Common use of Certain Limitations Clause in Contracts

Certain Limitations. (i) Notwithstanding anything to the contrary contained in this Agreement: (1) in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by the following: (a) If the Closing shall not have occurred, recovery of the Buyer Indemnitees or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever. (b) Two years after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date. (c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date. (d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid. (i) Notwithstanding anything Anything to the contrary herein notwithstanding, the representations and warranties contained in this Agreement: clauses (1a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in no event such clauses (f) through (h) occurred) shall be deemed to be breached only to the Company be required extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to pay the Company Termination Fee on more than one occasion; (2) (x) extent such Buyer Losses exceed Cdn$50,000 in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidaggregate. (ii) Notwithstanding anything Anything to the contrary herein notwithstanding, the representations and warranties contained in this Agreement, clauses (f) through (h) of Section 3.15 (but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, only to the extent any termination not subject to clause (i) of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent 8.3(e)) shall be entitled deemed to the payment of the Company Termination Fee (be breached only to the extent owed pursuant to Section 8.3(a)) that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and to any Damages, then only to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by Buyer Losses exceed Cdn$30,000 in the Company)aggregate. (iii) Notwithstanding anything No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out provisions of this Agreement Article 8, unless the amount of Buyer Losses or Seller Losses, as the transactions contemplated thereby (whether case may be, equals at law, least Cdn$350,000 in equity, in contract, in tort or otherwise) (except that, the aggregate and then only to the extent any termination such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate. (iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Agreement resulted fromArticle 8 (other than with respect to Section 8.1(d), directly or indirectly, an Intentional Breach (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Agreement by Parent Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (minus any adjustment to the extent owed pursuant to Note as contemplated by Section 8.3(a1.4(e)) and to (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any Damages, trades of Buyer Parent Common Stock occur on any such day) prior to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)date hereof.

Certain Limitations. (i) Notwithstanding anything The indemnification afforded by this Article X shall be subject to the contrary contained in this Agreementfollowing limitations: (1a) in no event shall With respect to indemnification by the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise10.1(a), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right maximum liability for any Loss suffered by an Investor Indemnified Party (other than any Loss resulting from a Third Party Claim) shall not exceed an amount (the “Company Indemnification Cap”) equal to receive payment from Parent (1) the Hard Cap and the amount of all of the Funding Failure Termination Fee other Obligations owed by the Company to the Investor hereunder (other than the indemnification amounts payable under Section 10.1(a)) as of the date of determination, minus (2) the aggregate amount of all of the payments collected or Regulatory Failure Termination Fee received by the Investor Representative (and any direct or indirect transferee of the Investor Representative to whom any interest in the Revenue Interests is transferred) hereunder as of such date of determination (other than (i) any payments collected or received as a reimbursement of expenses incurred by any Investor Indemnified Party (including attorney’s fees) and (ii) any indemnification payments collected or received pursuant to Section 8.3(a10.1(a)), minus (3) shall constitute the sole aggregate amount collected or received by the Investor Representative (and exclusive remedy any direct or indirect transferee of the Company and Investor Representative to whom any interest in the Revenue Interests is transferred) pursuant to the exercise of its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwiserights under Section 10.1(a) (except that, without duplication of any amounts collected or received pursuant to clause (2)) prior to such date of determination to the extent any termination of this Agreement resulted from, directly such amount was not collected or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause received in connection with a Third Party Claim. Notwithstanding the Merger Closing not to occur as provided under Section 8.2foregoing, the Company Indemnification Cap shall be entitled not apply to both any Loss suffered by any Investor Indemnified Party in connection with a Third Party Claim. (b) With respect to indemnification by the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed Investor pursuant to Section 8.3(a)) and to any Damages10.2, the Investor’s maximum liability shall not exceed an amount equal to the extent proven, resulting excess (if any) of (A) the aggregate amount of all of the payments collected or received by the Investors from the Company prior to the date of determination (excluding any amounts collected or arising out received as a reimbursement of such Intentional Breach expenses incurred by the Investor or any indemnification amounts collected or received in connection with a Third Party Claim) over (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)B) the Investment Amount.

Certain Limitations. (a) For purposes of this Article IX, any inaccuracy in or breach of any representation or warranty (other than the representations and warranties set forth in Sections 4.6 and 4.9(c) shall be determined without regard to any materiality, Material Adverse Effect or similar qualification. (b) The representations, warranties and covenants of Sellers and Buyer Indemnitees’ rights to indemnification with respect thereto will not be affected or deemed waived by reason of any investigation made or knowledge obtained by or on behalf of such Buyer Indemnitee (including by any of its advisers, consultants or representatives). (c) Notwithstanding any provision of this Agreement or any Ancillary Agreement to the contrary, nothing herein or therein will limit in any way any party’s remedies in respect of fraud, intentional misrepresentation or omission or intentional misconduct by the other party in connection with the transactions contemplated hereby or thereby. (d) No party to this Agreement (or any of its Affiliates) will, in any event, be liable or otherwise responsible to any other party (or any of its Affiliates) for any punitive damages, other than punitive damages paid or payable to a third party. (e) Each party hereto acknowledges and agrees that (i) Notwithstanding anything prior to the contrary contained Closing, other than in this Agreement: (1) in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasioncase of intentional breach or fraud by Sellers or their Affiliates, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against Buyer for any breach or inaccuracy of any representation or warranty contained in this Agreement or any certificate or instrument delivered hereunder shall be, in the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result event that each of the failure conditions set forth in Article VIII has not been satisfied or waived, refusal to close the transactions contemplated by this Agreement; and (ii) following the Closing, other than Losses arising from fraud, (A) the indemnification provisions of this Article IX and, with respect to Taxes for which an indemnity is provided under Article VII, Article VII shall be (1) the sole and exclusive remedies of the parties hereto for any breach of the representations or warranties contained in this Agreement and (2) the sole and exclusive monetary remedies of the parties hereto for any breach of any covenant or agreement contained in this Agreement and (B) notwithstanding anything to the contrary contained herein, no breach of any representation, warranty, covenant or agreement contained herein shall give rise to any right on the part of any party hereto to rescind this Agreement or any of the transactions contemplated by this Agreement Agreement. (f) If any portion of Losses to be consummated or for a breach or failure to perform hereunder or otherwise (whether at lawreimbursed by the Indemnifying Party may be covered, in equitywhole or in part, by third party insurance coverage, the Indemnified Party shall promptly give notice thereof to the Indemnifying Party (a “Notice of Insurance”). If the Indemnifying Party so requests within sixty (60) days after receipt of a Notice of Insurance, the Indemnified Party shall use its commercially reasonable efforts (which shall not include the obligation to institute or defend any action) to collect the maximum amount of insurance proceeds thereunder, in contractwhich event all such proceeds actually received (net of deductibles, co-payments or other costs incurred the Indemnified Party (including increased premiums on such related Insurance Policies) in tort or otherwise), and upon payment of seeking such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwisecollection) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee considered “Eligible Insurance Proceeds.” (to the extent owed g) Any amount payable by an Indemnifying Party pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as this Article IX shall be reduced by any Company Termination Fee Eligible Insurance Proceeds. In any case where an Indemnified Party recovers from a third Person any Eligible Insurance Proceeds or any other amount in respect of any Loss for which an Indemnifying Party has actually reimbursed it pursuant to this Article IX, such Indemnified Party shall promptly pay over to the Indemnifying Party the amount of such Eligible Insurance Proceeds, but not in excess of the sum of any amount previously paid by the Company)Indemnifying Party to or on behalf of the Indemnified Party in respect of such claim. (iiih) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive Any indemnity payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated made by an Indemnifying Party under this Agreement shall be adjusted to be consummated or account for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and any Taxes imposed upon payment the receipt of such amount, none payment and shall be reduced by the amount of any Tax Benefit realized by the Parent Related Parties shall have Indemnified Party or any further liability or obligation relating to or Affiliate thereof arising out of the Loss for which the indemnification payment is being made. For purposes of determining the amount of any Tax Benefit, the recipient of the Tax Benefit shall be deemed to pay Tax at the highest United States federal income tax corporate marginal rate in effect in the year such indemnifiable loss is incurred and shall be deemed to realize or utilize any Tax Benefit in the first taxable year that such Tax Benefit may be realized or utilized under applicable Law after taking into account all other Tax attributes of such indemnified party and the projected utilization of such Tax attributes as computed by the recipient of such Tax Benefit. If a Tax Benefit resulting from an indemnifiable loss is available in multiple Tax years, the amount of such Tax Benefit for purposes of this Section 9.4(h) shall be the net present value of all of such available Tax Benefits, calculated by using a discount rate equal to the long-term applicable federal rate for the month in which such indemnifiable loss is incurred. (i) The parties hereto shall treat any indemnification payment made under this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, as an adjustment to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)Final Purchase Price.

Certain Limitations. (ia) Notwithstanding anything contained herein to the contrary contained contrary, Seller Parent, Seller and Other Sellers shall not be obligated to indemnify Purchaser Indemnified Parties for aggregate Purchaser Losses under this Agreement pursuant to Section 9.1(a)(i) in excess of 10% of the Purchase Price; provided, however, that such limitation shall not apply with respect to a breach of a representation or warranty made by Seller (its Subsidiaries or the Other Sellers) in Section 4.1, 4.2(a), 4.3, 4.5, 4.9 or 4.10. In addition, Seller Parent, Seller and the Other Sellers shall not be obligated to indemnify Purchaser Indemnified Parties for aggregate Purchaser Losses under this Agreement:Agreement (including pursuant to Section 9.1(a)(ii), 9.1(a)(iii) or 6.13(e)) in excess of an amount equal to the Purchase Price. (1b) in no event Notwithstanding anything contained herein to the contrary, Seller Parent, Seller and the Other Sellers shall the Company not be required obligated to pay the Company Termination Fee on more than one occasion; (2) indemnify Purchaser Indemnified Parties under this Agreement pursuant to Section 9.1(a)(i), (x) in no event shall Parent be required with respect to pay any individual Purchaser Loss or series of related Purchaser Losses of less than fifty thousand dollars ($50,000) (the Funding Failure Termination Fee on more than one occasion, “Minimum Amount”) and (y) in no event unless and until the aggregate Purchaser Losses (excluding individual Purchaser Losses or related Purchaser Losses less than the Minimum Amount) subject to such indemnification collectively exceed one percent (1.0%) of the Purchase Price (the “Threshold”), whereupon such indemnification shall Parent be required made by Seller only with respect to pay the Funding Failure Termination Fee if amount of such Purchaser Losses (excluding individual Purchaser Losses or related Purchaser Losses less than the Regulatory Failure Termination Fee has already been paid; and (3) (xMinimum Amount) in no event excess of the Threshold; provided, however, that the Threshold shall Parent be required not apply to pay the Regulatory Failure Termination Fee on more than one occasionany breach of a representation or warranty made by Seller in Sections 4.1, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid4.2(a), 4.3, 4.5, 4.9 or 4.10. (iic) Notwithstanding anything to The representations and warranties of the contrary Seller Parties and Purchaser contained in Article IV and Article V, respectively, of this Agreement shall survive the Closing until May 31, 2007; provided that the representations and warranties set forth in Sections 4.1, 4.2(a), 4.3, 4.5, 4.9, 5.1, 5.2(a) and 5.5 shall survive indefinitely and the representations and warranties set forth in Section 4.10 shall survive until the expiration of the applicable statute of limitations. The covenants and agreements contained in this AgreementAgreement shall survive the Closing until the date or dates explicitly specified therein or, but subject to Section 9.9if not so specified, Parent’s right to receive payment from until the Company expiration of the Company Termination Fee applicable statute of limitations with respect to the matters contained therein. (d) The obligations to indemnify and hold harmless a Party pursuant to Sections 6.14(e), 9.1(a)(i), 9.1(a)(ii), 9.1(b)(i) or 9.1(b)(ii) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 8.3(a9.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the Seller Indemnified Party or Purchaser Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall constitute have, before the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result expiration of the failure of applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment basis of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwiseclaim) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)Indemnifying Party. (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. (i) Notwithstanding anything to the contrary contained in this Agreement: (1) in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but the indemnification provided for in Section 9.2 and Section 9.3 shall be subject to the following limitations: (a) If any claim for indemnification by either Party that is subject to indemnification by the other Party under Section 9.99.2(a) or Section 9.3(a), Parent’s as applicable, results in aggregate Losses that do not exceed $50,000, then such Losses shall not be deemed Losses under this Agreement and shall not be eligible for indemnification under this Article IX. (b) The Seller shall not be liable to the Buyer Indemnitees for indemnification under Section 9.2(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.2(a) exceeds $1,500,000 (the “Threshold Amount”); provided, however, that once the aggregate amount of all such Losses exceeds the Threshold Amount, then the Buyer shall have the right to receive payment from recover all such Losses without regard to the Company Threshold Amount, subject to the other limitations on recovery and recourse set forth in this Agreement. The aggregate amount of all Losses for which the Company Termination Fee Seller shall be liable pursuant to Section 8.3(a9.2(a) shall not exceed 10% of the Base Purchase Price (the “Cap”). (c) The Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 9.3(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.3(a) exceeds the Threshold Amount; provided, however, that once the aggregate amount of all such Losses exceeds the Threshold Amount, then the Seller shall have the right to recover all such Losses without regard to the Threshold Amount, subject to the other limitations on recovery and recourse set forth in this Agreement. The aggregate amount of all Losses for which the Buyer shall be liable pursuant to Section 9.3(a) shall not exceed the Cap. (d) Notwithstanding the foregoing, the limitations set forth in Section 9.4(a), Section 9.4(b) and Section 9.4(c) shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Fundamental Representation or Tax Representation. (e) For purposes of this Article IX, the amount of any indemnifiable Losses in respect of (but not the inaccuracy in or breach of) any representation or warranty shall be determined without regard to any materiality, Seller Material Adverse Effect, Buyer Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty. (f) Under no circumstances shall any Party be entitled to duplicate recovery under this Agreement with respect to (i) any indemnification claim pursuant to this Article IX, even though the facts or series of related facts giving rise to such claim may constitute the sole and exclusive remedy a breach of Parent and Merger Sub against the Company and its Subsidiaries and more than one representation, warranty or covenant or agreement set forth herein, or in any of their respective formerthe agreements or instruments entered into in connection with the Closing, current (ii) any adjustments to the Purchase Price pursuant to Section 2.4 or future general (iii) any reimbursement or limited partnersother obligation hereunder. (g) Notwithstanding any other provision in this Agreement, stockholdersunder no circumstances shall (i) the aggregate indemnification to be paid by a Party under this Article IX exceed the Base Purchase Price, members, managers, directors, officers, employees, agents, Affiliates except in the case of fraud or assignees willful misconduct or (collectively, ii) any insurance proceeds or other payment or monetary recoupment received or that are actually realized or obtained by the “Company Related Parties”Indemnified Party (other than payments received from the Seller pursuant to this Article IX) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, events giving rise to the extent any termination of this Agreement resulted from, directly claim for indemnification be applied toward the Cap or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided other limitation on aggregate indemnification under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. (i) Notwithstanding anything to the contrary contained in this Agreement: (1) in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2) , (x) for any claim for indemnity made pursuant to Section 8.2(b) (an “Environmental Standalone Claim”), or a claim based on a failure of any representation or warranty made by Sellers in no event Section 3.11 (collectively an “Environmental Representations Claim” an Environmental Standalone Claim and an Environmental Representations Claim shall Parent hereinafter be required collectively referred to pay as “Environmental Indemnity Claims”), Sellers shall not be liable for such claims unless and until the Funding Failure Termination Fee on more than one occasionaggregate amount of all indemnifiable Losses relating to such claims equals or exceeds Four-Hundred Fifty Thousand Dollars ($450,000), and in which case Sellers shall be liable only for the amount of the Losses in excess of such amount; (y) in no event from and after the Closing, the maximum aggregated amount of indemnifiable Losses which may be recovered under Section 8.2(b) shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paidThirteen Million Five Hundred Thousand Dollars ($13,500,000); and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (yz) in no event Sellers shall Parent not be required liable for any Environmental Standalone Claim or Environmental Representation Claim unless such claim is made hereunder prior to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidSeptember 25, 2028. (ii) Notwithstanding anything With respect to any and all Environmental Indemnity Claims, Purchaser and Sellers, as the case may be, shall act only in a “Commercially Reasonable Manner” which shall mean the most cost-effective and commercially reasonable method for investigation, remediation, removal, corrective action, containment, monitoring and/or other response action permitted by applicable Environmental Laws, determined from the perspective of a reasonable business person acting (without regard to the contrary contained availability of indemnification hereunder) to achieve compliance with Environmental Laws in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company effect as of the Company Termination Fee pursuant to Section 8.3(a) Closing (it being understood that Commercially Reasonable Manner shall constitute include the sole and exclusive remedy use of Parent and Merger Sub against risk-based remedies, institutional or engineering controls, or deed restrictions, based on the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result use of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether property at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the CompanyClosing). (iii) Notwithstanding anything Sellers shall have no obligations for any Environmental Indemnity Claim to the contrary contained in this Agreementextent Losses thereunder result from or are the consequence of any action (including disclosure, but subject report or other communication from the Purchaser and its Affiliates (or their agents) to Section 9.9any Governmental Authority or other third party or any Phase II or other intrusive investigations or sampling, the Company’s right to receive payment from Parent testing or monitoring of the Funding Failure Termination Fee soil, surface water or Regulatory Failure Termination Fee pursuant groundwater performed by Purchaser or its Affiliates (or their agents)) that is not (A) required by an Environmental Law; or (B) necessary to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered address a condition first discovered as a result of the failure of the transactions contemplated by this Agreement to be consummated construction activities at, on or for beneath a breach Leased Real property or failure to perform hereunder or otherwise Real Property. (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties iv) Sellers shall have no obligation for any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, Environmental Indemnity Claim to the extent Losses result, in whole or in part, from any termination change in use of this any Leased Real Property, any Real Property or the property subject to the Sublease Agreement resulted fromfrom its current use to any non-industrial use after the Closing Date. (v) From and after the Closing Date, directly with respect to the Business, any Leased Real Property or indirectlyany Real Property, Purchaser shall, and will cause each of its Affiliates and Subsidiaries to, comply with all applicable Environmental Laws in all material respects. (vi) The Purchaser Indemnitees shall be permitted to assign all of their rights to bring an Intentional Breach of this Agreement Environmental Indemnity Claim; provided that no more than one such assignment may be made by Parent or Merger Sub or all the Purchaser Indemnitees, taken as a whole, and; provided, further, that any such Intentional Breach by Parent or Merger Sub assignment, if made, shall cause the Merger Closing not to occur as provided under Section 8.2be effective if, and only if, the Company shall assignee agrees in writing to be entitled bound to both the payment all of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (limitations applicable to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)Environmental Indemnity Claims set forth in this ARTICLE VIII.

Certain Limitations. (a) Notwithstanding anything contained herein to the contrary, Seller shall not be obligated to indemnify Purchaser Indemnified Parties for aggregate Purchaser Losses (i) under this Agreement pursuant to Section 8.1(a)(i) in excess of $5,500,000 (the “Cap”) or (ii) under this Agreement (other than pursuant to Sections 5.8 or 8.1(a)(iii)) in excess of an amount equal to the Purchase Price. Notwithstanding anything contained herein to the contrary contained in contrary, Purchaser shall not be obligated to indemnify Seller Indemnified Parties for aggregate Seller Losses (i) under this Agreement: (1Agreement pursuant to Section 8.1(b)(i) in no event excess of the Cap; provided, however, that the limitations set forth in clause (i) shall the Company be required not apply to pay the Company Termination Fee on more any breaches of any Fundamental Representation or (ii) under this Agreement (other than one occasion; (2) (xpursuant to Sections 5.8 or 8.1(b)(iii)) in no event shall Parent be required excess of an amount equal to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidPurchase Price. (iib) Notwithstanding anything contained herein to the contrary contained in contrary, Seller shall not be obligated to indemnify Purchaser Indemnified Parties under this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee Agreement pursuant to Section 8.3(a) shall constitute 8.1(a)(i), unless and until the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees aggregate Purchaser Losses subject to such indemnification collectively exceed $550,000 (collectively, the “Company Related PartiesDeductible”) for all Damages suffered as a result ), whereupon such indemnification shall be made by Seller only with respect to the amount of such Purchaser Losses in excess of the failure Deductible; provided, however, that the Deductible shall not apply to any breaches of any Fundamental Representation. Notwithstanding anything contained herein to the contrary, Purchaser shall not be obligated to indemnify Seller Indemnified Parties under this Agreement pursuant to Section 8.1(b)(i), unless and until the aggregate Seller Losses subject to such indemnification collectively exceed the Deductible, whereupon such indemnification shall be made by Purchaser only with respect to the amount of such Seller Losses in excess of the transactions contemplated by this Agreement Deductible; provided, however, that the Deductible shall not apply to be consummated or for a breach or failure to perform hereunder or otherwise any breaches of any Fundamental Representations. (whether at lawc) The representations and warranties of Seller and Purchaser contained in Article III and Article IV, in equityrespectively, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement shall survive the Closing and terminate on the date that is 12 months following the Closing Date; provided that the Fundamental Representations shall survive until the expiration of the applicable statute of limitations. (d) The obligations to indemnify and hold harmless a Party pursuant to Sections 8.1(a)(i) or 8.1(b)(i) shall terminate when the transactions contemplated thereby applicable representation or warranty terminates pursuant to Section 8.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any claims as to which the Seller Indemnified Party or Purchaser Indemnified Party, as the case may be, to be indemnified (whether at laweach, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, previously made a claim by delivering a written notice (stating in equity, in contract, in tort or otherwise) (except thatreasonable detail the basis of such claim, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement known by the Company or such Intentional Breach by Indemnified Party) to the Company shall cause indemnifying Party hereunder (the Merger Closing not to occur as provided under Section 8.2, Parent shall be “Indemnifying Party”). (e) Each Person entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damagesindemnification hereunder shall, to the extent provenas would be required under applicable Law, resulting from take all reasonable steps to mitigate all Losses after becoming aware of any event that could reasonably be expected to give rise to any Losses which are indemnifiable or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform recoverable hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)connection herewith.

Certain Limitations. (a) Except with respect to Indemnifiable Losses resulting from Excluded Taxes or from any inaccuracy in or breach of a representation or warranty set forth in Section 3.17, no party shall be obligated to indemnify and hold harmless its respective Indemnitees under ‎Section 10.02(a)(i) (in the case of Seller, and other than with respect to an inaccuracy in or breach of any Seller Specified Representation) or ‎Section 10.02(b)(i) (in the case of Purchaser, and other than with respect to an inaccuracy in or breach of any Purchaser Specified Representation) (i) with respect to any claim or series of claims arising out of substantially similar facts and circumstances, unless such claim or series of claims involves Indemnifiable Losses in excess of $100,000 (the “Threshold Amount”) (nor shall any claim that does not exceed the Threshold Amount be applied to or considered for purposes of calculating the amount of Indemnifiable Losses for which the Indemnitor is responsible under clause (ii) below) and (ii) unless and until the aggregate amount of all Indemnifiable Losses of the Indemnitees under ‎Section 10.02(a)(i) or such ‎Section 10.02(b)(i), as the case may be, exceeds $14,500,000 for all Indemnifiable Losses (the “Deductible”), at which point such Indemnitor shall be liable to its respective Indemnitees for the value of the Indemnitee’s claims under ‎Section 10.02(a)(i) (other than with respect to a breach of any Seller Specified Representation) or Section 10.02(b)(i) (other than with respect to a breach of any Purchaser Specified Representation), as the case may be, that is in excess of the Deductible, subject to the limitations set forth in this Article X; provided, however, that any Indemnifiable Losses of the Purchaser Indemnified Persons resulting from or arising out of any inaccuracy in or breach of any representation or warranty set forth in Section 3.03 shall not be subject to the Deductible, and the Threshold Amount for such Indemnifiable Losses shall be $50,000; provided further that, for the avoidance of doubt, any such Indemnifiable Losses shall be subject to the Threshold Amount and the maximum aggregate liability set forth in the following sentence prior to the proviso set forth therein. The maximum aggregate liability of Seller, on the one hand, and Purchaser on the other hand, to their respective Indemnitees for any and all Indemnifiable Losses under ‎Section 10.02(a)(i), in the case of Seller (other than with respect to a breach of any Seller Specified Representation), or ‎Sections 10.02(b)(i), in the case of Purchaser (other than with respect to a breach of any Purchaser Specified Representation), shall be $174,000,000; provided, that the maximum aggregate liability of Seller to all Purchaser Indemnified Persons for any or all Indemnifiable Losses under this Agreement shall not exceed the Purchase Price. The limitations in this Section 10.03(a) shall not apply to claims made under Section 10.02(a)(iii), Section 10.02(b)(iii) or Section 10.02(b)(iv). (b) Each Indemnitee shall use commercially reasonable efforts to mitigate all Indemnifiable Losses for which indemnification may be sought hereunder; provided that the costs and expenses of such mitigation shall constitute Indemnifiable Losses hereunder. (c) Notwithstanding anything to the contrary contained in this Agreement: (1) in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasionherein, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, Indemnifiable Losses resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything to the contrary contained breach of any representation or warranty of Seller made in this AgreementAgreement in respect of Taxes, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.23.17, the Company shall be entitled limited to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (Taxes attributable to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)Pre-Closing Periods.

Certain Limitations. (i) Notwithstanding anything The indemnification afforded by this ‎ARTICLE X shall be subject to the contrary contained in this Agreementfollowing limitations: (1a) in no event shall the Company be required With respect to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement indemnification by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a‎Section 10.1(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right maximum liability for any Loss suffered by an Investor Indemnified Party (other than any Loss resulting from a Third Party Claim) shall not exceed an amount (the “Company Indemnification Cap”) equal to receive payment from Parent (i) the Hard Cap and the amount of all of the Funding Failure Termination Fee other Obligations owed by the Company Parties to the Investor under this Agreement and the other Transaction Documents (other than the indemnification amounts payable under ‎Section 10.1(a)) as of the date of determination, minus (ii) the aggregate amount of all of the payments collected or Regulatory Failure Termination Fee received by the Investor (and any direct or indirect transferee of the Investor to whom any interest in the Revenue Interests is transferred) hereunder as of such date of determination (other than (A) any payments collected or received as a reimbursement of expenses incurred by any Investor Indemnified Party (including attorney’s fees) and (B) any indemnification payments collected or received pursuant to Section 8.3(a‎Section 10.1(a)), minus (iii) shall constitute the sole aggregate amount collected or received by the Investor (and exclusive remedy any direct or indirect transferee of the Company and Investor to whom any interest in the Revenue Interests is transferred) pursuant to the exercise of its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwiserights under ‎Section 10.1(a) (except that, without duplication of any amounts collected or received pursuant to clause (ii)) prior to such date of determination to the extent any termination of this Agreement resulted from, directly such amount was not collected or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause received in connection with a Third Party Claim. Notwithstanding the Merger Closing not to occur as provided under Section 8.2foregoing, the Company Indemnification Cap shall be entitled not apply to both any Loss suffered by any Investor Indemnified Party in connection with a Third Party Claim. (b) With respect to indemnification by the payment Investor pursuant to ‎Section 10.2, the Investor’s maximum liability shall not exceed an amount equal to the excess (if any) of (i) the aggregate amount of all of the Funding Failure Termination Fee payments collected or Regulatory Failure Termination Fee (received by the Investor from the Company prior to the extent owed pursuant to Section 8.3(a)date of determination (excluding any amounts collected or received as a reimbursement of expenses incurred by the Investor or any indemnification amounts collected or received in connection with a Third Party Claim) and to any Damages, to over (ii) the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)Investment Amount.

Certain Limitations. (a) Notwithstanding the other provisions of this Article VII, in respect of any indemnification by Seller or Purchaser, pursuant to Section 7.1 or Section 7.2, respectively, (i) there will be no obligation to indemnify for any individual item where the Losses relating thereto is less than [***] of the Purchase Price (the “De Minimis Amount”) (provided, that such Losses shall be aggregated for purposes of this clause (i) if they arise out of the same matter, fact, circumstance or event, or a series of substantially related matters, facts, circumstances or events) and, if such Losses do not exceed the De Minimis Amount, then such Losses shall not be applied to or considered for purposes of calculating the aggregate amount of Losses under the following clause (ii); (ii) where the Losses arising from such individual claim is equal to or greater than the De Minimis Amount, until the aggregate amount of all such Losses incurred by the Indemnified Party exceeds [***] of the Purchase Price (the “Deductible”), at which time all such Losses in excess of the Deductible will be subject to indemnification hereunder; and (iii) Seller’s or Purchaser’s aggregate Liability for indemnification pursuant to this Article VII, unless arising in connection with Fraud of Seller or the Divesting Entity or Third Party Claims, will not exceed [***] of the Purchase Price received by Seller. (b) If, prior to the Closing, Purchaser has had knowledge of any breach by Seller of any representation, warranty, covenant or agreement contained in this Agreement and Purchaser proceeds with the Closing, Purchaser shall be deemed to have waived such breach pursuant to this Article VII, to sue for damages or assert any other right or remedy arising from any matters relating to such breach, notwithstanding anything to the contrary contained herein or any certificate delivered pursuant hereto. (c) Notwithstanding anything to the contrary contained in this Agreement: herein (1unless actually awarded and paid on account of a Third Party Claim ), no Party shall be liable for any (i) in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasionspecial, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasionpunitive, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. exemplary, incidental, consequential or indirect damages, (ii) Notwithstanding anything lost profits or lost business, loss of enterprise value, diminution in value of any business, damage to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company reputation or loss of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current goodwill or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything to the contrary contained in this Agreementdamages calculated based on a multiple of profits, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee revenue or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at lawother financial metric, in equityeach case, in whether based on contract, in tort tort, strict liability, other Law or otherwise), and upon payment of such amountwhether or not arising from any other Party’s sole, none of the Parent Related Parties shall have any further joint or concurrent negligence, strict liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)other fault.

Certain Limitations. (a) No party shall be obligated to indemnify and hold harmless its respective Indemnitees under ‎Section 7.2(a)(i) (in the case of Seller) or ‎Section 7.2(b)(i) (in the case of Buyer) (i) with respect to any claim, unless such claim involves Indemnifiable Losses in excess of $25,000 (the “Threshold Amount”) (nor shall any claim that does not exceed the Threshold Amount be applied to or considered for purposes of calculating the amount of Indemnifiable Losses for which the Indemnitor is responsible under clause (ii) below) and (ii) unless and until the aggregate amount of all Indemnifiable Losses of the Indemnitees under such ‎Section 7.2(a)(i) or such ‎Section 7.2(b)(i), as the case may be, exceeds $1,562,500 for all Indemnifiable Losses (the “Deductible”), at which point such Indemnitor shall be liable to its respective Indemnitees for the value of the Indemnitee’s claims under ‎Section 7.2(a)(i) or ‎Section 7.2(b)(i), as the case may be, that is in excess of the Deductible, subject to the limitations set forth in this Article VII. The maximum aggregate liability of Seller and WIMC, on the one hand, and Buyer on the other hand, to their respective Indemnitees for any and all Indemnifiable Losses under ‎Sections 7.2(a)(i) in the case of Seller, or ‎Section 7.2(b)(i), in the case of Buyer, shall be $15.625 million (the “Cap”). Notwithstanding anything to the contrary contained in this Agreement: (1) in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amountherein, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement Threshold Amount, the Deductible or the transactions contemplated thereby Cap shall apply with respect to Indemnifiable Losses (whether at law, in equity, in contract, in tort A) under Section 7.2(a)(i) or otherwiseSection 7.2(b)(i) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent provenrelating to, resulting from or arising out of such Intentional Breach common law fraud, (as reduced by any Company Termination Fee previously paid by the Company). (iiiB) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(aunder ‎Section 7.2(a)(i) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent provenrelating to, resulting from or arising out of such Intentional Breach any breach of a Seller Fundamental Representation or a representation in Section 3.1(i) or (as reduced by j), or (C) under ‎Section 7.2(b)(i) to the extent relating to, resulting from or arising out of any Funding Failure Termination Fee breach of a Buyer Fundamental Representation; provided, however, that, except to the extent relating to, resulting from or Regulatory Failure Termination Fee paid by Parentarising out of intentional fraud or Section 7.2(a)(iv), 7.2(a)(v), 7.2(a)(vi), 7.2(a)(vii) or 7.2(d), the maximum aggregate liability of Seller and WIMC to all Buyer Indemnified Persons and Buyer to all Seller Indemnified Persons, for any or all Indemnifiable Losses and Specific Indemnifiable Losses under this Agreement, shall not exceed $125,000,000. (b) Each Indemnitee shall mitigate all Indemnifiable Losses for which indemnification may be sought hereunder in accordance with the laws of the State of New York.

Certain Limitations. (ia) Notwithstanding anything contained herein to the contrary contained contrary, Seller Parent, Seller and Other Sellers shall not be obligated to indemnify Purchaser Indemnified Parties for aggregate Purchaser Losses under this Agreement pursuant to Section 9.1(a)(i) in excess of $24,000,000; provided, however, that such limitation shall not apply with respect to a breach of a representation or warranty made by Seller (its Subsidiaries or the Other Sellers) in Section 4.1, 4.2(a), 4.3, 4.5, 4.9 or 4.10. In addition, Seller Parent, Seller and the Other Sellers shall not be obligated to indemnify Purchaser Indemnified Parties for aggregate Purchaser Losses under this Agreement:Agreement (including pursuant to Section 9.1(a)(ii), 9.1(a)(iii) or 6.13(e)) in excess of an amount equal to the Purchase Price. (1b) in no event Notwithstanding anything contained herein to the contrary, Seller Parent, Seller and the Other Sellers shall the Company not be required obligated to pay the Company Termination Fee on more than one occasion; (2) indemnify Purchaser Indemnified Parties under this Agreement pursuant to Section 9.1(a)(i), (x) in no event shall Parent be required with respect to pay any individual Purchaser Loss or series of related Purchaser Losses of less than fifty thousand dollars ($50,000) (the Funding Failure Termination Fee on more than one occasion, “Minimum Amount”) and (y) in no event unless and until the aggregate Purchaser Losses (excluding individual Purchaser Losses or related Purchaser Losses less than the Minimum Amount) subject to such indemnification collectively exceed one percent (1.0%) of the Purchase Price (the “Threshold”), whereupon such indemnification shall Parent be required made by Seller only with respect to pay the Funding Failure Termination Fee if amount of such Purchaser Losses (excluding individual Purchaser Losses or related Purchaser Losses less than the Regulatory Failure Termination Fee has already been paid; and (3) (xMinimum Amount) in no event excess of the Threshold; provided, however, that the Threshold shall Parent be required not apply to pay the Regulatory Failure Termination Fee on more than one occasionany breach of a representation or warranty made by Seller in Sections 4.1, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid4.2(a), 4.3, 4.5, 4.9 or 4.10. (iic) Notwithstanding anything to The representations and warranties of the contrary Seller Parties and Purchaser contained in Article IV and Article V, respectively, of this Agreement shall survive the Closing until September 15, 2007; provided that the representations and warranties set forth in Sections 4.1, 4.2(a), 4.3, 4.5, 4.9, 5.1, 5.2(a) and 5.5 shall survive indefinitely and the representations and warranties set forth in Section 4.10 shall survive until the expiration of the applicable statute of limitations. The covenants and agreements contained in this AgreementAgreement shall survive the Closing until the date or dates explicitly specified therein or, but subject to Section 9.9if not so specified, Parent’s right to receive payment from until the Company expiration of the Company Termination Fee applicable statute of limitations with respect to the matters contained therein. (d) The obligations to indemnify and hold harmless a Party pursuant to Sections 6.14(e), 9.1(a)(i), 9.1(a)(ii), 9.1(b)(i) or 9.1(b)(ii) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 8.3(a9.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the Seller Indemnified Party or Purchaser Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall constitute have, before the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result expiration of the failure of applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment basis of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwiseclaim) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)Indemnifying Party. (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. (i) Notwithstanding anything The indemnification provided for in Article VII, Section 9.02, Section 9.03 and Section 9.04 shall be subject to the contrary contained in this Agreementfollowing limitations: (1a) The Warrantors shall not be liable to the Beneficiary Indemnitees for indemnification under Section 9.03(a) (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any inaccuracy in no or breach of any representation or warranty in Section 4.01 and Section 4.03 (the “Beneficiary Basket Exclusions”), or under Section 9.03(b) with respect to covenants to be performed prior to the Closing or Article VII, until the aggregate amount of all Losses in respect of indemnification under such sections (other than those based upon, arising out of, with respect to or by reason of the Beneficiary Basket Exclusions) exceeds €150,000 (the “Basket”), in which event the Warrantors shall the Company be required to pay or be liable only for those Losses exceeding €150,000. The maximum aggregate indemnification obligation of the Company Termination Fee Warrantors under Article IX or Article VII shall be limited to thirty percent (30%) of the Contribution Amount other than with respect to claims for indemnification based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty contained in the Beneficiary Basket Exclusions. Notwithstanding the foregoing, Beneficiary shall not have the right to recover Losses under this Article IX or Article VII relating to any individual claim or series of related claims based on more a similar set of operative facts, and such Losses shall not apply to the Basket, unless such claim or series of related claims is greater than one occasion;€15,000 (the “De Minimis Amount”), in which case the Beneficiary shall be entitled to recover for all such Losses (or all such Losses shall be applied against the Basket, as applicable) in connection with such claim or series of related claims including the De Minimis Amount. (2b) The Beneficiary shall not be liable to the Contributor Indemnitees for indemnification under Section 9.04(a) (xother than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Sections 5.01 and 5.04 (the “Contributor Basket Exclusions”), or under Section 9.04(b) with respect to covenants to be performed prior to the Closing, until the aggregate amount of all Losses in no respect of indemnification under such sections (other than those based upon, arising out of, with respect to or by reason of the Contributor Basket Exclusions) exceeds €150,000 (the “Basket”), in which event the Beneficiary shall Parent be required to pay or be liable only for those Losses exceeding €150,000. The maximum aggregate indemnification obligation of the Funding Failure Termination Fee Beneficiary under Article IX shall be limited to thirty percent (30%) of the Contribution Amount other than with respect to claims for indemnification based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty contained in the Contributor Basket Exclusions. Notwithstanding the foregoing, Contributors shall not have the right to recover Losses under this Article IX relating to any individual claim or series of related claims based on more than one occasiona similar set of operative facts, and (y) in no event such Losses shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything not apply to the contrary contained in this AgreementBasket, but subject to Section 9.9, Parent’s right to receive payment from unless such claim or series of related claims is greater than the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at lawDe Minimis Amount, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of which case the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent Contributors shall be entitled to recover for all such Losses (or all such Losses shall be applied against the payment Basket, as applicable) in connection with such claim or series of related claims including the Company Termination Fee De Minimis Amount. (c) Losses otherwise subject to indemnification hereunder shall be reduced by the amount, if any, of any insurance proceeds, Tax benefits or savings, or other amounts received or recoverable by the Indemnified Party from any third party with respect thereto. All Indemnified Parties shall use good faith reasonable commercial efforts to mitigate any Losses potentially subject to indemnification hereunder and to recover any such Losses from any available insurance carrier or other third party potentially liable therefor. No party shall have any indemnification obligation hereunder with respect to any Loss to the extent owed pursuant to Section 8.3(a)) and arising from the enactment or amendment of any Laws entering in force after the Closing. Neither the Contributors nor the Warrantors shall have any indemnification obligation hereunder with respect to any DamagesLoss arising from any change made by Beneficiary or the Companies to the accounting methods or practices implemented after the Closing or any other actions taken or omitted to be taken by Companies or Beneficiary following the Closing, or reserved against or accrued or provided for on the Financial Statements or the Closing Working Capital Statement. If any amount paid in connection with or account of a Loss by an Indemnifying Party to another is subsequently recovered, totally or partially, from a Person or a Governmental Authority, then the Indemnified Party shall promptly pay over the amount so recovered to the Indemnifying Party, up to the amount previously indemnified. An Indemnifying Party shall have a reasonable opportunity to cure any matter giving rise to a potential claim for indemnification hereunder. An Indemnifying Party shall be subrogated to all rights of any Indemnified Party with respect to any Losses to which such indemnification relates to the extent provenof any payment made in connection therewith. In any case, resulting from or arising out of such Intentional Breach (any given Loss will be indemnified only once and, as reduced by any Company Termination Fee previously paid a consequence, shall not lead to several indemnifications by the Company). (iii) Notwithstanding anything Indemnifying Party to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and Indemnified Party and/or any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, its Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. (a) No claim for Losses shall be made under Section 9.2(a) or under Section 9.3(a) unless the aggregate amount of Losses exceeds [***] for which claims are made hereunder by the Indemnified Party (the "Basket"), in which case the Indemnified Party shall be entitled to seek compensation for Losses in excess of the Basket, but only up to a maximum aggregate amount of [***] (the "Indemnification Cap"); provided, however, that the foregoing Basket and Indemnification Cap shall not apply to Losses resulting from (i) Seller's Fraud or (ii) any breach of any Fundamental Rep made by Seller; provided, further, that aggregate indemnification obligations of the Indemnified Party for all Losses resulting from any breach of any Fundamental Rep shall not exceed an amount equal to [***] (the "[***]"). Notwithstanding anything to the contrary contained in this Agreement: (1foregoing, with respect to any claim as to which the Indemnified Party may be entitled to indemnification under Section 9.2(a) in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2) or under Section 9.3(a), (x) no Party shall be liable for any Loss resulting from or relating to any inaccuracy in no event shall Parent be required to pay or breach of any representation or warranty if the Funding Failure Termination Fee on more than one occasion, Party seeking indemnification for such Loss had knowledge of such breach or the underlying facts of such breach before the Initial Closing and (y) in no event the Indemnifying Party shall Parent not be required to pay liable for any individual or series of related Losses which do not exceed [***] (the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3"De Minimis Amount") (x) in no event which Losses shall Parent not be required counted toward the Basket); provided, however, that such de minimis limitation shall not apply with respect to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company Fraud. The aggregate indemnification obligations of the Company Termination Fee pursuant to Indemnified Party for claims made under Section 8.3(a9.2(b) or Section 9.3(b) shall constitute not exceed the sole and exclusive remedy [***] . For the avoidance of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amountdoubt, none of the Company Related Parties Basket, Indemnification Cap, [***] or De Minimis Amount limitations shall have apply with respect to any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided Losses under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to 9.2(c) or Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company9.3(d). (iiib) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent The amount of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) Loss for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as which indemnification is provided under Section 8.29.2 or Section 9.3 shall be net of (i) any amounts actually received by the Indemnified Party pursuant to any indemnification by or indemnification agreement with any third party in respect of such Loss and (ii) any insurance proceeds actually received in respect of such Loss as an offset against such Loss. If the amount to be netted hereunder from any payment required under Section 9.2 or Section 9.3 is determined after payment by the Indemnifying Party of any amount otherwise required to be paid to an Indemnified Party pursuant to this Article IX, the Company Indemnified Party shall repay to the Indemnifying Party, promptly after such determination, any amount that the Indemnifying Party would not have had to pay pursuant to this Article IX had such determination been made at the time of such payment. (c) Indemnified Party shall take, and shall cause its Affiliates to take, all reasonable steps to mitigate Losses, including incurring costs only to the minimum extent necessary to remedy the breach. (d) All payments made pursuant to this Article IX shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (treated for Tax purposes as an adjustment to the extent owed pursuant to Section 8.3(a)) and to any Damagespurchase price, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced unless otherwise required by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)applicable Law.

Certain Limitations. (i) Notwithstanding anything to the contrary contained in this Agreement: , (1A) in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; occasion and (2) (xB) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive monetary remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholdersshareholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive monetary remedy of the Company and its stockholders shareholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, that (i) to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent, and (ii) nothing shall limit the Company’s rights to indemnification and reimbursement in accordance with Section 6.12(b)).

