Common use of Indemnification by Acquiror Clause in Contracts

Indemnification by Acquiror. (a) From and after the Closing, and subject to the other provisions of this Article VIII, Acquiror shall indemnify, defend and hold harmless Seller and its Affiliates and their respective directors, officers, stockholders, partners, members, employees and agents and their heirs, successors and permitted assigns, each in their capacity as such (collectively, the “Seller Indemnified Persons”) against, and reimburse any Seller Indemnified Person for, all Losses that such Seller Indemnified Person may suffer or incur, or become subject to, directly or indirectly arising out of or resulting from, whether in respect of Third Party Claims, claims between any of the parties hereto, or otherwise: (i) any failure of any representation or warranty made by Acquiror in this Agreement (without giving effect to any materiality qualification (e.g., “material” or “materiality”), to be true and correct; (ii) any breach or failure by Acquiror to perform any of its covenants or agreements made in this Agreement, or any other instrument, certificate or document delivered by Acquiror or any of its Affiliates pursuant to this Agreement; (iii) any Third Party Claims in respect of Assumed Liabilities; and (iv) the ownership, operation or conduct of the Acquired Business from and after the Closing (to the extent that Seller is not obligated to indemnify the Acquiror Indemnified Persons therefor pursuant to Section 8.01(a)). (b) Notwithstanding any other provision to the contrary, (i) Acquiror shall not be required to indemnify, defend or hold harmless any Seller Indemnified Person for any Losses pursuant to Section 8.02(a)(i) (other than in respect of any breach of the representations and warranties contained in Sections 4.01 and 4.08 (the “Acquiror Fundamental Representations”)) (A) in respect of any single claim or series of related claims or claims arising out of the same type of underlying facts, events and circumstances unless such Losses are in respect of Qualifying Claims and (B) until the aggregate amount of the Seller Indemnified Persons’ Losses in respect of Qualifying Claims exceeds the Deductible Amount after which Acquiror shall only be obligated for such aggregate Losses of the Seller Indemnified Persons for Qualifying Claims in excess of the Deductible Amount; provided that the cumulative indemnification obligation of Acquiror (x) under Section 8.02(a)(i), other than in respect of breaches of any of the Acquiror Fundamental Representations, shall in no event exceed the Cap and (y) under Section 8.02(a), shall in no event exceed the Fundamental Cap.

Indemnification by Acquiror. (a) From and after Without limiting or otherwise affecting the Closingindemnity provisions of any Ancillary Agreement, and but subject to the other provisions of limitations set forth in this Article VIIIVII, Acquiror shall indemnify, defend and hold harmless Seller and its Affiliates and their respective directors, officers, stockholders, partners, members, employees and agents and their heirs, successors and permitted assigns, each in their capacity as such (collectively, the “Seller Indemnified Persons”) against, and reimburse any Seller Indemnified Person for, all Losses that such Seller Indemnified Person may suffer or incur, or become subject to, directly or indirectly arising out of or resulting from, whether in respect of Third Party Claims, claims between any of the parties hereto, or otherwise: (i) any failure of any representation or warranty made by Acquiror in this Agreement (without giving effect to any materiality qualification (e.g., “material” or “materiality”), to be true and correct; (ii) any breach or failure by Acquiror to perform any of its covenants or agreements made in this Agreement, or any other instrument, certificate or document delivered by Acquiror or any of its Affiliates pursuant to this Agreement; (iii) any Third Party Claims in respect of Assumed Liabilities; and (iv) the ownership, operation or conduct of the Acquired Business from and after the Closing Date, Acquiror will indemnify, defend (or, where applicable, pay the defense costs for) and hold harmless the Seller Indemnitees from and against any and all Losses that result from or arise out of, whether prior to or following the Closing, any of the following items (without duplication): (a) any Assumed Liability (notwithstanding any provision in any Transferred Contract or Shared Customer Contract to the effect that the assignor remains liable for its responsibilities under such Contract following any assignment or other transfer), including the failure of Acquiror, or any member of the Acquiror