Common use of Indemnification by Contributor Clause in Contracts

Indemnification by Contributor. Each Contributor who ------------------------------ participates in an offering or sale of Registrable Shares (and each permitted assignee of such a Contributor, on a several basis) agrees to indemnify and hold harmless the Company, each person (if any) who participates as an underwriter in any offering and sale of Registrable Shares and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, as follows: (a) against any and all Loss and expense whatsoever, as incurred, arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement (or any amendment thereto) pursuant to which the Registrable Shares were registered under the Securities Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (or any amendment or supplement thereto), including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (b) against any and all Loss and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of each such Contributor (which consent will not be unreasonably withheld); and (c) against any and all expense whatsoever, as incurred (including reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any Loss or any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not a party, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (a) or (b) above; provided, however, that the indemnity provided pursuant to this Section 2.1 -------- ------- shall only apply with respect to any Loss or expense to the extent arising out of (i) any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by each such Contributor expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto), or (ii) each such Contributor's failure to deliver an amended or supplemental Prospectus if such Loss or expense would not have arisen had such delivery occurred. Notwithstanding the provisions of this Section 2.2, no Contributor or any permitted assignee shall be required to indemnify the Company, its indemnified persons hereunder with respect to any amount in excess of the amount of the total proceeds to each such Contributor or such permitted assignee, as the case may be, from sales of the Registrable Shares of such Contributor under the Registration Statement with respect to such offering, and no Contributor shall be liable under this Section 2.2 for any statements or omissions of any other Contributor.

Indemnification by Contributor. Each (a) Contributor who ------------------------------ participates in an offering or sale of Registrable Shares (and each permitted assignee of such a Contributor, on a several basisthe “Indemnifying Party”) agrees to the fullest extent permitted by applicable law, to indemnify and hold harmless the Company, each person Contributee (if any) who participates as an underwriter in any offering and sale of Registrable Shares and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, its officers, partners, agentsdirectors, employees and affiliatesagents) (each, as follows: (aan “Indemnitee”) harmless against all losses, liabilities, obligations, damages, penalties, fines, forfeitures, legal fees, and related costs and judgments and other costs, disbursements, fees and reasonable expenses imposed upon or incurred by or asserted against any Indemnitee (collectively, “Liabilities,” and all Loss and expense whatsoever, as incurred, each a “Liability”) or any Action arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement (or any amendment thereto) pursuant to which the Registrable Shares were registered under the Securities Act, including all documents incorporated therein by referencerelating to, or resulting from (i) the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make breach by the statements therein not misleading or arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (or any amendment or supplement thereto), including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (b) against any and all Loss and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement Indemnifying Party of any litigationrepresentation, warranty or investigation covenant under this Agreement, (ii) the Indemnifying Party’s negligence, bad faith or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of each such Contributor (which consent will not be unreasonably withheld); and (c) against any and all expense whatsoever, as incurred (including reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any Loss or any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not a party, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (a) willful misconduct or (biii) abovewith respect to any Contributed Asset, any Pre-Closing Date Liability payable by Contributee; provided, however, that there shall be no indemnification under this Section 4.04(a) for a breach of any representation, warranty or covenant relating to any Contributed Asset set forth in Section 4.03 hereof so long as Contributor has complied with Section 4.04(b). (b) Notwithstanding Section 4.04(a), in the indemnity provided event of a breach of any representation, warranty or covenant set forth in Section 4.03 hereof relating to any Contributed Asset as of the date upon which such representation or warranty is made, the Indemnifying Party shall promptly notify the Contributee, who shall promptly notify the Administrative Agent, and pay, to the fullest extent permitted by applicable law, to Contributee an amount equal to the fair market value of such Contributed Asset as of the date of its contribution. Upon payment by the Indemnifying Party of such amount to Contributee with respect to any asset in accordance with the preceding sentence and amounts owing at such time, if any, under Section 4.04(a), Contributee shall, to the extent permitted by applicable law, assign or cause to be assigned such asset to Contributor and Contributor shall accept the assignment of such asset. Contributee shall, in such event, make or cause to be made all assignments of such asset necessary to effect such assignment. Any such assignment made or caused to be made by Contributee shall be without recourse to, or representation or warranty by, Contributee, except that the ownership of such asset shall be conveyed free and clear of any Liens created by the Credit Agreement. All costs and expenses associated with the foregoing shall be paid by the Indemnifying Party on demand or at the direction of Contributee. Any funds received by Contributee pursuant to this Section 2.1 -------- ------- 4.04(b) shall only apply be applied in accordance with the Credit Agreement. Notwithstanding the foregoing, in no event shall the Indemnifying Party’s liability hereunder exceed the sum of (i) the value attributed to the Contributed Assets by the Borrower at the time of contribution and (ii) all costs and expenses paid by the Indemnifying Party. (c) Any Indemnitee that proposes to assert the right to be indemnified under this Section 4.04 will promptly, after receipt of notice of the commencement of any Action against such party in respect of which a claim is to be made against the Indemnifying Party under such sections, notify the Indemnifying Party of the commencement of such action, suit or proceeding, enclosing a copy of all papers served. In the event that any action, suit or proceeding shall be brought against any Indemnitee, such Indemnitee shall notify the Indemnifying Party of the commencement thereof and the Indemnifying Party shall be entitled to participate in, and to the extent that it shall wish, to assume the defense thereof, with its counsel reasonably satisfactory to such Indemnitee; provided that the Indemnifying Party shall not enter into any settlement with respect to any Loss Action unless such settlement includes an unconditional release of such Indemnitee from all liability on claims that are the subject matter of such settlement and fully discharges with prejudice against the plaintiff the claim or expense to the extent arising out of (i) any untrue action against such Indemnitee and does not include a statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by each such Contributor expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto)as to, or (ii) each such Contributor's an admission of, fault, culpability or failure to deliver an amended act by or supplemental Prospectus if on behalf of such Loss Indemnitee; and provided, further, that the Indemnitee shall have the right to employ its own counsel in any such action the defense of which is assumed by the Indemnifying Party in accordance with this Section 4.04. No Indemnitee shall settle or expense would compromise any claim covered pursuant to this Section 4.04 without the prior written consent of the Indemnifying Party, which shall not have arisen had such delivery occurredbe unreasonably withheld or delayed. Notwithstanding the The provisions of this Section 2.2, no Contributor 4.4 shall survive the termination of this Agreement or any permitted assignee shall be required to indemnify the Company, its indemnified persons hereunder with respect to any amount in excess of the amount of the total proceeds to each such Contributor earlier resignation or such permitted assignee, as the case may be, from sales of the Registrable Shares of such Contributor under the Registration Statement with respect to such offering, and no Contributor shall be liable under this Section 2.2 for any statements or omissions removal of any other Contributorparty hereto.