Certain Limitations. The indemnification provided for in Sections 8.2 and 8.3 shall be subject to the following limitations: (a) The Buyer Indemnitees shall not be indemnified pursuant to Section 8.2 with respect to any Loss if the aggregate of all Losses for which the Buyer Indemnitees have received indemnification has exceeded $1,600,000 (the “Cap”); provided, however, for any Loss relating to, based upon, arising out of, with respect to or by reason of (i) any inaccuracy in or breach of any of the Seller Fundamental Representations, (ii) Section 8.2(b), (iii) Section 8.2(c), (iv) Section 8.2(d), or (v) Section 8.2(e), in each case, the Cap shall be equal to one hundred percent (100%) of the Purchase Price. For the avoidance of doubt, except in the case of fraud, intentional misrepresentation, or willful misconduct, in no event shall Seller be required to indemnify the Buyer Indemnitees for any Losses in excess of an aggregate amount equal to the Purchase Price. The Buyer Indemnitees shall not be indemnified pursuant to Section 8.2 with respect to any Losses unless and until such Losses exceed one hundred thousand dollars ($100,000) (the “Basket Amount”), but then only to the extent of any such excess; provided, however, the Basket Amount shall not apply to any Losses relating to, based upon, arising out of, with respect to or by reason of (i) any inaccuracy in or breach of any of the Seller Fundamental Representations, (ii) Section 8.2(b), (iii) Section 8.2(c), (iv) Section 8.2(d), or (v) Section 8.2(e). (b) Notwithstanding anything to the contrary contained herein, the limitations set forth in this Agreement: (1Section 8.4(a) shall not apply to Losses incurred in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasionconnection with fraud, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidintentional misrepresentation or willful misconduct. (iic) Notwithstanding anything For purposes of determining the amount of Loss (but not for purposes of determining whether a breach has occurred) related to the contrary a breach of any representation or warranty contained in this Agreement, the other Transaction Documents or any certificate or instrument delivered by or on behalf of Seller pursuant hereto or thereto, such representation and warranty shall be considered without regard to the words “material,” “Material Adverse Effect” or similar qualification set forth therein. (d) If Seller’s indemnification obligation under Section 8.2 arises in respect of any indemnifiable event (i) for which Buyer receives indemnification from Seller, and (ii) for which Buyer (or its Affiliates) actually realizes any deduction, credit or other Tax benefit with respect to such Loss (a “Tax Benefit”) that would not, but subject for such indemnifiable event, be available, such indemnification obligation of Seller shall be reduced by an amount equal to Section 9.9, Parent’s right to receive payment from the Company Tax Benefit actually realized by Buyer (or its Affiliates) in the Tax year of the Company Termination Fee pursuant to Section 8.3(a) shall constitute Loss or the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered two succeeding Tax years as a result of such Tax Benefit. If the failure Tax Benefit is actually realized after the indemnification payment is made, Buyer shall within 15 days of the transactions contemplated by this Agreement receiving a payment or reducing a required Tax payment, pay such amount to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)Seller. (iiie) Notwithstanding anything contained herein or elsewhere to the contrary contained contrary, the amount of any Losses for which indemnification is provided under this Agreement shall be net of any amounts actually recovered by the Indemnified Party with respect to such Losses from any third party (or paid by such third party to another for the account or benefit of the Indemnifying Party) with respect to obligations of such third party or under insurance policies maintained by the Indemnifying Party and applicable to such Losses, net of reasonable expenses incurred by the Indemnified Party in obtaining such recovery. To the extent that (i) any amounts are actually recovered by an Indemnified Party from a third party (or paid by such third party to another for the account or benefit of the Indemnifying Party) or (ii) any insurance payment is actually recovered by an Indemnified Party after the related indemnification payment has been made pursuant to this Agreement, but subject the Indemnified Party will promptly pay over to Section 9.9, the Company’s right Indemnifying Party the amounts that are actually recovered from a third party (or paid by such third party to receive payment from Parent another for the account or benefit of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by ParentIndemnifying Party).

Certain Limitations. The indemnification provided for in Section 9(b) and Section 9(c) shall be subject to the following limitations: (i) Notwithstanding anything The Stockholders shall not be liable to the contrary contained 4Front Indemnitees for indemnification under Section 9(b)(i) until the aggregate amount of all Losses in this Agreement: respect of indemnification under Section 9(b)(i) exceeds $165,000 (1) the “Basket”), in no which event the Stockholders shall the Company be required to pay or be liable for all such Losses from the Company Termination Fee on more than one occasion; first dollar. The aggregate amount of all Losses for which the Stockholders shall be liable pursuant to Section 9(b)(i) shall not exceed $1,650,000 (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid“Cap”). (ii) Notwithstanding anything The Company shall not be liable to the contrary contained Island Indemnitees for indemnification under Section 9(c)(i) until the aggregate amount of all Losses in this Agreementrespect of indemnification under Section 9(c)(i) exceeds the Basket, but subject in which event the Company shall be required to Section 9.9, Parent’s right to receive payment pay or be liable for all such Losses from the Company first dollar. The aggregate amount of all Losses for which the Company Termination Fee shall be liable pursuant to Section 8.3(a9(c)(i) shall constitute not exceed the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)Cap. (iii) Notwithstanding anything the foregoing, the limitations set forth in Sections 9(d)(i) and 9(d)(ii) shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Island Fundamental Representation or 4Front Fundamental Representation. (iv) No Stockholder shall be responsible for Losses pursuant to this Section 9 in excess of the contrary contained in total consideration received by such Stockholder pursuant to this Agreement and/or the Exchange Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) except for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or Losses arising out of this Agreement or Fraud on the transactions contemplated thereby part of such Stockholder. (whether at law, in equity, in contract, in tort or otherwisev) (except that, to the extent any termination For purposes of this Agreement resulted fromSection 9, directly any inaccuracy in or indirectly, an Intentional Breach breach of this Agreement by Parent any representation or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company warranty shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and determined without regard to any Damagesmateriality, Island Material Adverse Effect, Company Material Adverse Effect or other similar qualification contained in or otherwise applicable to the extent proven, resulting from such representation or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)warranty.

Certain Limitations. (ia) Notwithstanding anything contained in any Transaction Document to the contrary, Seller shall not be obligated to indemnify any Purchaser Indemnified Parties (A) for Purchaser Losses under Section 7.1(a)(i) of this Agreement (other than in respect of the Seller Specified Reps) and for any breach of the Transition Services Agreement or the Professional Services Agreement and for any breach of a covenant contained in this Agreement insofar as it directly relates to the Transition Services Agreement or the Professional Services Agreement (including Section 9.13 hereof) collectively in the aggregate in excess of twenty eight million, one hundred twenty five thousand dollars ($28,125,000) (the “Cap”) or (B) with respect to all Purchaser Losses under Section 7.1(a) and for any breach of the Transition Services Agreement or the Professional Services Agreement (including breaches involving fraud or willful breach) collectively in the aggregate in excess of the Purchase Price (the “Aggregate Cap”); provided, that neither the Cap nor the Aggregate Cap shall apply in the case of fraud or willful breach involving this Agreement. (b) Notwithstanding anything contained in any Transaction Document to the contrary, Purchaser shall not be obligated to indemnify any Seller Indemnified Parties (A) for Seller Losses under Section 7.1(b)(i) of this Agreement (other than in respect of the Purchaser Specified Reps) and for any breach of the Transition Services Agreement or the Professional Services Agreement and for any breach of a covenant contained in this Agreement insofar as it directly relates to the Transition Services Agreement or the Professional Services Agreement (including Section 9.13 hereof) collectively in the aggregate in excess of the Cap or (B) with respect to all Seller Losses under Section 7.1(b) and for any breach of the Transition Services Agreement or the Professional Services Agreement (including breaches involving fraud or willful breach) collectively in the aggregate in excess of the Aggregate Cap; provided, that neither the Cap nor the Aggregate Cap shall apply in the case of fraud or willful breach involving this Agreement. (c) Notwithstanding anything to the contrary contained in this Agreement: Agreement and subject to Section 7.1(c) and Section 7.2(c) of the Seller Disclosure Letter, Seller shall not be liable for any Purchaser Losses unless and until the aggregate amount of all Purchaser Losses incurred by Purchaser exceeds two million dollars (1) in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2$2,000,000) (xthe “Deductible”) and then Seller shall be liable for aggregate amount of all Purchaser Losses (excluding the amount of the Deductible); provided, however, that (i) all Purchaser Losses up to the Deductible shall be calculated and included in no event shall Parent be required the Deductible only to pay the Funding Failure Termination Fee on more than one occasionextent Purchaser Losses resulting from any single claim or aggregate claims arising out of substantially the same facts, events or circumstances exceed the Lower Threshold and (yii) all Purchaser Losses in no excess of the Deductible shall be calculated and included as Purchaser Losses for any purpose under this Article VII only to the extent Purchaser Losses resulting from any single claim or aggregate claims arising out of substantially the same facts, events or circumstances exceed the Higher Threshold; provided, further, that, for purposes of determining whether a Purchaser Loss applies to the Lower Threshold or the Higher Threshold, such determination shall be made based on timing of Purchaser Indemnified Party’s discovery of the event underlying such Purchaser Loss; provided, further, that the Deductible, the Lower Threshold and the Higher Threshold shall Parent be required not apply to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3indemnification claims for Purchaser Losses under Section 7.1(a)(i) (xfor breach of Seller Specified Reps or under Sections 7.1(a)(ii) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasionor 7.1(a)(iii), and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidor for fraud or willful breach. (iid) Notwithstanding anything to the contrary The representations and warranties of Seller and Purchaser contained in ARTICLE III (as modified by the Disclosure Letter) and ARTICLE IV, respectively, of this Agreement, but subject to Section 9.9, Parent’s right to receive payment from Agreement shall survive the Company Closing until the twelve (12)-month anniversary of the Company Termination Fee pursuant Closing Date, other than the representations set forth in (i) Section 3.1, Section 3.2(a), Section 3.2(b) with respect to clause (i) only, Section 8.3(a) shall constitute the sole 3.4(a), Section 3.4(b), Section 3.10 and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees Section 3.11 (collectively, the “Company Related PartiesSeller Specified Reps”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at lawand Section 4.1, in equitySection 4.2, in contract, in tort or otherwise), Section 4.4 and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources 4.6 (collectively, the “Parent Related PartiesPurchaser Specified Reps”) for all Damages suffered as a result which shall survive until thirty (30) days after the expiration of the failure applicable statute of limitations with respect to the matters contained therein or, if no such applicable statute of limitations exists, indefinitely. The covenants and agreements contained in this Agreement shall survive the Closing until the date or dates specified therein or, if not so specified, until the expiration of the transactions contemplated by this Agreement applicable statute of limitations with respect to the matters contained therein or, if no such applicable statute of limitations exists, indefinitely. Notwithstanding the foregoing, no time limitations shall apply to any claims based on fraud or willful breach. (e) The obligations to indemnify, defend and hold harmless a Party pursuant to Section 7.1(a) or 7.1(b) shall terminate if the applicable representation, warranty or covenant terminates pursuant to Section 7.2(d); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the Seller Indemnified Party or Purchaser Indemnified Party, as the case may be, to be consummated or for indemnified (each, an “Indemnified Party”) shall have, before the expiration of the applicable survival period, made a breach or failure to perform hereunder or otherwise claim by delivering a written notice (whether at law, stating in equity, in contract, in tort or otherwise), and upon payment reasonable detail the basis of such amountclaim) to the Indemnifying Party. (f) Notwithstanding anything contained herein or elsewhere to the contrary, none all “material,” “materially” or Company Material Adverse Effect qualifiers contained in the representations and warranties (or definitions used in the representations and warranties) set forth in ARTICLE III (other than clause (ii) of the Parent Related Parties shall have any further liability or obligation relating to or arising out Section 3.16(a)) and ARTICLE IV of this Agreement and in the certificates delivered pursuant to Section 6.2(a) or Section 6.3(a) shall be ignored and not given any effect for purposes of the transactions contemplated thereby (indemnification provisions hereof, including, without limitation, for purposes of determining whether at lawor not a breach of a representation or warranty has occurred, in equitydetermining whether the limitations in this Section 7.2 have been satisfied (including the Deductible) and/or in determining the amount of any indemnifiable Purchaser Losses. (g) Except with respect to intentionally concealed matters, in contractno information or knowledge acquired, in tort or otherwise) (except thatinvestigations conducted, to by Purchaser or its representatives, of the extent any termination of this Agreement resulted fromBusiness, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2Company, the Company Subsidiary or otherwise, shall be entitled to both the payment of the Funding Failure Termination Fee in any way limit, or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to constitute a waiver of, or a defense to, any Damages, to the extent proven, resulting from claim for indemnification by Purchaser or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)Purchaser Indemnified Party under this Agreement.

Certain Limitations. Notwithstanding the provisions of this Article IX, after the Closing with the exception of indemnification for breaches of Fundamental Representations, (i) Notwithstanding anything the Purchaser Indemnified Parties shall not be entitled to recover pursuant to Section 9.2(a)(i) (except in respect of breaches of any representation or warranty in Section 3.17(d)) until the Losses incurred with respect to the contrary contained matter (or series of related matters) giving rise to such breach exceed in this Agreement: the aggregate Twenty Thousand Dollars (1$20,000) (the “Mini-Basket”), and then, in such case, the entire amount of such Losses (including the portion thereof comprising of the Mini-Basket) shall count towards the Basket and shall, subject to clauses (ii) and (iii) below, be recoverable by the Purchaser Indemnified Parties, (ii) the Purchaser Indemnified Parties shall not be entitled to recover pursuant to Section 9.2(a)(i) (except in respect of breaches of any representation or warranty in Section 3.17(d)) until, excluding claims that are less than the Mini-Basket, the Losses incurred relating thereto exceed, in the aggregate, Six Hundred, Fifteen Thousand Dollars ($615,000) (the “Basket”), and then Seller Guarantor shall be liable only to the extent that aggregate indemnified Losses exceed such amount, and (iii) in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company aggregate liability of the Company Termination Fee Seller Guarantor to Purchaser Indemnified Parties pursuant to Section 8.3(a9.2(a)(i) exceed Eight Million, Two Hundred Thousand Dollars ($8,200,000) (the “Cap”); provided, that the Cap shall constitute be increased (A) to Sixteen Million, Four Hundred Thousand Dollars ($16,400,000) (less any amounts recovered to which the sole Cap applies) with respect to indemnification for breaches of Specified Representations and exclusive remedy (B) to Forty-One Million Dollars ($41,000,000) (less any amounts recovered to which the Cap applies) with respect to indemnification for breaches of Parent and Merger Sub against Section 3.18(c) or Section 3.18(d) that the Company and its Subsidiaries and any had Knowledge of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out date of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)Agreement. (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. Notwithstanding the provisions of this Article VIII, after the Closing, (ia) Notwithstanding anything the Buyer Indemnified Parties shall not be entitled to recover pursuant to Section 8.2(a)(i) (other than with respect to breaches of Fundamental Representations) until the contrary contained Losses (excluding all Losses with respect to De Minimis Claims) relating thereto exceed, in this Agreement: the aggregate, Three Million Five Hundred Thousand Dollars (1$3,500,000) (the “Threshold”), provided, that, the Buyer Indemnified Parties shall only be entitled to indemnification for the amount of such Losses in excess of the Threshold, (b) in no event shall the Company Buyer Indemnified Parties be required entitled to pay the Company Termination Fee on more than one occasion; (2recover pursuant to Section 8.2(a)(i) (xother than with respect to breaches of Fundamental Representations) any amounts in excess of Thirty Five Million Dollars ($35,000,000) (the “Cap”); provided, that, the Cap shall be increased to Seventy Million Dollars ($70,000,000) (less any amounts recovered to which the Cap applies) with respect to indemnification for breaches of the representations and warranties set forth in Section 4.10(b) (Title to Properties), and (c) in no event shall Parent the Buyer Indemnified Parties be required entitled to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee recover pursuant to Section 8.3(a8.2(a)(i) shall constitute the sole and exclusive remedy (other than with respect to breaches of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”Fundamental Representations) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated any single claim or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or aggregated claims arising out of this Agreement substantially the same events or circumstances unless the transactions contemplated thereby (whether at law, in equity, in contract, in tort amount of Losses attributable to such claim or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or aggregated claims arising out of such Intentional Breach substantially the same events or circumstances exceed $100,000 (as reduced by any Company Termination Fee previously paid “De Minimis Claims”). Notwithstanding the foregoing, the maximum aggregate amount recoverable by the Company). (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) Buyer Indemnified Parties for all Damages suffered as a result of the failure of the transactions contemplated by Losses under this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled limited to both and shall not exceed the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (Purchase Price actually paid to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced received by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)Seller.

Certain Limitations. (i) Notwithstanding anything The indemnification provided for in Section 6.02 and Section 6.03 shall be subject to the contrary contained in this Agreementfollowing limitations: (1a) Seller shall not be liable to the Buyer Indemnitees for indemnification under Section 6.02(a) until the aggregate amount of all Losses in no event respect of indemnification under Section 6.02(a) exceeds $100,000 (the “Threshold”) and then only for the overage. The aggregate amount of all Losses for which Seller shall be liable pursuant to Section 6.02(a) shall not exceed $1,000,000 (the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid“Cap”). (iib) Notwithstanding anything Buyer shall not be liable to the contrary contained Seller Indemnitees for indemnification under Section 6.03(a) until the aggregate amount of all Losses in this Agreementrespect of indemnification under Section 6.03(a) exceeds the Threshold. If such Losses exceed the Threshold, but subject then Buyer’s liability to the Seller Indemnitees for indemnification under Section 9.9, Parent’s right to receive payment from 6.03(a) shall be for the Company amount of Losses sustained or incurred in excess of the Company Termination Fee Threshold. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.3(a6.03(a) shall constitute not exceed the sole and exclusive remedy of Parent and Merger Sub against Cap. (c) Notwithstanding the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectivelyforegoing, the “Company Related Parties”limitations set forth in Section 6.04(a) for all Damages suffered and Section 6.04(b) shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Fundamental Representation. (d) For purposes of this Article VI, any inaccuracy in or breach of any representation or warranty and the amounts of Losses arising therefrom shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty. (e) For purposes of this Article VI, the amount of Losses shall be determined net of any Tax benefits actually realized as a result of such Loss by the failure of Indemnified Party or its Affiliates in the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, year in equity, in contract, in tort or otherwise), and upon payment of such amount, none of which the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement Loss occurs or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to year following the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)Loss. (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. (i) Notwithstanding anything to the contrary contained in this Agreementherein: (1a) in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; AN INDEMNIFYING PARTY WILL NOT BE LIABLE TO AN INDEMNIFIED PARTY FOR ANY LOSSES OR CLAIMS (2A) OTHER THAN WITH RESPECT TO A THIRD PARTY CLAIM, ARISING OUT OF ANY PUNITIVE, EXEMPLARY OR OTHER SPECIAL DAMAGES OR (xB) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasionARISING OUT OF ANY INDIRECT, and INCIDENTAL OR CONSEQUENTIAL DAMAGES (yINCLUDING BUSINESS INTERRUPTION OR LOSS OF CUSTOMERS, GOODWILL, USE, INCOME, PROFITS OR ANTICIPATED PROFITS, BUSINESS OR BUSINESS OPPORTUNITY, SAVINGS, DATA, OR BUSINESS REPUTATION), REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED IN CONTRACT, BREACH OF WARRANTY, TORT, NEGLIGENCE OR ANY OTHER THEORY, AND REGARDLESS OF WHETHER THE INDEMNIFYING PARTY HAS BEEN ADVISED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (ii) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidCAUSED BY THE FAILURE OF AN INDEMNIFIED PARTY TO COMPLY WITH SECTION 10.10. (iib) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company The obligations of the Company Termination Fee pursuant Indemnifying Party to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective formerprovide indemnification under this Article X will be terminated, current modified or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered abated as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, appropriate to the extent any termination that the underlying Claim (i) would not have arisen but for a voluntary act that is carried out at the express written request of, or with the express written approval, concurrence of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by with the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment knowing assistance of the Company Termination Fee Indemnified Party, (to ii) is based substantially on the extent owed pursuant to Section 8.3(a)) and to any Damagesnegligence, to bad faith or willful misconduct of the extent provenIndemnified Party, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything relates to the contrary contained inaccuracy or breach of a representation, warranty, covenant or agreement set forth in this Agreement, but subject to Section 9.9, Agreement of which the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, Indemnified Party had actual knowledge prior to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)Closing.

Certain Limitations. (a) Notwithstanding the other provisions of this ARTICLE VIII, Seller shall not have any indemnification obligations for Losses under Section 8.01(a)(iii), other than with respect to Fraud or the Fundamental Representations, unless the aggregate amount of all such Losses exceeds [***], (the “Basket”) and then Seller shall be required to pay [***]. (b) Notwithstanding the other provisions of this ARTICLE VIII, Seller shall not have any indemnification obligations for Losses under Section 8.01(a)(iii), other than with respect to Fraud or the Fundamental Representations, in excess, on a cumulative basis in respect of all such Claims, an amount equal to [***]. (c) Except in the event of Fraud, Seller’s liability under (i) Section 8.01(a)(iii) with respect to Fundamental Representation, (ii) Section 8.01(a)(ii), and (iii) Section 8.01(a)(iv) shall not exceed, on a cumulative basis in respect of all such Claims, an amount equal to [***]. Notwithstanding anything else contained herein, Seller’s indemnification obligations with respect to [***] shall be [***]. (d) Subject to Section 8.06(e), an Indemnified Party may assert a claim for indemnification based on or arising out of the same set of facts and circumstances under more than one provision of Section 8.01 or 8.02, as applicable, and an Indemnified Party shall not be foreclosed or limited from recovering under one or more such applicable provisions an amount of Losses that such Indemnified Party would not be entitled to recover under another applicable provision due to the application of a survival period, basket, or other limitation on such other applicable provision that differs from, or does not apply to, the first applicable provision. (e) Notwithstanding anything to the contrary contained in this Agreement: (1) in set forth herein, no event Indemnified Party shall the Company be required entitled to pay the Company Termination Fee double recovery for any Losses based on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of the same set of facts or circumstances under more than one claim for indemnification regardless of whether such facts or circumstances would give rise to multiple bases for indemnification. (f) The amount of any Loss for which indemnification is provided under Section 8.01 or Section 8.02 shall be net of any amounts actually recovered by the Indemnified Party pursuant to any indemnification by or indemnification agreement with any nonaffiliated Third Party. If the amount to be netted hereunder from any payment required under Section 8.01 or Section 8.02 is determined after payment by the Indemnifying Party of any amount otherwise required to be paid to an Indemnified Party pursuant to this Agreement ARTICLE VIII, the Indemnified Party shall repay to the Indemnifying Party, promptly after such determination, any amount that the Indemnifying Party would not have had to pay pursuant to this ARTICLE VIII had such determination been made at the time of such payment. The Indemnifying Party may require, as a condition to the provision of any indemnification hereunder, that the Indemnified Party execute an undertaking consistent with its obligations set forth in this Section 8.06(f). Purchaser shall promptly assign or the transactions contemplated thereby (whether at law, in equity, in contract, in tort subrogate to Seller or otherwise) (except thatits designated Affiliate any claim Purchaser acquired from Seller pursuant to Section 2.01(j), to the extent such claim may reasonably mitigate any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed Losses that Seller is liable for pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)8.01. (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. Notwithstanding any other provision in this Agreement to the contrary, the indemnification provided for in Section 8.2 and Section 8.3 shall be subject to the following limitations: (a) Sellers shall not be liable to the Purchaser Indemnitees for indemnification under Section 8.2(a) (i) Notwithstanding anything unless such claim for indemnification individually or a series of related claims involves Losses in excess of Fifty Thousand Dollars ($50,000) (the “De Minimis Amount”), it being understood that if such Losses do not exceed the De Minimis Amount, such Losses shall not be applied to or considered for purposes of calculating the contrary contained aggregate amount of the Purchaser Indemnitees’ Losses under Section 8.2(a), and (ii) until the aggregate amount of all Losses in this Agreement: respect of indemnification under Section 8.2(a) exceeds Five Hundred Thousand Dollars (1$500,000) (the “Basket”), in no which event Sellers shall the Company be required to pay or be liable only for such aggregate Losses in excess of the Company Termination Fee on more than one occasion;Basket. The aggregate amount of all Losses for which Sellers shall be liable pursuant to Section 8.2(a) shall not exceed Four Million Nine Hundred Fifty Thousand Dollars ($4,950,000.00) (the “Cap”). The aggregate amount of all Losses for which Sellers shall be liable pursuant to Section 8.2 shall not exceed the Purchase Price. (2b) Purchaser shall not be liable to the Seller Indemnitees for indemnification under Section 8.3(a) (xI) unless such claim for indemnification individually or a series of related claims involves Losses in no excess of the De Minimis Amount, it being understood that if such Losses do not exceed the De Minimis Amount, such Losses shall not be applied to or considered for purposes of calculating the aggregate amount of the Seller Indemnitees Losses under Section 8.3(b) and (II) until the aggregate amount of all Losses in respect of indemnification under Section 8.3(a) exceeds the Basket, in which event Purchaser shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) or be liable only for such aggregate Losses in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company excess of the Company Termination Fee Basket. The aggregate amount of all Losses for which Purchaser shall be liable pursuant to Section 8.3(a) shall constitute not exceed the sole Cap. The aggregate amount of all Losses for which Purchaser shall be liable pursuant to Section 8.3 shall not exceed the Purchase Price. (c) Notwithstanding the foregoing, the limitations set forth in the first and exclusive remedy second sentences of Parent Section 8.4(a) and Merger Sub against the Company first and its Subsidiaries and second sentences of Section 8.4(b) shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in any of their respective formerthe Fundamental Representations. (d) Notwithstanding any provision to the contrary in this Agreement, current in no event shall any Indemnified Party be entitled to double recovery under this Agreement. In particular, in the event any circumstances given rise to a Loss constitute a breach of more than one representation and warranty, obligation or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectivelycovenant on the part of any Indemnifying Party, the “Company Related Parties”Indemnified Party shall only collectively be entitled to be indemnified once in respect of such Loss. Furthermore, the amount of any Loss for which indemnification is provided hereunder shall be net of (a) any amounts recovered (net of collection costs) by the Indemnified Party pursuant to any indemnification by or indemnification agreement with any third-party (other than this Agreement), (b) any insurance proceeds (net of collection costs) received by the Indemnified Party, or that the Indemnified Party is entitled to receive under existing insurance policies in connection with the relevant Loss (it being agreed that if third-party insurance or indemnification proceeds in respect of such facts 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 indemnification payment made), (c) an amount equal to the actual cash Tax savings or benefits realized by the Indemnified Party that are directly attributable to such Loss and that are realized in the same taxable year as such Loss is incurred, (d) any accruals or reserves on the Abbreviated Financials, and (e) any amount for all Damages which a reserve or accrual is established in Closing Net Working Capital or which has otherwise been taken into account as a liability for purposes of the calculation of the Purchase Price. Each Indemnified Party shall use commercially reasonable efforts to obtain such recoveries from such insurance policies. Each Indemnified Party shall take commercially reasonable steps to mitigate any Losses after such Indemnified Party becomes aware of any event which does, or could reasonably be expected to, give rise to any such Losses. (e) For purposes of this ARTICLE VIII, for purposes of determining the amount of Losses suffered (but not whether a breach occurred) as a result of the failure any breach of the transactions contemplated by this Agreement to be consummated any representation or for a breach or failure to perform hereunder or otherwise (whether at lawwarranty, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent no effect shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and given to any Damages, to the extent proven, resulting from “materiality,” or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)“Material Adverse Effect”. (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. Notwithstanding any other provision of this Article 8: (a) Notwithstanding the fact that the Parent Indemnitees may have the right to assert claims for indemnification under or in respect of more than one provision of this Agreement in respect to any fact, event, condition or circumstance, the Parent Indemnitees shall not be entitled to recover the amount of any Losses more than once under this Agreement in respect of such fact, event, condition or circumstance, and the Parent Indemnitees shall not be entitled to indemnification for any item to the extent that the amount of the Losses incurred with respect to such item is included as a liability on the Closing Consideration Schedule and taken into account in the calculation of the Consideration Adjustment Amount, or Parent has otherwise been fully compensated on a dollar‑for‑dollar basis for such Losses pursuant to the adjustments set forth in Section 2.6. (b) Subject to the limitation set forth in Section 8.4(d), the aggregate liability of the Escrow Participants pursuant to Section 8.2(h) shall not exceed (i) Notwithstanding anything to $2,000,000 minus (ii) the contrary contained in this Agreement: (1) aggregate policy limit under the D&O Tail Policy, but in no event shall the Company be required to pay the Company Termination Fee on more less than one occasion; zero (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company$0). (iiic) The representations, warranties and covenants of the Company, and the Parent Indemnitees' right to indemnification with respect thereto, shall not be affected or deemed waived by reason of any investigation made by or on behalf of Parent or any of its officers, directors, employees, counsel or other representatives or by reason of the fact that Parent or any of its officers, directors, employees, counsel or other representatives knew or should have known that any such representation or warranty is, was or might be inaccurate or that covenant was or might have been breached Parent or any of its officers, directors, employees, counsel or other representatives. (d) In no event shall any Escrow Participant be obligated to indemnify the Parent Indemnitees (i) under Section 8.2(a) other than with respect to a breach of a Fundamental Representation or a Tax Representation, in any amount in excess of such Escrow Participant's Indemnification Pro-Rata Portion and from any source other than the Escrow Fund, and (ii) under (A) Section 8.2(a) with respect to a breach of any Fundamental Representations or Tax Representations, (B) under Section 8.2(b)–8.2(g) or otherwise in connection with this Agreement and (C) for fraud or intentional misrepresentation by or on behalf of the Company, for any Escrow Participant, in any amount in excess of the Merger Consideration actually received by such Escrow Participant less the amount of Taxes actually paid by such Escrow Participant in respect of the Merger Consideration. Notwithstanding anything to the contrary contained in any provision of this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by nothing in this Agreement to be consummated shall limit the liability of a Company Shareholder for fraud or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of intentional misrepresentation by such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)Shareholder.

Certain Limitations. (i) Notwithstanding anything The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the contrary contained in this Agreementfollowing limitations: (1a) in no event The aggregate amount of all Losses for which Seller shall the Company be required liable pursuant to pay the Company Termination Fee on more than one occasion; (2Section 8.02(a) (xexcluding with respect to claims for fraud, intentional misrepresentation, or willful misconduct) in no event shall Parent be required to pay not exceed the Funding Failure Termination Fee on more than one occasion, and Purchase Price (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid“Cap”). (iib) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company The aggregate amount of the Company Termination Fee all Losses for which Seller shall be liable pursuant to Section 8.3(a8.02(b)-(h) or for fraud, intentional misrepresentation or willful misconduct shall in no way be limited or capped by the provisions of this Section 8.04. (c) The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.03(a) and Section 8.03(b) (excluding with respect to claims for fraud, intentional misrepresentation or willful misconduct) shall constitute not exceed ten percent (10%) of the sole and exclusive remedy Purchase Price. (d) The aggregate amount of Parent and Merger Sub against all Losses for which Buyer shall be liable pursuant to Section 8.03(c) shall in no way be limited or capped by the Company and its Subsidiaries and provisions of this Section 8.04. (e) For purposes of this ARTICLE VIII, any inaccuracy in or breach of their respective formerany representation or warranty shall be determined without regard to any materiality, current Material Adverse Effect or future general other similar qualification contained in or limited partnersotherwise applicable to such representation or warranty. (f) In determining the amount of Losses in respect of a claim under this ARTICLE VIII, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees there shall be deducted an amount equal to the amount of any third-party insurance proceeds actually received (collectively, net of direct collection expenses) by an Indemnified Party making such claim with respect to such Losses less the “Company Related Parties”) for all Damages suffered cost of any increase in insurance premiums over the reasonably projected period of such increase as a result of making a claim for such Losses, provided that the failure of the transactions contemplated by this Agreement foregoing shall not (i) require an Indemnified Party to be consummated proceed or for seek action or recovery from any such third-party as a breach or failure to perform requirement hereunder or otherwise as a condition to seeking or recovering indemnification from any Indemnifying Party hereunder, or (whether at law, in equity, in contract, in tort ii) be construed or otherwise), and upon payment interpreted as a guaranty of such amount, none any level or amount of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and insurance recovery with respect to any Damages, to the extent proven, resulting from Losses hereunder or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement requirement to be consummated maintain any insurance or to make any claim for insurance as a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and condition to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)indemnification hereunder.

Certain Limitations. (a) No party shall be obligated to indemnify and hold harmless its respective Indemnitees under Section 7.2(a)(i) (in the case of AIC) or Section 7.2(c)(i) (in the case of Buyer) (i) Notwithstanding anything with respect to any claim or series of related claims, other than in respect of any Seller Fundamental Representations, Buyer Fundamental Representations or the representations and warranties set forth in Section 3.10, as applicable, unless such claim or series of related claims involves Indemnifiable Losses in excess of $250,000 (the “Threshold Amount”) (nor shall any claim that does not exceed the Threshold Amount be applied to or considered for purposes of calculating the amount of Indemnifiable Losses for which the Indemnitor is responsible under clause (ii) below) and (ii) unless and until the aggregate amount of all Indemnifiable Losses of the Indemnitees under such Section 7.2(a)(i) or such Section 7.2(c)(i), as the case may be, other than in respect of any Seller Fundamental Representations, Buyer Fundamental Representations or the representations and warranties set forth in Section 3.10 or Section 3.26, as applicable, exceeds $7,000,000 for all Indemnifiable Losses (the “Deductible”), at which point such Indemnitor shall be liable to its respective Indemnitees for the value of the Indemnitee’s claims under Section 7.2(a)(i) or Section 7.2(c)(i), as the case may be, that is in excess of the Deductible, subject to the contrary contained limitations set forth in this Agreement:Article VII. The maximum aggregate Liability of AIC, on the one hand, and Buyer, on the other hand, to their respective Indemnitees for any and all Indemnifiable Losses under Section 7.2(a)(i), in the case of AIC, or Section 7.2(c)(i), in the case of Buyer, other than in respect of any Seller Fundamental Representations, Seller Specified Representations, Specified Liabilities or Buyer Fundamental Representations, as applicable, shall be $75,000,000 (the “General Cap”). The maximum aggregate Liability of AIC, on the one hand, and Buyer, on the other hand, to their respective Indemnitees for any and all Indemnifiable Losses under Section 7.2(a)(i), in the case of AIC, or Section 7.2(c)(i), in the case of Buyer, in respect of any Seller Fundamental Representations, Seller Specified Representations, Specified Liabilities or Buyer Fundamental Representations, as applicable, shall be $225,000,000 (the “Specified Cap”); provided that no facts or circumstances relating to claims indemnified and recovered for claims under the General Cap shall be used to bring claims under the Specified Cap and vice versa. (1b) If any Indemnified Party or its Affiliate actually recognizes a Tax benefit in respect of an Indemnifiable Loss subsequent to an Indemnity Payment made by an Indemnitor to an Indemnitee with respect to such Indemnifiable Loss for the taxable year in which such Indemnifiable Loss was incurred, then such Indemnitee shall promptly pay to the Indemnitor the amount of such Tax benefit recognized by such Buyer Indemnified Person up to the amount of such Indemnity Payment received by the Indemnitee, net of any (i) reasonable, documented third-party expenses incurred by such Buyer Indemnified Person in pursuing such Tax benefit and (ii) Taxes incurred by the Indemnitee or its Affiliate as a result of receipt of the applicable Indemnity Payment, within fifteen (15) days after the Indemnified Party or its Affiliate recognizes such Tax benefit in the form of cash actually received or reduction in cash Taxes actually paid. If any Tax benefit (or portion thereof) in no event respect of an Indemnifiable Loss that either (i) reduced the Indemnity Payments made by an Indemnitor prior to the time such payment is made or (ii) obligates an Indemnitee to make payments to the Indemnitor under the immediately preceding sentence of this Section 7.3(b), is disallowed as a result of an audit or otherwise, the applicable Indemnitor shall promptly pay to the Company applicable Indemnitee the amount of such disallowed Tax benefit (to the extent actually paid to the Indemnitor) within thirty (30) days after the Indemnitee notifies the Indemnitor in writing that the adjustment with respect to such disallowance has been paid or otherwise taken into account. (c) The amount of any Indemnifiable Losses for which indemnification is provided under this Article VII shall be net of any amounts actually recovered by the Indemnified Party under any insurance policy, reinsurance agreement, warranty or indemnity or otherwise from any Person other than a party hereto or its Affiliates. Each Indemnitee shall use commercially reasonable efforts to mitigate all Indemnifiable Losses for which indemnification may be sought hereunder, including by using commercially reasonable efforts to collect the maximum amount recoverable with respect thereto under any insurance or reinsurance coverage or other applicable source of recovery or indemnification. The Indemnitee shall promptly reimburse the Indemnitor for any such amount that is received by it from any such other Person with respect to any Indemnifiable Losses (net of any expenses incurred by the Indemnitee in collecting any such amount or any increases in insurance premiums attributable to such recovery) after any indemnification with respect thereto has actually been paid pursuant to this Agreement; provided, that such reimbursement shall only be required to pay the Company Termination Fee on more extent the Indemnitee would otherwise retain an amount greater than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company full amount of the Company Termination Fee pursuant to Section 8.3(a) shall constitute Losses incurred by the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered Indemnitee as a result of the failure of the transactions contemplated by this Agreement to be consummated underlying claim. (d) No Buyer Indemnified Person or for a breach or failure to perform hereunder or otherwise (whether at lawSeller Indemnified Person, in equityas applicable, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (indemnification to the extent owed pursuant of any Indemnifiable Losses that a court of competent jurisdiction shall have determined by final judgment to Section 8.3(a)) and to any Damages, to the extent proven, resulting have resulted from or arising out in connection with the bad faith, gross negligence or willful misconduct of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)party seeking indemnification. (iiie) Notwithstanding anything to For the contrary contained in this Agreementavoidance of doubt, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company no Buyer Indemnified Person shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (indemnification with respect to any Indemnifiable Loss to the extent owed pursuant it (i) was demonstrably reserved for in determining the Closing Statutory Value or (ii) was the subject of a Dispute Notice. In no event shall the Buyer Indemnified Persons be entitled to Section 8.3(a)) and duplicative indemnification hereunder by reason of the fact that the state of facts giving rise to any Damagesan Indemnifiable Loss constitutes a breach of more than one representation, to the extent provenwarranty, resulting from covenant or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)agreement.