Group to pay, perform, fulfill, discharge and, to the extent applicable, comply with, in due course and in full, any Assumed Liability; provided that Acquiror’s obligation under this Section 7.01(a) is subject to any obligation of Seller to indemnify Acquiror for such Losses pursuant to Section 7.02(d); (b) subject to Section 7.07(a), any breach of or default under a Shared Customer Contract or Government Contract resulting from the failure of Acquiror or any member of Acquiror Group to perform, fulfill, discharge and, to the extent applicable, comply with, any Shared Customer Contract or Government Contract (including pursuant to Section 4.18(c) and Section 4.18(d)), in each case to the extent relating to the Business; provided, that Acquiror shall have no liability for any Losses under this Section 7.01(b) (i) to the extent resulting from any failure of Seller or any member of Seller Group to perform, fulfill, discharge and, to the extent applicable, comply with, in due course and in full, such Shared Customer Contract or Government Contract before the Closing or relating to any Excluded Business, (ii) to the extent resulting from any failure of Seller or any member of Seller Group to perform, fulfill, discharge and, to the extent applicable, comply with, in due course and in full, its obligations under the Transition Services Agreement, (iii) to the extent relating to or arising out of an allegation by the counterparty thereto that the transactions contemplated by this Agreement were in violation or breach of such Shared Customer Contract or Government Contract, (iv) to the extent such Losses arise out of a claim regarding the alleged failure by Acquiror to perform, fulfill, discharge or comply with such Shared Customer Contract or Government Contract during the six-month period immediately following the Closing, but only to the extent that Seller is the actions or omissions alleged to constitute such failure to comply with such Shared Customer Contract or Government Contract are consistent in all material respects with Seller’s practices before the Closing, or (v) to the extent that such Losses arise out of a claim regarding Acquiror’s alleged failure to perform, fulfill, discharge or comply with such Shared Customer Contract or Government Contract relating to a portion of such Shared Customer Contract or Government Contract that had not obligated been provided to indemnify Acquiror at the time of the alleged failure; provided, however, that this clause (v) will not apply in the event that (A) Acquiror was or should have been aware of the requirements under the applicable portion of the Shared Customer Contract or Government Contract notwithstanding the fact that such portion of the Shared Customer Contract or Government Contract was not provided to Acquiror and (B) Acquiror was not in compliance with the analogous requirements, if any, under the Colocation Agreement at such time, as if such requirements applied to the Shared Customer Contract or Government Contract; (c) any breach by Acquiror or any other member of the Acquiror Indemnified Group of any covenant to be performed by such Persons therefor pursuant to Section 8.01(a)).this Agreement; and (bd) Notwithstanding any other provision to the contrary, (i) Acquiror shall not be required to indemnify, defend or hold harmless any Seller Indemnified Person for any Losses pursuant to Section 8.02(a)(i) (other than in respect breach of any breach of the representations and warranties contained in Sections 4.01 and 4.08 Article III of this Agreement (it being agreed that for purposes of determining the “Acquiror Fundamental Representations”)) (A) in respect amount of any single claim Losses with respect thereto (but not for purposes of determining whether any breach of any representation or series of related claims or claims arising out of the same type of underlying facts, events and circumstances unless such Losses are in respect of Qualifying Claims and (B) until the aggregate amount of the Seller Indemnified Persons’ Losses in respect of Qualifying Claims exceeds the Deductible Amount after which Acquiror shall only be obligated for such aggregate Losses of the Seller Indemnified Persons for Qualifying Claims in excess of the Deductible Amount; provided that the cumulative indemnification obligation of Acquiror (x) under Section 8.02(a)(iwarranty has occurred), other than in respect of breaches of any of the representations and warranties that are qualified as to materiality or by reference to an Acquiror Fundamental Representations, MAE shall in no event exceed the Cap and (y) under Section 8.02(abe deemed not to be so qualified), shall in no event exceed the Fundamental Cap.

