified Party to indemnification, reimbursement or other remedy for the breach or inaccuracy of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III made by Seller shall not be deemed to be qualified affected by any materialityinvestigation conducted with respect to, Company Material Adverse Effect or other similar qualifications contained in any knowledge acquired (or otherwise applicable capable of being acquired) at any time, with respect to the accuracy or inaccuracy of or compliance with any such representation or warrantyrepresentations and warranties.

Certain Limitations. The indemnification provided for in Section 9.02 and Section 9.03 shall be subject to the following limitations: (a) The Stockholders Shareholders Indemnitors shall not be required liable to indemnify the Parent Reliability Indemnitees for indemnification under Section 9.02 (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any claim under Section 8.2(ainaccuracy in or breach of any of Maslow Surviving Representations (the “Reliability’s Basket Exclusions”)) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims exceeds an amount equal to three hundred fifty thousand dollars in respect of indemnification under Section 9.02 ($350,000), in which event the Parent Indemnitees shall be entitled to recover Losses only in excess thereof; provided, that the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g). (b) The sole and exclusive remedy of the Parent Indemnitees with respect to any and all Losses other than those based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and or by reason of Reliability’s Basket Exclusions) exceeds $100,000 (the “Basket”), in which event the Shareholders shall be required to pay or be liable for all such Losses in excess of the Basket. (b) Mx. Xxxxxxxx shall not be liable to the Shareholders Indemnitees for indemnification under Section 9.03 (other than with respect to a claim for indemnification based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to or by reason of any inaccuracy in or breach of any of Reliability’s Surviving Representations (the “Shareholders’ Basket Exclusions”)) until the aggregate amount of all Losses in respect of indemnification under Section 9.03(a) (other than those based upon, arising out of, with respect to or by reason of the Shareholders’ Basket Exclusions) exceeds the Basket, in which event Mx. Xxxxxxxx shall be required to pay or be liable for all such Losses shall be via offset against in excess of the Special Indemnity Shares pursuant to Section 8.7Basket. (c) The amount Parties acknowledge and agree that the maximum liability of any Losses Shareholders Indemnitors, on the one hand, and Mx. Xxxxxxxx, on the other hand, for which the Parent Indemnitees claim indemnification under pursuant to this Agreement Article IX shall be reduced by the sum of $1,000,000 (the “Cap”), and neither Mx. Xxxxxxxx, on the one hand, nor the Shareholders, on the other hand, shall have any insurance proceeds or liability to the other third party reimbursements actually received in connection with such Losses (net excess of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)the Cap. (d) For purposes All liabilities and obligations of this Article VIIIShareholders Indemnitors that may arise under Section 9.02 (“Shareholders Indemnification Liabilities”), for if any, will be satisfied only out of Merger Consideration received by the sole purpose Shareholders; and Shareholders Indemnitors will be liable to return, transfer, and assign to Reliability, irrevocably, that number of determining Losses actually suffered shares of Reliability Common Stock included in the Merger Consideration, valued at the Reliability Common Stock Value as of the date of the final resolution of such indemnification obligations, as is equal in value to such Shareholders Indemnification Liabilities then being paid and such return, transfer, and assignment will be deemed in full payment and satisfaction of the Shareholders Indemnification Liabilities with respect to any breach which payment is being made, provided, however, that in the event that the Shareholders do not hold sufficient shares of any representation Reliability Common Stock as required to be able to return a sufficient number of shares hereunder as required to satisfy the Shareholders Indemnification Liabilities, the portion (or warranty all, if applicable) of the Shareholders Indemnification Liabilities not able to be paid by a return of such shares of Reliability Common Stock shall be paid by Shareholders Indemnitors in cash. (e) All liabilities and not for purposes obligations of determining whether or not any breaches the Mx. Xxxxxxxx that may arise under Section 9.03 (“Exxxxxxx Indemnification Liabilities”), if any, will be satisfied only shares of representations or warranties have occurred) Reliability Common Stock held by the representations Mx. Xxxxxxxx as of the Closing Date; and warranties Mx. Xxxxxxxx shall transfer, and assign to the Shareholders (pro rata based on the amount of Merger Consideration received by each Shareholder at the Closing), irrevocably, that number of shares of Reliability Common Stock valued at the Reliability Common Stock Value as of the date of the final resolution of such indemnification obligations, as is equal in ARTICLE III shall not value to the amount of the Exxxxxxx Indemnification Liabilities and such transfer, and assignment will be deemed in full payment and satisfaction of the Exxxxxxx Indemnification Liabilities with respect to which payment is being made, provided, however, that in the event that Mx. Xxxxxxxx does not hold sufficient shares of Reliability Common Stock as required to be qualified able to return a sufficient number of shares hereunder as required to satisfy the Exxxxxxx Indemnification Liabilities, the portion (or all, if applicable) of the Exxxxxxx Indemnification Liabilities not able to be paid by any materiality, Company Material Adverse Effect or other similar qualifications contained a return of such shares of Reliability Common Stock shall be paid by Mx. Xxxxxxxx in or otherwise applicable to such representation or warrantycash.