Certain Limitations. (ia) Notwithstanding anything contained herein to the contrary contained contrary, Seller (on behalf of itself and as agent for the Other Sellers) shall not be obligated to indemnify Purchaser Indemnified Parties for aggregate Purchaser Losses under this Agreement pursuant to Section 9.1(a)(i) in excess of 10% of the Purchase Price; provided, however, that such limitation shall not apply with respect to a breach of a representation or warranty made by Seller in Section 4.1, 4.2(a), 4.8 or 4.9. In addition, Seller (on behalf of itself and as agent for the Other Sellers) shall not be obligated to indemnify Purchaser Indemnified Parties for aggregate Purchaser Losses under this Agreement:Agreement (including pursuant to Section 9.1(a)(ii) or 9.1(a)(iii)) in excess of an amount equal to the Purchase Price. (1b) in no event Notwithstanding anything contained herein to the contrary, Seller (on behalf of itself and as agent for the Other Sellers) shall the Company not be required obligated to pay the Company Termination Fee on more than one occasion; (2indemnify Purchaser Indemnified Parties under this Agreement pursuant to Section 9.1(a)(i) (x) in no event shall Parent be required with respect to pay the Funding Failure Termination Fee on more any individual Purchaser Loss or series of related Purchaser Losses of less than one occasion, hundred thousand dollars ($100,000) (the “Minimum Amount”) and (y) in no event unless and until the aggregate Purchaser Losses (excluding individual Purchaser Losses or related Purchaser Losses less than the Minimum Amount) subject to such indemnification collectively exceed one percent (1.0%) of the Purchase Price (the “Threshold”), whereupon such indemnification shall Parent be required made by Seller only with respect to pay the Funding Failure Termination Fee if amount of such Purchaser Losses (excluding individual Purchaser Losses or related Purchaser Losses less than the Regulatory Failure Termination Fee has already been paid; and (3) (xMinimum Amount) in no event excess of the Threshold; provided, however, that the Threshold shall Parent be required not apply to pay the Regulatory Failure Termination Fee on more than one occasionany breach of a representation or warranty made by Seller in Sections 4.1, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid4.2(a), 4.8 or 4.9. (iic) Notwithstanding anything to The representations and warranties of Seller and Purchaser contained in Article IV and Article V, respectively, of this Agreement shall survive the contrary Closing until March 31, 2007; provided that the representations and warranties set forth in Sections 4.1, 4.2(a), 4.8, 5.1, 5.2(a) and 5.5 shall survive indefinitely. The covenants and agreements contained in this AgreementAgreement shall survive the Closing until the date or dates explicitly specified therein or, but subject to Section 9.9if not so specified, Parent’s right to receive payment from until the Company expiration of the Company Termination Fee applicable statute of limitations with respect to the matters contained therein. (d) The obligations to indemnify and hold harmless a Party pursuant to Sections 9.1(a)(i), 9.1(a)(ii), 9.1(b)(i) or 9.1(b)(i)(ii) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 8.3(a9.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the Seller Indemnified Party or Purchaser Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall constitute have, before the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result expiration of the failure of applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment basis of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwiseclaim) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)Indemnifying Party. (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. (i) Notwithstanding anything The indemnification provided for in Section 9.02 and Section 9.03 shall be subject to the contrary contained in this Agreementfollowing limitations: (1a) The Members shall not be liable to the Parent Indemnitees for indemnification under Section 9.02(a) until the aggregate amount of all Losses in no event respect of indemnification under Section 9.02(a) exceeds $290,000 (the “Basket”), at which point the Members shall the Company be required to pay or be liable for all such Losses in excess of the Company Termination Fee on more than one occasion;Basket. The aggregate amount of all Losses for which the Members shall be liable pursuant to Section 9.02(a) shall not exceed 8% of the Merger Consideration (the “Cap”). (2b) (xParent and Merger Sub shall not be liable to the Member Indemnitees for indemnification under Section 9.03(a) until the aggregate amount of all Losses in no respect of indemnification under Section 9.03(a) exceeds the Basket, in which event Parent and Merger Sub shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent or be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment liable for all such Losses from the Company first dollar. The aggregate amount of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of all Losses for which Parent and Merger Sub against shall be liable pursuant to Section 9.03(a) shall not exceed the Company Cap. (c) Notwithstanding the foregoing, the limitations set forth in Section 9.04(a) and its Subsidiaries Section 9.04(b) shall not apply to Losses based upon, arising out of, with respect to or by reason of (i) any inaccuracy in or breach of any Fundamental Representation, or (ii) any claim for or based on any intentional or willful misrepresentations or fraud or willful misconduct on the part of the Company, the Members, Parent, Merger Sub, and any of their respective formerAffiliates and Representatives. (d) For purposes of this Article IX, current any inaccuracy in or future general breach of any representation or limited partnerswarranty shall be determined without regard to any materiality, stockholders, members, managers, directors, officers, employees, agents, Affiliates Material Adverse Effect or assignees (collectively, other similar qualification contained in or otherwise applicable to such representation or warranty and will not have any effect with respect to the “Company Related Parties”) for all Damages suffered as a result calculation of the failure amount of the transactions contemplated by any Losses attributable to such inaccuracy in or breach of any representation or warranty set forth in this Agreement. (e) Notwithstanding anything contained in this Agreement to be consummated the contrary, if the Members (or any one of them) become liable to indemnify Parent for any Losses that result from a Member’s breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amountMember’s representations in Section 4.02(a) or 4.03, none or from the intentional or willful misrepresentations or fraud or willful misconduct of the Company Related Parties a Member, then only such Member shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or Parent for such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)Losses. (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. (iThe 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 5.03(b) Notwithstanding anything and Article VII shall be subject to the contrary contained in this Agreementfollowing limitations: (1a) Sellers shall not be liable to the Indemnified Party for indemnification under Section 7.02(a)(i) (I) for any Loss or any series of related Losses that do not exceed $75,000 (a “Qualifying Loss”) and (II) until the aggregate amount of all Losses (whether or not Qualifying Losses) incurred by the Buyer Indemnified Parties with respect to the matters covered thereunder exceeds $2,000,000 (the “Deductible”), in no which event Sellers shall the Company only be required to pay or be liable for Qualifying Losses in excess of the Company Termination Fee on more than one occasion;Deductible; provided, however, (A) any Losses related to the Fundamental Representations and the Tax Representations shall constitute a Qualifying Loss notwithstanding the size of such Loss and (B) the Deductible shall not apply to (i) any claim for intentional breach of a representation or fraud or (ii) any breach of the Tax Representations or the Fundamental Representations. (2b) The aggregate amount of all Losses for which Sellers shall be liable pursuant to Section 7.02(a)(i) shall not exceed $55,000,000 (xthe “Cap”); provided, however, the Cap shall not apply to (i) any claim for intentional breach of a representation or fraud or (ii) any breach of the Tax Representations or the Fundamental Representations. (c) Subject to the other limitations imposed by this Article VII, all claims against the Sellers for indemnification under this Agreement, including any claims for the Tax Indemnity and claims under Article VII, shall first be paid and satisfied from the Escrow Account, to the extent of any funds then remaining, and only secondarily by the Sellers; provided, however, that Losses that could be asserted under the indemnification provisions of Section 7.02(b) shall not be satisfied from the Escrow Account but instead, Buyer may only seek to recover such Losses directly against the offending Seller (severally and not jointly and severally against others). The Institutional Sellers shall be jointly and severally liable for the indemnification obligations of the Sellers pursuant to Section 7.02(a) and the Tax Indemnity, and the Individual Sellers shall be severally (and not jointly) liable for such indemnification obligations in proportion to each such Individual Seller’s respective Percentage Interest of the applicable Loss. (d) Except in the case of intentional breach of a representation or fraud, the aggregate liability of Sellers hereunder for all claims, including for the Tax Indemnity and under this Article VII, shall not exceed the Purchase Price. No Individual Seller shall be liable for any claim for indemnification under Section 7.02 or for the Tax Indemnity in excess of such Individual Seller’s Percentage Interest in such claim, and with respect to any claims subject to the Cap, each Individual Seller’s aggregate liability for all such claims for indemnification shall not exceed such Individual Seller’s Percentage Interest of the Cap. The maximum liability hereunder for any Individual Seller for the Tax Indemnity shall not, when aggregated with all other indemnification obligations of such Individual Seller hereunder, exceed the Purchase Price actually received by such Individual Seller. (e) The amount of any Loss subject to indemnification pursuant to Section 5.03(b) or Article VII shall be calculated net of any insurance proceeds and any indemnity, contribution or other similar payment actually received by the Indemnified Party (or the Company) in no event respect of any such Loss. The Indemnified Party shall Parent use commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any Losses. The amount of any indemnity payment hereunder shall initially be required determined without regard to pay any such insurance proceeds or indemnity, contribution or other similar payments and shall be subject to adjustment if and when any such insurance proceeds indemnity, contribution or other similar payments are actually received. If and to the Funding Failure Termination Fee on more than one occasionextent that any insurance proceeds or indemnity, and (y) in no event shall Parent be required contribution or other similar payments are recovered by an Indemnified Party with respect to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee any Losses for which it has already been paidindemnified by an Indemnifying Party hereunder, such Indemnified Party shall pay to the Indemnifying Party (or, in cases where the Sellers are the Indemnifying Party, the Stockholder Representative, for the benefit of the Sellers) within thirty (30) days of receiving such insurance proceeds or payment, an amount equal to the excess of (i) the amount previously received by the Indemnified Party under Section 5.03(b) or this Article VII with respect to such claim plus the amount of the insurance proceeds and indemnity, contribution or other similar payments received, over (ii) the amount of Losses with respect to such claim which the Indemnified Party has become entitled to receive under Section 5.03(b) or this Article VII; andprovided, however, that if the Sellers were the Indemnifying Parties, the applicable indemnification payment was made from the Escrow Account and the Escrow Account remains in effect, then the Buyer Indemnified Party shall make such payment to the Escrow Account. (3f) (xThe amount of any Loss subject to indemnification pursuant to Section 5.03(b) in no event or Article VII shall Parent be required calculated net of any Tax Benefit actually realized by the Indemnified Party on account of such Loss. The amount of any indemnity payment hereunder shall initially be determined without regard to pay the Regulatory Failure Termination Fee on more than one occasionany such Tax Benefit, and (y) in no event shall Parent be required subject to pay adjustment if and when any such Tax Benefit is actually realized. If and to the Regulatory Failure Termination Fee if the Funding Failure Termination Fee extent that any Tax Benefit is realized by an Indemnified Party with respect to any Losses for which it has already been paidindemnified by an Indemnifying Party hereunder, such Indemnified Party shall pay to the Indemnifying Party (or, in cases where the Sellers are the Indemnifying Party, the Stockholder Representative, for the benefit of the Sellers) within 30 days of realizing such Tax Benefit, an amount equal to the excess of (i) the amount previously received by the Indemnified Party under Section 5.03(b) or this Article VII with respect to such claim plus the amount of the Tax Benefit realized by the Indemnified Party, over (ii) the amount previously received by the Indemnified Party under Section 5.03(b) or this Article VII with respect to such claim; provided, however, that if the Sellers were the Indemnifying Parties, the applicable indemnification payment was made from the Escrow Account and the Escrow Account remains in effect, then the Buyer Indemnified Party shall make such payment to the Escrow Account. (iig) No Seller shall have any liability with respect to a breach of any of the Several Representations by any other Seller and Xxxxx agrees not to seek recovery against a Seller with respect to a breach of the Several Representations by another Seller. (h) Notwithstanding anything to the contrary contained elsewhere in this Agreement, but the amount of any Loss subject to indemnification under Section 9.97.02 shall be calculated net of any amounts to the extent, Parentbut only to the extent, that such Loss was included as a Current Liability in calculating the Company’s right Working Capital and actually taken into account in determining the Final Adjustment Amount. (i) The parties hereto agree that Buyer shall not have any rights to receive payment from the Company of the Company Termination Fee pursuant set-off any Loss it may have against Sellers against any amount otherwise due to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current Sellers. (j) If an Indemnified Party is entitled to indemnification under more than one clause or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out subclause of this Agreement or the transactions contemplated thereby (whether at lawwith respect to Losses, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or then such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent Indemnified Party shall be entitled to the payment of the Company Termination Fee (only one indemnification or recovery for such Losses to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising it arises out of such Intentional Breach (as reduced the same set of circumstances and events; it being understood that this Section 7.04(j) is solely to preclude a duplicate recovery by any Company Termination Fee previously paid by the Company)Indemnified Party. (iiik) Notwithstanding anything Upon making any indemnity payment pursuant to the contrary contained in this Agreement, but subject to Section 9.9as applicable, the Company’s Indemnifying Party (or, in cases where the Sellers are the Indemnifying Party, the Stockholder Representative, on behalf of the Sellers) shall be subrogated to all rights of the Indemnified Party against any third party in respect of the Losses to which the payment related. The Indemnifying Party shall not, however, have the right to receive payment collect aggregate payments from Parent such third party or third parties in excess of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy actual amount of the Company indemnification payment previously paid with respect to such Losses. The parties hereto will execute upon request, all instruments reasonably necessary to evidence and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, perfect the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)above described subrogation rights.

Certain Limitations. (ia) Notwithstanding anything No claim for indemnification may be asserted against either Seller or Buyer for breach of any representation, warranty, covenant or agreement contained herein, unless written notice of such claim is received by Buyer or Seller, as applicable, describing in reasonable detail the facts and circumstances with respect to the contrary contained in this Agreement:subject matter of such claim on or prior to the expiration date of any applicable Survival Period. (1b) Seller shall not be liable under Section 10.2(a)(i) unless and until the cumulative aggregate amount of all Losses in respect thereof exceeds One Hundred Fifty Thousand Dollars ($150,000) (the “Deductible”), in which event Seller shall only be liable for Losses in excess of the Deductible; provided, however, that Seller shall not be liable under Section 10.2(a)(i) for any individual or series of related Losses which does not exceed Thirty Seven Thousand Five Hundred Dollars ($37,500) (“De Minimis Losses”), which De Minimis Losses shall not be counted toward the Deductible and in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Seller have any liability hereunder for such De Minimis Losses. Notwithstanding anything to the contrary contained in this Agreement, but subject Seller’s aggregate liability for all Losses resulting from or relating to any Direct Claims made under Section 9.9, Parent’s right 10.2(a)(i) or third party claims made under Section 10.2(a)(i) shall not exceed One Million Two Hundred Fifty Thousand Dollars ($1,250,000) (the “Cap”). The Parties hereby acknowledge that the Cap shall be a single amount applicable to receive payment from the Company aggregate of the Company Termination Fee all Direct Claims for indemnification arising under Section 10.2(a)(i) and third party claims for indemnification arising under Section 10.2(a)(i) and that any indemnification payments made in respect of any Direct Claims pursuant to Section 8.3(a10.2(a)(i) or third party claims pursuant to Section 10.2(a)(i) shall constitute reduce the sole remaining amounts available under the Cap for all such claims. (c) Each of the Buyer Indemnitees and exclusive remedy the Seller Indemnitees shall use its commercially reasonable efforts to mitigate any Losses in connection with this Agreement. (d) The amount of Parent any Losses for which indemnification is provided under this Article X shall be computed net of (i) any insurance or other proceeds actually received by the Indemnified Party in connection with such Losses and Merger Sub against (ii) any indemnity, contribution or other similar payment the Company Indemnified Party received from any other Person with respect to such Loss less any related costs and its Subsidiaries expenses, including the aggregate cost of pursuing any related insurance claims and any of their respective former, current related increases in insurance premiums or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees other chargebacks (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties it being agreed that no Party shall have any further liability obligation to seek to recover any insurance proceeds in connection with making a claim under this Article X and that, promptly after the realization of any insurance proceeds, indemnity, contribution or obligation relating 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) The amount of any indemnification payment made by a Party under Article X shall be treated for all Tax purposes as an adjustment to the Purchase Price unless otherwise required by applicable Law following a final determination as defined in Section 1313 of the Code. (f) Upon payment of any Losses with respect to a claim pursuant to this Article X, the Indemnifying Party shall be subrogated to the extent of such payment (and to recover costs or arising out expenses incurred by the Indemnifying Party in enforcing such recovery rights against such Person) to the rights of the Indemnified Party against any Person with respect to the subject matter of such claim for indemnification. The Indemnified Party shall assign such rights to and otherwise reasonably cooperate with the Indemnifying Party, at the cost and expense of Indemnifying Party, to pursue any claims against or otherwise recover amounts from, any Person liable or responsible for any Losses for which indemnification has been received pursuant to this Agreement. (g) In the event Losses suffered by any Indemnified Party are recoverable under more than one provision of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, and even though an Indemnified Party is permitted to the extent any termination rely on each provision of this Agreement resulted fromArticle X independently, directly or indirectly, any such Indemnified Party shall only be permitted to recover with respect to any particular Losses suffered by it one time as it is the Parties’ intent that recovery by such 29 particular Indemnified Party for such same Losses under another provision would constitute an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent unintended and prohibited “double” recovery. (h) No Indemnified Party shall be entitled to the payment bring a claim for indemnification for any breach or inaccuracy of any representation, warranty or covenant set forth in this Agreement if Buyer (if such Indemnified Party is a Buyer Indemnitee) or Seller (if such Indemnified Party is a Seller Indemnitee) had Knowledge of such breach or inaccuracy as of the Company Termination Fee (to Execution Date. Notwithstanding the extent owed pursuant to Section 8.3(a)) and to any Damagesforegoing, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Companyan Indemnified Party’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee indemnification pursuant to Section 8.3(athis Article X shall not be affected by (i) shall constitute any investigation or audit conducted on or after the sole and exclusive remedy Execution Date or (ii) the knowledge of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any Party of their respective formerany breach of a representation, current warranty or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated covenant by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether any other Party at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and time with respect to any Damages, to matters arising or discovered after the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)Execution Date.

Certain Limitations. (i) Notwithstanding anything to It is the contrary contained in this Agreement: (1) in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company intention of the Company Termination Fee pursuant parties hereto to Section 8.3(a) shall constitute the sole conform strictly to all usury laws that are applicable to each such party, this Agreement and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure to each of the transactions contemplated by this Agreement (collectively, the "TRANSACTIONS"). Accordingly, notwithstanding anything to be consummated the contrary in this Agreement, or for a breach any other document, certificate, instrument or failure to perform hereunder agreement entered in connection with the Transactions (collectively the "TRANSACTION DOCUMENTS"), it is agreed as follows: (i) the aggregate of all consideration which constitutes interest under Applicable Usury Law (hereinafter defined) that is contracted for, taken, reserved, charged or received by any party under the Transaction Documents or otherwise in connection with the Transactions shall under no circumstances exceed the maximum amount of interest that would lawfully be charged by such party under Applicable Usury Law, (whether at lawii) in the event that maturity of any indebtedness evidenced by or payable pursuant to the Transaction Documents is accelerated for any reason, or in the event of any required or permitted payment or prepayment of all or any part of such indebtedness (including, without limitation, and if applicable, any required or permitted purchase of any Unit Premises, Unit Improvements, Unit FF&E or Unit, or any required or permitted payment of the Unit Acquisition Cost), then such consideration that constitutes interest as to any such indebtedness under Applicable Usury Law may never include more than the maximum amount allowed by such Applicable Usury Law, and (iii) excess interest, if any, provided for in the Transaction Documents or otherwise in connection with the Transactions shall be, in equityaccordance with the following provisions of this Section 19, in contractcancelled automatically and, in tort if theretofore paid, shall be credited by the recipient on the principal or otherwise), and upon payment of such amount, none stated amount of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby affected indebtedness (whether at law, in equity, in contract, in tort or otherwise) (except thator, to the extent any termination that the principal or stated amount of this Agreement resulted fromsuch indebtedness shall have been or would thereby be paid in full, directly or indirectly, an Intentional Breach of this Agreement refunded by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled recipient to the payment party entitled thereto). If at any time the rate of interest (denominated as such) contractually called for in any Transaction Document (as the same may vary from time to time pursuant to the terms of such Transaction Document, the "STATED RATE"), exceeds the maximum non-usurious rate of interest permitted by Applicable Usury Law (the "MAXIMUM RATE") in respect of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).indebtedness

Certain Limitations. (a) Subject to the following provisions of this Section 9.3 (a), Sellers shall not be obligated or required to make any indemnification payment, and Buyer Indemnified Parties shall not be entitled to present a claim, demand or to receive any indemnification payment pursuant to ‎this Agreement or pursuant to any of the other Transaction Agreements: (i) with respect to any specific item of claim which represent a damage of less than US$ 20,000 (De Minimis)until such time as the total amount of all Damages that have been suffered or incurred by any one or more of the Buyer Indemnified Parties (for all items of claim which exceeded the aforesaid De Minimis amount, together) exceeds a total amount equal to USD 250,000 (the “Basket Amount”). If the total amount of such Damages reaches or exceeds the Basket Amount then the Buyer Indemnified Parties shall be entitled to be indemnified for the entire amount of such Damages including the Basket Amount. Notwithstanding the foregoing, the limitations set forth in this Section 9.3 (a) do not apply in the case of fraud, intentional misrepresentation, or willful or criminal misconduct. (b) Notwithstanding anything to the contrary contained herein or in the other Transaction Agreements, the maximum aggregate Liabilities of Sellers pursuant to this Agreement or in the other Transaction Agreements, shall in no event exceed an amount equal to 25% of the aggregate Purchase Price actually paid to Sellers hereunder. Notwithstanding the foregoing, the limitations set forth in this Agreement:Section 9.3 (b) do not apply in the case of fraud, intentional misrepresentation, or willful or criminal misconduct. (1c) Any amounts payable pursuant to the indemnification obligations hereunder, or (if any) in the other Transaction Agreements shall be paid without duplication, and in no event shall any Party be indemnified under different provisions of this Agreement or the Company be required to pay other Transaction Agreements for the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidsame Damages. (iid) Notwithstanding anything to the contrary contained herein or in this Agreementthe other Transaction Agreements, but subject to Section 9.9except in the case fraud, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole intentional misrepresentation, or willful or criminal misconduct, Sellers and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties Buyers shall have no liability for any further liability loss of profits or obligation relating anticipated savings; loss of goodwill or injury to reputation; the loss of business opportunity; punitive or arising out of this Agreement exemplary damages; or the transactions contemplated thereby (whether at lawany other indirect, in equity, in contract, in tort consequential or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly special loss or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)damage. (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. (a) No Party shall be obligated to indemnify and hold harmless its respective Indemnitees, and no Party shall have any liability, under Section 9.2(a) (in the case of the Restricted Parties) or Section 9.3(a) (in the case of Buyer) unless and until the aggregate amount of all Indemnifiable Losses of the Indemnitees under Section 9.2(a) (in the case of the Restricted Parties) or Section 9.3(a) (in the case of Buyer) exceeds one hundred ninety-five thousand dollars ($195,000) (the “Deductible”), at which point such Indemnitor shall be liable to its respective Indemnitees for the value of the Indemnitee’s claims under Section 9.2(a) (in the case of the Restricted Parties) or Section 9.3(a) (in the case of Buyer) that is in excess of the Deductible, subject to the other applicable limitations (if any) set forth in this ARTICLE IX; provided, however, that the preceding limitations shall not apply to any indemnification claim (i) Notwithstanding anything based on Fraud by any Party or any of its Affiliates, (ii) in respect of any Seller Fundamental Representation or Tax Representation (in the case of an indemnification claim under Section 9.2(a)) or (iii) in respect of any Buyer Fundamental Representation (in the case of an indemnification claim under Section 9.3(a)). The maximum aggregate liability of the Restricted Parties, on the one hand, and Buyer, on the other hand, to their respective Indemnitees for any and all Indemnifiable Losses under Section 9.2(a), (in the case of the Restricted Parties) or Section 9.3(a) (in the case of Buyer) shall not exceed ten percent (10)% of the amount equal to the contrary contained in this Agreement: (1) in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2) sum of (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, actual cash amount of the Purchase Price received by Seller under this Agreement and (y) any amounts set off against the Deferred Payment, if any, pursuant to Section 9.8 (the “Indemnification Cap”); provided, however, that the Indemnification Cap shall not apply to any Seller Fundamental Representations, the Tax Representations, or Buyer Fundamental Representations; provided, further, that the preceding limitations shall not apply to any indemnification claim based on Fraud by any Party or any of its Affiliates. Notwithstanding anything contained in no event this Agreement to the contrary, the maximum aggregate liability of the Restricted Parties pursuant to Section 9.2(a) and Buyer pursuant to Section 9.3(a) shall Parent be required not exceed (1) the actual cash amount of the Purchase Price received by Seller under this Agreement plus (2) any amounts set off against the Deferred Payment, if any, pursuant to pay Section 9.8; provided, however, that the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event preceding limitations shall Parent be required not apply to pay the Regulatory Failure Termination Fee any indemnification claim based on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidFraud by any Party or any of its Affiliates. (iib) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent No Buyer Indemnified Person shall be entitled to the payment of the Company Termination Fee (indemnification with respect to any particular Indemnifiable Loss to the extent owed pursuant to Section 8.3(a)) and to any Damages, to such Indemnifiable Loss was expressly reserved for in the extent proven, resulting from or arising out of such Intentional Breach Closing Working Capital (as reduced by any Company Termination Fee previously paid by the Companyfinally determined in accordance with Section 1.6(a)(i)). (iiic) Notwithstanding anything Indemnifiable Losses for which an Indemnitee is entitled to the contrary contained in indemnification under this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent Agreement shall be determined without duplication of recovery by reason of the Funding Failure Termination Fee state of facts giving rise to such Indemnifiable Loss constituting a breach of more than one representation, warranty, covenant or Regulatory Failure Termination Fee pursuant agreement, it being understood that no Indemnitee shall be able to Section 8.3(a) shall constitute recover the sole and exclusive remedy same Indemnifiable Loss twice in respect of the Company and its stockholders against Parent and its Subsidiaries same state of facts giving rise to such Indemnifiable Loss. (including Merger Subd) and Each Indemnitee shall use commercially reasonable efforts to mitigate any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) Indemnifiable Loss for all Damages suffered as a result of the failure of the transactions contemplated by which such Indemnitee seeks indemnification under this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, ARTICLE IX to the extent required by Applicable Law, it being understood that any termination of this Agreement resulted from, directly or indirectlyreasonable costs and expenses incurred by such Indemnitee in connection with such mitigation shall constitute an Indemnifiable Loss that may be recovered hereunder. Notwithstanding the foregoing, an Intentional Breach of this Agreement by Parent Indemnitee’s obligation to mitigate any Indemnifiable Loss shall not require such Indemnitee to (i) initiate any Action, (ii) assume or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided incur any material Liability, (iii) seek any payment under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out insurance policy in respect of such Intentional Breach Indemnifiable Loss prior to seeking indemnification under this ARTICLE IX or (as reduced by iv) take any Funding Failure Termination Fee other action that would reasonably be expected to materially disrupt or Regulatory Failure Termination Fee paid by Parent)otherwise materially affect in an adverse manner such Indemnitee’s business or operations.

Certain Limitations. (a) No party shall be obligated to indemnify and hold harmless its respective Indemnitees under Section 8.2(a)(i) (in the case of Seller) or Section 8.2(b)(i) (in the case of Buyer) (i) Notwithstanding anything with respect to any claim, unless such claim involves Indemnifiable Losses in excess of $25,000 (the “De Minimis Amount”) (nor shall any claim that does not exceed the De Minimis Amount be applied to or considered for purposes of calculating the amount of Indemnifiable Losses for which the Indemnitor is responsible under clause (ii) below) and (ii) unless and until the aggregate amount of all Indemnifiable Losses of the Indemnitees under such Section 8.2(a)(i) or such Section 8.2(b)(i), as the case may be, exceeds $200,000 for all Indemnifiable Losses (the “Deductible”), at which point such Indemnitor shall be liable to its respective Indemnitees for the value of the Indemnitee’s claims under Section 8.2(a)(i) or such Section 8.2(b)(i), as the case may be, that is in excess of the Deductible, subject to the contrary contained limitations set forth in this Agreement: Article VIII. The maximum aggregate liability of Seller, on the one hand, and Buyer on the other hand, to their respective Indemnitees for any and all Indemnifiable Losses under Section 8.2(a)(i), in the case of Seller, or Section 8.2(b)(i), in the case of Buyer, shall be $1,200,000; provided, that the maximum aggregate liability of Seller to all Buyer Indemnified Persons for any and all Indemnifiable Losses under this Agreement (1other than under Sections 8.2(a)(iii) and (iv)) shall not exceed $2,500,000. Notwithstanding the foregoing, the limitations in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2previous sentences of this Section 8.3(a) (xother than the limitation in the immediately preceding proviso) shall not be applicable to any Indemnifiable Losses asserted in no event shall Parent be required to pay respect of the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay Seller Fundamental Representations or the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidBuyer Fundamental Representations. (b) If any Buyer Indemnified Person actually realizes a Tax benefit in respect of an Indemnifiable Loss as described in the proviso in the definition of “Indemnifiable Losses” set forth in Section 8.4(iii) or subsequent to an Indemnity Payment made by an Indemnitor to an Indemnitee with respect to such Indemnifiable Loss, then such Indemnitee shall promptly pay to the Indemnitor the amount of such Tax benefit realized by such Buyer Indemnified Person up to the amount of such Indemnity Payment received by the Indemnitee, net of any expenses incurred by such Buyer Indemnified Person in pursuing such Tax benefit, within 15 days after the Buyer Indemnified Person realizes such Tax benefit in the form of cash actually received or reduction in cash Taxes actually paid. If any Tax benefit (or portion thereof) in respect of an Indemnifiable Loss as described in the proviso in the definition of “Indemnifiable Losses” set forth in Section 8.4(iii), that either (i) reduces the Indemnity Payments made by an Indemnitor prior to the time such payment is made or (ii) Notwithstanding anything obligates an Indemnitee to make payments to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from Indemnitor under the Company immediately preceding sentence of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).this

Certain Limitations. (ia) Notwithstanding anything Seller shall not be required to make any indemnification payment pursuant to Section ‎9.2(a) until such time as the contrary total amount of all Losses (including the Losses arising from such inaccuracy or breach and all other Losses arising from any other inaccuracies or breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the Buyer Indemnified Parties, or to which any one or more of the Buyer Indemnified Parties has or have otherwise directly or indirectly become subject, exceeds $219,000 in the aggregate (the “Basket”), and then only for the excess over the Basket; provided, however, that this limitation shall not apply to Losses arising out of or resulting from any Seller Fundamental Representation. Buyer shall not be required to make any indemnification payment pursuant to Section ‎9.3(a) until such time as the total amount of all Losses (including the Losses arising from such inaccuracy or breach and all other Losses arising from any other inaccuracies or breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the Seller Indemnified Parties, or to which any one or more of the Seller Indemnified Parties has or have otherwise directly or indirectly become subject, exceeds the Basket, and then only for the excess over the Basket; provided, however, that this limitation shall not apply to Losses or Taxes arising out of or resulting from any Buyer Fundamental Representation. (b) The maximum aggregate amount that the Indemnitees are entitled to recover in the aggregate from the Indemnitors under Sections ‎9.2(a) and ‎9.3(a) shall be capped at $6,930,000; provided, however, that this limitation shall not apply to Losses or Taxes arising out of or resulting from any Seller Fundamental Representation or any Buyer Fundamental Representation. (c) The limitations set forth in Section ‎9.7(a) and Section ‎9.7(b) shall not apply in the case of, and shall not limit the rights of an Indemnified Party to recover in respect of any Losses or Taxes, arising out, relating to or resulting from, intentional misrepresentation, willful misconduct or fraud. (d) For all purposes of this ‎Article 9, the amount of any Losses arising from any inaccuracy or breach of the representations and warranties contained in this Agreement: (1) in no event Agreement shall the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything determined without reference to the contrary terms “material,” “materially,” “Material Adverse Effect,” “material adverse effect” or other similar qualifications as to materiality contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, incorporated directly or indirectly, an Intentional Breach of this Agreement by the Company indirectly in any such representation or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)warranty. (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. (a) No party shall be obligated to indemnify and hold harmless its respective Indemnitees under Sections ‎7.2(a)(i) (in the case of Seller) or ‎Section ‎7.2(b)(i) (in the case of Buyer) (i) Notwithstanding anything with respect to any claim (or series of claims arising from substantially similar underlying facts, events or circumstances), except to the contrary contained extent such claim (or series of claims arising from substantially similar underlying facts, events or circumstances) involves Indemnifiable Losses in this Agreement: excess of $100,000 (1) in no event the “Threshold Amount”), (nor shall any claim that does not exceed the Company Threshold Amount be required applied to pay or considered for purposes of calculating the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay amount of Indemnifiable Losses for which the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. Indemnitor is responsible under clause (ii) Notwithstanding anything below), (ii) unless and until the aggregate amount of all Indemnifiable Losses of the Indemnitees under ‎Section ‎7.2(a)(i) or Section ‎7.2(b)(i), as the case may be, exceeds $12,500,000 for all Indemnifiable Losses (the “Deductible”), at which point such Indemnitor shall be liable to its respective Indemnitees for the value of the Indemnitee’s claims under ‎Section ‎7.2(a)(i) or ‎Section ‎7.2(b)(i), as the case may be, that is in excess of the Deductible, subject to the contrary contained limitations set forth in this AgreementArticle ‎VII and (iii) the maximum aggregate liability of Seller, but subject on the one hand, and Buyer, on the other hand, to their respective Indemnitees for any and all Indemnifiable Losses under ‎Section ‎7.2(a)(i), in the case of Seller, or Section 9.9‎7.2(b)(i), Parent’s right to receive payment from in the Company case of Buyer, shall be $187,500,000 (the “Cap”); provided, however, that (A) none of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectivelyThreshold Amount, the “Company Related Parties”) for all Damages suffered as a result Deductible or the Cap shall apply with respect to Indemnifiable Losses arising out of the failure of the transactions contemplated by this Agreement to be consummated or for a resulting from any breach or failure to perform hereunder be true of any Seller Specified Representation or otherwise any Buyer Specified Representation and such Indemnifiable Losses shall not be taken into account in determining whether the Threshold Amount, the Deductible or the Cap have been exceeded, (whether at law, in equity, in contract, in tort or otherwise), B) the Threshold Amount and upon payment of such amount, none of the Company Related Parties Deductible shall have any further liability or obligation relating not apply to or Indemnifiable Losses arising out of this Agreement or resulting from any breach or failure to be true of the representations and warranties set forth in Section ‎3.29 (Tax Treatment of Insurance Contracts) and such Indemnifiable Losses shall not be taken into account in determining whether the Threshold Amount or the transactions contemplated thereby Deductible have been exceeded and (whether at law, in equity, in contract, in tort C) the maximum aggregate liability of Seller to all Buyer Indemnified Persons for any or otherwise) (except that, all Indemnifiable Losses arising out of or resulting from any breach or failure to the extent be true of any termination of this Agreement resulted from, directly Seller Specified Representation or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company any Buyer Specified Representation shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment exceed 100% of the Company Termination Fee (Base Purchase Price. In the event Seller is required to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, make a payment in respect of Indemnifiable Losses resulting from or arising out of such Intentional Breach breaches or failures to be true of any representations or warranties set forth in Section ‎3.29 (as reduced by any Company Termination Fee previously paid by the CompanyTax Treatment of Insurance Contracts). (iii) Notwithstanding anything , up to the contrary contained an additional $37,500,000 shall be available in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent excess of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant Cap solely with respect to Section 8.3(a) shall constitute indemnification for such Indemnifiable Losses; provided that the sole and exclusive remedy maximum aggregate Liability of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement Seller with respect to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, Liabilities other than those resulting from or arising out of such Intentional Breach any breach of Section ‎3.29 (Tax Treatment of Insurance Contracts) shall continue to be as reduced described above (and shall not be increased by this sentence), and all other applicable limitations set forth in this Article ‎VII shall apply with respect to Indemnifiable Losses resulting from or arising out of a breach or failure to be true of any Funding Failure Termination Fee representation or Regulatory Failure Termination Fee paid by Parentwarranty set forth in Section ‎3.29 (Tax Treatment of Insurance Contracts). (b) Each Indemnitee shall use its reasonable best efforts to mitigate all Indemnifiable Losses for which indemnification may be sought hereunder, including by using reasonable best efforts to collect the maximum amount recoverable with respect thereto under any insurance or reinsurance coverage or other applicable sources of recovery.

Certain Limitations. Notwithstanding anything in Section 2 hereof to the contrary: (a) the Guarantor shall not be required by this Guaranty to perform any Guarantied Obligation or undertaking if the performance thereof is illegal or impossible under Law; (b) the Guarantor shall not be required to perform any Guarantied Obligation while the performance of such Guarantied Obligation is being disputed in good faith by the Person required to perform such Guarantied Obligation; (c) the Guarantor’s liability hereunder with respect to any Guarantied Obligation shall not exceed the liability of the Class B Member with respect to such Guarantied Obligation, with reference specifically, but without limitation, to Section 6.2 of the ECCA and Section 11.02 of the LLC Agreement; (d) the Guarantor shall have no liability hereunder with respect to any action or inaction of the Managing Member or Partnership Representative or any breach or noncompliance by the Managing Member or Partnership Representative with any of the Guarantied Obligations, if the Class B Member (or any successor Managing Member or Member that is an Affiliate of the Guarantor) was not, at the time of such action, inaction, breach or noncompliance the Managing Member or Partnership Representative, as applicable; (e) other than (i) Notwithstanding anything with respect to the contrary contained representations and warranties in Section 3.27 of the ECCA that are made on the Funding Date, any indemnification obligations with respect to or resulting from any breach that relates to a title defect arising after the Execution Date and (ii) with respect to the representations and warranties in Section 3.27 of the ECCA that are made on the Execution Date, any indemnification obligations with respect to or resulting from any breach that relates to a title defect of which the Class B Member or any of its Affiliates (provided, that solely for purposes of this clause (ii), the term “Affiliate” shall not include clause (i) of the first proviso of the definition thereof to the extent that any entity excluded from the definition of Affiliates in such clause (i) directly or indirectly controls the Class B Member, the Project Company or the Company) had knowledge on the Execution Date, the Guarantor’s aggregate liability hereunder shall not exceed $199,742,872.60 plus all Additional Capital Contributions (as defined in the LLC Agreement: ) made by the Class A Members less all amounts which have been paid by or on behalf of the Class B Member or the Class B Member (1as defined in the LLC Agreement) pursuant to Article 6 of the ECCA or Section 5.04 or Article 11 of the LLC Agreement or by the Indemnitor under the Indemnity Agreement less all Additional Capital Contributions made by the Class B Members (as defined in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2LLC Agreement) (x) in no event the “Aggregate Liability Amount”); provided, that the aggregate liability of the Guarantor shall Parent be required not exceed the amount calculated pursuant to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paidSection 6(f); and (3f) other than (xi) with respect to the representations and warranties in no event shall Parent be required to pay Section 3.27 of the Regulatory Failure Termination Fee ECCA that are made on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. Date, any indemnification obligations with respect to or resulting from any breach that relates to a title defect arising after the Execution Date and (ii) Notwithstanding anything with respect to the contrary contained representations and warranties in Section 3.27 of the ECCA that are made on the Execution Date, any indemnification obligations with respect to or resulting from any breach that relates to a title defect of which the Class B Member or any of its Affiliates (provided, that solely for purposes of this clause (ii), the term “Affiliate” shall not include clause (i) of the first proviso of the definition thereof to the extent that any entity excluded from the definition of Affiliates in such clause (i) directly or indirectly controls the Class B Member, the Project Company or the Company) had knowledge on the Execution Date, the aggregate liability from time to time of the Guarantor hereunder, of the Indemnitor under the Indemnity Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company and of the Company Termination Fee pursuant to Section 8.3(aindemnifying parties under Article 6 of the ECCA and under Article 11 of the LLC Agreement shall not exceed (i) shall constitute if the sole and exclusive remedy Flip Point has not occurred, an amount the payment of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective formerwhich, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered if treated as a result positive Cash Flow for purposes of Section 5.06(b)(iii) of the failure LLC Agreement as of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon Distribution Date immediately following payment of such amount, none would cause the Flip Point to occur on or prior to the date on which the Flip Point is projected to occur in the Base Case Model and (ii) if the Flip Point has occurred, zero. For purposes of determining Guarantor’s maximum liability pursuant to this Section 6(f), all payments pursuant to this Guaranty shall be deemed to have been treated as positive Cash Flow for purposes of Section 5.06(b)(iii) of the Company Related Parties shall have LLC Agreement. Notwithstanding the foregoing, if (x) any further liability or obligation relating to or arising out of this Agreement Third Party Action under the ECCA or the transactions contemplated thereby LLC Agreement filed against or demanded of any Beneficiary prior to the Flip Point shall not have been finally resolved or (whether at lawy) any Tax contest or dispute applicable to a taxable period prior to the Flip Point or during which the Flip Point occurs relates to any Company Tax Return applicable to a year prior to the Flip Point or during which the Flip Point occurs and, in equityeither case, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not Flip Point to occur as provided under Section 8.2, Parent shall fail to be entitled to the payment of the Company Termination Fee achieved (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered other than as a result of a change in a Fixed Tax Assumption), the failure Guarantied Obligations under Article 6 of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), ECCA and upon payment of such amount, none under Article 11 of the Parent Related Parties LLC Agreement shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, not be subject to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause limitations described in clause (ii) until the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)Flip Point occurs.

Certain Limitations. The indemnification provided for in Section 10.02 and Section 10.03 shall be subject to the following limitations: (ia) Seller shall not be liable to the Buyer Indemnitees for indemnification under Section 10.02(a)(i) (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 2.01, Section 2.02, Section 2.03, Section 2.04, and Section 2.06 (the “Buyer Basket Exclusions”)), until the aggregate amount of all Losses in respect of indemnification under Section 10.02(a) (other than those based upon, arising out of, with respect to or by reason of the Buyer Basket Exclusions) exceeds Two Hundred Fifty Thousand Dollars ($250,000.00), in which event Seller shall be required to pay or be liable for all such Losses exceeding Two Hundred Fifty Thousand Dollars ($250,000.00). Notwithstanding anything to the contrary contained herein, Seller’s aggregate liability under this Agreement in this Agreement:respect of breaches of its representations and warranties contained herein (excluding the Buyer Basket Exclusions), shall not exceed twenty-five percent (25%) of the Purchase Price (the “Cap”), but the Cap shall not apply to any claims for indemnification based upon any Buyer Basket Exclusion or any breach of Seller’s or the Company’s covenants herein. (1b) Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 10.03(a) (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any inaccuracy in no or breach of any representation or warranty in Section 3.01 and Section 3.03 (the “Seller Basket Exclusions”) until the aggregate amount of all Losses in respect of indemnification under Section 10.03(a) (other than those based upon, arising out of, with respect to or by reason of the Seller Basket Exclusions) exceeds Two Hundred Fifty Thousand Dollars ($250,000.00), in which event Seller shall the Company be required to pay the Company Termination Fee on more than one occasion; or be liable for all such Losses exceeding Two Hundred Fifty Thousand Dollars (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) $250,000.00). Notwithstanding anything to the contrary contained herein, Buyer’s aggregate liability under this Agreement in this Agreementrespect of all breaches of its representations, but subject to Section 9.9, Parent’s right to receive payment from the Company warranties and covenants contained herein shall not exceed twenty-five percent (25%) of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)Purchase Price. (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. The Party (including its Affiliates) making a claim under this Article IX is referred to as the “Indemnified Party,” and the Party against whom such claim is asserted under this Article IX is referred to as the “Indemnifying Party.” (a) Seller shall not be liable to any Buyer Indemnified Party for indemnification under Section 9.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.02(a) and Section 9.02(b)(i) exceeds an amount equal to $375,000 (the “Deductible”), in which event the Seller shall only be required to pay or be liable for Losses in excess of the Deductible; provided, however, that in no event shall Seller’s aggregate Liability under Section 9.02(a) exceed $7,500,000 (the “Cap”). Notwithstanding the foregoing, neither the Deductible nor the Cap shall apply to any indemnification claim made by any Buyer Indemnified Party: (i) Notwithstanding anything under Section 9.02(b)(i), or (ii) arising out of, resulting from or relating to any Fraud by Seller or any Member. (b) Seller shall not be liable to any Buyer Indemnified Party for indemnification under Section 9.02(b)(i) in an aggregate amount in excess of the Purchase Price received by Seller and the Members shall not be liable to any Buyer Indemnified Party for indemnification under Section 9.02(b)(i) in an aggregate amount, with respect to each Member, in excess of the portion of the Purchase Price received by such Member; provided, however, that this Section 9.04(b) shall not apply to any indemnification claim made by any Buyer Indemnified Party arising out of, resulting from or relating to any Fraud by Seller or any Member. (c) Buyer shall not be liable to any Seller Indemnified Party for indemnification under Section 9.03(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.03(a) exceeds an amount equal to the contrary Deductible, in which event Buyer shall only be required to pay or be liable for Losses in excess of the Deductible; provided, however, that in no event shall Buyer’s aggregate Liability under Section 9.03(a) exceed $7,500,000 (the “Buyer Cap”). Notwithstanding the foregoing, neither the Deductible nor the Buyer Cap shall apply to any indemnification claim made by any Seller Indemnified Party arising out of, resulting from or relating to: (i) any misrepresentation, inaccuracy in or breach of any Buyer Fundamental Warranty, or (ii) any Fraud by Buyer. (d) Buyer shall not be liable to any Seller Indemnified Party for indemnification under Section 9.03(a) for a misrepresentation, inaccuracy in or breach of any Buyer Fundamental Warranty in an aggregate amount greater than the Purchase Price; provided, however, that this Section 9.04(d) shall not apply to any indemnification claim made by any Seller Indemnified Party arising out of, resulting from or relating to any Fraud by Buyer. (e) In no event shall any Indemnified Party be entitled to seek or receive indemnification for the same Losses more than once under this Article IX even if a claim for indemnification in respect of such Losses has been made as a result of a breach of more than one (1) representation, warranty, covenant or agreement contained in this Agreement: (1) in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (f) Each Indemnified Party shall take, and cause its Affiliates to take, Commercially Reasonable Efforts to mitigate any Loss that are indemnifiable pursuant to this Agreement to the extent required by Law. (g) The Indemnifying Party shall not be liable under Section 9.02 for any Losses to the extent included in the calculation of any adjustment to the Purchase Price pursuant to Section 1.07. No Losses may be claimed by Buyer to the extent (i) such Loss is included in the Closing Net Working Capital, (ii) Notwithstanding anything except with respect to Sections 2.19(a), (l), (n), (o), (q), (r), (s), (v), (w), (x), (z), (aa), (bb) and (ee), any such Loss consisting of or relating to Taxes with respect to the contrary contained Company attributable to the Post-Closing Taxable Period, or (ii) such Loss is due to Buyer breaching any covenant relating to Taxes in this Agreement. (h) Nothing in this Article IX shall be deemed to limit any rights of Buyer and its Affiliates as against the R&W Carrier under the R&W Insurance Policy. Notwithstanding any provision in this Agreement to the contrary, but the Buyer Indemnified Parties shall be entitled to make a claim for indemnification under, and subject to Section 9.9the limitations in, Parentthis Article IX concurrently with seeking recovery from any insurance (including the R&W Insurance Policy). (i) Other than with respect to the Indemnity Escrow Amount or Fraud, the Buyer’s right to receive payment from the Company of the Company Termination Fee indemnification pursuant to Section 8.3(a9.02(a) shall constitute the sole and exclusive remedy (other than with respect to any misrepresentation, inaccuracy in or breach of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective formerthe Seller Fundamental Warranties) will be satisfied solely from the R&W Insurance Policy up to an amount equal to the policy limit under the R&W Insurance Policy, current and other than with respect to the Indemnity Escrow Amount or future general or limited partnersFraud, stockholdersSeller shall have no liability for such indemnification pursuant to Section 9.02(a), members, managers, directors, officers, employees, agents, Affiliates or assignees regardless of whether Buyer actually recovers under the R&W Insurance Policy. (collectivelyj) Other than with respect to Fraud, the “Company Related Parties”Buyer’s right to indemnification pursuant to Section 9.02(b)(i) for all Damages suffered as a result arising out of, resulting from or relating to any misrepresentation, inaccuracy in or breach of any of the failure Seller Fundamental Warranties will be satisfied: (i) first, by the Seller and the Members up to the amount of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise self-insured retention under the R&W Insurance Policy, including from the Indemnity Escrow Amount; (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwiseii) (except thatsecond, to the extent any termination of this Agreement resulted fromthe R&W Insurance Policy provides coverage, directly or indirectly, from the R&W Insurance Policy up to an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled amount equal to the payment policy limit under the R&W Insurance Policy; and (iii) third, from the Seller and each of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) Members, jointly and to any Damagesseverally, to the extent proventhat the R&W Insurance Policy does not fully cover the Losses (either because no coverage is available under such policy or there is insufficient insurance available under such policy), resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by in an amount not to exceed the Companyamount set forth in Section 9.04(b). (iiik) The amount to which any Indemnified Party is entitled hereunder shall be reduced by the amount of insurance proceeds (other than under the R&W Insurance Policy) actually received by the Indemnified Party in respect of such claim for indemnification, less any costs and expenses (including deductibles and co-insurance) incurred by the Indemnified Party in order to collect such insurance proceeds and less increases in premiums attributable to such amounts. If the Indemnified Party or any of its Affiliates receives any such insurance proceeds subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount of the relevant insurance proceeds, less any out-of-pocket collection or out-of-pocket recovery costs and expenses (including deductibles and co-insurance) incurred by such Person in order to collect insurance proceeds and less increases in premiums attributable to such Losses. (l) Notwithstanding anything in this Agreement to the contrary contrary, from and after the Closing, no Person defined as a Seller Indemnified Party shall seek or be entitled to advancement, indemnification, contribution or other recovery of any kind from the Company (including by reason of the fact that he, she or it was an officer, director, manager, member, employee, or agent of the Company or was serving at the request of the Company as a partner, trustee, director, officer, employee, or agent of another entity) for any actions or omissions of such Person prior to Closing with respect to any matter for which such Person is required to indemnify any Buyer Indemnified Party under this Article IX. (m) Notwithstanding anything in this Agreement to the contrary, the right to indemnification, payment of Losses or other remedy based upon any representation, warranty, covenant or obligation contained in this Agreement shall not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable of being required) at any time, whether before or after the execution and delivery of this Agreement, but subject with respect to Section 9.9the accuracy or inaccuracy of or compliance with any such representation, warranty, covenant or obligation or the Company’s waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, and will not affect the right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole indemnification based on such representations, warranties, covenants and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)obligations.