Indemnification by Acquiror. (a) From In consideration of each Admitted Partner’s execution and delivery of this Agreement and the other Transaction Documents and acquisition of the Units hereunder, and in addition to all of Acquiror’s other obligations under this Agreement and the other Transaction Documents, from and after the Closing, and subject to the other provisions of this Article VIII, Acquiror shall indemnifydefend, defend protect, indemnify and hold harmless Seller each Admitted Partner and its Affiliates and all of their respective directors, officers, stockholders, partners, parent companies, subsidiaries, Affiliates, members, officers, directors, employees and direct or indirect investors and any of the foregoing persons’ agents and their heirsor other representatives (including, successors and permitted assignswithout limitation, each those retained in their capacity as such (connection with the transactions contemplated by this Agreement, collectively, the “Seller Indemnified PersonsIndemnitees”) againstfrom and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and reimburse expenses in connection therewith (irrespective of whether any Seller such Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys’ fees and disbursements, but not including, with respect to any indirect, special, incidental, consequential or punitive damages of the Indemnitee (the “Indemnified Person forLiabilities”), all Losses that such Seller Indemnified Person may suffer or incurincurred by any Indemnitee as a result of, or become subject toarising out of, directly or indirectly arising relating to any untrue or alleged untrue statement of a material fact contained in the Registration Statement, any Prospectus or any form of Company prospectus or in any amendment or supplement thereto or in any Company preliminary prospectus, or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that Acquiror shall not be liable for any Loss to the extent, but only to the extent, that any such Loss arises out of or resulting from, whether in respect of Third Party Claims, claims between any of the parties hereto, or otherwise: is related to: (iA) any failure misrepresentation or breach of any representation or warranty made by Acquiror the Admitted Partner in this Agreement the Transaction Documents, (without giving effect to any materiality qualification (e.g., “material” or “materiality”), to be true and correct; (iiB) any breach of any covenant, agreement or failure obligation of the Admitted Partner contained in the Transaction Documents, or (C) any untrue statements, alleged untrue statements, omissions or alleged omissions based upon information regarding such Admitted Partner furnished in writing to Acquiror by Acquiror to perform any of its covenants such Admitted Partner for use in the Registration Statement or agreements made in this AgreementProspectus, or any other instrumentamendment or supplement thereto, certificate or document delivered by Acquiror or any of its Affiliates pursuant to this Agreement; (iii) any Third Party Claims in respect of Assumed Liabilities; and (iv) the ownership, operation or conduct of the Acquired Business from and after the Closing (to the extent that Seller is such information relates to such Admitted Partner or such Admitted Partner’s proposed method of distribution of Conversion Shares and was reviewed and not obligated objected to indemnify by such Admitted Partner in writing. To the extent that the foregoing undertaking by Acquiror Indemnified Persons therefor pursuant to Section 8.01(a)). (b) Notwithstanding may be unenforceable for any other provision reason, Acquiror shall make the maximum contribution to the contrary, (i) Acquiror shall not be required to indemnify, defend or hold harmless any Seller Indemnified Person for any Losses pursuant to Section 8.02(a)(i) (other than in respect payment and satisfaction of any breach each of the representations and warranties contained in Sections 4.01 and 4.08 (the “Acquiror Fundamental Representations”)) (A) in respect of any single claim or series of related claims or claims arising out of the same type of underlying facts, events and circumstances unless such Losses are in respect of Qualifying Claims and (B) until the aggregate amount of the Seller Indemnified Persons’ Losses in respect of Qualifying Claims exceeds the Deductible Amount after Liabilities which Acquiror shall only be obligated for such aggregate Losses of the Seller Indemnified Persons for Qualifying Claims in excess of the Deductible Amount; provided that the cumulative indemnification obligation of Acquiror (x) is permissible under Section 8.02(a)(i), other than in respect of breaches of any of the Acquiror Fundamental Representations, shall in no event exceed the Cap and (y) under Section 8.02(a), shall in no event exceed the Fundamental Capapplicable law.