Certain Limitations. The liability of Sellers or Buyers, as applicable, for claims under this Agreement shall be limited by the following: (a) The Stockholders Damages shall not be required to indemnify the Parent Indemnitees with respect to in no event include any claim under Section 8.2(a) or Section 8.2(g) unless and until the aggregate amount of all Losses for such claims exceeds an amount equal to three hundred fifty thousand dollars ($350,000)special, in which event the Parent Indemnitees shall be entitled to recover Losses only in excess thereof; providedindirect, that the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraudpunitive, incidental, or (ii) a claim pursuant to item 3 on Schedule 8.2(g)consequential damages whatsoever. (b) The sole and exclusive remedy parties mutually agree, for tax purposes, to treat Damages recovered hereunder as an adjustment of the Parent Indemnitees with respect to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares pursuant to Section 8.6 provided, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7Purchase Price. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification Damages otherwise recoverable under this Agreement Article 6 shall be reduced to the extent to which any federal, state, local, or foreign tax liabilities of Seller Indemnitee or Buyer Indemnitee, as applicable, or any of their respective Affiliates is decreased by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net reason of any costs Damage in respect of which such Seller Indemnitee or expenses incurred in obtaining such insuranceBuyer Indemnitee, indemnification or reimbursementas applicable, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)shall be entitled to indemnity under this Agreement. (d) For purposes No claim or claims shall be asserted by a Buyer Indemnitee against either Seller or both of them pursuant to the provisions of this Article VIII6 unless and until the amount of such indemnitee's Damages exceeds U.S. $100,000 (One Hundred Thousand U.S. Dollars) in the aggregate against either Seller or both of them, whereupon such Buyer Indemnitee shall be entitled to assert one or more claims hereunder for the sole purpose full amount of determining Losses actually suffered with respect its Damages as to which such claim or claims are asserted, without deduction of any amount therefrom. The limitation set forth in this Section 6.4(d) shall not apply to any claim for Damages arising out of a breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties set forth in ARTICLE Sections 2.1.5 and 2.2.5 of this Agreement. (e) The aggregate amount of Damages recoverable pursuant to the provisions of Section 6.1.1 of this Article 6 by all Buyer Indemnitees against Arcadia II shall be limited to the Purchase Price. The aggregate amount of Damages recoverable pursuant to the provisions of Section 6.1.2 of this Article 6 by all Buyer Indemnitees against Arcadia III shall not be deemed limited to the portion of the Purchase Price paid to Arcadia III. For the avoidance of doubt, in no event may the aggregate amount of Damages recoverable pursuant to this Agreement by all Buyer Indemnitees against the Sellers be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warrantygreater than the Purchase Price.