Certain Limitations. The indemnification provided for in Section 9.02 and Section 9.03 shall be subject to the following limitations: (a) Purchaser Indemnitees shall not be entitled to seek indemnification (and the Seller Parties shall not be liable) under Section 9.02(a) with respect to a particular claim unless such claim involves Losses in excess of $20,000 (the “Qualifying Threshold”), and the Seller Parties shall not be liable to the Purchaser Indemnitees in respect of indemnification under Section 9.02(a) unless the aggregate amount of Losses (pursuant to claims each of which exceeds the Qualifying Threshold) exceeds $420,000 (the “Deductible”), and shall only be liable with respect to Losses in excess of the Deductible; provided, that the limitations set forth in this paragraph shall not apply to any claim pursuant to Section 9.02(a) relating to a breach or inaccuracy in any Fundamental Representation, other than representations with respect to Sections 4.18 (Environmental Matters), and 4.19 (Employee Benefit Matters), to which the Qualifying Threshold and the Deductible will apply. Purchaser Indemnitees shall not be entitled to such indemnification (and the Seller Parties shall not be liable) under Section 9.02(d)(v) for Losses in excess of $50,000 in the aggregate. (b) In the event Purchaser Indemnitees are entitled to indemnification pursuant to Section 9.02(a) or Section 9.02(i) (to the extent relating to a breach of any representations or warranties referred to in Section 9.02(a)), (i) Losses shall first be paid out of the R&W Retention Fund, and (ii) thereafter, Purchaser Indemnitees shall pursue recovery for such Losses under the R&W Insurance Policy (it being agreed by Purchaser that, subject to the last sentence of this paragraph, such claims cannot be brought directly against the Seller Parties or the Indemnification Escrow Fund, but rather are limited to and must be made only against the R&W Retention Amount that has been deposited to the R&W Retention Fund at Closing or against the R&W Insurance Policy, which two (2) sources constitute the sole and exclusive recourse of Purchaser Indemnitees with respect to indemnification under Section 9.02(a) or Section 9.02(i) (to the extent relating to a breach of any representations or warranties referred to in Section 9.02(a)), except in the case of a Seller Fraud Carve-Out Event, the liability for which is addressed in Section 9.04(c), as limited by Section 9.04(e)). Notwithstanding the foregoing, to the extent Purchaser becomes entitled to indemnification under Section 9.02(a) with respect to a breach of Sections 3.03 (Capitalization and Ownership) or 4.02 (Capitalization), if Losses were not paid out under (i) or (ii) of the first sentence of this Section 9.04(b), Purchaser Indemnitees shall be entitled to recourse directly against the Seller Parties for a breach of Sections 3.03 (Capitalization and Ownership) or 4.02 (Capitalization). (c) In the event Purchaser Indemnitees are entitled to indemnification pursuant to Special Seller Parties’ Indemnity Obligations (i) Losses shall first be paid out of the Indemnification Escrow Fund and (ii) if the then-remaining Indemnification Escrow Fund has been exhausted or otherwise disbursed to the Seller Parties or the Seller Representative or is subject to claims by Purchaser Indemnitees, Purchaser Indemnitees shall be entitled to recourse directly against the Seller Parties, as limited by Section 9.04(e). (d) In the event Purchaser Indemnitees are entitled to indemnification pursuant to Additional Special Indemnity Obligations, (i) Losses incurred or sustained by, or imposed upon, the Purchaser Indemnitees based upon, arising out of, with respect to or by reason of the Additional Special Indemnity Obligations (the “Additional Special Indemnity Losses”) shall be borne equally by Seller Parties, as a group, on the one hand, and by the Purchaser, on the other hand, up to a maximum amount of $4,000,000 of Additional Special Indemnity Losses (i.e. Seller Parties, as a group, would only be responsible for up to a maximum of $2,000,000 of Additional Special Indemnity Losses in the aggregate); (ii) the Sellers Parties’ liability, as a group, for Additional Special Indemnity Losses pursuant to any particular claim of Additional Special Indemnity Obligations shall not exceed $1,000,000 (i.e. Seller Parties, as a group, would be responsible for up to a maximum of $1,000,000 of Additional Special Indemnity Losses incurred with respect to any particular claim related to an Additional Special Indemnity Obligations), and (iii) Additional Special Indemnity Losses shall only be payable from the Indemnification Escrow Fund, which source constitutes the sole and exclusive recourse of Purchaser Indemnitees with respect to indemnification with respect to Additional Special Indemnity Losses, except in the case of a Seller Fraud Carve-Out Event, the liability for which is addressed in Section 9.04(c), as limited by Section 9.04(e). In the event the amount of Losses with respect to then outstanding but unpaid Special Seller Parties’ Indemnity Obligations and Additional Special Indemnity Losses with respect to then outstanding but unpaid Additional Special Indemnity Obligations exceed the amount of the Indemnification Escrow Fund, Additional Special Indemnity Losses, if any, shall be paid out of the Indemnification Escrow Fund first, and then Special Seller Parties’ Indemnity Obligations shall be paid out of the Indemnification Escrow Fund (and thereafter as detailed in Section 9.04(c)), all as limited pursuant to this Section 9.04(d) and by Section 9.04(e). (e) Notwithstanding anything in this Agreement to the contrary contained in this Agreement: (1) contrary, in no event shall the Company aggregate liability of all members of the Seller Group or the liability of any individual member of the Seller Group in respect of any Losses pursuant to this Article IX, individually or in the aggregate (including when aggregated with liability for all other breaches of representations, warranties, covenants or agreements), exceed the total consideration actually received by such member of the Seller Group (which, for the avoidance of any doubt, shall include any amounts actually received by such member of the Seller Group from Seller). Notwithstanding anything in this Agreement to the contrary, in no event shall the aggregate liability of Seller in respect of any Losses pursuant to this Article IX, individually or in the aggregate (including when aggregated with liability for all other breaches of representations, warranties, covenants or agreements), exceed the total consideration actually received by Seller less any distributions of such total consideration to the Seller Group, and the aggregate liability of the Seller Parties for such Losses shall be limited to the total consideration actually received by the Seller Parties. For the purposes of clarity, to the extent that any Losses resulting from (i) (A) any breach of the representations or warranties in this Agreement or in any certificate or instrument delivered by or on behalf of any member of the Seller Group, or (B) any breach or nonfulfillment of any covenant, agreement or obligation to be performed in whole or in part by any member of the Seller Group are in either case attributable solely to an act or omission by any individual member of the Seller Group or (ii) an act of Fraud attributable to a particular member of the Seller Group, then such Losses shall be the sole responsibility of such individual member of the Seller Group, and shall be deemed a “Non-Pro Rata Obligation,” and no other member of the Seller Group shall be liable to Purchaser Indemnitees for such Losses other than by recourse to the Indemnification Escrow Fund. For clarity, recourse for Non-Pro Rata Obligations shall be subject to and limited by the other provisions of this Agreement, including Section 9.04(b), Section 9.04(c), and Section 9.04(d). (f) Purchaser shall not be liable to the Seller Party 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 Deductible, in which event Purchaser shall be required to pay or be liable for all such Losses in excess of the Company Termination Fee on more than one occasion; (2) (x) in no event Deductible. The aggregate amount of all Losses for which Purchaser shall Parent be required liable pursuant to pay Section 9.03 shall not exceed the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidtotal consideration actually paid by Purchaser. (g) For purposes of this Article IX, any inaccuracy or breach of any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty, other than (i) the definition of Fraud, (ii) Notwithstanding anything to the contrary definition of Material Contracts, Material Customers or Material Suppliers contained in this Agreementthe representations and warranties, but subject to (iii) in Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a4.06(c) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwiseUndisclosed Liabilities), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwiseSection 4.07(a) (except thatAbsence of Certain Changes), to the extent any termination or (iv) in Section 4.08(a)(iv), Section 4.08(a)(vi), Section 4.08(a)(xii) (Material Contracts), Section 4.09(d) (Title of this Agreement resulted fromAssets), directly or indirectlySection 4.11(a)(iv) (Intellectual Property), an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee 4.17(a) (to the extent owed pursuant relating to Section 8.3(a4.18(g), Section 4.19(b)(viii), Section 4.20(a)(vii) below), Section 4.17(b) (Compliance with Laws; Permits), Section 4.18(g) (Environmental Matters), Section 4.19(b)(viii) (Employee Benefit Matters) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach Section 4.20(a)(vii) (as reduced by any Company Termination Fee previously paid by the CompanyEmployment Matters). (iiih) Notwithstanding anything To avoid double-counting, any Loss for which any party hereto would otherwise be obligated to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to provide indemnification hereunder will be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, offset to the extent any termination such Loss is reflected in the determination of the Final Total Consideration. (i) The Seller Group may enter into one or more contribution agreements amongst the members of the Seller Group whereby the members of such group shall allocate liability under this Agreement resulted fromamongst such parties and determine means to enforce such allocations as appropriate, directly or indirectlyincluding without limitation, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause liabilities that are join and several amongst the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)Seller Group.

Certain Limitations. (i) Notwithstanding anything to the contrary contained any other provision of this Section 11, except as provided below in this Agreement: (1) in no event shall Section 11.4, the Company be required to pay Indemnified Buyer Parties on the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasionhand, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if Indemnified Seller Parties on the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasionother hand, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to indemnification hereunder with respect to the payment breach of a representation or warranty by the Company Termination Fee Seller Parties, or by the Buyer and the Parent, respectively, only when the aggregate of all Damages to such Indemnified Parties from all such breaches of representations or warranties exceeds $90,000 (the “Deductible Amount”) and only to the extent owed that the aggregate of all such Damages exceeds the Deductible Amount. Notwithstanding the foregoing, the maximum limitation for claims pursuant to this Section 8.3(a11 shall be $6,500,000 (the “Indemnification Cap”). The foregoing limitation with respect to the Deductible Amount and the Indemnification Cap shall not apply, however, to (a) any breach of the Seller Parties’ representations or warranties under Sections 4.1 (Corporate Status), 4.2 (Authorization), 4.4 (Stock Ownership), 4.6 (Title to Purchased Assets and Related Matters), 4.13 (Taxes), and 4.29 (Finder’s Fee) or in the related provisions of the Closing Certificates and (b) a breach of any representations or warranties of a Party to this Agreement that were made with an intent to mislead or defraud or with a reckless disregard of the accuracy thereof, and (c) any DamagesDamages arising from any matter set forth in clauses (b) through (h) of the first sentence of Section 11.1. In addition, in the case of a claim that may be made based on a breach of a representation or warranty as well as on any other item described in clauses (b) through (h) of the first sentence of Section 11.1, such limitations regarding the Deductible Amount and the Indemnification Cap shall not apply to the extent proven, resulting from that such claim is not based solely on an asserted breach of a representation or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)warranty. (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. (ia) Except in the case of Fraud and indemnification claims related to any breach of or inaccuracy in the Fundamental Representations, the Parent Indemnified Parties, as a group, may not recover any Losses pursuant to an indemnification claim under Section 8.2(a)(i) unless and until the Parent Indemnified Parties, as a group, shall have paid, incurred, suffered or sustained at least $2,500,000 in Losses in the aggregate (the “Deductible”), at which time the Parent Indemnified Parties shall be entitled to recover in excess of the Deductible. (b) Notwithstanding anything to the contrary herein, the liability of the Company Indemnitors for Losses arising (x) under Section 8.2(a)(i) (other than for breaches of Fundamental Representations) shall be capped at the Indemnity Escrow Cash, and the Parent Indemnified Parties’ sole and exclusive source of recovery for such indemnification claims shall be recourse against the Indemnity Escrow Cash and the R&W Insurance Policy), (y) under any other provision of Section 8.2(a) (including pursuant to Section 8.2(a)(i) with respect to any breach of a Fundamental Representation) shall be capped at the Total Merger Consideration actually received by such Company Indemnitor (including, for the avoidance of doubt, the Indemnity Escrow Cash, if and to the extent released to such Company Indemnitor), unless, in each case of (x) and (y), such indemnity claim is being made in respect of Fraud committed by such Company Indemnitor (in which event there shall be no limitation on the liability of such Company Indemnitor hereunder with respect to such Fraud), and (z) notwithstanding anything contained in this AgreementAgreement to the contrary, including this Article VIII, with respect to Specified Tax Matters shall be capped at $1,000,000. In furtherance of and without limitation to the foregoing, and subject in all respects to the limitations set forth in this Section 8.3 (including Sections 8.3(c), (d) and (e)), the Parent Indemnified Parties shall satisfy their rights under this Article VIII in respect of a claim for indemnification hereunder as follows: (1i) With respect to any claim for indemnification under Section 8.2(a)(i) or with respect to Unpaid Pre-Closing Taxes, (A) first, until such time as the retention under the R&W Insurance Policy is eroded, from the Indemnity Escrow Cash to the extent of any Indemnity Escrow Cash then remaining in escrow, (B) thereafter, by recourse against the R&W Insurance Policy, (C) thereafter, upon the coverage limit under the R&W Insurance Policy being reached (but subject to the final paragraph of this Section 8.3(b)), from the Indemnity Escrow Cash to the extent of any Indemnity Escrow Cash then remaining in escrow, and (D) thereafter, if (and only if) (I) such indemnification claim arises out of a breach of or inaccuracy in any Fundamental Representation or Unpaid Pre-Closing Taxes and (II) no Indemnity Escrow Cash remains available in escrow, from the Company Indemnitors in accordance with Section 8.3(c). (ii) With respect to any other claim for indemnification pursuant to Section 8.2(a), from the Indemnity Escrow Cash to the extent of any Indemnity Escrow Cash then remaining, and if (and only if) no Indemnity Escrow Cash remains available, from the Company Indemnitors in accordance with Section 8.3(c). The conditions and limitations set forth in this Section 8.3(b) will apply even if (i) the R&W Insurance Policy is revoked, cancelled or modified in any manner after issuance, or (ii) Parent (or any other Parent Indemnified Party claiming by or through Parent under the R&W Insurance Policy) makes a claim under the R&W Insurance Policy and such claim is denied by the insurer. (c) Subject to the limitations set forth in this Section 8.3, the Parent Indemnified Parties shall be entitled to bring indemnification claims directly against the Company Indemnitors (in accordance with each Company Indemnitor’s Pro Rata Share) pursuant to the claims procedures in Section 8.4; provided that any Losses with respect to such Claims shall first be recovered in the order and priority, {N4442029.10} 255288355 v23 and subject to the limitations set forth in Section 8.3(b); and provided, further, that in no event shall the aggregate liability of any Company Indemnitor for all indemnification claims under this Agreement exceed the amount of Total Merger Consideration actually received by such Company Indemnitor (including, for the avoidance of doubt, the Indemnity Escrow Cash, if and to the extent released to such Company Indemnitor), unless such indemnity claim is being made in respect of Fraud committed by such Company Indemnitor (in which event there shall be required no limitation on the liability of such Company Indemnitor hereunder with respect to pay the Company Termination Fee on more than one occasion; (2) (x) in such Fraud). In no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the any Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall Indemnitor have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent for any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced Fraud committed by any other unaffiliated Company Termination Fee previously paid by the Company)Indemnitor. (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. (i) Notwithstanding anything It is the intention of the parties hereto to the contrary contained in conform strictly to all usury laws that are applicable to each such party, this Agreement: (1) in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasionLease, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure each of the transactions contemplated by this Agreement Lease (collectively the "Transactions"). Accordingly, notwithstanding anything to be consummated the contrary in this Lease, or for a breach any other document, certificate, instrument or failure to perform hereunder agreement entered in connection with the Transactions (collectively the "Transaction Documents"), it is agreed as follows: (i) the aggregate of all consideration which constitutes interest under Applicable Usury Law (hereinafter defined) that is contracted for, taken, reserved, charged or received by any party under the Transaction Documents or otherwise in connection with the Transactions shall under no circumstances exceed the maximum amount of interest that could lawfully be charged by such party under Applicable Usury Law, (whether at lawii) in the event that the maturity of any indebtedness evidenced by or payable pursuant to the Transaction Documents is accelerated for any reason, or in the event of any required or permitted payment or prepayment of all or any part of such indebtedness (including, without limitation, and if applicable, any required or permitted purchase of any Property or Equipment, or any required or permitted payment of the Adjusted Acquisition Cost), then such consideration that constitutes interest as to any such indebtedness under Applicable Usury Law may never include more than the maximum amount allowed by such Applicable Usury Law, and (iii) excess interest, if any, provided for in the Transaction Documents or otherwise in connection with the Transactions shall be, in equityaccordance with the following provisions of this Section 33, in contractcanceled automatically and, in tort if theretofore paid, shall be credited by the recipient on the principal or otherwise), and upon payment of such amount, none stated amount of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby affected indebtedness (whether at law, in equity, in contract, in tort or otherwise) (except thator, to the extent that the principal or stated amount of such indebtedness shall have been or would thereby be paid in full, refunded by such recipient to the party entitled thereto). If at any termination time the rate of this Agreement resulted frominterest (denominated as such) contractually called for in any Transaction Document (as the same may vary from time to time pursuant to the terms of such Transaction Document, directly the "Stated Rate"), exceeds the maximum non-usurious rate of interest permitted by Applicable Usury Law (the "Maximum Rate") in respect of the indebtedness evidenced by such Transaction Document, taking into account all other amounts paid or indirectlypayable pursuant to the Transaction Documents which constitute interest with respect to such indebtedness under Applicable Usury Law regardless of whether denominated as interest (collectively, an Intentional Breach the "Other Charges"), then the rate of this Agreement by the Company or interest to accrue on such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent indebtedness shall be entitled limited to such Maximum Rate (taking into account the Other Charges), but any subsequent reduction in the Stated Rate applicable to such indebtedness shall not reduce the rate of interest or yield to accrue on such indebtedness to a rate that is less than such Maximum Rate (taking into account the Other Charges) until such time as the total amount of interest or yield on such indebtedness equals the amount of interest or yield which would have accrued if the Stated Rate applicable to such indebtedness had at all times been in effect. If at the maturity or final payment of any indebtedness the total amount of interest or yield paid or accrued on such indebtedness under the preceding sentence is less than the total amount of interest or yield which would have accrued if the Stated Rate applicable to such indebtedness had at all times been in effect, then to the payment fullest extent permitted by Applicable Usury Law there shall be due and payable with respect to such indebtedness an amount equal to the excess, if any, of (a) the lesser of (i) the amount of interest which would have accrued on such indebtedness if such Maximum Rate in respect of such indebtedness had at all times been in effect and been chosen as the rate of interest or yield to be applicable throughout the term of such indebtedness (taking into account the Other Charges) and (ii) the amount of interest which would have accrued on such indebtedness if the Stated Rate applicable to such indebtedness had at all times been in effect, over (b) the amount of interest accrued in accordance with the provisions of the Company Termination Fee (Transaction Document evidencing such indebtedness after giving effect to the extent owed preceding sentence. All amounts paid or agreed to be paid for the use, forbearance or detention of sums pursuant to Section 8.3(a)) and to any Damagesor in connection with the Transaction Documents shall, to the extent provenpermitted by Applicable Usury Law, resulting from be amortized, prorated, allocated and spread throughout the full term thereof so that the rate or arising out amount of such Intentional Breach (as reduced interest paid or payable with respect to any amount of indebtedness evidenced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything or payable pursuant to the contrary contained in this AgreementTransaction Documents does not exceed the applicable usury ceiling, but subject to Section 9.9if any. As used herein, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).term "

Certain Limitations. (ia) Notwithstanding anything to the contrary contained in this Agreement: (1) in no event shall herein, the Company be required to pay other Transaction Agreements, the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay Cedent Disclosure Schedule, or any of the Funding Failure Termination Fee on more than one occasionSchedules or Exhibits hereto or thereto, Reinsurer acknowledges and agrees that neither Cedent nor any of its Affiliates, nor any Representative of any of them, makes or has made, and Reinsurer has not relied on, any inducement, promise, representation or warranty, oral or written, express or implied, other than except as expressly made by Cedent in Article III. Without limiting the generality of the foregoing, other than as expressly set forth in Article III, no Person has made any representation or warranty to Reinsurer with respect to the Business or any other matter, including with respect to (yi) in no event shall Parent be required to pay the Funding Failure Termination Fee if probable success or profitability of the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay Business after the Regulatory Failure Termination Fee on more than one occasionClosing, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. or (ii) Notwithstanding anything any information, documents, or material made available to the contrary contained in this AgreementReinsurer, but subject to Section 9.9its Affiliates, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of or their respective formerRepresentatives in any “data rooms,” information memoranda, current management presentations, functional “break-out” discussions, or future general in any other form or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of forum in connection with the transactions contemplated by this Agreement to be consummated Agreement, including any estimation, valuation, appraisal, projection, or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and forecast. With respect to any Damagessuch estimation, to the extent provenvaluation, resulting from appraisal, projection, or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries forecast (including Merger Sub) and any confidential information memoranda prepared by or on behalf of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of Cedent in connection with the transactions contemplated by this Agreement), Reinsurer acknowledges that: (i) there are uncertainties inherent in attempting to make such estimations, valuations, appraisals, projections, and forecasts; (ii) it is familiar with such uncertainties; (iii) except as expressly set forth in Section 3.12(b) and Section 5(a) of Article VIII of the Reinsurance Agreement it is not acting and has not acted in reliance on any such estimation valuation, appraisal, projection, or forecast delivered by or on behalf of Cedent to Reinsurer, its Affiliates or their respective Representatives; (iv) such estimations, valuations, appraisals, projections, and forecasts are not and shall not be deemed to be consummated representations or for a breach warranties of Cedent or failure to perform hereunder or otherwise (whether at law, any of its Affiliates except as expressly set forth in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwiseSection 3.12(b) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).and

Certain Limitations. (a) Notwithstanding anything contained herein to the contrary, the Company and Parent shall not be obligated to indemnify Purchaser Indemnified Parties for aggregate Purchaser Losses (i) under this Agreement pursuant to Section 9.01(a)(1) in excess of $14,000,000 (the “Cap”) or (ii) under this Agreement (other than pursuant to Sections 6.09 and 9.01(a)(3)) in excess of an amount equal to the Purchase Price; provided, however, that the limitations set forth in clause (i) and (ii) above shall not apply to fraud, criminal activity, willful misconduct or any breaches of any Fundamental Representation. Notwithstanding anything contained herein to the contrary contained contrary, Purchaser shall not be obligated to indemnify Company Indemnified Parties for aggregate Company Losses (i) under this Agreement pursuant to Section 9.01(b)(1) in excess of the Cap; provided, however, that the limitations set forth in clause (i) shall not apply to fraud or any breaches of any Fundamental Representation or (ii) under this Agreement:Agreement (other than pursuant to Sections 6.09 and 9.01(b)(3)) in excess of an amount equal to the Purchase Price. (1b) Notwithstanding anything contained herein to the contrary, the Company and Parent shall not be obligated to indemnify Purchaser Indemnified Parties under this Agreement pursuant to 9.01(a)(1), unless and until the aggregate Purchaser Losses subject to such indemnification collectively exceed $700,000 (the “Deductible”), whereupon such indemnification shall be made by the Company and Parent only with respect to the amount of such Purchaser Losses in excess of $500,000; provided that no Purchaser Losses may be claimed by a Purchaser Indemnified Party or shall be reimbursable by the Company or Parent or shall be included in calculating the Deductible other than Purchaser Losses in excess of $25,000 resulting from any single or aggregated claims arising out of the same facts, events or circumstances and provided that in no event shall any internal costs be included as a Loss; further provided, however, that the Deductible shall not apply to any breaches of any Fundamental Representation or any Purchaser Losses due to fraud, criminal activity, or willful misconduct. Notwithstanding anything contained herein to the contrary, Purchaser shall not be obligated to indemnify Company Indemnified Parties under this Agreement pursuant to 9.01(b)(1), unless and until the aggregate Company Losses subject to such indemnification collectively exceed the Deductible, whereupon such indemnification shall be required made by Purchaser only with respect to pay the amount of such Company Termination Fee on more Losses in excess of $500,000; provided that no Company Losses may be claimed by a Company Indemnified Party or shall be reimbursable by Purchaser or shall be included in calculating the Deductible other than one occasion; (2) (x) Company Losses in excess of $25,000 resulting from any single or aggregated claims arising out of the same facts, events or circumstances and provided that in no event shall Parent any internal costs be required included as a Loss; further provided, however, that the Deductible shall not apply to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidany breaches of any Fundamental Representations. (iic) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company The representations and warranties of the Company Termination Fee and Parent contained in Article IV and Purchaser contained in Article V shall survive the Closing and terminate on the date that is eighteen (18) months following the Closing Date (except for the representations and warranties contained in Section 4.05 and Section 4.13 which shall survive for sixty (60) days following the expiration of the applicable statute of limitations); provided that the Fundamental Representations shall terminate on the date that is thirty-six (36) months following the Closing Date. All covenants and agreements of the Parties contained herein shall survive the Closing indefinitely or for the period explicitly specified therein. (d) The obligations to indemnify and hold harmless a Party pursuant to Sections 9.01(a)(1) or 9.01(b)(1) shall terminate when the applicable representation or warranty terminates pursuant to Section 8.3(a9.02(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any claims as to which the Company Indemnified Party or Purchaser Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall constitute have, before the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result expiration of the failure of applicable survival period, previously made a claim by delivering a written notice (stating in reasonable detail the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment basis of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except thatclaim, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement known by the Company or such Intentional Breach by Indemnified Party) to the Company shall cause indemnifying Party hereunder (the Merger Closing not to occur as provided under Section 8.2, Parent shall be “Indemnifying Party”). (e) Each Person entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damagesindemnification hereunder shall, to the extent provenas would be required under applicable Law, resulting from take all reasonable steps to mitigate all Losses after becoming aware of any event that could reasonably be expected to give rise to any Losses which are indemnifiable or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)recoverable hereunder or in connection herewith. (iiif) Notwithstanding anything For purposes of this Article IX, any inaccuracy in or breach of any representation or warranty shall be determined without regard to the contrary any materiality, Material Adverse Effect or other similar qualification contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort applicable to such representation or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)warranty.

Certain Limitations. No indemnification under Section 10.02(i) shall be available unless and until the aggregate Damages of the Indemnified Persons under such section exceed the Indemnification Deductible, in which case, indemnification under such section shall, subject to the other limitations set forth in this Agreement, be available for all Damages in excess of the Indemnification Deductible; provided, however, that the Indemnification Deductible shall not apply to Damages arising from (i) Notwithstanding anything to the contrary contained in this Agreement: (1) in no event shall the Company be required to pay the Company Termination Fee claims based on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, fraud or knowing and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. intentional misrepresentation or (ii) breaches of a Fundamental Representation. Without limiting the foregoing, the Indemnified Persons will not be entitled to indemnification under Section 10.02(i), and no such claim by such Indemnified Persons will be so asserted, where the Damages relating to or resulting from such claim or other claims relating to or resulting from the same facts, events or circumstances are less than $25,000. No Indemnified Person shall be entitled to indemnification under this Article X for punitive damages (except to the extent awarded to a third party in any Third-Party Claim). Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s no Indemnified Person shall have any right to receive payment from indemnification hereunder with respect to any Damage (i) to the Company extent such Damage was expressly and specifically included as a liability or reserve on the Closing Statement or Closing Balance Sheet or was otherwise included in the calculation of the Company Termination Fee pursuant to Section 8.3(a) shall constitute Merger Consideration and resulted in a dollar-for-dollar reduction in the sole and exclusive remedy Merger Consideration, provided, however, that for the avoidance of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectivelydoubt, the “Company Related Parties”) foregoing shall not limit any claim for Damages to the extent the Indemnified Person is not fully compensated for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated directly or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or indirectly arising out of this Agreement or resulting from the transactions contemplated thereby claim giving rise to such Damages by a dollar-for-dollar reduction in the Merger Consideration, (whether at law, in equity, in contract, in tort ii) attributable to taxable periods (or otherwiseportions thereof) (except that, beginning after the Closing Date other than Damages relating to the extent any termination breach of this Agreement resulted fromrepresentations in Section 3.10(c), directly Section 3.10(e) or indirectly, an Intentional Breach of this Agreement by the Company Section 3.10(n) or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything due to the contrary contained unavailability in this Agreementany taxable period (or portion thereof) beginning after the Closing Date of any net operating loss, but subject to Section 9.9, the Company’s right to receive payment credits or other Tax attribute from Parent of the Funding Failure Termination Fee a taxable period (or Regulatory Failure Termination Fee pursuant to Section 8.3(aportion thereof) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current ending on or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, prior to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)Date.

Certain Limitations. (i) Notwithstanding anything The indemnification provided for in Section 7.2 shall be subject to the contrary following limitations: (a) The Sellers shall not be liable (for indemnification or otherwise) to Buyer with respect to claims for indemnification pursuant to Section 7.2(a)(i) of this Agreement until the aggregate amount of the actual Losses in respect thereof exceeds $1,525,000 (the "Basket"), in which event, the Sellers, as a group (but on an individual basis and not jointly and severally with others except with respect to Xxxxxx X. Xxxxxxxx and Xxx Xxxxxxxx as otherwise provided herein), shall be liable for all Losses (and not just Losses in excess of the Basket), subject to the other limitations contained in this Agreement: (1) Article VII. The Basket shall not apply to any claim against an individual Seller for actual fraud or intentional misrepresentation committed by that Seller in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of connection with the transactions contemplated by this Agreement to or any breach of any of the Fundamental Representations or Special Representations. (b) The Sellers shall not be consummated or liable (for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort indemnification or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating ) to or arising out Buyer with respect to claims for indemnification pursuant to Section 7.2(a)(i) of this Agreement or for aggregate Losses in excess of $10,675,000 (the transactions contemplated thereby (whether at law"Cap"); provided, in equityhowever, in contract, in tort or otherwise) (except that, that the Sellers shall not be liable to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided Buyer for indemnification under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)7.2(a)(i) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of one or more breaches of the failure Special Representations (when measured separately) for aggregate Losses in excess of $10,000,000 (which the parties acknowledge to be an amount separate from, and not a part of, the Cap); and provided, further, that the Cap shall not apply to (i) any claim against an individual Seller for actual fraud or intentional misrepresentation committed by that Seller in connection with the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at lawhowever, in equitythat case, such Seller's aggregate Loss for such claims and all other claims combined shall not exceed the amount of Purchase Price previously received by such Seller) or (ii) any breach of any of the Fundamental Representations (however, in contractthat case, in tort or otherwisesuch Sellers' aggregate Loss for such claims and all other claims combined shall not exceed the Purchase Price previously received by such Sellers). (c) Subject to the other limitations imposed by this Article VII, with respect to any claims by Xxxxx, such claims shall first be paid and upon payment of such amount, none of satisfied from the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except thatEscrow Account, to the extent of any termination funds then remaining, and only secondarily by each Seller severally (and not jointly), in each case, in strict proportion to such Seller's respective Percentage Interest of the applicable Loss; provided, however, that (i) Losses resulting from actual fraud or intentional misrepresentation committed by an individual Seller in connection with the transactions contemplated by this Agreement, (ii) Losses resulting from the indemnification provisions of Section 7.2(b) and (iii) Losses resulting from a breach of the Special Representations shall not be satisfied from the Escrow Account but instead, Buyer may only seek to recover such Losses (A) directly against the offending Seller in the case of (i) and (ii) above (severally and not jointly and severally against others) and (B) directly against the Sellers as a group in the case of (iii) above, but only in strict proportion to such Seller's respective Percentage Interest of the applicable Loss. (d) Any Loss incurred by Buyer shall be reduced, on a dollar-for-dollar basis, by the amount of any realized insurance proceeds and any indemnity, contribution or other similar payment received by Buyer (or the Company) in respect of any such Loss or claim associated with such Loss; provided, however, that this Agreement shall not be deemed to impose on Buyer any affirmative obligation to make claims under any insurance policy or to recover any insurance proceeds or any similar payments. (e) To the extent that the Sellers are required to pay Buyer for a claim made pursuant to this section and Buyer recognizes a "Net Tax Benefit," then Buyer will pay to Sellers such Net Tax Benefit. For purposes of this Agreement resulted fromsection, directly "Net Tax Benefit" means a reduction of Tax payable by Buyer in a particular year attributable to the item giving rise to the claim for indemnity. Sellers hereby acknowledge that Xxxxx's net operating losses and other pre-existing tax attributes may limit the ability to realize any Net Tax Benefits hereunder. Sellers also agree and acknowledge that neither the Sellers nor the Shareholder Representative has or indirectlywill have any right (i) to review, an Intentional Breach audit or otherwise dispute the existence or the amount of this Agreement any Net Tax Benefit or (ii) to dispute or challenge any particular Tax position taken by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2Buyer, the Company or any of their respective Affiliates. Sellers agree that the amount of any Net Tax Benefit will be computed by Xxxxx with the assistance of its tax advisors and that such computation shall be entitled final and binding for all purposes of this Agreement; provided, however, notwithstanding the foregoing, Buyer acknowledges an obligation to both prepare all Tax returns in good faith. (f) Simultaneously with any amount paid to a Seller by Buyer pursuant to Section 7.3(c) and Section 7.3(d), Buyer shall gross up such amount paid to make the payment Seller whole for the additional income Taxes payable by such Seller arising from receipt of such amount pursuant to Section 7.3(c) and Section 7.3(d). (g) Following the Funding Failure Termination Fee Closing, Buyer shall take, and cause its Affiliates, including the Company, to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or Regulatory Failure Termination Fee (circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs to the extent owed necessary to remedy the breach that gives rise to such Loss and the failure to so mitigate will reduce, on a dollar-for-dollar basis, all Loss resulting from such failure; provided, however, that it is expressly agreed and understood that such costs and expenses, including, without limitation, attorneys' fees and expenses, incurred in connection with Buyer's obligation to mitigate pursuant to this Section 8.3(a)7.4(g) and to any Damages, may (subject to the extent provenapplicable definition thereof) be deemed to be Losses for all purposes under this Agreement. Without in any manner limiting the generality of the foregoing, resulting from the parties acknowledge and agree that Buyer shall have an obligation to mitigate costs and expenses associated with litigation involving a Third-Party Claim, and, as such, no cost or expense associated with prosecuting a counterclaim against any Third-Party Claim shall be recoverable hereunder (unless such counterclaim has been authorized in writing in advance of filing by the Shareholder Representative). (h) No Seller shall have any liability with respect to a breach of any of the Several Representations by any other Seller and Xxxxx agrees not to seek recovery against a Seller with respect to a breach of the Several Representations by another Seller (except in the case of Xxxxxx X. Xxxxxxxx and Xxx Xxxxxxxx as provided). The Company shall have no liability with respect to a breach of the Several Representations by any Seller and Xxxxx agrees not to seek recovery against the Company with respect to a breach of the Several Representations by any Seller. (i) In no event (including expressly, any fraud or intentional misrepresentation of any Seller) shall any Seller be liable to Buyer for any Losses (in the aggregate) in excess of the portion of the Purchase Price actually received by such Seller. (j) Under no circumstances shall any claim, Loss, reserve or liability reflected on the Company's financial statements (including (i) as referenced in the footnotes thereof or (ii) in connection with any matter for which an accrual or reserve has been established) give rise to an indemnifiable Loss hereunder until the amount of such Loss actually suffered exceeds such amount reflected, accrued or reserved. (k) Sellers shall not be liable for any Losses or any indemnification for Taxes or other matters attributable to Third Party Claims arising out of or resulting from (i) any issue, concern or set of circumstances brought to the attention of such Intentional Breach third party voluntarily by Buyer or the Company (as reduced or their respective Representatives) or (ii) any inquiry, proceeding or audit self-initiated by Buyer or the Company (or their Representatives), after the Closing unless, in any Funding Failure Termination Fee case, the inquiry, proceeding or Regulatory Failure Termination Fee paid audit has been applied across all companies, subsidiaries and divisions of Buyer evenly or the inquiry, proceeding or audit is required by ParentApplicable Law or the policies or procedures of Buyer (without an intent or objective to single out the Losses occurring inside the Company only). (l) Buyer expressly waives any right or rights of offset, whether under common law or otherwise, and however styled or articulated, against any amount that is or may be due any Seller following the Closing. (m) Buyer acknowledges that the provisions of this Section 7.4 were specifically bargained for between the parties and were taken into account in arriving at the Purchase Price. The Company and the Sellers have specifically relied upon the provisions of this Section 7.4 in agreeing to the Purchase Price and in agreeing to provide the specific representations and warranties made hereunder. Neither the Company nor the Sellers would have entered into this Agreement but for the inclusion of this Section 7.4.

Certain Limitations. (i) Notwithstanding anything contained herein to the contrary, (x) Seller shall have no liability to the Buyer Indemnified Parties pursuant to Section 9.2(a)(i) 9.2(a)(ii)(x), or 9.2(a)(ii)(y) with respect to any claim or series of related claims thereunder unless and until all Losses with respect to such claim or series of related claims exceed on a cumulative basis an amount equal to Twenty Five Thousand Dollars ($25,000) (such amount, the “Claims-Specific Threshold”), in which case the Buyer Indemnified Parties shall be entitled to indemnification pursuant to such provision, subject to the further limitations set forth in this Article IX, with respect to such claim or series of related claims, (y) Seller shall have no liability to the Buyer Indemnified Parties pursuant to Section 9.2(a)(i) or Section 9.2(a)(ii)(y) with respect to any claims thereunder unless and until the total amount of all Losses of the Buyer Indemnified Parties with respect to such claims under such provisions (excluding claims that, in accordance with clause (x) above, do not satisfy the Claims-Specific Threshold (to the extent applicable to such claims)) exceed on a cumulative basis Four-Hundred Thousand Dollars ($400,000) (the “Deductible”), in which case the Buyer Indemnified Parties shall be entitled to indemnification pursuant to such provisions, subject to the further limitations set forth in this Article IX, with respect to such claims only for those Losses in excess of the Deductible, and (z) the aggregate liability of Seller with respect to claims by the Buyer Indemnified Parties under Sections 9.2(a)(i), 9.2(a)(ii)(x) and 9.2(a)(ii)(y) shall not exceed Four Million Dollars ($4,000,000) (the “Cap”). Notwithstanding anything to the contrary herein, the limitations contained in the first sentence of this Agreement: Section 9.2(c)(i) shall not apply with respect to claims relating to or arising from (1I) in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; fraud or (2II) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidany breach by Seller of any Fundamental Seller Representation. (ii) Notwithstanding anything contained herein to the contrary contained in this Agreementcontrary, but subject (x) Buyer shall have no liability to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee Seller Indemnified Parties pursuant to Section 8.3(a9.2(b)(i) shall constitute or 9.2(b)(ii)(x) with respect to any claim or series of related claims thereunder unless and until all Losses with respect to such claim or series of related claims exceed on a cumulative basis an amount equal the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at lawClaims-Specific Threshold, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of which case the Company Related Seller Indemnified Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to indemnification pursuant to such provision, subject to the payment further limitations set forth in this Article IX, with respect to such claim or series of related claims, (y) Buyer shall have no liability to the Seller Indemnified Parties pursuant to Section 9.2(b)(i) with respect to any claims thereunder unless and until the total amount of all Losses of the Company Termination Fee Seller Indemnified Parties with respect to such claims (excluding claims that, in accordance with clause (x) above, do not satisfy the Claims-Specific Threshold (to the extent owed applicable to such claims)) exceed on a cumulative basis the Deductible, in which case the Seller Indemnified Parties shall be entitled to indemnification pursuant to Section 8.3(a9.2(b)(i), subject to the further limitations set forth in this Article IX, with respect to such claims only for those Losses in excess of the Deductible, and (z) the aggregate liability of Buyer with respect to claims by the Seller Indemnified Parties under Sections 9.2(b)(i) and to any Damages, to 9.2(b)(ii)(x) shall not exceed the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Cap. Notwithstanding anything to the contrary herein, the limitations contained in the first sentence of this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a9.2(c)(ii) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement not apply with respect to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation claims relating to or arising out from (I) fraud, or (II) any breach by Buyer of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)Fundamental Buyer Representation.