Indemnification by Acquiror. (a) From and after the Closing, and subject to the other provisions of this Article VIIIAcquiror will indemnify Seller, Acquiror shall indemnify, defend and hold harmless Seller and its Affiliates and their respective directors, officers, stockholders, partners, members, employees officers and agents and their heirs, successors and permitted assigns, each in their capacity as such directors (collectively, the “Seller Indemnified PersonsParties”) against, and reimburse against any Seller Indemnified Person for, all Losses that such Seller Indemnified Person may suffer or incur, or become subject to, directly or indirectly arising out of or resulting from, whether in respect of Third Party Claims, claims between suffered by any of the parties heretothem as a result of any (a) breach of any representation or warranty set forth in Article IV (determined without regard to Section 4.9(c) in its entirety and without giving effect to any “Acquiror Material Adverse Effect”, “material” or otherwise: other materiality qualification, limitation or exception contained therein other than those in Section 4.7, Section 4.8(b) and Section 4.12), (ib) any failure of any representation or warranty set forth in Article IV to be true and correct as of and as though made by Acquiror on the Closing Date (other than any representation and warranty that is expressly made as of a specified date) (determined without regard to Section 4.9(c) in this Agreement (its entirety and without giving effect to any materiality qualification (e.g.“Acquiror Material Adverse Effect”, “material” or other materiality qualification, limitation or exception contained therein other than those in Section 4.7, Section 4.8(b) and Section 4.12) (each such breach or failure under clause (a) or (b), an “materialityAcquiror Warranty Breach”), (c) breach of covenant or agreement of Acquiror pursuant to this Agreement or (d) in the event the Acquiror Restructuring is not completed prior the Closing Date in accordance with Section 5.14, (i) the excess of (A) the Tax Liability of Seller with respect to its sale of the Membership Interests pursuant to this Agreement over (B) the Tax Liability the Seller would have had if the Acquiror Restructuring had been completed prior to the Closing Date, (ii) the quotient of (A) any amount distributed to Seller in respect of its Equity Consideration divided by (B) one minus the combined federal and state statutory marginal income tax rate imposed with respect to the earnings of the issuer of the Equity Consideration and its subsidiaries and (iii) in the event Seller subsequently disposes of the Equity Consideration, the excess of (A) the proceeds Seller would have received in such disposition had the Acquiror Restructuring occurred prior to the Closing Date over (B) the proceeds actually received by Seller in such disposition. Seller Indemnified Parties may assert any claim for indemnification against Acquiror in respect of any representation, warranty or covenant only until the last date on which such representation, warranty or covenant survives as provided in Section 7.1. (b) Acquiror’s obligation to indemnify the Seller Indemnified Parties as provided in this Section 7.3 shall be true subject to the following limitations: (i) Acquiror shall not be obligated (A) to indemnify against any Losses resulting from any individual Acquiror Warranty Breach of the Acquiror Business Representations that does not exceed the De Minimis Amount or (B) to indemnify against any Losses for individual Acquiror Warranty Breaches of the Acquiror Business Representations in excess of the De Minimis Amount unless and correctuntil the aggregate amount of Losses resulting from such Acquiror Warranty Breaches of the Acquiror Business Representations exceeds $525,000 (the “Acquiror Basket”), and then shall be liable only to the extent the aggregate amount of Losses resulting from such Acquiror Warranty Breaches of the Acquiror Business Representations exceeds the Acquiror Basket; (ii) Acquiror shall not be obligated to indemnify against any breach or failure by Losses resulting from Acquiror Warranty Breaches of the Acquiror Business Representations in excess of the De Minimis Amount to perform any the extent the aggregate amount of its covenants or agreements made in this Agreement, or any other instrument, certificate or document delivered by Losses resulting from such Acquiror or any Warranty Breaches of its Affiliates pursuant to this Agreementthe Acquiror Business Representations exceeds $3,500,000; (iii) Seller Indemnified Parties may not assert any Third Party Claims claim for indemnification against Acquiror in respect of Assumed Liabilitiesany representation, warranty or covenant after the date on which the survival period for such representation, warranty or covenant ends as provided in Section 7.1; and (iv) the ownership, operation or conduct Seller Indemnified Parties shall not be entitled to indemnification under this Section 7.3 for any Losses that are Excluded Damages (except for Excluded Damages payable to third parties in respect of the Acquired Business from and after the Closing (to the extent that Seller is not obligated to indemnify the Acquiror Indemnified Persons therefor pursuant to Section 8.01(a)third party claims). (bc) Notwithstanding any other provision anything in this Section 7.3 to the contrary, (i) Acquiror shall not be required to indemnify, defend or hold harmless any Seller Indemnified Person for any Losses pursuant to Section 8.02(a)(i) (other than in respect of any breach of the representations and warranties contained in Sections 4.01 and 4.08 (the “Acquiror Fundamental Representations”)) (A) in respect of any single claim or series of related claims or claims arising out of the same type of underlying facts, events and circumstances unless such Losses are in respect of Qualifying Claims and (B) until the maximum aggregate amount of the Seller Indemnified Persons’ Losses in respect of Qualifying Claims exceeds the Deductible Amount after which Acquiror shall only be obligated for such aggregate Losses of the Seller Indemnified Persons for Qualifying Claims in excess of the Deductible Amount; provided that the cumulative indemnification obligation of Acquiror (x) under Section 8.02(a)(i), other than in respect of breaches of any Indemnified Parties may be entitled to recover for Warranty Breaches of the Acquiror Fundamental Representations, Business Representations shall in no event exceed the Cap and (y) under Section 8.02(a), shall in no event exceed the Fundamental Capbe $35,000,000.