Certain Limitations. Notwithstanding anything in this Agreement to the contrary, (a) The Stockholders neither Seller shall be required to indemnify or otherwise be liable to Buyer with respect to any claim arising from the failure of Sellers to obtain any Consent if the obtaining of such Consent was not a condition precedent to the obligations of Buyer set forth in this Agreement or the condition that such Consent be obtained was waived by Buyer; (b) neither Seller shall be required to indemnify or otherwise be liable to Buyer for any breach of a representation or warranty, or for the breach of any covenant contained in Section 5 of this Agreement, except to the extent the losses, obligations, liabilities, costs, and expenses of Buyer arising from all such breaches by both Sellers exceed in the aggregate One Hundred Thousand Dollars; it being understood that this limitation applies only to indemnification for breaches of representations and warranties and breaches of covenants contained in Section 5 and does not apply to other indemnification rights, including the right to indemnification for Excluded Liabilities, or to claims relating to the adjustments and prorations pursuant to Section 2.3(a); (c) Buyer shall not be required to indemnify or otherwise be liable to any Seller for any breach of a representation or warranty, except to the Parent Indemnitees extent the losses, obligations, liabilities, costs, and expenses of both Sellers arising from all such breaches by Buyer exceed in the aggregate One Hundred Thousand Dollars; it being understood that this limitation applies only to indemnification for breaches of representations and warranties and does not apply to other indemnification rights or to claims relating to the adjustments and prorations pursuant to Section 2.3(a); (d) no party shall indemnify or otherwise be liable to any other party with respect to any claim under for any breach of a representation or warranty, or for the breach of any covenant contained in Section 8.2(a) or 5 of this Agreement, unless notice of the claim is given within twelve months after the Closing Date; it being understood that this limitation applies only to indemnification for breaches of representations and warranties and breaches of covenants contained in Section 8.2(g) unless 5 and until the aggregate amount of all Losses for such claims exceeds an amount equal to three hundred fifty thousand dollars ($350,000), in which event the Parent Indemnitees shall be entitled to recover Losses only in excess thereof; provided, that the foregoing limitation shall does not apply to (i) a claim other indemnification rights, including the right to indemnification for indemnification Excluded Liabilities, or to claims relating to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g). (b) The sole adjustments and exclusive remedy of the Parent Indemnitees with respect to any and all Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares prorations pursuant to Section 8.6 provided2.3(a); (e) neither Seller shall be required to indemnify or otherwise be liable to Buyer for any breach of a representation or warranty, howeveror for the breach of any covenant contained in Section 5 of this Agreement, to the extent the losses, obligations, liabilities, costs, and expenses of Buyer arising from all such claim is based upon Fraud breaches by all Sellers exceed in the aggregate Ten Million Dollars; it being understood that this limitation applies only to indemnification for breaches of representations and exceeds warranties and breaches of covenants contained in Section 5 and does not apply to other indemnification rights, including the amount of Indemnity Sharesright to indemnification for Excluded Liabilities, Parent Indemnitees may seek recovery directly from or to claims relating to the Stockholder who committed such Fraud adjustments and prorations pursuant to Section 8.2 regarding any such excess amount2.3(a); provided, further, however, that with respect and (f) Buyer shall not be required to indemnify or otherwise be liable to any and all Losses based upon, arising out of, Seller for any breach of a representation or related warranty to the Special Indemnityextent the losses, obligations, liabilities, costs, and expenses of all Sellers arising from all such breaches by Buyer exceed in the sole aggregate Ten Million Dollars; it being understood that this limitation applies only to indemnification for breaches of representations and exclusive remedy of warranties and does not apply to other indemnification rights or to claims relating to the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares adjustments and prorations pursuant to Section 8.7. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery2.3(a). (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered with respect to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed to be qualified by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warranty.