Certain Limitations. (a) No party shall be obligated to indemnify and hold harmless a Seller Indemnitee or Purchaser Indemnitee, as applicable, and no party shall have any liability under Section 8.01(a) in the case of Seller or Section 8.02(a) in the case of Purchasers (in each case, other than in respect of Losses arising as a result of the inaccuracy or breach of any Fundamental Representation) with respect to any claim (or series of related claims arising from substantially the same underlying facts, events or circumstances) unless such claim (or series of related claims arising from substantially the same underlying facts, events or circumstances) involves Losses in excess of $150,000 (nor shall any such claim or series of related claims that does not meet the $150,000 threshold be applied to, or considered for purposes of calculating, the aggregate amount of the Losses for which the indemnifying party has responsibility under subsection (b) below). (b) Seller shall not be obligated to indemnify and hold harmless a Carlyle Buyer Indemnitee, and Seller shall not have any liability to any Carlyle Buyer Indemnitee under Section 8.01(a) (in each case, other than in respect of Losses arising as a result of the inaccuracy or breach of any Fundamental Representation) unless and until the aggregate of all Losses suffered or incurred by the Carlyle Buyer Indemnitees under Section 8.01(a) exceeds on a cumulative basis an amount equal to $14,675,040 (the “Carlyle Buyer Deductible”), at which point Seller shall be liable to the Carlyle Buyer Indemnitee for the value of such Person’s claims under such Section 8.01(a) that is in excess of the Carlyle Buyer Deductible, subject to the limitations set forth in this ARTICLE VIII; provided, that if the Carlyle Buyer Purchase Price is modified pursuant to Section 1.01(a), the Carlyle Buyer Deductible shall be reduced proportionately. (c) Seller shall not be obligated to indemnify and hold harmless a T&D Indemnitee, and Seller shall not have any liability to any T&D Indemnitee under Section 8.01(a) (in each case, other than in respect of Losses arising as a result of the inaccuracy or breach of any Fundamental Representation) unless and until the aggregate of all Losses suffered or incurred by the T&D Indemnitees under Section 8.01(a) exceeds on a cumulative basis an amount equal to $7,110,000 (the “T&D Deductible”), at which point Seller shall be liable to the T&D Indemnitee for the value of such Person’s claims under such Section 8.01(a) that is in excess of the T&D Deductible, subject to the limitations set forth in this ARTICLE VIII. (d) Carlyle Buyer shall not be obligated to indemnify and hold harmless a Seller Indemnitee, and Carlyle Buyer shall not have any liability to any Seller Indemnitee under Section 8.02(a) (in each case, other than in respect of Losses arising as a result of the inaccuracy or breach of any of Carlyle Buyer’s Fundamental Representations) unless and until the aggregate of all Losses suffered or incurred by the Seller Indemnitees under Section 8.02(a) exceeds on a cumulative basis an amount equal to $14,675,040 (the “Seller Deductible for Carlyle Buyer”), at which point Carlyle Buyer shall be liable to the Seller Indemnitee for the value of such Person’s claims under such Section 8.02(a) that is in excess of the Seller Deductible for Carlyle Buyer, subject to the limitations set forth in this ARTICLE VIII; provided, that if the Carlyle Buyer Purchase Price is modified pursuant to Section 1.01(a), the Seller Deductible for Carlyle Buyer shall be reduced proportionately. T&D shall not be obligated to indemnify and hold harmless a Seller Indemnitee, and T&D shall not have any liability to any Seller Indemnitee under Section 8.02(a) (in each case, other than in respect of Losses arising as a result of the inaccuracy or breach of any of T&D’s Fundamental Representations) unless and until the aggregate of all Losses suffered or incurred by the Seller Indemnitees under Section 8.02(a) exceeds on a cumulative basis an amount equal to $7,110,000 (the “Seller Deductible for T&D”), at which point T&D shall be liable to the Seller Indemnitee for the value of such Person’s claims under such Section 8.02(a) that is in excess of the Seller Deductible for T&D, subject to the limitations set forth in this ARTICLE VIII. (e) The cumulative aggregate liability of: (i) Seller under Section 8.01(a) for claims of the Carlyle Buyer Indemnitees shall in no event exceed (A) an amount equal to $96,855,264 (other than in respect of Losses arising out of or relating to the inaccuracy or breach of any Fundamental Representation); provided, that if the Carlyle Buyer Purchase Price is modified pursuant to Section 1.01(a), such amount shall be reduced proportionately and (B) an amount equal to the Carlyle Buyer Purchase Price in respect of Losses arising out of or relating to the inaccuracy or breach of any Fundamental Representation; (ii) Seller under Section 8.01(a) for claims of the T&D Indemnitees shall in no event exceed (A) an amount equal to $46,926,000 (other than in respect of Losses arising out of or relating to the inaccuracy or breach of any Fundamental Representation) and (B) an amount equal to the T&D Purchase Price in respect of Losses arising out of or relating to the inaccuracy or breach of any Fundamental Representation; (iii) Carlyle Buyer under Section 8.02(a) for claims of the Seller Indemnitees shall in no event exceed (A) an amount equal to $96,855,264 (other than in respect of Losses arising out of or relating to the inaccuracy or breach of any of Carlyle Buyer’s Fundamental Representations); provided, that if the Carlyle Buyer Purchase Price is modified pursuant to Section 1.01(a), such amount shall be reduced proportionately and (B) an amount equal to the Carlyle Buyer Purchase Price in respect of Losses arising out of or relating to the inaccuracy or breach of any of Carlyle Buyer’s Fundamental Representation; and (iv) T&D under Section 8.02(a) for claims of the Seller Indemnitees shall in no event exceed (A) an amount equal to $46,926,000 (other than in respect of Losses arising out of or relating to the inaccuracy or breach of any of T&D’s Fundamental Representations) and (B) an amount equal to the T&D Purchase Price in respect of Losses arising out of or relating to the inaccuracy or breach of any of T&D’s Fundamental Representation. (f) To the extent that a Purchaser Indemnitee suffers an indirect Loss that is indemnifiable under Section 8.01(a) as a result of a Loss suffered by the Company or a Company Subsidiary, Seller may, at its option, satisfy its indemnification obligation under Section 8.01(a) by a contribution (for no Units or other consideration) to the Company in an amount equal to the amount of the Loss suffered by the Company or a Company Subsidiary (or portion thereof) that has given rise to the Purchaser Indemnitee’s rights to indemnification under Section 8.01(a), taking into account the limitations under Section 8.03(e); provided that, subject to the limitations set forth in this Article VIII, Seller shall be required to indemnify such Purchaser Indemnitee directly for any portion of such Loss that is not contributed directly to the Company (a “Directly Paid Loss”); provided further that, the aggregate cumulative amount so contributed with respect to any such Loss shall in no event exceed $187,704,000, less (a) the sum of any Directly Paid Loss plus any amount of previously indemnified Losses hereunder divided by (b) the sum of the Carlyle Buyer Acquired Portion and the T&D Acquired Portion. With respect to any Loss paid to the Company pursuant to this Section 8.03(f), only a percentage of such amount so contributed equal to the Carlyle Buyer Acquired Portion (in the case of Carlyle Buyer) and the T&D Acquired Portion (in the case of T&D) shall be taken into account for the purposes of applying the limitations on indemnification by Seller set forth in Section 8.03(b), Section 8.03(c) and Section 8.03(e); provided, that the deductible applicable to any such amount so contributed shall be equal to the Carlyle Buyer Deductible (in the case of Carlyle Buyer) and the T&D Deductible (in the case of T&D). (g) Except as otherwise specifically provided in Section 10.10, and except in the case of actual fraud or willful breach by the other parties (T&D and Carlyle Buyer being deemed a single party for purposes of the foregoing exception) or their Affiliates, each party acknowledges that its sole and exclusive remedy for any breach or inaccuracy of any representation, warranty, covenant or agreement contained in this Agreement or any instrument or certificate delivered with respect thereto shall be pursuant to the indemnification provisions set forth in this ARTICLE VIII. In furtherance of the foregoing, and except in the case of actual fraud or willful breach by the other parties (T&D and Carlyle Buyer being deemed a single party for purposes of the foregoing exception) or their Affiliates, each party hereby waives, from and after the Closing Date, to the fullest extent permitted under Law, any and all other rights, claims and causes of action for damages it may have against the other parties hereto arising out of this Agreement and any certificate delivered pursuant hereto (except pursuant to the indemnification provisions set forth in Section 8.01). The parties acknowledge that, prior to the Closing, and except in the case of actual fraud or willful breach by the other parties (T&D and Carlyle Buyer being deemed a single party for purposes of the foregoing exception) or their Affiliates, their sole and exclusive remedy with respect to any and all claims relating to this Agreement, the Acquisition, the Company and the Company Subsidiaries and their assets and liabilities shall be, in the event that any of the conditions set forth in ARTICLE VI have not been satisfied or waived, refusal to consummate the Acquisition and termination of this Agreement pursuant to ARTICLE VII (except as otherwise set forth in ARTICLE VII). Nothing in this Section 8.03(g) shall (i) limit a party’s right to seek a remedy on account of actual fraud in respect of any of the representations and warranties expressly set forth in this Agreement or any other Transaction Agreement or (ii) otherwise limit any of the rights, remedies, claims and causes of action that any party may have pursuant to the terms of any other Transaction Agreement in effect following the Closing. (h) Notwithstanding anything to the contrary contained set forth herein, no Purchaser Indemnitee shall be entitled to indemnification pursuant to this ARTICLE VIII to the extent (i) the Losses in respect of the matter in question do not exceed the amount of the reserves specifically established with respect to such matter that are reflected on the Financial Statements and (ii) Seller has provided each Purchaser with materials that reasonably demonstrate that such reserves (including the amount thereof) were in fact specifically established on the Financial Statements for such matter; provided that, for the avoidance of doubt, subject to the limitations set forth in this Agreement:Article VIII, a Purchaser Indemnitee shall be entitled to indemnification for any Losses in excess of the amount of the reserves specifically established with respect to such matter that are reflected on the Financial Statements. (1i) The parties acknowledge and agree that neither Section 3.08 nor Section 3.15 of this Agreement is intended to supplant the allocation of liability with respect to Extra-Contractual Obligations as provided by the P&C Reinsurance Agreements, and no Purchaser Indemnitee shall be entitled to pursue any indemnification claims pursuant to this ARTICLE VIII for a breach of Section 3.08 or Section 3.15 with respect to any Extra-Contractual Obligations arising under the P&C Reinsurance Agreements. (j) Seller shall have no liability under Section 8.01(a) for a breach of the representations and warranties in Section 3.17(a) and Section 3.17(b) with respect to Taxes for any period following the Closing Date. (k) Except in the event of T&D’s tortious interference with contract or T&D otherwise causes such breach, act or omission, in no event shall (i) T&D have any Liability to Seller arising out of any breach or other act or omission of Carlyle Buyer or any of its Affiliates or (ii) any indemnification recovery by a T&D Indemnitee be reduced as a result of any breach or other act or omission of Carlyle Buyer or any of its Affiliates. Except in the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) event of Carlyle Buyer’s tortious interference with contract or Carlyle Buyer otherwise causes such breach, act or omission, in no event shall Parent be required (A) Carlyle Buyer have any Liability to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company Seller arising out of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy any breach or other act or omission of Parent and Merger Sub against the Company and its Subsidiaries and T&D or any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, its Affiliates or assignees (collectively, the “Company Related Parties”B) for all Damages suffered any indemnification recovery by a Carlyle Buyer Indemnitee be reduced as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a any breach or failure to perform hereunder other act or otherwise (whether at law, in equity, in contract, in tort omission of T&D or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, its Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. (ia) __Notwithstanding anything to the contrary contained in this Agreement: (1) in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything any provision to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company none of the Company Termination Fee Shareholder Parties shall be obligated to indemnify the Buyer Group for any Damages, other than any Damages as to which the substantive basis for the claim relates to Tax ("Tax Damages"), pursuant to Section 8.3(a7.2(b)(i) shall constitute unless and until the sole and exclusive remedy dollar amount of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees all Damages (collectively, the “Company Related Parties”excluding Tax Damages) for all Damages suffered as a result which the Shareholder Parties, but for this Section 7.3(a) (but after giving effect to Sections 7.3(c) and 7.3(d)), would otherwise be liable pursuant to Section 7.2(b)(i) equals in the aggregate $680,000, and then only for the excess over such amount; PROVIDED, HOWEVER, that in no event shall the limitation set forth in this Section 7.3(a) apply to (i) the rights of the failure of Buyer Group under Section 7.2(b)(i) with respect to the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, representations and warranties set forth in equity, in contract, in tort or otherwiseSections 2.1(b), 2.3(a), 2.3(b), 2.4(a) and upon payment of such amount, none of the Company Related Parties shall have 2.25 or (ii) any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement willful breach by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment Shareholder Parties of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from representation or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)warranty contained in Article II. (iiib) __Notwithstanding anything any provision to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent maximum aggregate amount of the Funding Failure Termination Fee or Regulatory Failure Termination Fee Damages (including Tax Damages) payable pursuant to Section 8.3(a7.2(b)(i) by the Shareholder Parties shall not exceed $11,600,000; PROVIDED, HOWEVER, that in no event shall the limitation set forth in this Section 7.3(b) apply to (i) the rights of the Buyer Group under Section 7.2(b)(i) with respect to the representations and warranties set forth in Sections 2.1(b), 2.3(a), 2.3(b), 2.4(a) and 2.25 or (ii) any willful breach by the Company or the Shareholder Parties of any representation or warranty contained in Article II. (c) __Notwithstanding any provision to the contrary contained in this Agreement, Damages shall not include and no Person will have any obligation under Section 7.2(a) or 7.2(b) in respect of any lost profits or consequential, incidental, indirect, special or punitive damages. (d) __Notwithstanding any provision to the contrary contained in this Agreement, in no event shall any Shareholder Party have any obligation under Section 7.2(a) and Section 7.2(b) for any Damages to the extent such Damages have been taken into account in determining any adjustment to the Aggregate Merger Consideration under Article I (including any payment pursuant to Section 4.11). (e) __Notwithstanding any provision to the contrary contained in this Agreement, the maximum liability of each of Pieter X. X. Xxxxxxxxxx, Xxxxxxx X. Xxxxxx, Xxxxxxx xxXxxx, Xxxxxxx Xxxxxxxx and Xxxxxx Xxxxxxxxxxx for any Damages pursuant to Section 7.2(b) shall constitute the sole and exclusive remedy in no event exceed in any particular case such individual's Applicable Percentage of the Company and its stockholders against Parent and its Subsidiaries total amount of Damages for which indemnification may be claimed pursuant to such Section (including Merger Subafter giving effect to Sections 7.3(a), 7.3(b), 7.3(c), 7.3(d) and 7.3(f)). (f) __Notwithstanding any of their respective formerprovision to the contrary contained in this Agreement, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related no Indemnifying Parties shall have any further liability or obligation relating to or arising out indemnify any Indemnified Party under this ARTICLE VII for any Damages that are actually recovered by the Indemnified Party from any third party (including any amounts recovered under insurance policies), and in the event of this Agreement or a recovery by such Indemnified Party subsequent to an indemnification payment being made the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, Indemnified Party shall reimburse the Indemnifying Party to the extent of such amount actually recovered. (g) Notwithstanding any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (provision to the extent owed contrary contained in this Agreement, in no event shall any claim be made pursuant to Section 8.3(a)7.2(c) and to based on any Damagesbreach of any representation or warranty contained in Section 3.7 unless the Parent or the Surviving Corporation shall be the subject of a bankruptcy proceeding under the United States Bankruptcy Code, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)amended.

Certain Limitations. (a) No party shall be obligated to indemnify and hold harmless its respective Indemnitees under the R&W Indemnifications (i) Notwithstanding anything unless and until the aggregate amount of all Indemnifiable Losses of the Indemnitees under such R&W Indemnifications, as the case may be, exceeds $2,000,000 (the “Deductible”), at which point such Indemnitor shall be liable to its respective Indemnitees for the value of the Indemnitee’s claims under the applicable R&W Indemnifications, for amounts in excess of the Deductible, subject to the contrary contained limitations set forth in this Agreement: Article IX. No party shall be obligated to indemnify and hold harmless its respective Indemnitees under the R&W Indemnities, as the case may be, for any individual Indemnifiable Loss, series of related Indemnifiable Losses, which does not exceed $50,000 (1which Indemnifiable Loss(es) shall not be counted toward the Deductible). Except in no event the case of fraud, intentional misrepresentation, or intentional concealment, the maximum aggregate liability of Seller for any and all Indemnifiable Losses under Section 9.2(b)(i) shall be the Company Escrow Amount. Except in the case of fraud, intentional misrepresentation, or intentional concealment, the maximum aggregate liability of Buyer for any and all Indemnifiable Losses under Section 9.2(c)(i), shall be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid$20,000,000. (iib) Notwithstanding anything Except in the case of fraud, intentional misrepresentation, or intentional concealment, the maximum aggregate liability of Seller, on the one hand, and Buyer on the other hand, to their respective Indemnitees for any and all Indemnifiable Losses under Section 9.2(b)(ii), in the contrary contained case of Seller, or Section 9.2(c)(ii), in the case of Buyer, shall be an amount equal to one hundred percent (100%) the Purchase Price. (c) Except in the case of fraud, intentional misrepresentation, or intentional concealment, the maximum aggregate liability of any Minority Shareholder to its Indemnitees for any and all Indemnifiable Losses under Section 9.2(a)(i) shall be one hundred percent (100%) of such Minority Shareholder's Pro Rata Percentage of the Purchase Price. (d) The representations, warranties and covenants of the Seller Parties, and the Buyer Indemnified Persons’ rights to indemnification with respect thereto, shall not be affected or deemed waived by reason of (and the Buyer Indemnified Persons shall be deemed to have relied upon the representations and warranties of the Seller Parties set forth herein notwithstanding) (i) any investigation made by or on behalf of any of the Buyer Indemnified Persons (including any of - 74 - (e) Once an Indemnifiable Loss is agreed to by the Indemnitor or finally adjudicated to be payable pursuant to this AgreementArticle IX, but the Indemnitor shall satisfy its obligations within ten (10) Business Days; provided, that subject to Section 9.99.7 hereof, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent Buyer Indemnified Persons for Indemnifiable Losses pursuant to Section 9.2(b)(i) (other than actions or claims based on fraud, intentional misrepresentation, intentional misconduct or intentional concealment) will be to make a claim in respect of, and Merger Sub to the extent of, the Escrowed Funds, in accordance with the terms of Section 2.6, this Article IX and the Escrow Agreement, and at such time that the Escrowed Funds is reduced to zero, the Buyer Indemnified Persons will have no further right to indemnification under Section 9.2(b)(i) (other than actions or claims based on fraud, intentional misrepresentation, or intentional concealment). Any indemnification of a Buyer Indemnified Person pursuant to Section 9.2(a) or Section 9.2(b) (ii), (iii), (iv) or (v), subject to the terms and limitations herein, may be made, in Buyer’s discretion, directly against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related applicable Seller Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except thator, to the extent any termination of this Agreement resulted fromavailable, directly or indirectly, an Intentional Breach of this Agreement by against the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)Escrowed Funds. (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. The Buyer Indemnitees and Regency Indemnitees rights to indemnification under this ARTICLE X shall be limited as follows: (a) No Claim Notice for indemnification may be provided with respect to any Claim for breach of a representation, warranty, covenant or other agreement in this Agreement beyond the applicable period specified in Section 10.1. (b) If the Buyer Indemnitees shall seek indemnification pursuant to Section 10.3(b)(i), 10.3(b)(ii), 10.3(b)(iii), 10.3(b)(iv), 10.3(b)(vii) or 10.3(b)(viii) such Buyer Indemnitees shall be entitled to recover Losses with respect to such claim only to the extent of the Escrow Fund, and shall not be entitled to recover any Losses in excess of the Escrow Fund. Notwithstanding the foregoing, any claim for indemnification (and the Losses recoverable therefrom) that may be brought under both Section 10.3(a) or Section 10.3(c), on the one hand, and Section 10.3(b), on the other hand, shall not be subject to any limitation under this Section 10.4(b). Notwithstanding the preceding sentence, in the event that the Escrow Fund shall be insufficient to cover any Escrow Indemnity Claim, the Buyer Indemnitees shall have personal recourse, in accordance with Section 10.3(c), Section 2.3(d) or Section 2.3(f), to Parent, the Parent Members and/or the Partners, as applicable, with respect to any Escrow Indemnity Claim as to which the balance of the Escrow Fund is insufficient to cover in full for amounts up to, and only up to, amounts distributed from the Escrow Fund to cover Losses relating to a Non-Escrow Indemnity Claims. (c) None of the Buyer Indemnitees shall be entitled to recover pursuant to Section 10.3(b)(i); or Section 10.3(b)(vii) unless: (i) the Buyer Indemnitees, collectively, shall have suffered or incurred aggregate Losses otherwise recoverable under this ARTICLE X in an amount in excess of the Deductible, and then recovery shall be permitted only to the extent of such excess; and (ii) after the Deductible has been met, the Buyer Indemnitees suffer or incur Losses with respect to the individual Claim or series of related Claims which arise out of substantially the same facts and circumstances for which recovery is sought in excess of $ 100,000, in which case the full amount of such Losses shall be recoverable, subject to the limitations in Section 10.4(b). 63 Notwithstanding the foregoing, any claim for indemnification (and the Losses recoverable therefrom) that may be brought under both Section 10.3(b)(i) or Section 10.3(b)(vii) on the one hand, and any other subsection of Section 10.3 (other than Section 10.3(b)(i) or Section 10.3(b)(vii)), on the other hand shall not be subject to any limitation specified in this Section 10.4(c). (d) If an indemnification claim is brought by a Buyer Indemnitee pursuant to Section 10.3(a), Section 10.3(b)(vi) or, to the extent relating to a claim under Section 10.3(a) or Section 10.3(b)(vi), Section 10.3(c), the Buyer Indemnitee may, at its option, recover Losses incurred with respect to such Claim from the Escrow Fund in accordance with ARTICLE XI to the extent of amounts available in the Escrow Fund (and shall be entitled pursuant to Section 10.3(a) and Section 10.3(c) to recover any Losses not recovered from the Escrow Fund from, as applicable, Parent or one or more Parent Members or Partners). (e) If an indemnification claim is brought by a Buyer Indemnitee pursuant to Section 10.3(b): (i) with respect to a breach by Parent, any Parent Member or a Partner of ARTICLE III or any covenant or agreement in this Agreement of Parent, any Parent Member or any Partner, the Person whose breach gives rise to or forms the basis for such Claim shall be severally liable for all Losses incurred by the Buyer Indemnitee with respect to such breach; and (ii) the Buyer Indemnitee may, at its option, recover Losses incurred with respect to such claim from the Escrow Fund in accordance with ARTICLE XI to the extent of amounts available in the Escrow Fund (and shall be entitled pursuant to Section 2.3(d), Section 2.3(f), Section 10.3(b)(v) and, to the extent relating to a claim under Section 2.3(d), Section 2.3(f) or Section 10.3(b)(v), Section 10.3(c) to recover any Losses not recovered from the Escrow Fund from Parent, one or more Parent Members or Partners, whichever Person whose breach gave rise to or forms the basis of such Losses). Notwithstanding the foregoing, any claim for indemnification (and the Losses recoverable therefrom) that may be brought under Section 10.3(a) or Section 10.3(c) for a breach of the Parent Title Representation or the Regency Title Representation or under Section 10.3(b)(vi) or, to the extent relating to a Claim under Section 10.3(b)(vi), Section 10.3(c) shall not be subject to this Section 10.4(e). (f) Notwithstanding anything to the contrary contained in this Agreement: (1i) the Buyer Indemnitees' recovery for Claims under this ARTICLE X (including amounts recovered by set-off) shall not exceed, in no event shall the Company be required aggregate, an amount equal to pay the Company Termination Fee on more than one occasionPurchase Price; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything the Regency Indemnitees' recovery for Claims under Section 10.2(a) (including amounts recovered by set-off) shall not exceed, in the aggregate, an amount equal to $12,500,000; (iii) for purposes of determining whether a representation or warranty has been breached for purposes of this ARTICLE X and determining the contrary contained amount of Losses suffered by any Buyer Indemnitee or Regency Indemnitee, as the case may be, each representation and warranty set forth in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective formerqualification with respect to any representation or warranty set forth in the Regency Disclosure Schedule, current shall be read without regard or future general giving effect to any "material," "materiality," "Material Adverse Effect," and "substantial" or limited partners"Knowledge" qualifications that may be contained in any such representation or warranty, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, with respect to the extent representations and warranties in Section 4.15 and Section 4.19 and the defined term "Material Contract" and all "material," "materiality," "Material Adverse Effect," and "substantial" or "Knowledge" qualifications that are contained in any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent defined term shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).given effect;

Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations: (a) Except with respect to Losses relating to, based upon, arising out of, with respect to or by reason of any Indebtedness not paid at the Closing pursuant to Section 2.03(a)(i) and not factored into determination of the Purchase Price pursuant to Section 2.02, Losses relating to, based upon, arising out of, with respect to or by reason of the indemnification provisions contained in Section 8.02(c), or inaccuracy in or breach of any Fundamental Representation, Seller shall not be liable to the Buyer Indemnitees for indemnification under Section 8.02(a): (i) Notwithstanding anything to until the contrary contained aggregate amount of all Losses in this Agreement: respect of indemnification under Section 8.02(a) exceeds $350,000 (1) the “Basket”), in no which event Seller shall the Company be required to pay or be liable for all such Losses from the Company Termination Fee on more than one occasion;first dollar; or (ii) for Losses in an aggregate amount in excess of $15,000,000 (the “Cap”). (2b) Except with respect to Losses relating to, based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty contained in Section 4.01 or Section 4.04, Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 8.03(a): (xi) until the aggregate amount of all Losses in no respect of indemnification under Section 8.03(a) exceeds the Basket, in which event Buyer shall Parent be required to pay or be liable for all such Losses from the Funding Failure Termination Fee on more than one occasion, and first dollar; or (yii) for Losses in no event shall Parent be required to pay an aggregate amount in excess of the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidCap. (iic) Notwithstanding anything Solely for purposes of calculating Losses in respect of this Article VIII, any inaccuracy in or breach of any representation or warranty shall be determined without regard to the contrary any materiality, Material Adverse Effect or other similar qualification contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort applicable to such representation or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)warranty. (iiid) Notwithstanding anything The amount of any Loss for which indemnification is provided under this Article VIII and under Article VI shall be net of any amounts actually recovered by the Indemnified Party under insurance policies with respect to such Loss and shall be (i) increased to take account of any net Tax cost incurred by the contrary contained in this Agreement, but subject to Section 9.9, Indemnified Party arising from the Company’s right to receive payment from Parent receipt of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries indemnity payments hereunder (including Merger Subgrossed up for such increase) and (ii) reduced to take account of any of their respective former, current net Tax benefit realized by the Indemnified Party arising from the incurrence or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of any such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)Loss.

Certain Limitations. (i) Notwithstanding anything The liability of Buyer and Seller under the indemnification provided for in Section 4.2 and Section 4.3 shall be subject to the contrary contained in this Agreementfollowing limitations: (1a) Seller shall not be liable to the Buyer Indemnitees for indemnification under Section 4.2(a) or its indemnity in no the Assignment of Intangibles (as defined in Section 2.2) until the aggregate amount of all Losses in respect of a breach of any representation or warranty under Section 4.2(a) exceeds $5,000,000.00 (the “Basket Amount”), in which event Seller shall the Company be required to pay or be liable for such Losses above the Company Termination Fee on more than one occasion;Basket Amount. Notwithstanding any provision in this Agreement to the contrary, the aggregate amount of all Losses for which Seller shall be liable pursuant to Section 4.2 and its indemnity in the Assignment of Intangibles shall not exceed ten percent (10%) of the Purchase Price (the “Cap”) in the aggregate for all such Losses. (2b) (xBuyer shall not be liable to the Seller Indemnitees for indemnification under Section 4.3(a), until the aggregate amount of all Losses in respect of a breach of any representation or warranty under Section 4.3(a) exceeds $5,000,000.00, in no which event Buyer shall Parent be required to pay or be liable for all such Losses above the Funding Failure Termination Fee on more than one occasionBasket Amount, and (y) in no event but shall Parent be required to pay not exceed the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidCap. (iic) Notwithstanding anything the foregoing, the limitations set forth in Section 4.4(a) and Section 4.4(b) shall not apply to Losses based on actual fraud or any costs of enforcing this Agreement or the contrary contained Land Contract or amounts owed under the Land Contract, and/or Seller’s liability or Buyer’s liability, as the case may be, in respect thereof shall not exceed the Purchase Price. (d) For purposes of determining the existence of any inaccuracy in or breach of any representation or warranty set forth in this Agreement, but subject to Section 9.9or in calculating the amount of any Losses incurred in connection with any inaccuracy in or breach of any representation or warranty in this Agreement, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole any and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by references in this Agreement to “material” or “material adverse effect” or “Material Adverse Effect” (or other correlative or similar terms or qualifiers contained herein) shall be consummated ignored and disregarded and treated as if they are not included in this Agreement. (e) With respect to Losses related to environmental response activities for which indemnification is provided to Seller by Buyer under this Agreement, Seller shall use commercially reasonable efforts to pursue any available remedies to Seller related to environmental response activities under the 2017 Purchase Agreement but only if both (i) Buyer pays the cost of pursuing such rights and remedies and (ii) Seller in its reasonable judgement determines that it has a reasonable good faith basis to assert a claim or right. If Seller recovers under 2017 Purchase Agreement with respect to such indemnification obligations and with respect to environmental response activities, then Seller shall, at Buyer’s sole discretion, use such recovered amounts to satisfy its obligations under this Article IV, or pay Buyer any amounts Seller has recovered up to the amount due to Buyer under this Article IV. Notwithstanding any provision in this Agreement to the contrary, Seller makes no representation or warranty regarding the existence or likelihood of success of any claim against AM General pursuant to the 2017 Purchase Agreement and discloses to Buyer that any assignment of rights under the 2017 Purchase Agreement by Seller may require the written consent of AM General pursuant to the terms of the 2017 Purchase Agreement. (f) No party shall have a right to make a claim for any Loss for contingent or inchoate claims and may claim only for a breach Loss that has, in fact, been paid or failure to perform hereunder incurred. (g) Seller shall not be liable under this Article IV or otherwise (whether at law, in equity, in contract, in tort under this Agreement or otherwise), and upon payment of such amount, none of the Company Related Parties shall have Land Contract for any further liability or obligation relating to Losses based on or arising out of any inaccuracy in or breach of any of the representations or warranties of Seller contained in this Agreement if any director, officer or employee of Buyer had knowledge of such inaccuracy or breach prior to the transactions contemplated thereby Possession Date. (h) No party shall have any liability under any provision of this Agreement for any punitive, incidental, consequential, special or indirect damages, including business interruption, diminution of value, loss of future revenue, profits or income, or loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement and, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law, law or in equity, in contract, in tort or otherwise. (i) (except that, to For the extent any termination purposes of this Agreement resulted fromAgreement, “Losses” means losses, damages, liabilities, deficiencies, interest, awards, penalties, fines, costs or expenses, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers. “Affiliate” means, with respect to any party, any other person who, directly or indirectly, an Intentional Breach of this Agreement by the Company controls, is controlled by, or is under common control with such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2party, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to including, without limitation, any Damagesgeneral partner, to the extent provenmanaging member, resulting from officer, director or arising out trustee of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)party. (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. (i) If the Closing occurs, Sellers shall have no liability with respect to claims under Section 11.2(a) and Section 11.2(e) until the aggregate of all Losses suffered by all Buyer Indemnified Persons with respect to such claims exceeds Seven Hundred Fifty Thousand Dollars and 00/100 ($750,000.00) (it being agreed that in the event such threshold is reached and exceeded, the Buyer Indemnified Persons shall only be entitled to recover Losses in excess of such amount). The limitation of the preceding sentence shall not apply to any Breach(es) of the Fundamental Representations. (ii) If the Closing occurs, the aggregate liability of Sellers with respect to Losses for claims under Section 11.2(a) and Section 11.2(e) shall not exceed Ten Million Dollars and 00/100 ($10,000,000.00); provided, that the aggregate liability with respect to Losses resulting from a Breach of the Fundamental Representations and all other Losses not subject to the Ten Million Dollar and 00/100 ($10,000,000.00) limitation shall not exceed the Closing Payment. (iii) For purposes of this Section 11.6, any single Loss that is less than Seven Thousand Five Hundred Dollars and 00/100 ($7,500.00) shall be disregarded (and Buyer Indemnified Parties shall not be entitled to indemnification under Section 11.2 with respect thereto); provided, however, that any series of Losses arising out of the same occurrence or recurring Losses of a similar nature shall be aggregated and treated as a single Loss. (iv) Notwithstanding anything to the contrary contained in herein, the limitations of this Agreement: (1) in no event shall Section 11.6 will not apply to Breaches or other Losses based on or otherwise involving the Company be required to pay the Company Termination Fee on fraud or willful misconduct of one or more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidSellers. (iib) Notwithstanding anything All indemnification or reimbursement payments required pursuant to this Agreement with respect to any Loss shall be net of amounts actually received by an Indemnified Person with respect to such Loss (i) as proceeds of insurance policies, but not to exceed the contrary limits contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries’ insurance policies as of the Closing Date (the “Acquired Companies’ Insurance Policies”), and (ii) from third parties having a contractual relationship with the Company or its Subsidiaries and any of their respective formerprior to Closing, current including through indemnification, counterclaim, reimbursement arrangement, contract or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees otherwise (collectively, “Alternative Arrangements”). With respect to any Loss that is the “Company Related Parties”) subject of a claim for all Damages suffered as a result of the failure of the transactions contemplated by indemnity under this Agreement Article XI, Buyer shall use commercially reasonable efforts to be consummated or for a breach or failure collect proceeds relating to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none insurance policies of the Company Related Parties or its Subsidiaries in effect prior to Closing; provided however, nothing herein shall have any further require Buyer or an applicable Acquired Company to commence and prosecute a lawsuit or other Proceeding against such insurer(s) as a condition of Sellers’ obligation to indemnify as provided herein, but it shall be sufficient that Buyer or the applicable Acquired Company make demand upon such insurer(s) for such insurance or liability or obligation relating Loss, as the case may be, and subject to Sellers’ rights of reimbursement as provided below. If any amounts are received by Buyer or arising out any of this Agreement the Acquired Companies with respect to such Losses after Buyer or the transactions contemplated thereby applicable Acquired Company has received such amounts from an indemnifying party, Buyer or the applicable Acquired Company shall promptly, but in any event no later than ten (10) Business Days after the actual receipt of such amounts, pay such amount to the indemnifying party up to the amount received by Buyer or applicable Acquired Company from the indemnifying party, subject to the limits set forth in Section 11.6(b)(i). To the extent that any amount has been delivered or credited to an indemnifying party under this Section 11.6(b) with respect to a Loss, such Loss shall be deemed adjusted downward by such amount and such Loss shall not be counted in the determination of whether at law, in equity, in contract, in tort any threshold or otherwise) (except that, cap hereunder has been met to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee amount included in such adjustment. (c) To the extent that any Losses which would otherwise be subject to indemnification pursuant to this Article XI were reflected in the calculation of the Purchase Price or for which a working capital adjustment was made pursuant to Section 2.7, (i) Buyer Indemnified Persons shall not be able to recover for such Losses, and (ii) such Losses shall not be counted in the determination of whether any threshold or cap hereunder has been met, in each case only to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee amount included in such calculation or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)adjustment.

Certain Limitations. (i) Notwithstanding anything The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the contrary contained in this Agreementfollowing limitations: (1a) The Seller Indemnitors shall not be liable to Buyer Indemnitees for indemnification under Section 8.02(a) until the aggregate amount of all Losses in no respect of indemnification under Section 8.02(a) exceeds One Hundred Thousand Dollars ($100,000) (the “Basket”), in which event Sellers shall the Company only be required to pay or be liable for Losses in excess of the Company Termination Fee on more than one occasion;Basket. The aggregate amount of all Losses for which the Seller Indemnitors shall be liable pursuant to Section 8.02(a) shall not exceed One Million Dollars ($1,000,000) (the “Cap”). (2b) (xBuyer shall not be liable to Sellers Indemnitees for indemnification under Section 8.03(a) until the aggregate amount of all Losses in no respect of indemnification under Section 8.03(a) exceeds the Basket, in which event Buyer shall Parent be required to pay or be liable for all such Losses from the Funding Failure Termination Fee on more than one occasion, and (yfirst dollar. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.03(a) in no event shall Parent be required to pay not exceed the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidCap. (c) Notwithstanding the foregoing, the limitations set forth in Section 8.04(a) and Section 8.04(b) shall not apply to Losses based upon, arising out of, with respect to or by reason of, (i) fraud or willful or intentional misconduct or breach, or (ii) Notwithstanding anything any inaccuracy in or breach of any Fundamental Rep, for which the aggregate liability of the Seller Indemnitors shall be limited to the contrary Purchase Price. (d) For purposes of this ARTICLE VIII, any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in this Agreement, but subject or otherwise applicable to such representation or warranty. (e) No Losses may be claimed under Section 9.9, Parent’s right 8.02 or Section 8.03 by any Indemnified Party to receive payment from the Company extent such Losses are included in the calculation of any adjustment to the Company Termination Fee Purchase Price pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)2.02. (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. The indemnification provided for in Section 11.2 and Section 11.3 shall be subject to the following limitations: (ia) Seller shall not be liable to the Purchaser Indemnitees for indemnification under Section 11.2(a) until the aggregate amount of all Damages in respect of indemnification under Section 11.2(a) exceeds $50,000 (the “Basket Amount”), in which event Seller shall be required to pay or be liable for all such Damages from the first dollar. Seller shall have no further liability pursuant to Section 11.2(a) to the extent the aggregate amount of Damages for which it has provided indemnification pursuant to Section 11.2 and Section 11.5 exceeds the Purchase Price (the “Cap”); provided, that in no event shall the Cap limit the liability of Sellers pursuant to Section 11.2(b), (c), (d) or (e) or Section 11.5. (b) 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 Basket Amount, in which event Purchaser shall be required to pay or be liable for all such Damages from the first dollar. The aggregate amount of all Damages for which Purchaser shall be liable pursuant to Section 11.3(a) shall not exceed the Cap; provided that in no event shall the Cap limit the liability of the Purchaser Parties pursuant to Section 11.3(b), (c) or (d). (c) Notwithstanding the foregoing, the limitations set forth in Section 11.4(a) and Section 11.4(b) shall not apply to Damages based upon, arising out of, with respect to or by reason of fraud or intentional misrepresentation. (d) Notwithstanding anything to the contrary herein, to the extent that it has been agreed or finally determined that a breach of a representation or warranty has occurred, any “materiality”, “Material Adverse Effect” or other similar qualification contained (directly or by way of definitions) in the representations and warranties in this Agreement shall be disregarded solely for purposes of determining the amount of Damages subject to indemnification hereunder (i.e., if the materiality threshold has been met, and subject to the Basket Amount (if it has not previously been exceeded), the Indemnified Party has a right to indemnification for the full amount of Damages caused, not just the portion which is in excess of any materiality threshold). (e) Other than with respect to a breach of any representation and warranty or covenant set forth in this Agreement:, or as otherwise provided in Section 11.5, in no event whatsoever shall Sellers or any of their respective Affiliates have any indemnification obligations pursuant to Section 11.2 for any Third Party Claims (as defined below) relating to the P109 Project. (1f) Except as provided in Section 11.5, in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Equity Seller’s or Seller Parent’s right to receive payment from the Company of the Company Termination Fee liability pursuant to Section 8.3(a11.2(d) shall constitute or (e) exceed the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)Cap. (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations: (a) Seller shall not be liable to the Buyer Indemnitees for indemnification under Section 8.02(a) for any individual Loss in respect of indemnification under Section 8.02 that does not exceed $10,000 (the “Basket”) or for aggregate Losses, in respect of indemnification under Section 8.02(a) that do not exceed $100,000 (the “Deductible”), but shall be liable for all Losses (including any individual Losses, whether or not such Losses exceed the Basket) in excess of the Deductible, subject to the Cap or as otherwise provided in this Article VIII. The aggregate amount of all Losses for which Seller shall be liable pursuant to Section 8.02(a) and Section 8.02(c) shall not exceed twenty-five percent (25%) of the value of the Purchase Shares (valued at the Closing Price) and the Earnout Payment (valued at the VWAP of the Common Stock, for the ten (10) trading days immediately preceding the date of final determination of the Earnout Calculation Statement), issued hereunder, in the aggregate (the “Cap”). Notwithstanding any provision contained herein to the contrary, any Losses resulting from any breach or inaccuracy of any representation or warranty made by Seller hereunder shall be determined without giving effect to any limitations or qualifications regarding materiality, the use of the word “material”, “material respects”, “Material Adverse Effect”, or any similar term, qualification or limitation based on materiality contained herein. (b) Buyer shall not be liable to the Seller Indemnitees for any individual Losses that do not exceed the Basket or for aggregate Losses that do not exceed the Deductible, but shall be liable for all Losses (including any individual Losses, whether or not such Losses exceed the Basket) in excess of the Deductible, up to the value of the Cap. (c) Notwithstanding the foregoing, (i) Notwithstanding anything the limitations set forth in Section 8.04(a) and Section 8.04(b) shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 3.01, Section 3.02, Section 3.03, Section 3.20, Section 3.24, Section 4.01, Section 4.02, and Section 4.04, (ii) the contrary contained limitations set forth in this Agreement: (1the first sentence of Section 8.04(a) shall not apply to Losses based upon, arising out of, with respect to or by reason of any matter set forth in no event shall Section 8.02(c) of the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasionDisclosure Schedules, and (yiii) the limitations set forth in no event Section 8.04(a) shall Parent be required not apply to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required Losses based upon, arising out of, with respect to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidor by reason of Section 8.02(d). (iid) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company any provision of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure the contrary, the limitations set forth in Section 8.04(a) and Section 8.04(b) shall not apply to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and Losses based upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement intentional breach, intentional misrepresentation, criminal misconduct, or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced fraud by any Company Termination Fee previously paid by the Company)Indemnifying Party. (iiie) Notwithstanding anything For purposes of this Article VIII, any inaccuracy in or breach of any representation or warranty shall be determined without regard to the contrary any materiality, Material Adverse Effect or other similar qualification contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort applicable to such representation or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)warranty.

Certain Limitations. (iThe party making a claim under this Section 7.5 is referred to as the “Indemnified Party”, and the party against whom such claims are asserted under this Section 7.5 is referred to as the “Indemnifying Party”. The indemnification provided for in Sections 7.1(b) Notwithstanding anything or 7.3, shall be subject to the contrary contained in this Agreementfollowing limitations: (1a) The Indemnifying Party shall not be liable to the Indemnified Party for indemnification under Sections 7.2(a) or 7.3(a), as the case may be, until the aggregate amount of all Losses in no respect of indemnification under Sections 7.2(a) or 7.3(a) exceeds $[**] (the “Deductible”), in which event the Indemnifying Party shall the Company be required to pay or be liable for Losses starting from the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidfirst dollar. (iib) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company The aggregate amount of the Company Termination Fee all Losses for which an Indemnifying Party shall be liable pursuant to Section 8.3(a7.2(a) or Section 7.3(a), as the case may be, shall constitute not exceed $[**]; provided, that, such limitation shall not apply in the sole case of a breach of Section 3.11(a) that arises out of the failure to disclose on Section 3.11(a) of the Disclosure Schedules any P&F Contract that became deemed transferred to the Buyer after the Closing Date on August 9, 2023 pursuant to Section 5.2. Notwithstanding the foregoing, (i) the limitations set forth in this Section 7.5 shall not apply to Losses based upon, arising out of, with respect to or by reason of Fraud or by reason of any inaccuracy in or breach of any Fundamental Representations and exclusive remedy (ii) the aggregate amount of Parent and Merger Sub against all Losses for which Sellers shall be liable to Buyer pursuant to Section 7.2 shall not exceed an amount equal to the Company and Purchase Price, unless such Losses are based upon, arise out of or by reason of Fraud. (c) Payments by an Indemnifying Party pursuant to Sections 7.2 or 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 actually received by the Indemnified Party in respect of any such claim. The Indemnified Party shall use its Subsidiaries and commercially reasonable efforts to recover under insurance policies for any Losses prior to seeking indemnification under this Agreement. (d) Payments by an Indemnifying Party pursuant to Sections 7.2 or 7.3, in respect of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered any Loss shall be reduced by an amount equal to any Tax benefit actually realized as a result of such Loss by the failure Indemnified Party. For the purposes of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwiseSection 7.5(d), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, a Tax benefit will be considered realized only to the extent any termination that the amount of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement Taxes that would have been payable in cash by the Company or such Intentional Breach Indemnified Party in the absence of the deductions of the Losses exceeds the amount of Taxes actually paid in cash by the Company Indemnified Party consistent with applicable Laws regarding the deductibility of such amount and after taking into account all other items of income, gain, credit, deduction and loss. (e) In no event shall cause the Merger Closing not any Indemnifying Party be liable to occur as provided under Section 8.2any Indemnified Party for any punitive, Parent shall be entitled to the payment of the Company Termination Fee (consequential, special or indirect damages, except to the extent owed pursuant such damages are actually awarded and paid to Section 8.3(a)(i) and to any Damages, to the extent proven, resulting from a third Person in connection with a Third-Party Claim or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)ii) a Governmental Authority. (iiif) Notwithstanding anything For the sole purpose of determining the amount of any Losses (and not for determining whether or not any breaches of representations or warranties have occurred) for which any Indemnifying Party is responsible pursuant to the contrary this Article 7, each representation or warranty set forth in this Agreement shall be determined without regard to any qualification as to materiality, including “Material Adverse Effect” or other similar materiality qualification contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee such representation or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)warranty.