Indemnification by Acquiror. (a) From and after the Closing, and subject to the other provisions of this Article VIII, Acquiror shall indemnify, defend and hold harmless Seller the Company and each of its Affiliates (each, a "Company Indemnitee") from and their respective directors, officers, stockholders, partners, members, employees and agents and their heirs, successors and permitted assigns, each in their capacity as such (collectively, the “Seller Indemnified Persons”) against, and shall reimburse any Seller Indemnified Person each Company Indemnitee for, all Losses that asserted against, imposed upon or incurred by, such Seller Indemnified Person may suffer Company Indemnitee resulting, in whole or incurin part, or become subject to, directly or indirectly arising out of or resulting from, whether in respect of Third Party Claims, claims between any of the parties hereto, or otherwise: from (i) any failure misrepresentation or breach of any representation warranty or warranty made covenant by Acquiror or any Affiliate thereof other than an Exempt Act, but only to the extent such misrepresentation, warranty or covenant is related to Taxes or contained in any section hereof relating to Taxes, in each case, contained in this Agreement (or in any certificate, document, list or schedule delivered by Acquiror to the Company or Dewex Xxxxxxxxxx xxxeunder relating to Taxes, including, without giving effect limitation, all provisions of the representation letters referred to any materiality qualification (e.g., “material” or “materiality”in Section 6.2(c) and Section 8.2(e) hereof), to be true and correct; (ii) any breach or failure by Acquiror to perform any of its covenants or agreements made in this AgreementCommissions, or any other instrument, certificate or document delivered by Acquiror or any of its Affiliates pursuant to this Agreement; (iii) any Third Party Claims in respect unpaid Taxes of Assumed Liabilities; and Media or its Subsidiaries for any Taxable Period, or portion thereof, beginning after the Closing Date and (iv) all Taxes attributable to any extraordinary (i.e., non-ordinary course of business) transaction within the ownershipcontrol of Acquiror or any Affiliate thereof occurring on the Closing Date after the Closing; provided, operation or conduct however, that the liability of the Acquired Business from Company and after Acquiror (and the Closing Affiliates of each of the Company and Acquiror) with respect to any Tax described in (i) shall be equitably apportioned in the event and to the extent that Seller is not obligated to indemnify the Acquiror Indemnified Persons therefor pursuant to Section 8.01(a)). (b) Notwithstanding any other provision to the contrary, Tax described in (i) Acquiror shall not be required is also attributable, in whole or in part, to indemnify, defend any misrepresentation or hold harmless any Seller Indemnified Person for any Losses pursuant to Section 8.02(a)(i) (other than in respect of any breach of warranty or covenant by the representations and warranties Company or any Affiliate thereof, but only to the extent such misrepresentation, warranty or covenant is related to Taxes or is contained in Sections 4.01 and 4.08 (any section hereof relating to Taxes; provided, further, that there shall be no such apportionment of liability to the “Acquiror Fundamental Representations”)) (A) in respect of any single claim or series of related claims or claims arising out of the same type of underlying facts, events and circumstances unless such Losses are in respect of Qualifying Claims and (B) until the aggregate amount of the Seller Indemnified Persons’ Losses in respect of Qualifying Claims exceeds the Deductible Amount after which Acquiror shall only be obligated for such aggregate Losses of the Seller Indemnified Persons for Qualifying Claims in excess of the Deductible Amount; provided extent that the cumulative indemnification obligation Loss would not have been suffered but for the misrepresentation or breach of warranty, covenant or promise by Acquiror (x) or its Affiliates and was not attributable in whole or in part to any misrepresentation or breach of warranty or covenant by the Company or its Affiliates related to Taxes or contained in any Section hereof related to Taxes. Any payments to any Company Indemnitee under Section 8.02(a)(i), other than in respect of breaches of any of the Acquiror Fundamental Representations, shall in no event exceed the Cap and (y) under Section 8.02(a), shall in no event exceed the Fundamental Cap.7.9 from Acquiror