Certain Limitations. The liability of the Vendors or Purchaser, as applicable, for claims under this Agreement shall be limited by the following: (a) The Stockholders At any time after the Survival Date, (i) the Vendors shall have no further obligations under this Article XII for breaches of representations and warranties of the Vendors, except for Damages with respect to which the Purchaser Indemnitee has given the Vendor written notice prior to such date in accordance with Section 11.1 above; and (ii) the Purchaser shall have no further obligations under this Article XII for breaches of representations and warranties of the Purchaser, except for Damages with respect to which the Vendors Indemnitee has given the Purchaser written notice prior to such date in accordance with Section 11.1. (b) Notwithstanding anything to the contrary herein, Purchaser Indemnitees shall not be required entitled to indemnify the Parent Indemnitees with respect recover Damages from Vendors pursuant to any claim under Section 8.2(a) or Section 8.2(g12.1(a) unless and until the accumulated aggregate amount of all Losses for such claims exceeds Damages shall exceed an amount equal to three which is the equivalent of E 100,000 (one hundred fifty thousand dollars Euro) ($350,000the "VENDOR INDEMNIFICATION THRESHOLD"), in which event . Vendors shall thereafter indemnify any of the Parent Purchaser Indemnitees shall be entitled to recover Losses only from all and against all Damages in excess thereof; providedof equivalent E 100,000. For the avoidance of doubt, that the foregoing limitation shall not apply to (i) a claim for indemnification to the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g). limitations in this sub-section (b) The sole and exclusive remedy of the Parent Indemnitees with respect set forth shall not be applicable to any and all Losses based upon, arising out of, or related payments to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares made by PCE to Purchaser pursuant to the provisions of Section 8.6 provided, however, to the extent such claim is based upon Fraud 2.3 (Minimum NOI Payments) and exceeds the amount of Indemnity Shares, Parent Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.72.6 (Pecs Lease Expiry Payments). (c) The Notwithstanding anything to the contrary herein but subject to the last sentence of this paragraph, in the absence of fraud or willful breach of this Agreement (for which there shall be no limitation), in no event shall the maximum aggregate liability of Vendors in respect of any claims by the Purchaser Indemnitees against Vendors pursuant to Section 12.1(a) for Damages suffered or incurred by any Purchaser Indemnitee exceed the maximum amount of any Losses for which E 15,000,000. However : (i) in the Parent Indemnitees claim indemnification under event that Purchaser shall elect to join additional purchasers as parties to this Agreement as contemplated in Section 2.10 above, then and in such event the maximum amount in respect of which indemnity may be claimed by all four purchasing entities and all and any Purchaser Indemnitees shall be reduced not exceed the total amount of E 15,000,000 in the aggregate; and (ii) in the event that Vendors shall fail to obtain the Klepierre Waiver, and/or in the event that this Agreement is declared void ab initio by reason of a violation of the rights of the Klepierre Group in respect of the acquisition of the Transaction Companies and/or the Portfolio Centers, then and in such event the maximum aggregate liability of Vendors in respect of any claims by the Purchaser Indemnitees against Vendors pursuant to Section 12.1(a) for Damages suffered or incurred by any insurance proceeds Purchaser Indemnitee pursuant to a breach of Section 4.8 shall not exceed a maximum amount equal to the Final Purchase Price, or other third party reimbursements the amount actually received paid by Purchaser to Vendor on account of the Final Purchase Price, whichever be the lower amount, plus any actual and proven damages suffered by Purchaser in connection with such Losses (net excess of any costs or expenses incurred that amount in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery)consequence of this Agreement having been declared void as a result of that fact. (d) For purposes of this Article VIIINotwithstanding anything to the contrary herein, for the sole purpose of determining Losses actually suffered with respect to any breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III Vendor Indemnitees shall not be deemed entitled to be qualified recover Damages from Purchaser unless and until the accumulated aggregate amount of Damages shall exceed an amount which is the equivalent of E 100,000 (one hundred thousand Euro) (the "PURCHASER INDEMNIFICATION THRESHOLD"). Purchaser shall thereafter indemnify any of the Vendors' Indemnitees from all and against all Damages in excess of equivalent E 100,000. (e) Notwithstanding anything to the contrary herein, in no event shall the maximum aggregate liability of Purchaser in respect of any claims by the Vendors Indemnitees against Purchaser pursuant to Section 12.2(a) for Damages suffered or incurred by any materiality, Company Material Adverse Effect or other similar qualifications contained in or otherwise applicable to such representation or warrantyVendors Indemnitees exceed E 15,000,000.

Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations: (a) The Stockholders Subject to Section 8.04(f) below, Buyer Indemnitees shall not be required indemnified pursuant to indemnify the Parent Indemnitees Section 8.02 with respect to any claim under Section 8.2(a) or Section 8.2(g) unless and until indemnifiable Loss if the aggregate amount of all payments from Sellers Parties for Losses for such claims exceeds an amount equal which Buyer Indemnitees are indemnified pursuant to three hundred fifty thousand dollars ($350,000)Section 8.02 has exceeded the Purchase Price. Notwithstanding the foregoing, in which event the Parent Buyer Indemnitees shall be entitled to recover indemnified for all indemnifiable Losses only in excess thereof; provided, of the Purchase Price that arise from or are related to fraud or a deliberate or willful breach or intentional misrepresentation on the foregoing limitation shall not apply to (i) a claim for indemnification to part of any Seller Party in connection with the extent such claim is based upon Fraud, or (ii) a claim pursuant to item 3 on Schedule 8.2(g)transactions contemplated by this Agreement. (b) The sole and exclusive remedy of the Parent Subject to Section 8.04(f) below, Seller Indemnitees shall not be indemnified pursuant to Section 8.03 with respect to any and indemnifiable Loss if the aggregate of all payments from Buyer or Advance America for Losses based upon, arising out of, or related to this Agreement or the Contemplated Transactions, shall be via offset against the Indemnity Shares for which Seller Indemnitees are indemnified from Buyer pursuant to Section 8.6 provided8.03 has exceeded the Purchase Price. Notwithstanding the foregoing, however, to the extent such claim is based upon Fraud and exceeds the amount of Indemnity Shares, Parent Seller Indemnitees may seek recovery directly from the Stockholder who committed such Fraud pursuant to Section 8.2 regarding any such shall be indemnified for all indemnifiable Losses in excess amount; provided, further, however, that with respect to any and all Losses based upon, arising out of, or related to the Special Indemnity, the sole and exclusive remedy of the Parent Indemnitees Purchase Price that arise from fraud or a deliberate or willful breach or intentional misrepresentation on the part of Buyer or Advance America in connection with respect to such Losses shall be via offset against the Special Indemnity Shares pursuant to Section 8.7transactions contemplated by this Agreement. (c) The amount of any Losses for which the Parent Indemnitees claim indemnification under this Agreement shall be reduced by any insurance proceeds or other third party reimbursements actually received in connection with such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery). (d) For purposes of this Article VIII, for the sole purpose of determining Losses actually suffered and other than with respect to the representations and warranties set forth in Section 3.06, Section 3.08(a), Section 3.09(a)(xiii), Section 3.10(a), and Section 3.18(c), any inaccuracy in or breach of any representation or warranty (and not for purposes of determining whether or not any breaches of representations or warranties have occurred) the representations and warranties in ARTICLE III shall not be deemed determined without regard to be qualified by any materiality, Company Material Adverse Effect Effect, or other similar qualifications qualification contained in or otherwise applicable to such representation or warranty. For all purposes of this Agreement, “Losses” shall be net of (i) any insurance or other recoveries actually received by the Indemnified Party or its Affiliates in connection with the facts giving rise to the right of indemnification, but taking into account the present value of any reasonably anticipated premium adjustments, deductibles and other costs associated therewith, and (ii) any Tax benefit actually received by the Indemnified Party or its Affiliates, net of any Tax costs actually incurred by the Indemnified Party or its Affiliates, arising in connection with the accrual, incurrence, or payment of such Losses. (d) No indemnification shall be made for any Loss already previously indemnified by payment by an Indemnifying Party to any Indemnified Party or for any Loss for which a Post-Closing Adjustment was made. Notwithstanding anything herein to the contrary, no Indemnifying Party shall be required to indemnify any Indemnified Party pursuant to Section 8.02 or 8.03, as applicable, until all Losses incurred by the Indemnified Party have exceeded One Hundred Thousand Dollars ($100,000.00) (the “Indemnification Threshold”), at which point the Indemnifying Party shall be obligated to indemnify the Indemnified Party from and against all Losses relating back to the first dollar; provided, however, that the Indemnification Threshold shall not apply to any CAM charges, rent, utilities, or property taxes that are Retained Liabilities and Parent shall promptly pay all such items that are Retained Liabilities and reimburse Buyer within ten Business Days to the extent Buyer pays any such items.