Certain Limitations. The indemnification provided for in Section 9.1 and Section 9.2 shall be subject to the following limitations: (ia) The Selling Members shall not be liable to the Buyer Indemnitees for indemnification under Section 9.1(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.1(a) exceeds $100,000, in which event the Buyer Indemnitees shall be entitled to indemnification under Section 9.1(a) from the first dollar. The aggregate amount of all Losses for which the Selling Members shall be liable pursuant to Section 9.1(a) shall not exceed $2,500,000. (b) Notwithstanding the foregoing, however, the limitations set forth in Section 9.4(a) shall not apply to Losses based upon, arising out of, or with respect to or by reason of any inaccuracy or breach of any Selling Member Carved-Out Liabilities. (c) Nothing in this Article IX (including the provisions of this Section 9.4) or otherwise shall limit, in any manner, any remedy at Law or in equity, to which any party may be entitled as a result of fraud by any Indemnitor or its employees, officers, managers or directors. (d) For purposes of this Article IX, any inaccuracy or breach of any representation or warranty shall be determined without regard to materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty. (e) Notwithstanding anything to the contrary contained in this Agreement: herein, with respect to (1i) in no event a breach or non-fulfillment of any representation, warranty, covenant, agreement or obligation by a Selling Member with respect to the provisions of Article IV or Article VIII, or (ii) any fraud committed by a Selling Member, each Selling Member shall the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, severally and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidnot jointly liable. (iif) Notwithstanding anything All Losses recoverable by any Buyer Indemnitee will be calculated net of any proceeds such Buyer Indemnitee actually recovers under any available insurance with respect to the contrary contained such Losses, in this Agreementeach case net of all costs of recovery (including any increased costs of insurance, but subject retroactive or prospective premium adjustments, chargebacks related to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries such insurance claim and any of their respective former, current loss or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered reduction in coverage as a result of the failure of the transactions contemplated by such insurance claim). Buyer agrees to use commercially reasonable efforts to recover such amounts under available insurance, provided that nothing in this Agreement shall (i) require any Buyer Indemnitee to continue or maintain in effect any insurance policy or (ii) prevent or delay any Buyer Indemnitee from obtaining any indemnification hereunder prior to recovery of any insurance proceeds or any other payment in respect of such Losses. Each Buyer Indemnitee shall use its commercially reasonable efforts to mitigate any Losses for which it seeks to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed indemnified pursuant to Section 8.3(a)) this Article IX upon and after becoming aware of any event or circumstance that would reasonably be expected to give rise to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)Losses. (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. (ia) Notwithstanding anything The Indemnifying Party shall not be liable to the contrary contained Indemnified Party for indemnification under Section 8.2(a) or Section 8.3(a) (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any inaccuracy in this Agreement: or breach of any Fundamental Representation or with respect to a claim based on intentional fraud or intentional misrepresentation), as the case may be, until the aggregate amount of all Losses in respect of such indemnification under Section 8.2(a) or Section 8.3(a), as applicable, exceeds $225,000 (1) the “Deductible”), in no which event the Indemnifying Party shall the Company then be required to pay or be liable for Losses without regard to the Company Termination Fee on more than one occasion; (2) (x) Deductible. For purposes of calculating the amount of any Loss with respect to any inaccuracy in no event or breach of any representation or warranty, any materiality, Material Adverse Effect or other similar qualifications in the representations and warranties shall Parent be required to pay disregarded except in the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay case of the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidfirst sentence of Section 3.12. (iib) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company The aggregate amount of the Company Termination Fee all Losses for which an Indemnifying Party shall be liable pursuant to Section 8.2(a) or Section 8.3(a), as the case may be, shall not exceed $2,250,000; provided, however, that the foregoing limitation shall not apply to (i) claims for indemnification for any inaccuracy in or breach of any Fundamental Representation, (ii) claims for indemnification for any inaccuracy in or breach of the representations and warranties contained in Sections 3.10 and 3.11, which shall constitute not exceed $4,500,000, or (iii) claims based on intentional fraud or intentional misrepresentation. Notwithstanding the sole and exclusive remedy foregoing, the aggregate amount of Parent and Merger Sub against all Losses for which an Indemnifying Party shall be liable pursuant to Section 8.2 or Section 8.3 shall not exceed the Company and its Subsidiaries Purchase Price; provided, however, that the foregoing limitation shall not apply to (i) claims based on intentional fraud or intentional misrepresentation, or (ii) claims made pursuant to Section 8.2(d) or 8.3(d). (c) Payments by an Indemnifying Party pursuant to Section 8.2 or Section 8.3 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment actually received by the Indemnified Party in respect of their respective former, current any such claim. (d) Payments by an Indemnifying Party pursuant to Section 8.2 or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered Section 8.3 in respect of any Loss shall be reduced by an amount equal to any Tax benefit actually realized as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement Loss by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)Indemnified Party. (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. (i) Notwithstanding anything The indemnification provided for in Section 6.02 and Section 6.03 shall be subject to the contrary contained in this Agreementfollowing limitations: (1a) Seller shall not be liable to the Buyer Indemnitees for indemnification under Section 6.02(a) until the aggregate amount of all Losses in no respect of indemnification under Section 6.02(a) exceeds $250,000 (the “Deductible”), in which event Seller shall the Company be required to pay or be liable for Losses in excess of the Deductible. The aggregate amount of all Losses for which Seller shall be liable pursuant to Section 6.02(a) shall not exceed $7,762,500 (the “Cap”) except, in the case of each of the Deductible and the Cap, to the extent that any such Loss arises from or relates to either criminal activity of the Company Termination Fee on more than one occasion;or Seller or an action or inaction that constitutes fraud, intentional misrepresentation or gross negligence (and no such Losses shall count towards satisfaction of the Deductible or the Cap) or a breach or alleged breach by the Company or Seller of a Fundamental Representation (and no such Losses shall count towards satisfaction of the Deductible or the Cap). (2b) (xBuyer shall not be liable to the Seller Indemnitees for indemnification under Section 6.03(a) until the aggregate amount of all Losses in no respect of indemnification under Section 6.03(a) exceeds the Deductible, in which event Buyer shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) or be liable for Losses in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company excess of the Company Termination Fee Deductible. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.3(a6.03(a) shall constitute not exceed the sole and exclusive remedy Cap, except, in the case of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result each of the failure of Deductible and the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except thatCap, to the extent that any termination such Loss arises from or relates to a breach or alleged breach by Buyer of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or a Fundamental Representation (and no such Intentional Breach by the Company Losses shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment count towards satisfaction of the Company Termination Fee (to Deductible or the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the CompanyCap). (iiic) Notwithstanding anything For purposes of this ARTICLE VI, any inaccuracy in or breach of any representation or warranty or the Losses arising therefrom shall be determined without regard to the contrary any materiality, Material Adverse Effect or other similar qualification contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort applicable to such representation or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)warranty.

Certain Limitations. (i) Notwithstanding anything The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the contrary contained in this Agreementfollowing limitations: (1a) The Company Stockholders shall not be liable to 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 fraud, intentional misrepresentation, or any inaccuracy in no event shall or breach of any of the Company Surviving Representations (the “Parent’s Basket Exclusions”)), until the aggregate amount of all Losses in respect of indemnification under Section 8.02(a) (other than those based upon, arising out of, with respect to or by reason of the Parent’s Basket Exclusions) exceeds $[***], in which event the Company Stockholders 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 Termination Fee on more than one occasion; (2Stockholders Indemnitees for indemnification under Section 8.03(a) (xother than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any of the Parent’s Surviving Representations (the “Company Stockholders’ Basket Exclusions”)) until the aggregate amount of all Losses in no 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 Stockholders’ Basket Exclusions) exceeds $[***], in which event Parent shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) or be liable for all such Losses in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidexcess of such amount. (iic) Notwithstanding anything to The Parties acknowledge and agree that the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company maximum liability of the Company Termination Fee Stockholders, on the one hand, and the Parent, on the other hand, for indemnification pursuant to Section 8.3(a) this Article VIII shall constitute be the sole sum of $[***] (the “Cap”), and exclusive remedy of Parent and Merger Sub against neither the Parent, on the one hand, nor the Company Stockholders, on the other hand, shall have any liability to the other in excess of the Cap. Notwithstanding the Cap, with respect to any Losses arising out of fraud and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectivelyintentional misrepresentation, the “Company Related Parties”) for all Damages suffered Surviving Representations, taxes owed by the Company with respect to periods ending prior to the Closing and/or the invalidity of licenses or permits to conduct the Company’s business as a result of the failure of the transactions contemplated by this Agreement to be consummated or for Merger (each, a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise“Fundamental Representation”), the Cap shall be equal to the Merger Consideration plus the amount of any loans by Parent to the Company that were forgiven on the Closing Date. (d) All liabilities and upon payment of such amount, none obligations of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwiseStockholders that may arise under Section 8.02(a) (except that“Parent Indemnification Liabilities”), to if any, will be satisfied and paid from the extent Indemnity Holdback and any termination such Losses in excess of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement that amount shall be paid for by the Company or Stockholders up to the amount of the Merger Consideration but deferred until such Intentional Breach by time as the Exchange Shares issued to the Company shall cause Stockholders on the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to Date are freely tradeable on the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement CSE or the transactions contemplated thereby (whether at law, in equity, in contract, in tort principal securities exchange or otherwise) (except that, to trading market where such security is listed or traded if such security is not listed or traded on the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)CSE without volume limitation.

Certain Limitations. The Party (including its Affiliates) making a claim under this Article IX is referred to as the “Indemnified Party,” and the Party against whom such claim is asserted under this Article IX is referred to as the “Indemnifying Party.” (a) Sellers shall not be liable to any Buyer Indemnified Party for indemnification under Section 9.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.02(a), Section 9.02(b)(i) and Section 9.02(b)(ii) exceeds an amount equal to $[***] (the “Deductible”), in which event the Sellers shall only be required to pay or be liable for Losses in excess of the Deductible; provided, however, that in no event shall Sellers’ aggregate Liability under Section 9.02(a) exceed $[***] (the “Cap”). Notwithstanding the foregoing, neither the Deductible nor the Cap shall apply to any indemnification claim made by any Buyer Indemnified Party: (i) Notwithstanding anything under Section 9.02(b)(i) or Section 9.02(b)(ii), or (ii) arising out of, resulting from or relating to any Fraud by any Seller. (b) Sellers shall not be liable to any Buyer Indemnified Party for indemnification under Section 9.02(b)(i) or Section 9.02(b)(ii) in an aggregate amount, with respect to each Seller, in excess of the portion of the Purchase Price actually received by such Seller; provided, however, that this Section 9.04(b) shall not apply to any indemnification claim made by any Buyer Indemnified Party arising out of, resulting from or relating to any Fraud by any Seller. (c) Buyer shall not be liable to any Seller Indemnified Party for indemnification under Section 9.03(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.03(a) exceeds an amount equal to the contrary Deductible, in which event Buyer shall only be required to pay or be liable for Losses in excess of the Deductible; provided, however, that in no event shall Buyer’s aggregate Liability under Section 9.03(a) exceed the Cap. Notwithstanding the foregoing, neither the Deductible nor the Cap shall apply to any indemnification claim made by any Seller Indemnified Party arising out of, resulting from or relating to: (i) any misrepresentation, inaccuracy in or breach of any Buyer Fundamental Warranty, or (ii) any Fraud by Buyer. (d) Buyer shall not be liable to any Seller Indemnified Party for indemnification under Section 9.03(a) for a misrepresentation, inaccuracy in or breach of any Buyer Fundamental Warranty in an aggregate amount greater than the Purchase Price; provided, however, that this Section 9.04(d) shall not apply to any indemnification claim made by any Seller Indemnified Party arising out of, resulting from or relating to any Fraud by Buyer. (e) In no event shall any Indemnified Party be entitled to seek or receive indemnification for the same Losses more than once under this Article IX even if a claim for indemnification in respect of such Losses has been made as a result of a breach of more than one (1) representation, warranty, covenant or agreement contained in this Agreement: (1) in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (f) Each Indemnified Party shall take, and cause its Affiliates to take, Commercially Reasonable Efforts to mitigate any Loss that are indemnifiable pursuant to this Agreement to the extent required by Law. (g) The Indemnifying Party shall not be liable under Section 9.02 for any Losses to the extent included in the calculation of any adjustment to the Purchase Price pursuant to Section 1.07. No Losses may be claimed by Buyer to the extent (i) such Loss is included in the Closing Purchase Price, as finally determined in accordance with Section 1.07, (ii) Notwithstanding anything such Loss consists of or relates to Taxes with respect to the contrary contained Company attributable to the Post-Closing Taxable Period, or (ii) such Loss is due to Buyer breaching any covenant relating to Taxes in this Agreement. (h) Nothing in this Article IX shall be deemed to limit any rights of Buyer and its Affiliates as against the R&W Carrier under the R&W Insurance Policy. Notwithstanding any provision in this Agreement to the contrary, but the Buyer Indemnified Parties shall be entitled to make a claim for indemnification under this Article IX (subject to the limitations in this Article IX, including the limitation in Section 9.99.04(i)), Parent’s right concurrently with seeking recovery from any insurance (including the R&W Insurance Policy). (i) Other than with respect to receive payment from the Company any misrepresentation, inaccuracy in or breach of the Company Termination Fee pursuant to Section 8.3(a) shall constitute Seller Fundamental Warranties or Fraud, the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result recourse of the failure Buyer Indemnified Parties for Losses in respect to any misrepresentation, inaccuracy in or breach of the transactions contemplated by any representations or warranties of Sellers contained in this Agreement or any other Transaction Agreement, or the corresponding indemnities under Section 9.02(a) and Section 9.02(b)(vi), shall be to be consummated file a claim under the R&W Insurance Policy, regardless of whether: (i) the applicable Buyer Indemnified Party is an insured party pursuant to the R&W Insurance Policy; (ii) the R&W Insurance Policy is revoked, cancelled or for modified in any manner after issuance, or (iii) the applicable Buyer Indemnified Party makes a claim under the R&W Insurance Policy in respect to any breach or failure inaccuracy of any representation or warranty given by Sellers pursuant to perform hereunder in this Agreement or otherwise (whether at lawany other Transaction Agreement, in equity, in contract, in tort or otherwisethe corresponding indemnities under Section 9.02(a) and Section 9.02(b)(vi), and upon payment such claim is denied by the R&W Carrier. For clarity, Buyer shall be solely responsible for paying any deductible or retention amount payable in connection with claims made under the R&W Insurance Policy. (j) Other than with respect to Fraud, the Buyer’s right to indemnification pursuant to Section 9.02(b)(i) and Section 9.02(b)(ii) arising out of, resulting from or relating to any misrepresentation, inaccuracy in or breach of such amount, none any of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby Seller Fundamental Warranties will be satisfied: (whether at law, in equity, in contract, in tort or otherwisei) (except thatfirst, to the extent any termination of this Agreement resulted fromthe R&W Insurance Policy provides coverage, directly or indirectly, from the R&W Insurance Policy up to an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled amount equal to the payment policy limit under the R&W Insurance Policy; and (ii) second, from each of the Company Termination Fee Sellers, severally (to not jointly or jointly and severally, notwithstanding the extent owed first paragraph in Article II) in respect of any Seller Fundamental Warranties pursuant to Article II (with each Seller’s respective portion of such Losses being determined in accordance with Section 8.3(a9.02(b)), or where such claim is attributable to a particular Seller, severally (not jointly or jointly and severally, notwithstanding the first paragraph in Article II) and to any Damagesfrom the applicable Seller, to the extent proventhat the R&W Insurance Policy does not fully cover the Losses (either because no coverage is available under such policy or there is insufficient insurance available under such policy), resulting from in an amount not to exceed the amount set forth in Section 9.04(b). For clarity, Buyer shall be solely responsible for paying any deductible or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by retention amount payable in connection with claims made under the Company)R&W Insurance Policy. (iiik) Notwithstanding anything The amount to which any Indemnified Party is entitled hereunder shall be reduced by the amount of insurance proceeds (other than under the R&W Insurance Policy) actually received by the Indemnified Party in respect of such claim for indemnification, less any costs and expenses (including deductibles and co-insurance) incurred by the Indemnified Party in order to collect such insurance proceeds and less the net present value of any increases in premiums attributable to such amounts. If the Indemnified Party or any of its Affiliates receives any such insurance proceeds subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent amount of the Funding Failure Termination Fee relevant insurance proceeds, less any out-of-pocket collection or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole out-of-pocket recovery costs and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries expenses (including Merger Subdeductibles and co-insurance) incurred by such Person in order to collect insurance proceeds and less the net present value of any increases in premiums attributable to such Losses. Notwithstanding the foregoing, a Buyer Indemnified Party will not be required to reimburse ‎amounts actually received from the R&W Carrier to the extent such Buyer Indemnified Party’s ‎total Losses exceed the limits available under the R&W Insurance Policy. ‎ (l) ‎The amount of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, any Loss for which indemnification is provided under this Article ‎IX will be reduced to take ‎‎account of any net Tax benefit realized by the “Parent Related Parties”) for all Damages suffered as a result Indemnified Party arising from the incurrence ‎or ‎payment of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except thatthat Loss, to the extent necessary to ensure that the Indemnified Party ‎receives a net ‎amount that, taking into account any termination net Tax benefit, is ‎sufficient to fully ‎compensate for the Loss, but results in no net gain to the Indemnified Party. ‎In computing the ‎amount of any net Tax benefit, the Indemnified Party will be ‎deemed to recognize ‎all other items of income, gain, loss, deduction or credit before ‎recognizing any item arising from ‎the receipt of any indemnity payment under this ‎Agreement or the incurrence or payment of any ‎indemnified Loss.‎ (m) Notwithstanding anything in this Agreement resulted fromto the contrary, directly from and after the Closing, no Person defined as a Seller Indemnified Party shall seek or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both advancement, indemnification, contribution or other recovery of any kind from the payment Company Group (including by reason of the Funding Failure Termination Fee fact that he, she or Regulatory Failure Termination Fee (it was an officer, director, manager, member, employee, or agent of the Company Group or was serving at the request of the Company Group as a partner, trustee, director, officer, employee, or agent of another entity) for any actions or omissions of such Person prior to the extent owed pursuant to Section 8.3(a)) and Closing with respect to any Damages, matter for which such Person is required to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by indemnify any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)Buyer Indemnified Party under this Article IX.

Certain Limitations. The indemnification provided for in Sections 8.02 and 8.03 shall be subject to the following limitations: (a) Notwithstanding anything in this Agreement to the contrary, no indemnification claims for Losses shall be asserted by the Buyer Indemnified Parties under Article VIII unless (i) Notwithstanding anything any individual Loss or group or series of related Losses in respect of indemnification under Section 8.02 exceeds FIFTY THOUSAND DOLLARS ($50,000) (such Loss or group or series of related Losses that does not exceed $50,000, the “DeMinimis Losses”), and (ii) the aggregate amount of all Losses in respect of indemnification under Section 8.02 (which shall not include for such purposes DeMinimis Losses) exceeds THREE MILLION DOLLARS ($3,000,000) (the “Basket”), in which event the Shareholders, in proportion to the contrary contained in this Agreement: (1) in no event their Pro Rata Share, severally shall the Company be required to pay or be liable for all such Losses (only for amounts in excess of the Company Termination Fee on more than one occasion;Basket). The aggregate amount of all Losses for which the Shareholders shall be liable pursuant to Section 8.02 shall not exceed THIRTY MILLION DOLLARS ($30,000,000) (the “Cap”). (2b) Buyer shall not be liable to the Seller Indemnified Parties for indemnification under Section 8.03(a) for DeMinimis Losses and unless the aggregate amount of all Losses in respect of indemnification under Section 8.03(a) (xwhich shall not include for such purposes DeMinimis Losses) exceeds the Basket, in no which event Buyer shall Parent be required to pay or be liable for all such Losses (only for amounts in excess of the Funding Failure Termination Fee Basket). The aggregate amount of all Losses for which Buyer 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 8.04(b) shall not apply to Losses based upon, arising out of, with respect to or by reason of claims pursuant to Section 8.02(a)(iii), a breach of any Fundamental Representation or a breach of Section 3.22; provided, however, that the cumulative indemnification obligations of the Shareholders under Section 8.02, on more than the one occasionhand, and (y) Buyer under Section 8.03, on the other hand, shall in no event shall Parent be required to pay in the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything aggregate exceed an amount equal to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Final Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees Consideration (collectively, the “Company Related PartiesMerger Consideration Cap”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iiid) For purposes of this Article VIII, any breach of any representation or warranty (other than Section 3.06, Section 3.07, Section 3.08, Section 3.09(a), Section 3.12(d), Section 3.16(a), Section 3.20(a) and Section 3.20(b)) shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty; provided, however, that such qualification shall not be read out of any defined term that incorporates such materiality qualification (e.g. “Material Contract”, “Material Customer”, “Material Supplier”). For purposes of the indemnity in Section 8.02(a)(i), any breach of Section 3.19 shall be determined without regard to the matters disclosed in Item 2 of Schedule 3.19. (e) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9foregoing, the Company’s right Shareholders shall only be obligated to receive payment from Parent indemnify the Buyer Indemnified Parties for fifty (50) per cent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee Losses otherwise indemnifiable pursuant to Section 8.3(a8.02(a)(vi), up to a maximum amount of THREE MILLION TWO HUNDRED FIFTY THOUSAND DOLLARS ($3,250,000) indemnified by the Shareholders pursuant to Section 8.02(a)(vi), and the limitations on indemnification set forth in Sections 8.04(a) and (c) shall constitute not apply to the indemnification obligations of the Shareholders pursuant to Section 8.02(a)(vi). (f) No indemnification shall be available to any of the Buyer Indemnified Parties pursuant to Section 8.02(a)(i) to the extent that any Losses are a result of, arise out of or relate to (i) environmental conditions identified at any of the Real Property through the conduct of any invasive environmental sampling or testing, or (ii) environmental conditions identified in the Phase One environmental site assessments identified in Item 2 of Schedule 3.19 with respect to which the Buyer Indemnified Parties undertake remediation or further invasive environmental sampling or testing after the Closing Date, in each case, except to the extent that such remediation, sampling or testing is required pursuant to Environmental Laws. (g) Section 8.02(a)(vi) shall be the sole and exclusive remedy source of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) indemnification under this Agreement for all Damages suffered Losses as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at lawof, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and relating to any DamagesReleases of Hazardous Materials at the Real Property at Dowagiac, to the extent provenMichigan, resulting from Marnaz, France or Kamienna Gora, Poland arising out of an environmental condition identified in the Phase One environmental site assessment of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)Real Property listed in Item 2 of Schedule 3.19.

Certain Limitations. (ia) Notwithstanding anything No claim for indemnification may be asserted against either Seller or Buyer for breach of any representation, warranty, covenant or agreement contained herein, unless written notice of such claim is received by Buyer or Seller, as applicable, describing in reasonable detail the facts and circumstances with respect to the contrary contained in this Agreement:subject matter of such claim on or prior to the expiration date of any applicable Survival Period. (1b) Seller shall not be liable under Section 10.2(a)(i) unless and until the cumulative aggregate amount of all Losses in respect thereof exceeds One Hundred Fifty Thousand Dollars ($150,000) (the “Deductible”), in which event Seller shall only be liable for Losses in excess of the Deductible; provided, however, that Seller shall not be liable under Section 10.2(a)(i) for any individual or series of related Losses which does not exceed Thirty Seven Thousand Five Hundred Dollars ($37,500) (“De Minimis Losses”), which De Minimis Losses shall not be counted toward the Deductible and in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Seller have any liability hereunder for such De Minimis Losses. Notwithstanding anything to the contrary contained in this Agreement, but subject Seller’s aggregate liability for all Losses resulting from or relating to any Direct Claims made under Section 9.9, Parent’s right 10.2(a)(i) or third party claims made under Section 10.2(a)(i) shall not exceed One Million Two Hundred Fifty Thousand Dollars ($1,250,000) (the “Cap”). The Parties hereby acknowledge that the Cap shall be a single amount applicable to receive payment from the Company aggregate of the Company Termination Fee all Direct Claims for indemnification arising under Section 10.2(a)(i) and third party claims for indemnification arising under Section 10.2(a)(i) and that any indemnification payments made in respect of any Direct Claims pursuant to Section 8.3(a10.2(a)(i) or third party claims pursuant to Section 10.2(a)(i) shall constitute reduce the sole remaining amounts available under the Cap for all such claims. (c) Each of the Buyer Indemnitees and exclusive remedy the Seller Indemnitees shall use its commercially reasonable efforts to mitigate any Losses in connection with this Agreement. (d) The amount of Parent any Losses for which indemnification is provided under this Article X shall be computed net of (i) any insurance or other proceeds actually received by the Indemnified Party in connection with such Losses and Merger Sub against (ii) any indemnity, contribution or other similar payment the Company Indemnified Party received from any other Person with respect to such Loss less any related costs and its Subsidiaries expenses, including the aggregate cost of pursuing any related insurance claims and any of their respective former, current related increases in insurance premiums or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees other chargebacks (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties it being agreed that no Party shall have any further liability obligation to seek to recover any insurance proceeds in connection with making a claim under this Article X and that, promptly after the realization of any insurance proceeds, indemnity, contribution or obligation relating 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) The amount of any indemnification payment made by a Party under Article X shall be treated for all Tax purposes as an adjustment to the Purchase Price unless otherwise required by applicable Law following a final determination as defined in Section 1313 of the Code. (f) Upon payment of any Losses with respect to a claim pursuant to this Article X, the Indemnifying Party shall be subrogated to the extent of such payment (and to recover costs or arising out expenses incurred by the Indemnifying Party in enforcing such recovery rights against such Person) to the rights of the Indemnified Party against any Person with respect to the subject matter of such claim for indemnification. The Indemnified Party shall assign such rights to and otherwise reasonably cooperate with the Indemnifying Party, at the cost and expense of Indemnifying Party, to pursue any claims against or otherwise recover amounts from, any Person liable or responsible for any Losses for which indemnification has been received pursuant to this Agreement. (g) In the event Losses suffered by any Indemnified Party are recoverable under more than one provision of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, and even though an Indemnified Party is permitted to the extent any termination rely on each provision of this Agreement resulted fromArticle X independently, directly or indirectly, any such Indemnified Party shall only be permitted to recover with respect to any particular Losses suffered by it one time as it is the Parties’ intent that recovery by such particular Indemnified Party for such same Losses under another provision would constitute an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent unintended and prohibited “double” recovery. (h) No Indemnified Party shall be entitled to the payment bring a claim for indemnification for any breach or inaccuracy of any representation, warranty or covenant set forth in this Agreement if Buyer (if such Indemnified Party is a Buyer Indemnitee) or Seller (if such Indemnified Party is a Seller Indemnitee) had Knowledge of such breach or inaccuracy as of the Company Termination Fee (to Execution Date. Notwithstanding the extent owed pursuant to Section 8.3(a)) and to any Damagesforegoing, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Companyan Indemnified Party’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee indemnification pursuant to Section 8.3(athis Article X shall not be affected by (i) shall constitute any investigation or audit conducted on or after the sole and exclusive remedy Execution Date or (ii) the knowledge of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any Party of their respective formerany breach of a representation, current warranty or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated covenant by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether any other Party at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and time with respect to any Damages, to matters arising or discovered after the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)Execution Date.

Certain Limitations. (a) BHGE LLC shall not be liable to any Buyer Indemnified Party, and the Buyer shall not be liable to any Seller Indemnified Party, in either case, for any Losses under Section 10.01(a) or Section 10.02(a), as applicable, except with respect to Seller Fundamental Representations (in the case of BHGE LLC), Buyer Fundamental Representations (in the case of the Buyer) or fraud, (i) for any individual item (or series of related items arising out of the same facts, events, or circumstances) where the Losses related thereto is less than $20,000, and no such item (or series of related items) shall be counted for purposes of calculating the Deductible, (ii) until the aggregate amount of all Losses requiring indemnification thereunder exceeds, on a cumulative basis, an amount equal to $200,000 (the “Deductible”), and then only to the extent of such excess and (iii) on an aggregate cumulative basis in excess of $20,000,000. (b) In no event will BHGE LLC or the Buyer be obligated to indemnify any Buyer Indemnified Party or Seller Indemnified Party, respectively, for any Losses pursuant to Section 10.01(a) or Section 10.02(a), other than in respect of fraud, on an aggregate cumulative basis in excess of $20,000,000. (c) Notwithstanding anything to the contrary contained in this Agreement or any Ancillary Agreement: (1) , in no event shall either Party have any indemnification obligation hereunder for any consequential, special, exemplary, punitive or other similar damages, except to the Company extent payable by an Indemnified Party in connection with a Third Party Claim; provided, however, that any damages that are reasonably foreseeable in light of the nature of the Transaction and the Indemnified Party shall not be required considered “consequential” damages for purposes of this Agreement. (d) Each Indemnified Party shall use commercially reasonably efforts to mitigate in accordance with Law any Losses for which such Indemnified Party seeks indemnification under this Agreement; provided, however, that with respect to the Hyundai Claims, nothing in this ‎Section 10.05(d) shall require any Buyer Indemnified Party to incur any additional cost or expense that such Buyer Indemnified Party would not have otherwise incurred in satisfaction and performance of its obligations under the Hyundai Contract. (e) Except with respect to the Transferred Claims, each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Losses payable under ‎Section 10.02. (f) In the event that all or any portion of an Albany Receivable shall have been collected from the applicable third party subsequent to receipt by the Buyer Indemnified Parties of an indemnification payment with respect to such Albany Receivable pursuant to ‎Section 10.01 (d)(ii), GE shall promptly pay or cause to be paid to BHGE LLC an amount, in cash, equal to the Company Termination Fee portion of such Albany Receivable that was collected. (g) For purposes of determining whether or not a breach of any representation or warranty of either Party contained in Article III or Article IV has occurred, and the value of the Losses arising in connection therewith, any limitation or qualification as to materiality, material, Material Adverse Effect or any similar qualifier, other than with respect to the reference to Material Adverse Effect in Section 3.06, shall be disregarded. (h) Notwithstanding anything herein to the contrary, the Indemnified Parties shall be deemed not to have suffered any Loss to the extent such Loss was expressly reflected in Closing Working Capital set forth on more than one occasion;the Final Statement. (i) The indemnification obligations of BHGE LLC pursuant to Section 10.01(d) shall be limited to (i) with respect to the Albany Claims and any non-payment of the Albany Receivable (in whole or in part), 100% of the Losses of the Buyer Indemnified Parties thereunder until the Buyer Indemnified Parties have suffered an aggregate amount of $8,050,000 of Losses thereunder and (ii) with respect to the Hyundai Claims, (A) 100% of the Losses of the Buyer Indemnified Parties thereunder until the Buyer Indemnified Parties have suffered an aggregate amount of $10,000,000 of Losses thereunder and (B) after the Buyer Indemnified Parties have suffered an aggregate amount of $10,000,000 of Losses thereunder and until the Buyer Indemnified Parties have suffered an aggregate amount of $29,000,000 thereunder, 50% of the Losses of the Buyer Indemnified Parties thereunder. For the avoidance of doubt, the maximum aggregate Liability of BHGE LLC for all Losses to which the Buyer Indemnified Parties are entitled to indemnification under this Agreement (1) with respect to the Albany Claims and any non-payment of the Albany Receivable (in whole or in part), shall be limited to $8,050,000 and (2) (x) in no event with respect to the Hyundai Claims, shall Parent be required limited to pay $19,500,000. Notwithstanding anything herein to the Funding Failure Termination Fee on more than one occasioncontrary, and without any agreement or acknowledgement by GE or any of its Affiliates that any such claims, rights or benefits exist, BHGE Parent and its Affiliates shall be deemed not to have waived any claims, rights or benefits that BHGE Parent or any of its Affiliates may have against any other Person (yincluding GE and its Affiliates) under any other Contract with respect to the Transferred Claims; provided, however, that, notwithstanding any such preserved claims, rights or benefits, BHGE LLC shall indemnify and promptly reimburse the Buyer Indemnified Parties in no event shall Parent be required respect of Losses pursuant to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3Section 10.01(d) (x) in no event shall Parent be required without setoff, counterclaim, delay or other modification attributable to pay the Regulatory Failure Termination Fee on more than one occasionsuch claims, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidrights or benefits. (iij) Notwithstanding anything to When calculating the contrary contained in this Agreement, but subject to indemnifiable Losses of any Buyer Indemnified Parties under Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively10.01(d), the “Company Related Parties”) Parties acknowledge and agree that such Losses shall be calculated without regard for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except thatreserves, to the extent any termination such reserves have been excluded from the calculation of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Closing Working Capital under the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)Transaction Accounting Principles. (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. Notwithstanding anything herein to the contrary: (i) Notwithstanding anything the maximum aggregate liability of Seller under Section 8.2(a) (other than as set forth in Section 8.2(e)(iii)) shall be limited to an amount equal to 100% of the Purchase Price (the “Overall Cap”); (ii) the maximum aggregate liability of Buyer and CIFR under Section 8.2(b) (other than as set forth in Section 8.2(e)(iii) or a breach of the payment obligations set forth in Section 2.2) shall be limited to the contrary contained Overall Cap; (iii) an Indemnitor’s obligation to indemnify the Indemnitee for any breach of any representation, warranty, or covenant made or given by Indemnitor in this Agreement:Agreement or any Transaction Document shall only apply to the extent the aggregate damages for all Claims exceeds an amount equal to 0.5% of the Purchase Price (the “Deductible”), and then such Party shall be entitled to indemnification or defense for all damages from the first dollar without any regard to the Deductible up to an amount not to exceed the Overall Cap (subject to other applicable limitations contained herein); provided, that the Deductible and Overall Cap shall not apply to claims for indemnification (A) related to a breach of any Seller Fundamental Representation or Buyer Fundamental Representation, (B) related to a breach of any representation or warranty set forth in Section 3.9 (Tax Matters) and Section 3.10 (Environmental Matters), (C) related to a breach of any covenant to pay Taxes in Section 8.2(a)(iii) or Section 8.2(b)(iii), or (D) to the extent such claim arises from fraud or willful misconduct; (1iv) an Indemnitor’s indemnification liability pursuant to Section 8.2(a) or Section 8.2(b) shall be reduced by the insurance proceeds received by an Indemnitee with respect to any such Loss (less any costs and expenses incurred in connection with recovery of any such insurance proceeds and any related increases in insurance premiums). Each Indemnitee shall use commercially reasonable efforts to collect the proceeds of any insurance that would have the effect of reducing the Indemnitor’s indemnification liability; (v) payments by an Indemnitor pursuant to Section 8.2(a) or Section 8.2(b) in respect of any Loss shall be (i) reduced by an amount equal to any Tax benefit actually realized as a result of such Loss by the Indemnitee and (ii) increased by an amount equal to any tax detriment associated with the receipt of such indemnity payment; (vi) each Indemnitee shall, and shall cause its Affiliates to, use their respective commercially reasonable efforts to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto; (vii) in any case where an Indemnitee or any of its Affiliates recovers from a third party any payments in respect of a matter with respect to which an Indemnitor has made indemnification payments to such Indemnitee with respect to such matter pursuant to this Article 8 and such Indemnitee has received an aggregate amount from such indemnification payments and third party recoveries that collectively exceeds all Losses suffered or incurred by such Indemnitee in respect of such matter, such Indemnitee shall promptly pay over to the Indemnitor the amount so recovered, received or accrued (net of any reasonable costs to such Indemnitee to obtain such recovery, including any related increases in insurance premiums and any Taxes imposed on any such payments), but not in excess of (A) the aggregate amount by which the sum of such recovered amounts and such indemnification payments exceed the Indemnitee’s Losses in respect of such matter, or (B) the sum of any amount previously so paid by the Indemnitor to or on behalf of the Indemnitee in respect of such matter; (viii) the representations, warranties, covenants and obligations of Seller, and the rights and remedies that may be exercised by the Buyer Related Parties based on such representations, warranties, covenants and obligations, will not be limited or affected by any investigation conducted by Buyer Related Party with respect to, or any knowledge acquired (or capable of being acquired) by any Buyer Related Party at any time, whether before or after the execution and delivery of this Agreement, with respect to the accuracy or inaccuracy of or compliance with or performance of any such representation, warranty, covenant or obligation, and no event Buyer Related Party shall the Company be required to pay the Company Termination Fee show that it relied on more than one occasion; (2) (x) any such representation, warranty, covenant, or obligation of Seller in no event shall Parent order to be required entitled to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required indemnification pursuant to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paidthis Section 8.2; and (3ix) (x) in In no event shall Parent any Indemnitor be required liable to pay the Regulatory Failure Termination Fee on more than one occasionany Indemnitee for any punitive, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything incidental, consequential, special, or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the contrary contained in breach or alleged breach of this Agreement, but or diminution of value or any damages based on any type of multiple; provided that, notwithstanding any other provision in this Agreement to the contrary, none of the following shall be deemed to be punitive, incidental, consequential, special, or indirect damages subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee waiver pursuant to this Section 8.3(a8.2(e)(ix): (A) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered damages that relate to Taxes as a result of the failure any inaccuracy or breach of the transactions contemplated any representation or warranty made by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, Seller in equity, in contract, in tort or otherwise)Section 3.9, and upon payment of such amount(B) damages related to third party claims, none of the Company Related Parties shall have fraud or willful misconduct for which any further liability or obligation relating Party is obligated to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)indemnify another Party hereunder. (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. (i) Notwithstanding anything Seller shall not be liable to indemnify Buyer for any Damages based upon, arising out of, or otherwise in respect of the matters set forth in Section 15(a)(i) hereof once the aggregate amount of Damages actually paid by Seller to the contrary Buyer Group with respect to such claims exceeds Two Million Dollars ($2,000,000); provided, however, that the limitation contained in this Agreement: (1) clause shall not apply to any Damages based upon, arising out of, or otherwise in no event shall respect of any falsity, breach or inaccuracy of Seller's representation and warranty with regard to title to the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) Assets contained in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidSection 5(e). (ii) Notwithstanding anything Seller shall not be liable to the contrary contained in this Agreementindemnify Buyer for any Damages based upon, but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or otherwise in respect of the transactions contemplated thereby (whether at lawmatters set forth in Section 15(a)(i) hereof, in equity, in contract, in tort or otherwise) (except that, to the extent any termination that the aggregate amount of this Agreement resulted fromDamages exceeds One Hundred Thousand Dollars ($100,000) (the "Threshold Amount"); provided, directly or indirectlyhowever, an Intentional Breach of this Agreement by that once the Company or such Intentional Breach by Threshold Amount has been exceeded the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent Seller shall be entitled to liable for the payment entire amount of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any such Damages, to including the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)Threshold Amount. (iii) Notwithstanding anything The amount of any Damages for which indemnification is provided under this Agreement shall be net of any amounts recovered or recoverable by the Indemnified Party from third parties (including, without limitation, amounts recovered or recoverable under insurance policies) with respect to such Damages or other liability. Seller and Buyer, as appropriate, shall, or shall cause each Indemnified Party to, use its reasonable best efforts to pursue promptly any claims or rights it may have against all third parties which would reduce the contrary contained in amount of Damages for which indemnification is provided under this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a. (iv) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties Neither Seller nor Buyer shall have any further liability obligation to indemnify the other or obligation relating to or arising out of any other persons under this Agreement against, or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent otherwise have any termination of liability under this Agreement resulted fromwith respect to, directly lost profits or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)consequential damages.

Certain Limitations. (a) No party shall be obligated to indemnify and hold harmless its respective Indemnitees under Section 10.02(a)(i) (in the case of Seller, and other than with respect to an inaccuracy in or breach of any Seller Specified Representation) or Section 10.02(b)(i) (in the case of Purchaser, and other than with respect to an inaccuracy in or breach of any Purchaser Specified Representation) (i) Notwithstanding anything with respect to any claim or series of claims arising out of substantially similar facts and circumstances, unless such claim or series of claims involves Indemnifiable Losses in excess of $50,000 (the “Threshold Amount”) (nor shall any claim that does not exceed the Threshold Amount be applied to or considered for purposes of calculating the amount of Indemnifiable Losses for which the Indemnitor is responsible under clause (ii) below) and (ii) unless and until the aggregate amount of all Indemnifiable Losses of the Indemnitees under Section 10.02(a)(i) or such Section 10.02(b)(i), as the case may be, exceeds $9,400,000 for all Indemnifiable Losses (the “Deductible”), at which point such Indemnitor shall be liable to its respective Indemnitees for the value of the Indemnitee’s claims under Section 10.02(a)(i) (other than with respect to a breach of any Seller Specified Representation) or Section 10.02(b)(i) (other than with respect to a breach of any Purchaser Specified Representation), as the case may be, that is in excess of the Deductible, subject to the contrary contained limitations set forth in this Agreement: (1) in no event shall Article X. The maximum aggregate liability of Seller, on the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasionhand, and Purchaser on the other hand, to their respective Indemnitees for any and all Indemnifiable Losses under Section 10.02(a)(i), in the case of Seller (yother than with respect to a breach of any Seller Specified Representation), or Section 10.02(b)(i), in the case of Purchaser (other than with respect to a breach of any Purchaser Specified Representation), shall be $141,000,000; provided, that the maximum aggregate liability of Seller to all Purchaser Indemnified Persons for any or all Indemnifiable Losses under this Agreement shall not exceed the Purchase Price. The limitations in this Section 10.03(a) in no event shall Parent be required not apply to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3claims made under Section 10.02(a)(iii), Section 10.02(b)(iii) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidor Section 10.02(b)(iv). (b) If any Indemnitee (or its Affiliates) actually recognizes a Tax benefit or Tax cost in respect of an Indemnifiable Loss as described in the proviso in the definition of “Indemnifiable Losses” set forth in Section 10.04(iv) subsequent to an Indemnity Payment made by an Indemnitor to an Indemnitee with respect to such Indemnifiable Loss on or prior to the date that falls two years from the end of the taxable year in which such Indemnifiable Loss was incurred, then such Indemnitee or Indemnitor shall promptly pay to the Indemnitor the amount of such Tax benefit or Tax cost, as applicable, recognized by such Indemnitee (or its Affiliates), in the case of a Tax benefit, up to the amount of such Indemnity Payment received by the Indemnitee, net of any expenses incurred by such Purchaser Indemnified Person in pursuing such Tax benefit, within 15 days after the Indemnitee (or such Affiliate) recognizes such Tax benefit in the form of cash actually received or reduction in cash Taxes actually paid. If any Tax benefit (or portion thereof) in respect of an Indemnifiable Loss as described in the proviso in the definition of “Indemnifiable Losses” set forth in Section 10.04(iv), that either (i) reduces the Indemnity Payments made by an Indemnitor prior to the time such payment is made or (ii) Notwithstanding anything obligates an Indemnitee to make payments to the contrary contained in Indemnitor under the immediately preceding sentence of this AgreementSection 10.03(b), but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered is disallowed as a result of an audit or otherwise, the failure applicable Indemnitor shall promptly pay to the applicable Indemnitee the amount of such disallowed Tax benefit within 30 days after the transactions contemplated by this Agreement Indemnitee notifies the Indemnitor that the adjustment with respect to be consummated or for a breach or failure to perform hereunder such disallowance has been paid or otherwise taken into account. (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties c) Each Indemnitee shall have any further liability or obligation relating use commercially reasonable efforts to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, mitigate all Indemnifiable Losses for which indemnification may be sought hereunder to the extent any termination such mitigation is required by Applicable Law; provided that the costs and expenses of this Agreement resulted fromsuch mitigation shall constitute Indemnifiable Losses hereunder. (d) Notwithstanding anything herein to the contrary, directly or indirectly, an Intentional Breach of this Agreement by in the Company or such Intentional Breach by the Company shall cause the Merger Closing not event that a Purchaser Indemnified Person is entitled to occur as provided seek indemnification from Seller under Section 8.2, Parent shall be entitled to the payment 10.02(a)(iii) in respect of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, Indemnifiable Loss resulting from or arising out of such Intentional Breach any Excluded Liability (as reduced by other than any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything Excluded Liability that comprises Covered Taxes, Excluded Benefits Liabilities, Excluded Escheatment Matters or Indebtedness, or to the contrary contained extent related to the businesses of Seller or its Affiliates (other than the Transferred Companies) other than the Business) and the matter giving rise to such Indemnifiable Loss also constitutes an inaccuracy in or breach of any representation or warranty of Seller made in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company Purchaser Indemnified Person shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to seek indemnification from Seller only under Section 8.3(a)10.02(a)(i) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parentno claim with respect thereto may be brought under Section 10.02(a)(iii).

Certain Limitations. (ia) Notwithstanding anything to the contrary contained in this Agreement: (1) in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.910.3(b), Parent’s right (i) Seller shall not be required to receive payment from indemnify any Purchaser Indemnitee, nor shall Seller have any liability under Section 10.1(a), unless the Company total amount of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of exceeds the failure of Tipping Basket Amount, then the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent Purchaser Indemnitees shall be entitled to be indemnified against and compensated and reimbursed for the payment entire amount of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any such Damages, to and not merely the extent proven, resulting from or arising out portion of such Intentional Breach (as reduced by any Company Termination Fee previously paid by Damages exceeding the Company). (iii) Notwithstanding anything to the contrary contained in this AgreementTipping Basket Amount; provided, but that, subject to Section 9.910.3(b), Seller shall not be required to indemnify any Purchaser Indemnitee, nor have any liability, under Section 10.1(a), in the Company’s right to receive payment from Parent aggregate in excess of [***]% of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant Purchase Price; and (ii) Purchaser shall not be required to indemnify any Seller Indemnitee, nor shall Purchaser have any liability under Section 8.3(a) shall constitute 10.2(a), unless the sole and exclusive remedy total amount of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of exceeds the failure of Tipping Basket Amount, then the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company Seller Indemnitees shall be entitled to both be indemnified against and compensated and reimbursed for the payment entire amount of such Damages, and not merely the portion of such Damages exceeding the Tipping Basket Amount; provided, that, subject to Section 10.3(b), Purchaser shall not be required to indemnify any Seller Indemnitee, nor have any liability, under Section 10.2(a), in the aggregate in excess of [***]% of the Funding Failure Termination Fee Purchase Price. (b) Subject to Section 10.3(c), (i) the Seller shall not be required to indemnify any Purchaser Indemnitee, nor shall the Seller have any liability, under Section 10.1(b), Section 10.1(c), Section 10.1(d), Section 10.1(f) and Section 10.1(h) in the aggregate in excess of the cash amounts actually received by the Seller under this Agreement, and (ii) Purchaser shall not be required to indemnify any Seller Indemnitee, nor shall Purchaser have any liability, under Section 10.2(b) or Regulatory Failure Termination Fee Section 10.2(d) in the aggregate in excess of the cash amounts actually received by the Seller under this Agreement. (c) Notwithstanding anything in this Article 10 to the extent owed pursuant to contrary, the limitations set forth in Section 8.3(a)10.3(a) and Section 10.3(b) shall not apply to any Damages, to the extent proven, resulting from or Damages arising out of such Intentional Breach of, relating to, or in connection with (as reduced by i) any Funding Failure Termination Fee liability under Section 10.1(e) or Regulatory Failure Termination Fee paid by ParentSection 10.1(g), or (ii) any liability under Section 10.2(c).