Indemnification by Acquiror. (a) From and after the Closing, and subject to the other provisions of this Article VIII9, Acquiror shall indemnify, defend indemnify and hold harmless Seller and Member, its Affiliates (including Parent) and each of their respective directors, officers, stockholders, partners, membersdirectors, employees and agents and their heirs, successors and permitted assigns, each in their capacity as such (collectively, the “Seller Indemnified PersonsMember Indemnitees”) from and against, and pay or reimburse any Seller Indemnified Person the Parent Indemnitees for, any and all Losses that such Seller Indemnified Person may suffer or incurcaused by, or become subject to, directly or indirectly arising out of of, resulting from or resulting from, whether in respect of Third Party Claims, claims between any of the parties hereto, or otherwise: relating to (i) any failure inaccuracy in or breach of any representation or warranty made by Acquiror or Merger Sub in this Agreement (without giving effect Article 4) or any inaccuracy in the Officers Certificate delivered pursuant to any materiality qualification (e.g., “material” or “materiality”Section 6.3(d), to be true and correct; (ii) any breach or failure nonperformance by Acquiror to perform or Merger Sub of any of its covenants or agreements made in this Agreement, contained herein which are to be performed at or any other instrument, certificate or document delivered by Acquiror or any of its Affiliates pursuant prior to this Agreement; the Closing and (iii) any Third Party Claims in respect of Assumed Liabilities; and (iv) the ownership, operation or conduct failure of the Acquired Business from and Company after the Closing Merger to fulfill any of the Business Obligations (to other than Business Obligations arising under Affiliate Contracts including this Agreement, the extent that Seller is not obligated to indemnify Ancillary Agreements and Contracts set forth on Section 5.11 of the Acquiror Indemnified Persons therefor pursuant to Section 8.01(a)Member Disclosure Schedules). (b) Notwithstanding any other provision anything to the contrarycontrary contained in this Section 9.3, (i) Acquiror Parent Indemnitees shall not be required entitled to indemnifyindemnification, defend or hold harmless any Seller Indemnified Person to make a claim for any Losses pursuant to indemnity, under Section 8.02(a)(i9.3(a)(i) (other than in with respect of any breach of the representations and warranties contained in Sections 4.01 and 4.08 (the “Acquiror Fundamental Representations”)to fraud) (Ai) in respect of any single claim or series of related claims or claims arising out of the same type of underlying facts, events unless and circumstances unless such Losses are in respect of Qualifying Claims and (B) until the aggregate amount of Losses that would otherwise be payable hereunder, without taking account of any individual claim or aggregated claims arising out of substantially the Seller Indemnified Persons’ Losses same events or circumstances that does not or do not in respect of Qualifying Claims exceeds any instance exceed the Deductible Amount after De Minimis amount, exceeds, on a cumulative basis, an amount equal to the Indemnification Deductible, in which case Acquiror shall only be obligated provide indemnification for the amount of such aggregate Losses of the Seller Indemnified Persons for Qualifying Claims in excess of the Deductible Indemnification Deductible, subject to the Cap; or (ii) for aggregate Losses for which the Acquiror would otherwise be liable in excess of the Cap; provided, however, that none of the Indemnification Deductible, the De Minimis Amount; provided that , nor the cumulative Cap shall apply with respect to any claim by a Member Indemnitee for indemnification obligation of Acquiror (x) under Section 8.02(a)(i), other than for any inaccuracy in respect of breaches or breach of any Fundamental Representation of Acquiror. (c) Any payment to Member under Article 8 or this Section 9.3 shall be paid in the Acquiror Fundamental Representations, shall in no event exceed the Cap and (y) under same manner as an Excess Amount is paid pursuant to Section 8.02(a2.7(b)(vi)(A), shall in no event exceed the Fundamental Cap.