Certain Limitations. (iAny party making a claim under this Article VII is referred to as an “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 5.05(b) Notwithstanding anything and Article VII shall be subject to the contrary contained in this Agreementfollowing limitations: (1a) The Sellers shall not be liable to an Indemnified Party for indemnification under Section 7.02(a)(i) and (ii) until the aggregate amount of all Losses in no respect of indemnification under Section 7.02(a)(i) and (ii) exceeds 0.75% of the Base Purchase Price (the “Deductible”), in which event Sellers shall the Company only be required to pay or be liable for Losses in excess of the Company Termination Fee on more than one occasion;Deductible; provided that the Deductible shall not apply to any Losses as result of a breach of the Several Representations or the Fundamental Representations or resulting from Fraud. (2b) Subject to the other limitations imposed by this Article VII, all claims against the Sellers for indemnification under this Agreement, including any claims for the Tax Indemnity and claims under Article VII, shall be paid and satisfied solely from the Escrow Account, to the extent of any funds then remaining therein; provided, however, that (xi) Losses resulting from the common law liability of any Seller to Buyer for fraud in the event of a final determination by a court of competent jurisdiction that any Seller committed fraud against Buyer (“Fraud”), and (ii) Losses resulting from the indemnification provisions of Section 7.02(b), in each case, shall not be satisfied from the Escrow Account but, instead, Buyer may recover such Losses directly from the offending Seller. (c) Each Seller’s maximum liability hereunder for any indemnification claims for the Several Representations or for any Seller’s Fraud shall not, when aggregated with all other indemnification obligations hereunder, exceed the portion of the Purchase Price actually received by such Seller. (d) Payments by an Indemnifying Party pursuant to Section 5.05(b) or Article VII in respect of any Loss 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 (or an Acquired Company) in respect of any such claim. The Indemnified Party shall use its commercially reasonable efforts to recover under other insurance policies for any Losses prior to seeking indemnification under this Agreement. In the event any Indemnifying Party pays any indemnification amount to an Indemnified Party, and such Indemnified Party then receives an insurance payment, or other indemnity or contribution payment, then such Indemnified Party shall promptly repay to such Indemnifying Party a refund equal to the aggregate amount of such recovery but not in excess of the amount previously paid by such Indemnifying Party to such Indemnified Party for the indemnification claim. (e) 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 to an indemnification obligation hereunder; provided, however, that no event Indemnified Party or its Affiliates shall Parent be required to pay make any material monetary expenditure, commence or participate in any proceeding, offer or grant any material accommodation to any Person, or take, or refrain from taking, any action that would or would reasonably be expected to adversely affect the Funding Failure Termination Fee on more than one occasionbusiness, and operations, results or condition (yfinancial or otherwise) of such Indemnified Party or its Affiliates in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) any material respect in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidconnection with such mitigation. (iif) No Seller shall have any liability with respect to either Fraud or a breach of any of the Several Representations by any other Seller, and Buyer agrees not to seek recovery against a Seller with respect to either Fraud or a breach of the Several Representations by another Seller. (g) Notwithstanding anything to the contrary contained elsewhere in this Agreement, but the amount of any Loss subject to indemnification under Section 9.97.02 shall be calculated net of any amounts to the extent, Parent’s right but only to receive payment from the Company extent, specifically reflected or reserved for in the Financial Statements or the Final Balance Sheet and taken into account in determining the amount of the Company Termination Fee Purchase Price pursuant to Section 8.3(aArticle II. (h) In no event shall constitute any Indemnifying Party be liable to any 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 sole and exclusive remedy breach or alleged breach of Parent and Merger Sub against the Company and its Subsidiaries and this Agreement, or diminution of value or any damages based on any type of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees multiple (collectively, the “Company Related PartiesExcess Damages”) ); provided, however, this limitation shall not be applicable to indemnification claims for all Excess Damages suffered required to be paid to a third party by an Indemnified Party as a result of the failure of the transactions contemplated by this Agreement a Third-Party Claim. (i) If an Indemnified Party is entitled to be consummated indemnification under more than one clause or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out subclause of this Agreement or the transactions contemplated thereby (whether at lawwith respect to Losses, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or then such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent Indemnified Party shall be entitled to the payment of the Company Termination Fee (only one indemnification or recovery for such Losses to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising it arises out of such Intentional Breach the same set of circumstances and events; it being understood that this Section 7.04(j) is solely to preclude a duplicate recovery by an Indemnified Party (as reduced by any Company Termination Fee previously paid by the Companyi.e., recovery in excess of actual damages). (iiij) Notwithstanding anything to the contrary contained elsewhere in this Agreement, but subject Buyer shall not seek or be entitled to indemnification for any Losses based upon or relating to the Theater Repairs or the Lease Amendments (including, without limitation, any alleged breach of the representations and warranties in Section 9.9, 3.10 solely related to either the Company’s right to receive payment from Parent historical accounting treatment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement Leases or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by ParentLease Amendments).

Certain Limitations. The indemnification provided for in 9.02 and 9.03 shall be subject to the following limitations, it being understood that the provisions set forth in this Section 9.04 shall not in any way expand the obligations of any of the parties set forth in Section 9.02 or 9.03: (a) No Buyer Indemnitee shall make an indemnity claim under 9.02(a) (other than in respect of Losses that arise from any inaccuracy in or breach of any Fundamental Representation or the representations and warranties contained in 4.21 (Taxes), 4.07(s), 4.19(p) or 4.19(q) to the extent those provisions relate to Taxes) with respect to any individual occurrence unless and until the aggregate amount of Losses suffered by the Buyer Indemnitee arising from such occurrence or series of related occurrences exceeds or may reasonably be expected to exceed $400,000. The Sellers, Optionholders and SAR Holders shall not be liable to the Buyer Indemnitees for indemnification under 9.02(a) (other than in respect of Losses that arise from any inaccuracy in or breach of any Fundamental Representation or the representations and warranties contained in 4.21 (Taxes), 4.07(s), 4.19(p) or 4.19(q) to the extent those provisions relate to Taxes) until the aggregate amount of all Losses in respect of indemnification under 9.02(a) exceeds $5,000,000 (the “Deductible Amount”), in which event the Sellers, Optionholders and SAR Holders shall be required to pay or be liable for all such Losses in excess of the Deductible Amount, subject to the terms of this ARTICLE IX. (b) No Seller Indemnitee shall make an indemnity claim under 9.03(a) (other than in respect of Losses that arise from any inaccuracy in or breach of any Fundamental Representation) with respect to any individual occurrence unless and until the aggregate amount of Losses suffered by the Seller Indemnitee arising from such occurrence or series of related occurrences exceeds or may be reasonably expected to exceed $400,000. Buyer shall not be liable to the Seller Indemnitees for indemnification under 9.03(a) (other than in respect of Losses that arise from any inaccuracy in or breach of any Fundamental Representation) until the aggregate amount of all Losses in respect of indemnification under 9.03(a) exceeds the Deductible Amount, in which event Buyer shall be required to pay or be liable for all such Losses in excess of the Deductible Amount. (c) Subject to 9.04(d), the aggregate amount of all Losses for which the Sellers, Optionholders and SAR Holders shall be liable pursuant to 9.02(a) shall not exceed an amount equal to the Indemnification Escrow Amount (the “Cap”) and the aggregate amount of all Losses for which Buyer shall be liable pursuant to 9.03(a) shall not exceed the Cap. (d) Notwithstanding the foregoing, the limitations set forth in 9.04(c) shall not apply to Losses that arise from any inaccuracy in or breach of any Fundamental Representation; provided, that, the aggregate amount of all Losses for which (i) the Sellers, Optionholders and SAR Holders shall be liable pursuant to this Agreement shall not exceed an amount equal to the Purchase Price, (ii) the Optionholders and SAR Holders shall be liable pursuant to this Agreement shall not exceed an amount equal to the Cap and (iii) the Buyer shall be liable pursuant to this Agreement shall not exceed the Purchase Price. (e) For purposes of this ARTICLE IX, if it is determined that an Indemnified Party is entitled to recover Losses arising out of any inaccuracy in or breach of any representation or warranty set forth herein, all qualifications as to materiality, Material Adverse Effect, Buyer Material Adverse Effect or other similar qualification shall be disregarded for the purpose of the calculation of Losses that resulted from any such breach of such representation or warranty. (f) Notwithstanding anything to the contrary contained in this Agreement: (1) in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained elsewhere in this Agreement, but no party shall, in any event, be liable to any other Person for (i) any consequential, incidental or indirect Losses, except to the extent such Losses are either reasonably foreseeable or payable by a Buyer Indemnitee to a Person other than a Buyer Indemnitee or by a Seller Indemnitee to a Person other than a Seller Indemnitee or (ii) special or punitive Losses, except to the extent that such Losses are payable by a Buyer Indemnitee to a Person other than a Buyer Indemnitee or by a Seller Indemnitee to a Person other than a Seller Indemnitee. (g) The Buyer Indemnitees shall not be entitled to indemnification for any Losses to the extent a Liability with respect to such Loss was specifically reserved against and reflected on the Financial Statements, unless such liability exceeds the amount of such reserve, which shall be the Sellers’, Optionholders’ and SAR Holders’ responsibility, subject to Section 9.9the terms of this Agreement. (h) Notwithstanding any other provision of this Agreement to the contrary, Parentexcept (i) in the case of fraud or (ii) with respect to any Fundamental Representation, each Seller’s, Optionholder’s right and SAR Holder’s maximum aggregate indemnification liability pursuant to receive payment 9.02(a) shall be such Seller’s, Optionholder’s and SAR Holder’s share of the Indemnification Escrow Amount; provided that the foregoing remains subject to 9.04(d). The sole and exclusive recourse for any amount finally determined to be owed in respect of any indemnity obligations pursuant to 9.02 (a) (except (i) in the case of fraud or (ii) with respect to any Fundamental Representation) shall be the Indemnification Escrow Amount. (i) The Seller Indemnitees shall not make any claim for contribution from the Company or any Company Subsidiary or any of their respective officers, directors, members, managers or employees with respect to any indemnity claims arising under or in connection with this Agreement to the extent that any Indemnified Party is entitled to indemnification hereunder for such claim. The Seller Indemnitees hereby waive any such right of contribution from the Company, any Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries Subsidiary and any of their respective formerofficers, current or future general or limited partners, stockholdersdirectors, members, managers, directors, officers, employees, agents, Affiliates managers or assignees (collectively, employees they have or may have in the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement future. The Seller Indemnitees further agree not to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted frommake, directly or indirectly, an Intentional Breach of this Agreement by and hereby waive, any claim for indemnification against the Company or such Intentional Breach any Company Subsidiary by reason of the Company shall cause fact that the Merger Closing not to occur as provided under Section 8.2Seller Indemnitees or any of their Affiliates or Representatives was a member, Parent shall be entitled to the payment manager, officer, director, employee or agent of the Company Termination Fee or a Company Subsidiary (whether such claim is for Losses or otherwise and whether such claim is pursuant to any Law, organizational document, Contract or otherwise) with respect to any Action brought by a Buyer Indemnitee against any Seller, Optionholder or SAR Holder or any Affiliate or Representative thereof (whether such claim is pursuant to this Agreement or otherwise). (j) The Sellers, Optionholders and SAR Holders shall have no obligation to indemnify any Buyer Indemnitee with respect to any breach of the representations in Section 4.18 to the extent owed pursuant (i) arising out of any sampling of soil, groundwater, soil vapor or other environmental media at the Real Property by Buyer, except as required under Environmental Laws or by any Governmental Authority; (ii) arising out of the intentional encouragement by Buyer of any Action by any Governmental Authority or any other Person; (iii) arising out of any change of use of the Real Property after the Closing Date; (iv) arising out of any Response, Removal or Remedial Action that is not conducted to Section 8.3(a)eliminate or control any risk from the presence or Release of Hazardous Substances consistent with the least stringent applicable remediation standard acceptable to the relevant Governmental Authority; (v) arising out of the management of any building component that contains or is covered with any Hazardous Substance in compliance with Environmental Laws; (vi) Losses are incurred to replace, repair, improve, or upgrade any building, structure, plant, or equipment, unless such activity is required or is undertaken as a necessary part of any Response, Removal, or Remedial Action; or (vii) arising out of any change in Environmental Law after the Closing Date. In connection with any site remediation, the “least stringent applicable remediation standard” shall include the use of reasonable deed restrictions and engineering controls to any Damageslimit exposure to contaminants that are allowed to remain in place, to the extent provensuch restrictions or controls would not interfere with site operations and are acceptable to the relevant Governmental Entity. It is understood that sampling or other testing of soil, resulting from groundwater, soil vapor or arising out of such Intentional Breach (as reduced other environmental media at the Real Property may be required under Environmental Law or by any Company Termination Fee previously paid by the Company)Governmental Authority in connection with a capital improvement, repair, routine maintenance or operating activities. (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. (a) Except as otherwise expressly provided herein, Seller (on behalf of itself and as agent for the Other Sellers) shall not be obligated to indemnify Purchaser Indemnified Parties for aggregate Purchaser Losses as follows: (i) Notwithstanding anything pursuant to Sections 9.1(a)(i) and 9.1(a)(ii), in excess of an amount equal to 18% of the contrary contained Purchase Price (the “Indemnity Cap”), provided, that any Purchaser Losses from any breach of a representation or warranty made by Seller in this Agreement: Sections 4.1 (1Corporate Existence), 4.2(a), 4.2(b)(A) in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2and 4.2(b)(C) (xCorporate Authority) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related PartiesSeller Corporate Representations”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement shall not be subject to be consummated or for a breach or failure to perform hereunder or otherwise (whether at lawany limitation, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur other than as provided under in Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee 11.18 hereof; (to the extent owed ii) pursuant to Section 8.3(a9.1(a)(iii)) and to any Damages, to in excess of the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company).Purchase Price; and (iii) pursuant to Sections 9.1(a)(iv) and 9.1(a)(v), without any limitation, other than as provided in Section 11.18 hereof. (b) Purchaser (on behalf of itself and as agent for any Affiliates) shall not be obligated to indemnify Seller Indemnified Parties for aggregate Seller Losses as follows: (i) pursuant to Sections 9.1(b)(i) and 9.1(b)(ii), in excess of an amount equal to the Indemnity Cap, provided, that any breach of a representation or warranty made by Purchaser in Sections 5.1 (Corporate Existence) and 5.2 (Corporate Authority) (together, the “Purchaser Corporate Representations”) shall not be subject to any limitation, other than as provided in Section 11.18 hereof; (ii) pursuant to Section 9.1(b)(iii), in excess of the Purchase Price; and (iii) pursuant to Section 9.1(b)(iv), without any limitation, other than as provided in Section 11.18 hereof. (c) Notwithstanding anything contained here to the contrary contrary, Seller (on behalf of itself and as agent for the Other Sellers) shall not be obligated to indemnify Purchaser Indemnified Parties under this Agreement (x) with respect to any individual Purchaser Loss of less than ten thousand dollars EXECUTION VERSION ($10,000.00) (the “Minimum Amount”) and (y) unless and until the aggregate Purchaser Losses (excluding individual Purchaser Losses less than the Minimum Amount) subject to such indemnification collectively exceed two hundred fifty thousand dollars ($250,000.00) (the “Threshold”), whereupon such indemnification shall be made by Seller with respect to the amount of such Purchaser Losses (excluding individual Purchaser Losses less than the Minimum Amount); provided, however, that the Threshold shall not apply to (i) a breach of the Seller Corporate Representations, or (ii) the matters described in Sections 9.1(a)(iii), 9.1(a)(iv) or 9.1(a)(v) hereof. (d) Notwithstanding anything contained herein to the contrary, Purchaser shall not be obligated to indemnify Seller Indemnified Parties under this Agreement (x) with respect to any individual Seller Loss of less than the Minimum Amount and (y) unless and until the aggregate Seller Losses (excluding individual Seller Losses or related Seller Losses less than the Minimum Amount) subject to such indemnification collectively exceed the Threshold whereupon such indemnification shall be made by Purchaser with respect to the amount of such Seller Losses; provided, however, that the Threshold shall not apply to (i) a breach of the Purchaser Corporate Representations, or (ii) the matters described in Sections 9.1(b)(iii) or 9.1(b)(iv) hereof. (e) The representations and warranties of Seller and Purchaser contained in ARTICLE IV and ARTICLE V, respectively, of this Agreement and any other Transaction Document shall survive the Closing until 12 months after the Closing; provided, however, that the Seller Corporate Representations and the Purchaser Corporate Representations shall survive until the expiration of any applicable statute of limitation, including any suspensions, tollings or extensions thereof. The covenants and agreements contained in this AgreementAgreement shall survive the Closing until the date or dates explicitly specified therein or, but subject to Section 9.9if not so specified, until the Company’s right to receive payment from Parent expiration of the Funding Failure Termination Fee applicable statute of limitations, including any suspensions, tollings or Regulatory Failure Termination Fee extensions thereof, with respect to the matters contained therein. (f) The obligations to indemnify and hold harmless a Party pursuant to Sections 9.1(a)(i), 9.1(a)(ii), 9.1(a)(iii), 9.1(b)(i), 9.1(b)(i)(ii) or 9.1(b)(iii) shall terminate when the applicable representation, warranty or covenant terminates pursuant to Section 8.3(a9.2(e); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which Seller Indemnified Party or Purchaser Indemnified Party, as the case may be, to be indemnified (each, an “Indemnified Party”) shall constitute have, before the sole and exclusive remedy expiration of the Company and its stockholders against Parent and its Subsidiaries applicable survival period, previously made a claim by delivering a written notice (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, stating in reasonable detail the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment basis of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwiseclaim) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)Indemnifying Party.

Certain Limitations. (i) Notwithstanding anything The indemnification afforded by this ARTICLE X shall be subject to the contrary contained in this Agreementfollowing limitations: (1a) in no event shall With respect to indemnification by the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise10.1(a), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right maximum liability for any Loss suffered by an Investor Indemnified Party (other than any Loss resulting from a Third Party Claim) shall not exceed an amount (the “Company Indemnification Cap”) equal to receive payment from Parent (i) the Hard Cap and the amount of all of the Funding Failure Termination Fee other Obligations owed by the Company Parties to the Investor under this Agreement and the other Transaction Documents (other than the indemnification amounts payable under Section 10.1(a)) as of the date of determination, minus (ii) the aggregate amount of all of the payments collected or Regulatory Failure Termination Fee received by the Investor (and any direct or indirect transferee of the Investor to whom any interest in the Revenue Interests is transferred) hereunder as of such date of determination (other than (A) any payments collected or received as a reimbursement of expenses incurred by any Investor Indemnified Party (including attorney’s fees) and (B) any indemnification payments collected or received pursuant to Section 8.3(a10.1(a)), minus (iii) shall constitute the sole aggregate amount collected or received by the Investor (and exclusive remedy any direct or indirect transferee of the Company and Investor to whom any interest in the Revenue Interests is transferred) pursuant to the exercise of its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwiserights under Section 10.1(a) (except that, without duplication of any amounts collected or received pursuant to clause (ii)) prior to such date of determination to the extent any termination of this Agreement resulted from, directly such amount was not collected or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause received in connection with a Third Party Claim. Notwithstanding the Merger Closing not to occur as provided under Section 8.2foregoing, the Company Indemnification Cap shall be entitled not apply to both any Loss suffered by any Investor Indemnified Party in connection with a Third Party Claim. (b) With respect to indemnification by the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed Investor pursuant to Section 8.3(a)) and to any Damages10.2, the Investor’s maximum liability shall not exceed an amount equal to the extent proven, resulting excess (if any) of (i) the aggregate amount of all of the payments collected or received by the Investor from the Company prior to the date of determination (excluding any amounts collected or arising out received as a reimbursement of such Intentional Breach expenses incurred by the Investor or any indemnification amounts collected or received in connection with a Third Party Claim) over (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)ii) the Investment Amount.

Certain Limitations. (ia) Notwithstanding anything to the contrary contained in this Agreement: (1) in no event The Seller Parties shall the Company not be required to pay indemnify Buyer Indemnitees with respect to any claim for indemnification pursuant to Section 9.1(a) unless and until the Company Termination Fee on more than one occasion;aggregate amount of all claims against the Seller Parties under Section 9.1(a) exceeds One Hundred Seventy-Five Thousand Dollars ($175,000) (the “Threshold Amount”), in which event the Seller Parties shall be responsible for the amount of such Losses back to the first dollar provided, however, that the aggregate liability of the Seller Parties to Buyer Indemnitees under Section 9.1(a) shall not exceed Five Million Dollars ($5,000,000) (the “Cap”). Neither the Cap nor the Threshold Amount shall apply to indemnities for Losses relating to any Sales Tax, the representations and warranties contained in Section 2.1, 2.2, 2.8(a), 2.15 or 2.20 or any Losses to be indemnified pursuant to Section 9.1(e). (2b) (x) Except with respect to claims for indemnification based on inaccuracies in no event the representations and warranties contained in Section 3.1, Victory and Buyer shall Parent not be required to pay indemnify Seller Indemnitees with respect to any claim for indemnification pursuant to Section 9.2(a) unless and until the Funding Failure Termination Fee on more than one occasionaggregate amount of all claims against Victory and Buyer under Section 9.2(a) shall exceed the Threshold Amount, in which event Victory and (yBuyer shall be responsible for the amount of such Losses back to the first dollar; provided, however, that the aggregate liability of Victory and Buyer to the Seller Parties under Section 9.2(a) in no event shall Parent be required to pay not exceed the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidCap. (iic) Notwithstanding anything to the contrary contained in any other provision of this Agreement, but the rights and remedies of any party based upon, arising out of or otherwise in respect of any inaccuracy or breach of any representation, warranty, covenant or agreement or failure to fulfill any condition shall in no way be limited by the fact that a set of facts upon which any claim of any such inaccuracy or breach is based may also be the subject matter of any other representation, warranty, covenant or agreement as to which there is no inaccuracy or breach, provided that such party shall not be entitled to multiple indemnification for claims based upon the same set of facts. (d) Except as set forth in Section 9.98.5, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) The indemnity provided for in this Article IX shall constitute be the sole and exclusive remedy of Parent and Merger Sub against Buyer or the Company and its Subsidiaries and Seller Parties, as the case may be, after the Closing for any inaccuracy of their respective former, current any representation or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result warranty of the failure of the transactions contemplated by this Agreement to be consummated Seller Parties or for a Buyer, respectively, herein or any other breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement Agreement; provided, that nothing herein shall limit in any way any such party’s remedies in respect of fraud, intentional misrepresentation or omission or intentional misconduct by the other party in connection herewith or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)hereby. (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. Following Closing: (i) Notwithstanding anything the Sellers shall not be liable to Buyer Indemnified Persons under Section 10.2(a)(i) for any breach of or inaccuracy in any of the representations or warranties set forth in Article III (other than Fundamental Representations) unless the aggregate Losses incurred by the Buyer Indemnified Persons exceed (the “Basket”), and then the Sellers shall be jointly and severally liable to the contrary contained Buyer Indemnified Persons for the full amount of all Losses from the first dollar, including Losses needed to meet the Basket; provided, however, no claims for which the aggregate amount of Losses of the Buyer Indemnified Persons arising from such claims is less than (the “Mini Basket”) shall be included in this Agreement:determining whether the Basket has been met; provided further, however, that once the Basket is met, all Losses (including Losses that are less than the Mini Basket) shall be recoverable by the Buyer Indemnified Persons; (1ii) Buyer shall not be liable to the Seller Indemnified Persons under Section 10.2(c)(i) for any breach of or inaccuracy in any of Buyer’s representations or warranties (other than Fundamental Representations) unless the aggregate Losses incurred by the Seller Indemnified Persons exceed the Basket, and then Buyer shall be liable for the full amount of all Losses from the first dollar, including Losses needed to meet the Basket; provided, however, no claims for which the aggregate amount of Losses of the Seller Indemnified Persons arising from such claims is less than the Mini Basket shall be included in determining whether the Basket has been met; provided further, however, that once the Basket is met, all Losses (including Losses that are less than the Mini Basket) shall be recoverable by the Seller Indemnified Persons; (iii) the aggregate amount required to be paid by the Sellers pursuant to Section 10.2(a)(i) (other than with respect to breaches of Fundamental Representations), Section 10.2(a)(iv) and Section 10.2(b)(i) (other than with respect to breaches of the Fundamental Representations) shall not exceed (the “Cap”); (iv) the aggregate amount required to be paid by Buyer pursuant to Section 10.2(c)(i) (other than with respect to breaches of Fundamental Representations) shall not exceed the Cap; (v) in no event shall the Company will any Seller be required to pay the Company Termination Fee on more than one occasion; (2) (x) liable under this Article X for any Losses in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company excess of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current cash proceeds or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result value of the failure of the transactions contemplated Issued Units actually received by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).Seller;

Certain Limitations. (a) After the Closing, Sellers shall not be required to indemnify Buyer Group Indemnitees for: (i) Losses under Section 8.2(a) (except with respect to inaccuracies in or breaches of any of the Sellers’ Fundamental Representations) until the aggregate amount of all such Losses exceeds $150,000 (the “Deductible”), in which event Sellers shall be jointly and severally responsible only for any such Losses in excess of such Deductible; (x) Losses under Section 8.2(a) (except with respect to inaccuracies in or breaches of any of the Sellers’ Fundamental Representations) in the aggregate in excess of $3,000,000 (the “Cap”). (b) After the Closing, except with respect to inaccuracies in or breaches of the Buyer Group Fundamental Representations, neither Buyer nor Parent shall be required to indemnify Seller Indemnitees for Losses under Section 8.3(a) (i) until the aggregate amount of all such Losses exceeds the Deductible, in which event Buyer and Parent shall be jointly and severally responsible only for Losses in excess of such Deductible, or (ii) for Losses in the aggregate in excess of the Cap. (c) For purposes of this Article VIII, (i) an inaccuracy in or breach of a representation or warranty shall be deemed to exist either if such representation or warranty is actually inaccurate or breached or would have been inaccurate or breached if such representation or warranty had not contained any qualification as to materiality, “Material Adverse Effect” or “Buyer Xxxxx Xxxxxxxx Adverse Effect” or similar language and (ii) the amount of Losses in respect of any breach of a representation or warranty, including any deemed breach resulting from the application of clause (i), shall be determined without regard to any limitation or qualification as to materiality, “Material Adverse Effect” or “Seller Material Adverse Effect” or similar language set forth in such representation or warranty. (d) The rights and remedies of any party in respect of any inaccuracy or breach of any representation, warranty, covenant or agreement shall in no way be limited by the fact that the act, omission, occurrence or other state of facts or circumstances upon which any claim of any such inaccuracy or breach is based may also be the subject matter of any other representation, warranty, covenant or agreement as to which there is no inaccuracy or breach. The representations, warranties and covenants of Sellers, and the Buyer Group Indemnitees’ rights to indemnification with respect thereto, shall not be affected or deemed waived by reason of (and the Buyer Group Indemnitees shall be deemed to have relied upon the representations and warranties of Sellers set forth herein notwithstanding) (i) any investigation made by or on behalf of any of the Buyer Group Indemnitees (including by any of its advisors, consultants or representatives) or by reason of the fact that any of the Buyer Group Indemnitees or any of such advisors, consultants or representatives knew or should have known that any such representation or warranty is, was or might be inaccurate, regardless of whether such investigation was made or such knowledge was obtained before or after the execution and delivery of this Agreement or (ii) Buyer’s or Parent’s waiver of any condition set forth in Article VI. The representations, warranties and covenants of Buyer and Parent, and the Seller Indemnitees’ rights to indemnification with respect thereto, shall not be affected or deemed waived by reason of (and the Seller Indemnitees shall be deemed to have relied upon the representations and warranties of Buyer and Parent set forth herein notwithstanding) (i) any investigation made by or on behalf of any of the Seller Indemnitees (including by any of a Seller Indemnitee’s advisors, consultants or representatives) or by reason of the fact that any of the Seller Indemnitees or any of such advisors, consultants or representatives knew or should have known that any such representation or warranty is, was or might be inaccurate, regardless of whether such investigation was made or such knowledge was obtained before or after the execution and delivery of this Agreement or (ii) Sellers’ Representative’s waiver of any condition set forth in Article VI. (e) Except as provided in Article V and Section 10.10, the indemnity provided for in this Article VIII shall be the sole and exclusive monetary remedy (including equitable remedies that involve monetary payment, such as restitution or disgorgement, other than specific performance to enforce a payment or performance obligation hereunder) of Buyer Group Indemnitees or Seller Indemnitees, as the case may be, after the Closing with respect to any and all claims relating to this Agreement and the transactions contemplated hereby (other than claims of, or causes of action arising from, fraud or willful misconduct). Notwithstanding anything to the contrary contained in this Agreement: (1) in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company none of the Company Termination Fee pursuant to Section 8.3(a) limitations on indemnities set forth in this Article VIII shall constitute apply in the sole and exclusive remedy event of Parent and Merger Sub against any fraud or willful misconduct on the Company and its Subsidiaries and part of any of the parties or their respective formerAffiliates. (f) For purposes of this Agreement, current or future general or limited partners“Losses” shall exclude (i) punitive and exemplary damages, stockholdersexcept to the extent awarded in connection with any Third Party Claim and (ii) consequential damages, membersincluding lost income and profits and interruptions of business to the extent constituting consequential damages, managers, directors, officers, employees, agents, Affiliates or assignees except (collectively, A) to the “Company Related Parties”) for all Damages suffered as extent such damages are the probable and reasonably foreseeable consequence of a result breach of the failure of the transactions contemplated by this Agreement to be consummated representation or for warranty or a breach or failure to perform hereunder any covenant or otherwise agreement contained in a Transaction Agreement or (whether at lawB) to the extent such damages are awarded in connection with any Third Party Claims; provided, that in equityno event will the term “Losses” exclude Losses directly or indirectly resulting from, incurred in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to connection with or arising out of this Agreement fraud or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)willful misconduct. (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. (ia) Notwithstanding anything The indemnification obligations of Sellers under Section 6.1(b) shall not apply to the contrary first $1,000,000, in the aggregate, of Losses referred to therein, except to the extent that such Losses may be incurred by virtue of or result from fraud or intentional misrepresentation. (b) The indemnification obligations of Sellers under Sections 6.1(b) shall not exceed $10,000,000 in the aggregate, and the indemnification obligations of each Seller under this Article VI shall not exceed the aggregate Purchase Price received by such Seller for his, her or its Shares; provided however, that the foregoing limitations shall not apply to any Losses resulting from a breach of the representations and warranties contained in Section 2.4 (Capitalization of the Company; Subsidiaries and Investments) or Section 2.7(a) (Ownership and Condition of Assets) or that that may be incurred by virtue of or result from fraud or intentional misrepresentation. (c) All representations and warranties of Sellers contained in this Agreement: Agreement shall survive the Closing for a period of eighteen (118) months (the "Claims Period"): except that (A) the representations and warranties in Section 2.4 (Capitalization of the Company; Subsidiaries and Investments) and Section 2.7(a) (Ownership and Condition of Assets) shall survive the Closing indefinitely and (B) the representations and warranties in Section 2.18 (Environmental Matters) and Section 2.15 (Taxes) shall survive the Closing for a period of six (6) years from the date Sellers file the last tax return described in Section 5.2(a). Any claim made by Buyer with respect to the representations and warranties of Sellers contained in this Agreement must be initiated by Buyer during the Claims Period, except that any claim with respect to the representations and warranties in Section 2.18 (Environmental Matters) or in Section 2.15 (Taxes) must be initiated within six (6) years following the filing by Sellers of the last tax return required to be filed pursuant to Section 5.2(a) of this Agreement and there shall be no time limit on when claims may be initiated with respect to the representations and warranties in Section 2.4 (Capitalization of the Company; Subsidiaries and Investments) and Section 2.7(a) (Ownership and Condition of Assets). All of the representations and warranties of Sellers contained in this Agreement shall in no event respect be limited or diminished by any past or future inspection, investigation, examination or possession on the part of Buyer or its representatives or any notice pursuant to Section 4.16. All covenants and agreements made by Sellers contained in this Agreement (including, without limitation, the obligation of Sellers to convey the Shares to Buyer free and clear of any Lien and the indemnification obligations of Sellers set forth in this Article VI) shall survive the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidClosing Date until fully performed or discharged. (iid) Notwithstanding anything to the contrary contained in this Agreement, but The amount of any Loss subject to Section 9.9, Parent’s right to receive payment from indemnification by Sellers hereunder shall be reduced by the amount of any insurance proceeds received by Buyer or the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment respect of such amount, none Loss (net of the Company Related Parties shall have any further liability retrospective premium payment or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Companyprospective premium increases). (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. (ia) Notwithstanding anything in this Agreement to the contrary contained in this Agreement: (1) in no event contrary, neither party shall the Company indemnify or otherwise be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything liable to the contrary other party with respect to any claim for any breach of a representation or warranty, or for the breach of any covenant contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company unless notice of the Company Termination Fee pursuant claim is given within the relevant survival period specified in Section 10.1. (b) Notwithstanding anything in this Agreement to Section 8.3(athe contrary, but except as otherwise provided in this subsection (b) and Schedule 10.5, Sellers shall constitute not be liable to Buyer in respect of any indemnification hereunder except to the sole extent that (i) the aggregate amount of losses of Buyer exceeds One Million Dollars ($1,000,000) (the "Threshold Amount") (and exclusive remedy then only to the extent such losses exceed the excess of Parent and Merger Sub against the Company and its Subsidiaries and any Five Hundred Thousand Dollars ($500,000)) over an amount (not in excess of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”$100,000) for all Damages suffered which Sellers are not required to expend in environmental remediation as a result of the failure Environmental Threshold Amount (such excess being the "Excess Amount") and (ii) the aggregate amount of losses of Buyer is less than the transactions contemplated excess of Fifty Million Dollars) ($50,000,000) over any amounts expended by Buyer pursuant to Section 6.15, or with respect to which Buyer receives a proration in its favor under Section 6.15 (such excess being the "Indemnity Cap"); provided, the foregoing shall not be applicable to any amounts owed in connection with the Purchase Price or the proration adjustment thereof. In determining whether Sellers shall be obligated to indemnify Buyer under this Section 10, once the Threshold Amount has been satisfied, each representation and warranty and each covenant contained in this Agreement for which indemnity may be sought hereunder shall be read solely for purposes of determining whether a breach of such representation, warranty or covenant has occurred without regard to materiality (including Material Adverse Effect) qualifications that may be contained therein. (c) Notwithstanding any other provision of this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at lawthe contrary, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties no event shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall a party be entitled to the payment indemnification for such party's consequential or punitive damages, regardless of the Company Termination Fee (theory of recovery. Each party hereto agrees to use reasonable efforts to mitigate any losses which form the extent owed pursuant to Section 8.3(a)) and to basis for any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)claim for indemnification hereunder. (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. (a) From and after the Closing Date, any indemnification that Buyer Indemnified Party may be entitled to under Section 8.2(a) (other than with respect to Fundamental Representations) shall be satisfied solely (i) from the Escrow Amount until the earlier of the date that (A) the Escrow Account expires or is terminated in accordance with the Escrow Agreement or (B) the amount of Losses paid from the Escrow Amount to the Buyer Indemnified Party equals or exceeds the Escrow Amount, and (ii) by recovery from the R&W Policy, in any order of priority selected by the Buyer Indemnified Party. For purposes of clarity, (1) the right of the Buyer Indemnified Persons to be indemnified from the Escrow Account or the R&W Policy shall be the sole and exclusive remedy with respect to the matters set forth in Section 8.2(a) (other than with respect to Fundamental Representations), (2) the maximum aggregate Liability pursuant to in connection with any matter set forth in Section 8.2(a) (other than with respect to Fundamental Representations), shall be limited to an amount equal to the Escrow Amount and (3) none of the Seller, any current or former Beneficial Owner, any Affiliate of any of the foregoing, or any Representative of any of the foregoing, shall have any Liability of any nature to Buyer or any Affiliate thereof with respect to any matter set forth in Section 8.2(a) (other than with respect to Fundamental Representations). (b) From and after the Closing Date, any indemnification that an Buyer Indemnified Party may be entitled to under Section 8.2(a) with respect to the Fundamental Representations or subclauses (b) through (i) of Section 8.2 shall be satisfied first, from (i) the Escrow Amount until the earlier of the date that (A) the Escrow Account expires or is terminated in accordance with the Escrow Agreement or (B) the amount of Losses paid from the Escrow Amount to the Buyer Indemnified Party equals or exceeds the Escrow Amount, or (ii) by recovery from the R&W Policy, in any order of priority selected by the Buyer Indemnified Party, and second, from the Beneficial Owners. (c) The aggregate amount required to be paid by Seller and the Beneficial Owners under Section 8.2 shall not exceed an amount equal to the Purchase Price (the “Cap”). (d) The aggregate amount required to be paid by Buyer under Section 8.3 shall not exceed the Cap. (e) Notwithstanding anything to the contrary contained herein, the limitations set forth in this Agreement: (1Section 8.6(a) in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to through Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a8.6(d) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective formernot apply to Losses arising out of, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted fromotherwise by virtue of, directly or indirectly, an Intentional Breach any fraud, intentional misrepresentation or willful misconduct. (f) For purposes of this Agreement by determining whether there has been a breach of representation or warranty and for the Company or such Intentional Breach by purposes of determining the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment amount of the Company Termination Fee (to the extent owed any Losses payable therefrom pursuant to Section 8.3(a)8.2(a) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) , the representation and warranty shall be determined as if any such representation or warranty that is qualified by “material,” “in all material respects” or any similar term or limitation is so true and correct will be made as if “material,” “in all material respects” or any similar terms or limitations were not included therein (except that the materiality qualifiers as described in the preceding part of this clause shall not be disregarded in the lead-in to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by ParentSection 2.8).

Certain Limitations. The indemnification provided for herein shall be subject to the following limitations (the “Liability Limits”): (a) The Buyer Indemnified Parties shall not be entitled to require payment in respect of any Loss pursuant to the indemnities contained in Section 7.1 and Sellers shall not be liable for any indemnity payment thereunder unless: (i) Notwithstanding anything to the contrary contained in this Agreement: amount finally agreed or adjudicated of any such individual Loss exceeds CDN$200,000 (1) in no event shall the Company be required to pay the Company Termination Fee on more than one occasion“De Minimis Amount”); (ii) either alone or together with the amount finally agreed or adjudicated to be payable in respect of other Losses for which Buyer would otherwise be entitled to require payment under such indemnities, such Loss exceeds 2% of the total value of the Consideration Units determined as of the close of trading on the CSE on the Closing Date (the “Deductible”); provided that (A) (x) in any individual amount used to calculate the Deductible shall be no event shall Parent be required to pay less than the Funding Failure Termination Fee on more than one occasionDe Minimis Amount, and (yB) in no event once the Deductible has been exceeded, Buyer shall Parent only be required entitled to pay require payment on such indemnities on the Funding Failure Termination Fee if portion of Losses that exceeds the Regulatory Failure Termination Fee has already been paidDeductible; and (3iii) notwithstanding any provision in this Agreement to the contrary, (xA) the aggregate amount of all Losses for which Sellers shall be liable pursuant to Section 7.1 shall not exceed 15% of the total value of the Consideration Units determined as of the close of trading on the CSE on the Closing Date. (b) Subject to Buyer’s obligations under the Indemnity Deed, notwithstanding any provision in this Agreement to the contrary, Buyer’s aggregate liability to Seller Indemnified Parties pursuant to Sections 7.2 shall in no event shall Parent be required to pay exceed the Regulatory Failure Termination Fee total value of the Consideration Units determined as of the close of trading on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if CSE on the Funding Failure Termination Fee has already been paidClosing Date. (iic) Notwithstanding anything to the contrary contained in this AgreementLosses arising out of separate sets of facts, but subject to Section 9.9matters or circumstances will not be treated as an individual Loss, Parent’s right to receive payment from the Company even if each set of facts, matters or circumstances may be a breach of the Company Termination Fee pursuant same representation and warranty, and Losses of the same or similar nature arising out of the same or similar facts, matters and circumstances will be treated as an individual Loss. (d) Payments by an Indemnifying Party in respect of any Loss shall be reduced by an amount equal to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective formerTax benefit realized, current or future general or limited partnersreasonably expected to be realized, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of such Loss by the failure Indemnified Party. (e) 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 transactions contemplated minimum extent necessary to remedy the breach that gives rise to such Loss. (f) Where an Indemnified Party is, or would be likely to be, entitled to recover or be compensated or indemnified by this Agreement to be consummated or for a breach or failure to perform hereunder another Person, whether by way of contract, indemnity or otherwise (whether at law, in equity, in contract, in tort or otherwiseincluding under a policy of insurance), and upon payment any amount in respect of a Claim made by the Indemnified Party, the Indemnified Party shall promptly notify the Indemnifying Party of such amountright or entitlement, none take all reasonable steps to seek recovery of that amount and keep the Indemnifying Party at all times fully and promptly notified of the Company Related Parties shall have any further liability or obligation relating to or arising out status of this Agreement or such recovery. The amount of the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement Claim by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent Indemnified Party shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid amount actually recovered by the CompanyIndemnified Party (net of all reasonable out of pocket costs and expenses incurred in doing so and any Tax paid or payable on the amount recovered). (iiig) Notwithstanding anything If, after an Indemnifying Party has made a payment in respect of a Claim, an Indemnified Party recovers from or is paid by another Person any amount in respect of the Loss that gave rise to the contrary contained in this Agreement, but subject to Section 9.9Claim, the Company’s right Indemnified Party shall promptly, and in any event within 10 Business Days, pay to receive payment from Parent the Indemnifying Party, the lesser of (i) the amount of the Funding Failure Termination Fee Loss that was recovered or Regulatory Failure Termination Fee pursuant paid and (ii) the amount paid by the Indemnifying Party to Section 8.3(a) shall constitute the sole and exclusive remedy Indemnified Party in respect of the Company Claim, in either case net of all reasonable out of pocket costs and its stockholders against Parent and its Subsidiaries (including Merger Sub) expenses incurred in obtaining the recovery or payment and any of their respective former, current Tax paid or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered payable as a result of the failure of the transactions contemplated by this Agreement to be consummated receiving such recovery or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)payment.

Certain Limitations. (i) Notwithstanding anything The indemnification provided for in Section 8.2 and Section 8.3 shall be subject to the contrary contained in this Agreementfollowing limitations: (1a) Seller shall not be liable to the Buyer Indemnified Parties for indemnification under Section 8.2(a) until the aggregate amount of all Losses in no respect of indemnification under Section 8.2(a) exceeds $780,000 (the “Deductible”), in which event Seller shall the Company be required to pay or be liable for all such Losses in excess of the Company Termination Fee on more than one occasion; (2) (x) Deductible; provided, however, that the Deductible shall not apply to any Losses resulting from, arising out of, or relating to any breach of or inaccuracy in no event shall Parent be required any of the Fundamental Representations or any Losses resulting from, arising out of, or relating to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidany Fraud. (iib) Notwithstanding anything Seller shall not be liable to the contrary contained Buyer Indemnified Parties for indemnification under Section 8.2 for any Losses in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company excess of the Company Termination Fee pursuant to Section 8.3(a) shall constitute amount then remaining in the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees Indemnity Escrow Account (collectively, the “Company Related PartiesCap”) for all Damages suffered as a result of ); provided, however, that the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties Cap shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and apply to any Damages, to the extent proven, Losses resulting from or arising out of such Intentional Breach (as reduced by of, or relating to any Company Termination Fee previously paid by the Company)Fraud. (iiic) Notwithstanding anything Seller shall not be liable to the contrary contained in this AgreementBuyer Indemnified Parties for indemnification under Section 8.2 for any Losses with respect to (i) the amount, but subject to Section 9.9utilization or availability of any net operating loss, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee capital loss, Tax credit, Tax basis or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy other Tax attribute of the Company and or any of its stockholders against Parent and its Subsidiaries Subsidiaries, or (including Merger Subii) and any Taxes imposed on Buyer, the Company or any of their respective former, current Affiliates with respect to a taxable period (or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources portion thereof) beginning after the Closing Date. (collectivelyd) Notwithstanding the foregoing, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder limitations set forth in shall affect or otherwise (whether at law, in equity, in contract, in tort limit any claim made or otherwise), and upon payment of such amount, none of available under the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)R&W Policy.