Indemnification by Acquiror. (ai) From and after the Closing, Closing and subject to the other provisions terms and conditions of this Article VIIISection 7.11, Acquiror shall hereby agrees to indemnify, defend and hold harmless Seller the Sellers and its Affiliates and each of their respective directors, officers, stockholders, partnersmanagers, members, employees employees, agents, consultants, affiliates and agents and their heirscontrolling persons (hereinafter, successors and permitted assigns, each in their capacity as such (collectively, the “"Seller Indemnified Persons”Parties") from and against all Losses (INCLUDING, WITHOUT LIMITATION, LOSSES RESULTING FROM THE SOLE, CONCURRENT OR COMPARATIVE NEGLIGENCE, OR STRICT LIABILITY, OF ANY OF THE SELLER INDEMNIFIED PARTIES) asserted against, and reimburse imposed upon or incurred by any Seller Indemnified Person for, all Losses that such Seller Indemnified Person may suffer or incur, or become subject toParty, directly or indirectly indirectly, by reason of, arising out of of, or resulting from, whether in respect of Third Party Claims, claims between any of from (A) the parties hereto, inaccuracy or otherwise: (i) any failure breach of any representation or warranty of Acquiror contained in or made by pursuant to this Agreement; (B) the breach of any covenant or agreement of Acquiror contained in or made pursuant to this Agreement Agreement; (without giving effect C) except to the extent that any materiality qualification Acquiror Indemnified Party is entitled to the protections or benefits of Section 7.11(a) with respect to a particular matter, the ownership, operations, business or conduct of the Company Assets following the Closing or (e.g.D) except to the extent that any Acquiror Indemnified Party is entitled to the protections or benefits of Section 7.11(a) with respect to a particular matter, “material” or “materiality”), to be true and correct;the Assumed Liabilities. (ii) any breach or failure by Acquiror to perform any of its covenants or agreements made in this Agreement, or any other instrument, certificate or document delivered by Acquiror or any of its Affiliates pursuant to this Agreement; (iii) any Third Party Claims in respect of Assumed Liabilities; and (iv) the ownership, operation or conduct of the Acquired Business from From and after the Closing and subject to the terms and conditions of this Section 7.11, Acquiror hereby agrees to indemnify, defend and hold harmless each present or former officer, manager and member of the Company from and against all Losses (INCLUDING WITHOUT LIMITATION LOSSES RESULTING FROM THE SOLE, CONCURRENT OR COMPARATIVE NEGLIGENCE, OR STRICT LIABILITY, OF ANY SUCH PERSON) asserted against, imposed upon or incurred by any such person in their capacity as a present or former officer, manager or member of the Company, directly or indirectly, by reason of, arising out of, or resulting from the Assumed Liabilities, provided that such Losses shall be included in the Losses for which any of the Acquiror Indemnified Parties are entitled to indemnification by the Company under Section 7.11(a) to the extent that Seller is not obligated to indemnify the Acquiror Indemnified Persons therefor pursuant to Section 8.01(a)). (b) Notwithstanding any other provision to the contrary, (i) Acquiror shall not be required to indemnify, defend or hold harmless any Seller Indemnified Person for any Losses pursuant to Section 8.02(a)(i) (other than in respect of any breach of the representations and warranties contained in Sections 4.01 and 4.08 (the “Acquiror Fundamental Representations”)) (A) in respect of any single claim or series of related claims or claims arising out of the same type of underlying facts, events and circumstances unless such Losses are in respect of Qualifying Claims and (B) until the aggregate amount of the Seller Indemnified Persons’ Losses in respect of Qualifying Claims exceeds the Deductible Amount after which Acquiror shall only be obligated for such aggregate Losses of the Seller Indemnified Persons for Qualifying Claims in excess of the Deductible Amount; provided that the cumulative indemnification obligation of Acquiror (x) under Section 8.02(a)(i), other than in respect of breaches of any of the Acquiror Fundamental Representations, shall in no event exceed the Cap and (y) under Section 8.02(a), shall in no event exceed the Fundamental CapIndemnified Parties would have been entitled to such indemnification if such Losses had been suffered directly by any such Acquiror Indemnified Party.

Indemnification by Acquiror. (a) From and after the Closing, and subject to the other provisions of this Article VIII, Acquiror shall indemnify, defend will indemnify and hold harmless Seller and its Affiliates and their respective directors, officers, stockholders, partners, members, employees and agents and their heirs, successors and permitted assigns, each in their capacity as such (collectively, the “Seller Indemnified Persons”) Parties from and against, and reimburse any Seller Indemnified each such Person for, all any Losses that such Seller Indemnified Person may suffer with respect to the following items: (i) Acquiror's Post-2003 Taxes; (ii) Acquiror's 2003 Taxes, if any, including any Taxes imposed in respect of any transactions not in the ordinary course of business occurring after the Closing (other than any transaction specifically required by the Purchase Agreement or incurthis Agreement to occur on or prior to the Closing Date, or become subject toany transaction that is carried out at the request of Seller (or any affiliate thereof other than the Company)); (iii) Losses resulting from, directly or indirectly arising out of or resulting from, whether in respect of Third Party Claims, claims between any of based upon: (A) the parties hereto, inaccuracy or otherwise: (i) any failure breach of any representation or warranty made by Acquiror in this Agreement (without giving effect including any representations or warranties made pursuant to Section 3 or in any materiality qualification (e.g., “material” or “materiality”provision of the Purchase Agreement included by reference in this Agreement pursuant to Section 19), to be true and correct; or (iiB) any breach or failure by Acquiror or any of its Affiliates to perform any of its covenants or agreements under this Agreement (including any covenant or agreements made pursuant to Section 7 or Section 13 or in any provision of the Purchase Agreement included by reference in this Agreement, or any other instrument, certificate or document delivered by Acquiror or any of its Affiliates Agreement pursuant to this Agreement; (iii) any Third Party Claims in respect of Assumed LiabilitiesSection 19); and and (iv) the ownership, operation or conduct any Transfer Taxes allocated to Acquiror under Section 15 of the Acquired Business from and after the Closing (to the extent that Seller is not obligated to indemnify the Acquiror Indemnified Persons therefor pursuant to Section 8.01(a))this Agreement. (b) Notwithstanding any other provision anything in this Agreement to the contrary, (i) Acquiror shall will not be required to indemnify, defend or hold harmless any Seller Indemnified Person for Party against, or reimburse any Seller Indemnified Party for, any Losses pursuant described in Section 6(a) of this Agreement (i) with respect to Section 8.02(a)(i) (other than in respect of any breach of the representations and warranties contained in Sections 4.01 and 4.08 (the “Acquiror Fundamental Representations”)) (A) in respect of any single individual claim or series of related claims or claims arising out of the same type of underlying facts, events and circumstances unless such Losses are claim for a Loss involves a Loss in respect excess of Qualifying Claims $10,000 (nor shall such item be applied to or considered for purposes of calculating the aggregate amount referred to in subparagraph (ii) of this Section 6(b)), and (Bii) until the aggregate amount of Seller Indemnified Parties' Losses described in Section 6(a) (after giving effect to subparagraph (i) of this Section 6(b)) exceeds $50,000, after which Acquiror will be obligated for all Losses described in Section 6(a) in excess of $50,000; but only if such Losses constitute Losses for which Acquiror is required to indemnify the Seller Indemnified Persons’ Losses in respect Parties after giving effect to subparagraph (i) of Qualifying Claims exceeds the Deductible Amount after which Acquiror shall only be obligated for such aggregate Losses of the Seller Indemnified Persons for Qualifying Claims in excess of the Deductible Amount; provided that the cumulative indemnification obligation of Acquiror (x) under this Section 8.02(a)(i6(b), other than in respect of breaches of any of the Acquiror Fundamental Representations, shall in no event exceed the Cap and (y) under Section 8.02(a), shall in no event exceed the Fundamental Cap.