Certain Limitations. (i) Notwithstanding anything any provisions of this Article IX to the contrary contained in this Agreement: (1) in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasioncontrary, and (y) except with respect to any Loss incurred in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current connection with or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of fraud, intentional misrepresentation or willful misconduct, the failure indemnification obligations of the transactions contemplated by this Agreement to Parties set forth in Section 9.2 and Section 9.3, respectively, shall be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, subject to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent following limitations: (a) No (i) Purchaser Indemnitee shall be entitled to recovery for Losses under Section 9.2(a) until the payment aggregate amount of Losses thereunder exceeds an amount equal to Twenty-Five Thousand US Dollars (US$25,000), at which time the Company Termination Fee (Purchaser Indemnitees shall, subject to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything to the contrary contained other limitations set forth in this AgreementSection 9.4, but subject be entitled to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(arecover all such Losses; and (ii) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company KOPIN Indemnitee shall be entitled to both recovery for Losses under Section 9.3(a) until the payment aggregate amount of Losses thereunder exceeds an amount equal to Twenty-Five Thousand US Dollars (US$25,000), at which time the KOPIN Indemnitees shall, subject to the other limitations set forth in this Section 9.4, be entitled to recover all such Losses. (b) The maximum amount of Losses for which KOPIN shall be liable under Section 9.2 shall not exceed an amount equal to Three Hundred Thousand US Dollars (US$300,000) plus the aggregate Purchaser Royalties paid to KOPIN (the “Indemnification Cap”); provided, however, that the amount of Losses for which KOPIN shall be liable under Section 9.2 with respect to the Legal Proceeding identified on Schedule 6 shall not be subject to such limitation. (c) The maximum amount of Losses for which Purchaser shall be liable under Section 9.3 shall not exceed the Indemnification Cap. (d) Any Liability for indemnification hereunder shall be determined without duplication of recovery by reason of the Funding Failure Termination Fee state of facts giving rise to such Liability constituting a breach of more than one representation, warranty, covenant or Regulatory Failure Termination Fee (agreement or by reason of a Party receiving an adjustment to the extent owed pursuant to Section 8.3(a)) and to any Damages, Purchase Price in accordance with the terms of this Agreement in connection with the facts giving rise to the extent proven, resulting from or arising out right of such Intentional Breach indemnification. (as e) Payments by any Indemnifying Party to an Indemnified Party in respect of an indemnifiable Loss under this Article IX shall be (i) reduced by any Funding Failure Termination Fee insurance proceeds actually received from a Third Party insurer (net of reasonable costs incurred by such Indemnified Party to enforce payment from such third-party insurer) by such Indemnified Party with respect to such Loss; and (ii) reduced by indemnification, reimbursement, credits, rebates, refunds or Regulatory Failure Termination Fee paid other payments actually received by Parentsuch Indemnified Party with respect to such Loss (net of reasonable costs incurred by such Indemnified Party to obtain such indemnification, reimbursement, credits, rebates, refunds or other payments).

Certain Limitations. (i) Notwithstanding anything in Section 2 hereof to the contrary contained in this Agreementcontrary: (1a) in no event the Guarantor shall not be required by this Guaranty to perform any Guarantied Obligation or undertaking if the Company performance thereof is illegal or impossible under Law; (b) the Guarantor shall not be required to pay perform any Guarantied Obligation while the Company Termination Fee on more than one occasionperformance of such Guarantied Obligation is being disputed in good faith by the Person required to perform such Guarantied Obligation; (2c) the Guarantor’s liability hereunder with respect to any Guarantied Obligation shall not exceed the liability of the Class B Member with respect to such Guarantied Obligation, with reference specifically, but without limitation, to Section 6.2 of the ECCA and Section 11.02 of the LLC Agreement; (xd) in the Guarantor shall have no event shall Parent be required liability hereunder with respect to pay any action or inaction of the Funding Failure Termination Fee on more than one occasionManaging Member or Tax Matters Member or any breach or noncompliance by the Managing Member or Tax Matters Member with any of the Guarantied Obligations, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already Class B Member (or any successor Managing Member or Member that is an Affiliate of the Guarantor) was not, at the time of such action, inaction, breach or noncompliance the Managing Member or Tax Matters Member, as applicable; (e) the Guarantor’s aggregate liability hereunder shall not exceed $72,849,888 less all amounts which have been paidpaid by or on behalf of the Class B Member or the Class B Member (as defined in the LLC Agreement) pursuant to Article 6 of the ECCA or Section 5.04 or Article 11 of the LLC Agreement (the “Aggregate Liability Amount”); provided, that the aggregate liability of the Guarantor shall not exceed the amount calculated pursuant to Section 6(f); and (3f) the Guarantor’s aggregate liability from time to time hereunder, under Article 6 of the ECCA and under Article 11 of the LLC Agreement shall not exceed (xi) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee Flip Point has already been paid. (iinot occurred, an amount the payment of which, if treated as a positive Cash Flow for purposes of Section 5.06(b)(iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered LLC Agreement as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon Distribution Date immediately following payment of such amount, none would cause the Flip Point to occur on or prior to the date on which the Flip Point is projected to occur in the Base Case Model and (ii) if the Flip Point has occurred, zero. For purposes of determining Guarantor’s maximum liability pursuant to this Section 6(f), all payments pursuant to this Guaranty shall be deemed to have been treated as positive Cash Flow for purposes of Section 5.06(b)(iii) of the Company Related Parties shall have LLC Agreement. Notwithstanding the foregoing, if (x) any further liability or obligation relating to or arising out of this Agreement Third Party Action under the ECCA or the transactions contemplated thereby LLC Agreement filed against or demanded of the Beneficiary prior to the Flip Point shall not have been finally resolved or (whether at lawy) any Tax contest or dispute applicable to a taxable period prior to the Flip Point or during which the Flip Point occurs relates to any Company Tax Return applicable to a year prior to the Flip Point or during which the Flip Point occurs and, in equityeither case, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not Flip Point to occur as provided under Section 8.2, Parent shall fail to be entitled to the payment of the Company Termination Fee achieved (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered other than as a result of a change in a Fixed Tax Assumption), the failure Guarantied Obligations under Article 6 of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), ECCA and upon payment of such amount, none under Article 11 of the Parent Related Parties LLC Agreement shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, not be subject to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause limitations described in clause (ii) until the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)Flip Point occurs.

Certain Limitations. (ia) Notwithstanding anything No claim may be made for breach of any representation or warranty included in this Agreement and in any other agreement, certificate or instrument delivered pursuant to the contrary contained in this Agreement: (1i) after the expiration of any applicable time period set out in no event shall Section 7.1; provided that if any Claim has been asserted in writing by notice from the Company non-breaching party to the breaching party before the expiration date of the applicable survival period, but is unresolved at the conclusion of such period, then the rights of indemnification in this Article 7 and the liability for such Claim will continue beyond the expiration of such period until such Claim is resolved; or (ii) to the extent: (A) such party has been actually reimbursed for such amount under any other provision of this Agreement; or (B) such party would be required entitled to pay the Company Termination Fee on double recovery even though such claim may be subject to more than one occasion; (2) (x) in no event shall Parent be required to pay indemnity or have resulted from the Funding Failure Termination Fee on breach of more than one occasionof the representations, warranties, agreements and covenants made by such Party; or (yC) such party actually recovers under any insurance policy with respect to any Losses forming the subject matter of the claim, to the extent of the Net Recoveries; or (D) such liability arises or the amount thereof is increased as a result of a change after the Effective Date in no event shall Parent be required to pay the Funding Failure Termination Fee if accounting policies or practices of an Indemnified Party or a change in applicable Laws. (b) Notwithstanding the Regulatory Failure Termination Fee has already been paidforegoing: (i) Section 7.4(a) will not limit an Indemnifying Party’s obligations and liability for any claim in respect of fraud or fraudulent misrepresentation by such Indemnifying Party; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything regarding matters under Sections 7.2 or 7.3, as the case may be: (A) no investigations, inspections or due diligence undertaken by or on behalf of the Indemnified Party; or (B) the fact that the Indemnified Party or any of its Representatives knew or should have known that any representation or warranty is, was or might be inaccurate, will, or will be deemed to, affect, mitigate, modify, waive, diminish the scope of or otherwise affect the Losses available to the contrary contained in this AgreementIndemnified Party regarding such matters under Sections 7.2 or 7.3, but subject to Section 9.9, Parent’s right to receive payment from as the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)case may be. (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. (i) Notwithstanding anything the provisions of this Article IX (but subject to Section 9.2(c)(iii)), after the Closing, the Purchaser Indemnified Parties (A) shall not be entitled to recover pursuant to Section 9.2(a) until the Losses incurred relating thereto exceed, in the aggregate, Eight Hundred Twelve Thousand Five Hundred Dollars ($812,500) (the “Basket”) (provided that the Basket shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of Sections 4.3(a) or 4.11(a)), and then the Purchaser Indemnified Parties shall only be entitled to recover thereunder to the contrary contained in this Agreement: (1) in no event shall extent that aggregate indemnified Losses exceed the Company be required to pay amount of the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasionBasket, and (yB) shall not be entitled to recover pursuant to Section 9.2(a) from the Equity Holders any amounts in no event shall Parent be required to pay excess of the Funding Failure Termination Fee if amount then remaining in the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidIndemnity Escrow Fund. (ii) Notwithstanding anything to the contrary contained in provisions of this Agreement, Article IX (but subject to Section 9.99.2(c)(iii)), Parent’s right after the Closing, the Equity Holders Indemnified Parties (A) shall not be entitled to receive payment from the Company of the Company Termination Fee recover pursuant to Section 8.3(a9.2(b) shall constitute until the sole and exclusive remedy of Parent and Merger Sub against Losses incurred relating thereto exceed, in the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectivelyaggregate, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise)Basket, and upon payment of then the Equity Holders Indemnified Parties shall only be entitled to recover thereunder to the extent that aggregate indemnified Losses exceed such amount, none of the Company Related Parties and (B) shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed recover pursuant to Section 8.3(a)9.2(b) and to any Damages, to the extent proven, resulting from or arising out amounts in excess of such Intentional Breach Sixteen Million Dollars (as reduced by any Company Termination Fee previously paid by the Company$16,000,000). (iii) Notwithstanding anything the foregoing, the limitations set forth in Sections 9.2(c)(i) and (ii) shall not apply to Losses based upon, arising out of, with respect to or by reason of (A) any inaccuracy in or breach of any Fundamental Representation, (B) any intentional breach or intentional non-fulfillment of any covenant or agreement to be performed by the Company, the Representative, the Equity Holders, Merger Sub or Purchaser pursuant to this Agreement that gives rise to liability under Section 9.2(a)(ii) or Section 9.2(b)(ii), as applicable, (C) Section 9.2(a)(iii) or (D) any claim based on fraud, provided that (1) the maximum aggregate indemnification obligations of the Equity Holders in respect of Losses based upon, arising out of, with respect to or by reason of the matters set forth in the foregoing clauses (A) through (D) shall not exceed the Merger Consideration (and in all cases subject to the contrary contained limitations set forth in this Agreement, but subject to Section 9.9, 9.5(b)) and (2) the Company’s right to receive payment from Parent maximum aggregate indemnification obligation of the Funding Failure Termination Fee or Regulatory Failure Termination Fee Purchaser pursuant to Section 8.3(a9.2(b) shall constitute not exceed the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)Purchase Price.

Certain Limitations. (i) Notwithstanding anything The indemnification provided for in Section 6.02 and Section 6.03 shall be subject to the contrary contained in this Agreementfollowing limitations: (1a) Sellers and Owner shall not be liable to the Buyer Indemnitees for indemnification under Section 6.02(a) until the aggregate amount of all Losses in no respect of indemnification under Section 6.02(a) exceeds $250,000 (the “Basket”), in which event Sellers shall the Company be required to pay or be liable for all such Losses in excess of the Basket. The aggregate amount of all Losses for which Sellers and Owner shall be liable pursuant to Section 6.02(a) shall not exceed $1,000,000 (the “Cap”). Notwithstanding the foregoing, the limitations set forth in this Section 6.04(a) shall not apply to Losses based upon, arising out of, with respect to or by reason of (i) intentional misrepresentation or fraud, or (ii) any inaccuracy in or breach of any Fundamental Representations. In addition, subject to Section 6.04(d), the Basket shall not apply to Losses based on, arising out of, or with respect to or by reason of any inaccuracy in or breach of the representations and warranties of Sellers and the Company Termination Fee on more than one occasion; (2in Section 3.09(b) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasionsuch a claim, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paida “Sufficiency Claim”). (b) For purposes of this Article VI, any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to a representation or warranty shall be disregarded and not taken into account in determining both (i) whether a breach of such representation or warranty exists and (ii) Notwithstanding anything the amount of Losses payable to an Indemnified Party with respect to such breach. (c) Losses that may be recovered from an Indemnifying Party shall take account of and be reduced by (i) any amounts actually recovered by the Indemnified Party or its Affiliate pursuant to any indemnification by or indemnification agreement with any third party (net of any costs or expenses incurred in connection with such recovery), (ii) the amount of any insurance proceeds, contribution payments or reimbursements actually received by the Indemnified Party or its Affiliate in respect thereof (net of any costs or expenses incurred in connection with such recovery) and (iii) an amount equal to the contrary contained amount of any Tax benefit actually received by the Indemnified Party or its Affiliate in connection with such Losses in the same Tax year as the Loss was incurred (each Person named and source identified in clauses (i), (ii) and (iii), a “Collateral Source”). An Indemnified Party shall use commercially reasonable efforts to seek recovery from all Collateral Sources. If the amount to be netted hereunder from any payment required under this AgreementSection 6.04(c) is determined after payment by the Indemnifying Party of any amount otherwise required to be paid to an Indemnified Party under this Article VI, but subject the Indemnified Party shall repay to Section 9.9the Indemnifying Party, Parent’s right promptly after such determination, any amount that the Indemnifying Party would not have had to receive payment from the Company of the Company Termination Fee pay pursuant to this Section 8.3(a6.04(c) shall constitute had such determination been made at the sole and exclusive remedy time of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectivelysuch payment. In addition, the “Company Related Parties”) for all Damages suffered as a result amount indemnifiable by Sellers or Owner hereunder on account of the failure of the transactions contemplated by this Agreement to Losses shall be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, reduced to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by indemnifiable amount was reflected as a liability in the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment calculation of the Company Termination Fee (to the extent owed final Purchase Price as determined pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)1.06. (iiid) Notwithstanding anything any provision herein to the contrary contained in this Agreementcontrary, but subject no Buyer Indemnitee may make a Sufficiency Claim without first giving Owner sixty (60) days to Section 9.9cure the applicable inaccuracy or breach, whether by transferring the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective formerapplicable asset, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as providing a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort replacement or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. (i) Notwithstanding anything Except with respect to claims arising from Fraud of Target or Fraud of Purchaser and/or Merger Sub, as applicable, or from Criminal Activity of Target and/or Criminal Activity of Purchaser and/or Merger Sub, as applicable, the indemnification provided for in Section 10.02 and Section 10.03, as applicable, shall be subject to the contrary contained in this Agreementfollowing limitations: (1a) The Stockholders and Optionholders shall not be liable to the Purchaser Indemnitees for indemnification under Section 10.02(b) until the aggregate amount of all Losses in no respect of indemnification under Section 10.02(b) exceeds Two Hundred Thousand and No/100 Dollars ($200,000.00), in which event the Stockholders and Optionholders shall the Company be required to pay and be liable for all such Losses from the Company Termination Fee on more than one occasion;first dollar thereof. (2b) Purchaser shall not be liable to the Target Indemnitees for indemnification under Section 10.03(b) until the aggregate amount of all Losses in respect of indemnification under Section 10.03(b) exceeds Two Hundred Thousand and No/100 Dollars (x) $200,000.00), in no which event Purchaser shall Parent be required to pay and be liable for all such Losses from the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidfirst dollar thereof. (iic) Notwithstanding anything to The maximum aggregate amount of all Losses for which the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee Stockholders and Optionholders shall be liable pursuant to Section 8.3(a10.02(b) shall constitute the sole not exceed Six Million One Hundred Thousand and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees No/100 Dollars (collectively, $6,100,000.00) (the “Company Related PartiesCap”). Additionally, (i) the aggregate amount of Losses for which all Damages suffered Stockholders and Optionholders may be liable pursuant to Section 10.02 shall not exceed the Aggregate Merger Consideration; and (ii) the aggregate amount of Losses for which any Stockholder or Optionholder may be liable pursuant to Section 10.02 shall be limited to an amount equal to the Aggregate Merger Consideration multiplied by such Stockholder’s or Optionholder’s Participating Percentage. For purposes of determining whether the limitations set forth in this Section have been met, all shares of Purchaser Common Stock delivered in satisfaction of an indemnification claim will be valued in accordance with Section 2.17(c)(iii). (d) The maximum aggregate amount of all Losses for which Purchaser shall be liable pursuant to Section 10.03(b) shall not exceed the Cap. The maximum aggregate amount of all Losses for which Purchaser shall be liable pursuant to Section 10.03 shall not exceed the Aggregate Merger Consideration. (e) The amount of Losses for which indemnification is provided for under this Agreement shall be reduced by (i) any amounts actually received by the Indemnified Party as a result of any indemnification, contribution or other payment by a third party, and (ii) any insurance proceeds (including any proceeds from the failure of the transactions contemplated D&O Tail Policy), less any applicable premium increases, or other similar amounts actually received by this Agreement an Indemnified Party with respect to be consummated or for a breach or failure to perform hereunder or otherwise (whether at lawsuch Losses, in equity, each case less any costs incurred in contract, pursuing and obtaining such amounts (any amounts described in tort clause (i) or otherwise(ii), and upon “Third Party Payments”). If the amount of any Loss, at any time subsequent to the making of any indemnification payment on account of such amountLoss, none is reduced by any Third Party Payment, the amount of such reduction shall promptly be repaid by the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, Indemnified Party to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent Indemnifying Party. (f) No Indemnified Party shall be entitled to indemnification hereunder for any Losses arising from breach of any representation, warranty, covenant or agreement set forth herein (and the payment amount of any Losses incurred in respect of such breach shall not be included in the Company Termination Fee (calculation of any limitation on indemnification set forth herein) to the extent owed pursuant that such Losses have previously been included (as a reduction) in the calculation of the Estimated Closing Working Capital or the Final Closing Working Capital. (g) The Indemnified Parties shall not have the right to Section 8.3(a)) and to be indemnified for any Damages, Losses under this ARTICLE X to the extent proventhey are in the nature of punitive, resulting from special or arising out of exemplary damages or diminution in value damages, in each case except to the extent such Intentional Breach (as reduced by any Company Termination Fee previously Losses are paid by the Company)Indemnified Party to an unrelated third party. (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. (a) Except in the case of Fraud and indemnification claims related to any breach of or inaccuracy in the Acquired Company Fundamental Representations, Buyer Fundamental Representations or the Tax Representations, the Buyer Indemnified Parties, as a group, on the one hand, and the Seller Indemnified Parties, as a group, on the other hand, may not recover any Losses pursuant to an indemnification claim under Section 10.2(a)(i), Section 10.2(a)(viii), Section 10.2(a)(ix), Section 10.2(a)(x), or Section 10.2(b)(i), as applicable: (i) Notwithstanding anything unless for any particular indemnifiable Losses (or group of related indemnifiable Losses that result from the same circumstances) pursuant to this Article X, the aggregate amount of such indemnifiable Losses or group of related indemnifiable Losses is greater than $15,000 (the “De Minimis Threshold”); if less than the De Minimis Threshold, such indemnifiable Losses shall not be subject to indemnity hereunder, and, if greater or equal to the contrary contained De Minimis Threshold, the entire amount (subject to the other limitations set forth in this AgreementArticle X) shall be eligible for indemnity and (ii) unless and until the Buyer Indemnified Parties, as a group, on the one hand, or the Seller Indemnified Parties, as a group, on the other hand, shall have paid, incurred, suffered or sustained at least $100,000 in Losses (the “Deductible”) in the aggregate, at which time the Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to recover in accordance with this Agreement all Losses in excess of the Deductible. (b) Subject to the limitations set forth in this Section 10.3, the Buyer Indemnified Parties shall be entitled to bring indemnification claims directly against the Sellers. (c) In no event shall: (1i) in no event shall the aggregate liability of any Seller for all indemnification claims related to any breach of or inaccuracy of any representation (other than the Acquired Company be required to pay Fundamental Representations and the Company Termination Fee on more than one occasionTax Representations) made under this Agreement exceed fifty percent (50%) of the aggregate amount of Seller Consideration received by such Seller; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) the aggregate liability of any Seller for all indemnification claims related to any breach of or inaccuracy of any Acquired Company Fundamental Representation or any Tax Representation exceed one hundred percent (100%) of the aggregate amount of Seller Consideration received by such Seller; (iii) the aggregate liability of Buyer for all indemnification claims related to any breach of or inaccuracy of any representation (other than the Buyer Fundamental Representations) made under this Agreement exceed fifty percent (50%) of the aggregate amount of Seller Consideration paid by Buyer; or (iv) the aggregate liability of any Seller for all indemnification claims related to any breach of or inaccuracy of any Buyer Fundamental Representation exceed one hundred percent (100%) of the aggregate amount of Seller Consideration paid by Xxxxx. (d) The limitations set forth in Section 10.3(c) shall not apply to (and shall not limit the indemnification or other obligations of Buyer or any Seller for or with respect to) any of the matters referred to in Sections 10.2(a)(ii) through 10.2(a)(vii), Section 10.2(b)(ii) or Section 10.2(b)(iii). Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) there shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise no limitation (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of under this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort Article X or otherwise) on the liability of Buyer or any Seller that committed, had actual knowledge of or consciously disregarded the occurrence of, any fraud with respect to such fraud. (except that, e) The Indemnified Parties shall use commercially reasonable efforts (but with no duty to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not litigate) to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee pursue a claim (to the extent owed pursuant coverage is available for such claim) under any insurance policy that existed as of the applicable Closing Date. The Indemnified Parties shall not be entitled to recover under Section 8.3(a)10.2(a) and to any Damages, or Section 10.2(b) to the extent proventhe subject matter of the claim is covered by insurance proceeds, resulting from indemnification payments or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid similar reimbursements actually received by the CompanyBuyer Indemnified Parties or the Seller Indemnified Parties, as applicable (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustment). (iiif) Notwithstanding anything Except with respect to the contrary contained in this Agreement, but subject to Section 9.9Unpaid Pre-Closing Taxes, the Company’s right Indemnified Parties shall not be entitled to receive payment from Parent of recover under Section 10.2(a) or Section 10.2(b) unless such Indemnified Parties have taken commercially reasonable actions to mitigate Losses hereunder after the Funding Failure Termination Fee date one or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment more of such amountIndemnified Parties becomes aware that the event, none of the Parent Related occurrence or action could reasonably be expected to give rise to Losses. (g) The Indemnified Parties shall have not be entitled to recover under Section 10.2(a) or Section 10.2(b) with respect to consequential damages of any further liability kind, or obligation relating to indirect, special, incidental, exemplary or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) punitive damages (except that, to the extent any termination of paid or payable by an Indemnified Party to a third party in connection with a Third Party Claim). (h) Any Losses for indemnification under this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled determined without duplication of recovery due to both the payment facts giving rise to such Losses constituting a breach of the Funding Failure Termination Fee more than one representation, warranty, covenant or Regulatory Failure Termination Fee (agreement, or being indemnifiable pursuant to more than one clause of Section 10.2(a) or Section 10.2(b). In addition, if and solely to the extent owed pursuant to Section 8.3(a)) that an amount of Losses in connection with an indemnifiable matter was already specifically taken into account in connection with calculation of the Seller Consideration and to any Damagesactually reduced the Seller Consideration, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).same Losses may not be recovered under this Article X.

Certain Limitations. The indemnification provided for in Section 9.02, Section 9.03 and Section 9.04 shall be subject to the following limitations: (ia) No Seller shall be liable to the Parent Indemnitees for indemnification under Section 9.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.02(a) exceeds Five Hundred Thousand Dollars ($500,000) (the “Basket”), in which event Sellers shall, subject to the other limitations in this ARTICLE IX, be liable for all such Losses from the first Dollar. Parent Indemnitees may not assert any individual, separate claim pursuant to Section 9.02(a) to the extent the amount of Losses arising from or based upon such individual claim is less than Fifty Thousand Dollars ($50,000) (the “Mini-Basket”), provided that at any point that any substantively related claims arising out of the same facts, conditions or events that individually are less than the amount of the Mini-Basket exceed on a cumulative basis the amount of the Mini-Basket, the Parent Indemnitees shall be entitled to indemnification for all of Losses with respect to such claims (including the amount of the Mini-Basket) and may assert such claims notwithstanding their individual amounts. The aggregate amount of all Losses for which Sellers shall be liable pursuant to Section 9.02(a), Section 9.02(b), and Section 9.03(a) shall be limited to the Indemnification Escrow Funds. (b) Notwithstanding anything to the contrary contained in this Agreement:, (i) Parent shall not have any liability (x) pursuant to Section 9.04(a) in excess of Ten Million Dollars ($10,000,000) or (y) pursuant to any provision of this ARTICLE IX other than Section 9.04(a) in excess of the Purchase Price, and (ii) no Seller shall have any liability pursuant to this ARTICLE IX in excess of his, her or its Seller Indemnification Cap. Any indemnification obligation of the Sellers must be satisfied solely from the Indemnification Escrow Funds until the Indemnification Escrow Funds are depleted. (1c) in no event The amount an Indemnified Party shall be entitled to receive from the Indemnifying Party with respect to any Loss shall be reduced by and net of any recovery paid to such Indemnified Party from any other Person with respect to such Loss (including insurance proceeds, indemnification rights, counterclaims, warranties, subrogation actions and the like). Parent shall, and shall cause the Company be required and its Subsidiaries to, use commercially reasonable efforts to pay seek recovery under all insurance policies covering any Losses to the same extent as they would if such Losses were not subject to indemnification hereunder; provided, however, the pendency of an insurance claim shall not stay an Indemnifying Party’s obligation hereunder. In the event that an insurance or other third party recovery is made by Parent, the Company Termination Fee on or its Subsidiary or any of their Affiliates with respect to any Losses for which any Parent Indemnitee has been indemnified by any Seller hereunder, then a refund equal to the aggregate amount of the recovery shall be made promptly to such Seller. (d) Notwithstanding the fact that any Indemnified Party may have the right to assert a claim for indemnification under or in respect of more than one occasion; (2) (x) in provision of this ARTICLE IX related to any fact, event, condition or circumstance, no event Indemnified Party shall Parent be required entitled to pay recover the Funding Failure Termination Fee on amount of any Losses suffered by such Indemnified Party more than one occasiononce under this Agreement in respect of such fact, and (y) event, condition or circumstances. Without limiting the generality of the foregoing, no Parent Indemnitee shall be entitled to indemnification under this ARTICLE IX for any Losses to the extent such Losses were actually reflected in no event shall Parent be required to pay the Funding Failure Termination Fee if Estimated Net Purchase Price or calculation of the Regulatory Failure Termination Fee has already been paid; and (3) (x) Post-Closing Adjustment as current liabilities in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasioncalculation of the Closing Working Capital, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidIndebtedness or Transaction Expenses. (iie) Notwithstanding anything to the contrary contained in this Agreement, but subject except in the case of Fraud or with respect to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee indemnification pursuant to Section 8.3(a9.02(c) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwiseSection 9.03(b), and upon payment of such amount, none of the Company Related Parties no Seller shall have any further liability obligation to make any payment with respect to any Losses of Parent Indemnitees, and Parent Indemnitees’ sole recourse for any claim for indemnification hereunder (other than in the case of Fraud or obligation relating with respect to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed indemnification claims made pursuant to Section 8.3(a9.02(c) or Section 9.03(b)) and to any Damages, to shall be the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)Indemnification Escrow Funds. (iiif) Notwithstanding anything For purposes of this ARTICLE VIII, any inaccuracy in or breach of any representation or warranty shall be determined without regard to the contrary any materiality or Material Adverse Effect contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee such representation or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)warranty.

Certain Limitations. (ia) Notwithstanding anything the other provisions of this ARTICLE VIII, neither Seller nor Purchaser shall have any indemnification obligations for Losses under Section 8.01(a)(iv) or Section 8.02(a)(iv), respectively, (a) for any individual item or series of related items where the aggregate Loss relating to such item or series of related items is less than [*****] (the contrary contained in this Agreement: “De Minimis Amount”) and (1b) in no respect of each individual item or series of related items where the Loss relating thereto is equal to or greater than the De Minimis Amount, unless the aggregate amount of all Losses exceeds [*****], in which event Seller or Purchaser, as applicable, shall the Company be required to pay the Company Termination Fee full amount of such Losses that exceeds [*****], but only up to a maximum amount, on more than a cumulative basis in respect of all such Claims, equal to [*****]. The aggregate Liability of Seller, on the one occasion; (2hand, and Purchaser, on the other hand, for any Losses with respect to matters set forth in this ARTICLE VIII or Claims under Section 8.01(a)(i) (x) in no event or Section 8.02(a)(i), respectively, shall Parent not exceed the Purchase Price. Seller shall only be required to pay the Funding Failure Termination Fee on more than indemnify a Purchaser Indemnitee for any particular claim one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidtime. (iib) Notwithstanding anything For purposes of this ARTICLE VIII, the amount of any Loss (but not the existence of any breach, misrepresentation or inaccuracy with respect to the contrary contained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company any representation or warranty of the Company Termination Fee pursuant to Section 8.3(aSeller or Purchaser) shall constitute the sole be determined without reference to, and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectivelydisregarding, the terms “Company Related Parties”) for all Damages suffered material,” “materially,” “Material Adverse Effect,” “material adverse effect” or other similar qualifications as a result of the failure of the transactions contemplated by this Agreement to be consummated materiality contained or for a breach incorporated in or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and applicable to any Damages, to the extent proven, resulting from such representation or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)warranty. (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).

Certain Limitations. (a) Notwithstanding the other provisions of this Agreement to the contrary, neither Seller shall have any indemnification obligations for misrepresentation or breach of warranty under Section 9.1(a)(iii) unless and until the aggregate amount of all Losses suffered by Purchaser under Section 9.1(a)(iii) for which Purchaser would be entitled to indemnification exceeds $5,000,000 (the “Purchaser Threshold”), whereupon, provided the other requirements of this Article IX have been complied with, Sellers shall indemnify and hold Purchaser harmless for Losses in excess of $1,000,000 as herein provided; except that: (i) Notwithstanding anything Purchaser shall not have any right to indemnification with respect to any individual Loss arising from a misrepresentation or breach of warranty that is less than $35,000; (ii) no such Loss shall be taken into account in determining whether, or to what extent to which, the contrary Purchaser Threshold has been met or exceeded; and (iii) the aggregate amount of Losses recoverable under Section 9.1(a)(iii) by Purchaser shall be limited to $26,000,000; provided, however, that the foregoing limitations for indemnification contained in this Agreement: (1) in no event Section 9.6 shall the Company be required not apply to pay the Company Termination Fee on more than one occasion; (2) Losses which arise from a breach of representations and warranties (x) contained in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasionSections 3.2 (Corporate Authority; Binding Effect), 3.3 (Conveyed Companies; Capital Structure), and 3,16 (Taxes), or (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained in this Agreement, but subject Agreement if such Losses have been finally adjudicated to Section 9.9, Parent’s right to receive payment have arisen directly from the pre-Closing willful misconduct or fraudulent acts of any Business Employee, Seller Corporation or Conveyed Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, it being understood that to the extent any termination such Losses resulted from the continuing willful misconduct or fraudulent acts after the Closing, the Sellers’ indemnification obligation under this Section 9.6(a)(y) shall be limited to the Losses allocable to the pre-Closing period willful misconduct or fraudulent acts); and provided, further, that Sellers shall in no event have any obligation to Purchaser with respect to aggregate Losses recoverable by Purchaser as provided in the immediately preceding proviso under Section 9.1 (a) or Article VIII in excess of the Aggregate Purchase Price. (b) Notwithstanding the other provisions of this Agreement resulted fromto the contrary, directly Purchaser shall not have any indemnification obligations for misrepresentation or indirectly, an Intentional Breach breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided warranty under Section 8.2, Parent shall 9.2(a)(iii) unless and until the aggregate amount of all Losses suffered by Sellers under Section 9.2(a)(iii) for which it would be entitled to indemnification exceeds $1,300,000 (the payment “Seller Threshold”), whereupon, provided the other requirements of this Article IX have been complied with, Purchaser shall indemnify and hold harmless Sellers for Losses as herein provided; except that the Company Termination Fee (aggregate amount of Losses recoverable under Section 9.2(a)(iii) by Sellers shall be limited to $26,000,000; provided, however, that the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything to the contrary foregoing limitations for indemnification contained in this AgreementSection 9.6 shall not apply to Losses which arise from a breach of representations and warranties contained’ in Section 4.2 (Corporate Authority) or Section 12.1(c); and provided, but subject further, that Purchaser shall in no event have any obligation to Sellers with respect to aggregate Losses recoverable by Sellers as provided in the immediately preceding proviso under Section 9.9, the Company’s right to receive payment from Parent 9.2(a) or Article VIII in excess of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)Aggregate Purchase Price.

Certain Limitations. (i) Notwithstanding anything The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the contrary contained in this Agreementfollowing limitations: (1a) CEN shall not be liable to CSOC Indemnitees for indemnification under Section 8.02 (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any inaccuracy in no or breach of any of CEN Surviving Representations (the “CSOC’s Basket Exclusions”)) until the aggregate amount of all Losses in respect of indemnification under Section 8.02 (other than those based upon, arising out of, with respect to or by reason of CSOC’s Basket Exclusions) exceeds $10,000 (the “Basket”), in which event CEN shall the Company be required to pay or be liable for all such Losses in excess of the Company Termination Fee on more than one occasion;Basket. (2b) CSOC shall not be liable to the CEN Indemnitees for indemnification under Section 8.03 (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any of CSOC’s Surviving Representations (the “CEN Basket Exclusions”)) until the aggregate amount of all Losses in respect of indemnification under Section 8.03(a) (xother than those based upon, arising out of, with respect to or by reason of the CEN Basket Exclusions) exceeds the Basket, in no which event CSOC shall Parent be required to pay or be liable for all such Losses in excess of the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paidBasket. (iic) Notwithstanding anything to The Parties acknowledge and agree that the contrary contained in this Agreementmaximum liability of CEN, but subject to Section 9.9on the one hand, Parent’s right to receive payment from and CSOC, on the Company of the Company Termination Fee other hand, for indemnification pursuant to Section 8.3(a) this Article VIII shall constitute be the sole and exclusive remedy sum of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees $1,000,000 (collectively, the “Company Related PartiesCap”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amountneither CSOC, none of on the Company Related Parties one hand, nor CEN, on the other hand, shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment other in excess of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company)Cap. (iiid) Notwithstanding anything All liabilities and obligations of CSOC that may arise under Section 8.03 (“CSOC Indemnification Liabilities”), if any, will be satisfied via the issuance by CSOC of shares of CSOC Common Stock to the contrary contained Shareholders of a number of shares of CSOC Common Stock valued at the Assumed CSOC Common Stock Value, as is equal in this Agreement, but subject value to Section 9.9, the Company’s right to receive payment from Parent amount of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant CSOC Indemnification Liabilities, to Section 8.3(a) shall constitute be allocated amongst the sole and exclusive remedy Shareholders pro rata according to the number of shares of CEN Stock held by each Shareholder as of the Company Effective Time. Such transfer, and its stockholders against Parent assignment will be deemed in full payment and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result satisfaction of the failure of the transactions contemplated by this Agreement CSOC Indemnification Liabilities with respect to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon which payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)is being made.

Certain Limitations. Notwithstanding the other provisions of this Article VII, neither Seller Parent nor Purchaser, as applicable, shall have any indemnification obligations for (ia) Losses under Section 7.1(a)(ii) or 7.2(a)(ii), to the extent that the aggregate amount of all such Losses exceeds the Preliminary Purchase Price, (b) under Section 7.1(a) to the extent such Losses result from, arise out of or are the consequence of, in whole or part any intrusive investigation, including any drilling, sampling, testing or monitoring of any soil, surface water or groundwater by or on behalf of Purchaser or any of its Affiliates, in each case, except to the extent such action or intrusive investigation was expressly required by Environmental Laws or Environmental Permits or is undertaken in response to a substantial threat to human health or the environment; or (c) Losses under Section 7.1(a)(iii) or 7.2(a)(iii), in respect of any individual item or group of items where the Loss relating thereto is less than $100,000 (the “De Minimis Claim Threshold”), or in respect of each individual item or group of related items where the Loss relating thereto is equal to or greater than the De Minimis Claim Threshold, unless the aggregate amount of all such Losses exceeds $5,000,000 (the “Deductible”), in which event the applicable Party shall be required to pay only the amounts of such Losses from the first dollar of any such Losses but only up to a maximum amount of $100,000,000 (the “Maximum Indemnification Amount”); provided, that, notwithstanding anything in this Agreement to the contrary, in no event shall the same Loss be taken into account more than once for purposes of calculations in connection with, or application of, the De Minimis Claim Threshold, the Deductible or the Maximum Indemnification Amount. Notwithstanding anything to the contrary contained in this Agreement: (1) in no event shall the Company be required to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything to the contrary contained set forth in this Agreement, but subject the limitations set forth in this Section 7.5 shall not apply to or count towards any indemnification obligation of (A) Seller Parent for Losses resulting from (1) any Excluded Asset, (2) any Retained Liability, (3) the Retained Businesses, (4) any breach of any representation or warranty of Seller Parent set forth in Section 4.1, Section 4.2, Section 4.3, Section 4.15 (except with respect to the Maximum Indemnification Amount, which shall apply for any indemnification obligations of Seller Parent with respect to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to 4.15) and Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees 4.19 (collectively, the “Company Related PartiesSeller Fundamental Representations”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), or (5) Seller Parent’s fraud, and upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwiseB) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, Purchaser for Losses resulting from (1) any Purchased Asset, (2) any Assumed Liability, (3) the Business, (4) any breach of any representation or arising out warranty of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything to the contrary contained Purchaser set forth in this AgreementSection 5.1, but subject to Section 9.95.2, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole 5.3, and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources Section 5.11 (collectively, the “Parent Related PartiesPurchaser Fundamental Representations”, and together with the Seller Fundamental Representations, the “Fundamental Representations”), (5) for all Damages suffered as a result any use by Purchaser or any of its Affiliates of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed Hospira Marks pursuant to Section 8.3(a)6.18, (6) and to Purchaser’s or any Damages, to the extent proven, resulting from of its Affiliates’ or arising out of such Intentional Breach Sublicensees’ (as reduced defined in the Intellectual Property License Agreement) exercise of any license or other rights set forth in the Intellectual Property License Agreement, (7) the research, development, manufacture, use, sale, offer for sale, import or export of any Company Medical Device Products (as defined in the Intellectual Property License Agreement) or Company Solutions Products (as defined in the Intellectual Property License Agreement) by or on behalf of Purchaser or any Funding Failure Termination Fee of its Affiliates or Regulatory Failure Termination Fee paid by Parent)Sublicenseesor or (8) Purchaser’s fraud.

Certain Limitations. The Person or Persons making a claim under this Article 9 is referred to as the "Indemnified Party," and the Person or Persons against which such claims are asserted under this Article 9 is referred to as the "Indemnifying Party." Notwithstanding anything to the contrary in this Agreement, the indemnification provided for in Sections 9.02 and 9.03 shall be subject to the following limitations: (a) Other than with respect to indemnification with respect to breaches of Seller Fundamental Representations and claims based on any Seller's intentional misconduct or fraud, in which case the following limitation shall not apply, Sellers shall not be liable to Buyer Indemnified Parties for indemnification under Section 9.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.02(a) exceeds $450,000 (the "Deductible"), in which event the Indemnifying Party shall only be required to pay or be liable for Losses in excess of the Deductible. Except for Seller Fundamental Representations and claims based on any Seller's intentional misconduct or fraud, Sellers shall not have any liability for an Indemnification Claim under Section 9.02(a) for any individual item where the Losses related to such claim (or series of claims arising from the same or substantially similar facts or circumstances) are less than $15,000, and once the aggregate amount of Losses for such claim (or series of claims arising from the same or substantially similar facts or circumstances) exceed $75,000 all Losses related thereto will be included in determining if the Deductible has been exceeded. (b) Subject to Section 9.05(a), the Buyer Indemnified Parties shall not be indemnified pursuant to Section 9.02(a) with respect to any Loss if the aggregate amount of all Losses for which the Buyer Indemnified Parties have received indemnification pursuant to Section 9.02(a) is equal to or has exceeded an amount equal to the Indemnity Escrow Amount; provided, however that, notwithstanding the foregoing in this Section 9.04(b), with respect to Losses incurred or sustained by, or imposed upon the Buyer Indemnified Parties based upon, arising out of, with respect to or by reason of breaches of Seller Fundamental Representations, the Buyer Indemnified Parties shall not be indemnified pursuant to Section 9.02(a) with respect to any Loss if the aggregate amount of all Losses for which the Buyer Indemnified Parties have received indemnification pursuant to Section 9.02(a) has exceeded the following amount: (i) the Purchase Price, less (ii) the aggregate amount, up to a maximum of $10,000,000, of the Company Indebtedness Payments. For the avoidance of doubt, in determining whether the aggregate amount of all Losses for which the Buyer Indemnified Parties have received indemnification pursuant to Section 9.02(a) of this Agreement has exceeded such amount, all amounts recovered by any Buyer Indemnified Party from the Indemnity Escrow Fund or under the Representations and Warranties Insurance Policy shall be counted as "Losses for which the Buyer Indemnified Parties have received indemnification pursuant to Section 9.02(a)." (c) Notwithstanding anything to the contrary contained in this Agreement: (1Sections 9.04(a) or 9.04(b), the limitations set forth in no event Sections 9.04(a) and 9.04(b) shall the Company be required not apply with respect to pay the Company Termination Fee on more than one occasion; (2) (x) in no event shall Parent be required to pay the Funding Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Funding Failure Termination Fee if the Regulatory Failure Termination Fee has already been paid; and (3) (x) in no event shall Parent be required to pay the Regulatory Failure Termination Fee on more than one occasion, and (y) in no event shall Parent be required to pay the Regulatory Failure Termination Fee if the Funding Failure Termination Fee has already been paid. (ii) Notwithstanding anything Losses recoverable from Sellers to the contrary contained in this Agreementextent that such Losses are caused by Sellers' Actual Fraud, but subject to the limitations in Section 9.9, Parent’s right 9.05. (d) Payments by an Indemnifying Party pursuant to receive payment from Sections 9.02 or 9.03 in respect of any Loss shall be limited to the Company amount of any Loss that remains after deducting therefrom any insurance proceeds (other than any proceeds of the Company Termination Fee pursuant to Representations and Warranties Insurance Policy, the use of which proceeds is addressed by Section 8.3(a9.05) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any indemnity, contribution or any other payment or reimbursement received by the Indemnified Party in respect of their respective formerany such matter or claim, current or future general or limited partnersincluding, stockholderswith respect to Buyer, members, managers, directors, officers, employees, agents, Affiliates or assignees those recovered by any Company after Closing (collectively, the “Company Related Parties”"Insurance Proceeds"). Any Losses incurred by any Indemnified Party with respect to any matter shall be calculated net of any Insurance Proceeds. If any Insurance Proceeds are received by any Indemnified Party after an Indemnifying Party has made a payment to such Indemnified Party pursuant to this Article 9, any such Indemnified Party shall promptly remit such Insurance Proceeds to the applicable Indemnifying Party. The Indemnified Party agrees to use its commercially reasonable efforts to pursue recovery of any Insurance Proceeds with respect to any matter that is the subject of a claim for indemnification prior to seeking indemnification under this Agreement. (e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable actions to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto. (f) No Indemnifying Party shall be liable under Section 9.04(a) or 9.04(b) for all Damages suffered as a result any Losses if and to the extent such Losses consist of the failure of the transactions contemplated amounts that are payable by this Agreement either Party pursuant to Section 2.04. In other words, there shall be consummated no double counting or for a breach double recovery, under Section 9.04(a) or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise9.04(b), and upon payment of such amountwith respect to amounts payable pursuant to Section 2.04. (g) Notwithstanding anything herein to the contrary, none of the Company Related Parties Sellers shall have not be liable to any further liability or obligation relating Buyer Indemnified Party with respect to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except thatany Losses, to the extent any termination of this Agreement resulted fromthat such Losses would not have arisen but for, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.2, Parent shall be entitled to the payment of the Company Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Company Termination Fee previously paid by the Company). (iii) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered have been increased as a result of, any voluntary act, omission or transaction carried out before the Closing by either Company at the written direction or request or with the written consent of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in equity, in contract, in tort or otherwise) (except that, to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Intentional Breach by Parent or Merger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, the Company shall be entitled to both the payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (to the extent owed pursuant to Section 8.3(a)) and to any Damages, to the extent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent)Buyer.