Indemnification by Contributor. Each Subject to Section 5(ii), the Contributor who ------------------------------ participates in an offering or sale of Registrable Shares (hereby indemnifies and each permitted assignee of such a Contributor, on a several basis) agrees agree to indemnify defend and hold harmless FWRLP and its partners and subsidiaries and any officer, director, employee, agent of any of them, and their respective successors and assigns from and against any and all claims, expenses, costs, damages, losses and liabilities (including reasonable attorneys' fees) which may at any time be asserted against or suffered by any indemnitee, the CompanyProperty, each person or any part thereof, whether before or after Closing, as a result of, on account of or arising from (if anya) who participates as an underwriter any breach of any covenant, representation, warranty or agreement on the part of the Contributor made herein or in any offering instrument or document delivered pursuant to this Agreement, and/or (b) any claim relating to or arising out of any contract, agreement or other obligation to which the Company was a party or any claim relating to any encumbrance or other occurrence prior to Closing, (exclusive of the documents evidencing the FNBM Loan) provided (and solely to the extent) such claim is derived from an occurrence or breach which took place prior to Closing, and solely to the extent such claim is not within the scope of any insurance and/or indemnity agreement in favor of FWRLP (and FWRLP will look to any such insurance and /or indemnity agreement(s) in connection with any such insured or indemnified claims to the extent actually covered by such insurance and/or indemnity agreement). Notwithstanding any other provision of this Agreement to the contrary, the liability of the Contributor, or its Members, to FWRLP and its successors and assigns with respect to or arising out of this Agreement, any indemnities set forth herein, any documents delivered pursuant hereto, and/or any of the transactions contemplated herein, shall be limited to the right, title and interest of Contributor or the Members in the Units issued to the Contributor (or its Members) pursuant to Section 2 of this Agreement, and such liability shall be satisfied solely out of the sale or redemption of Registrable such Units by FWRLP in levy upon or set off against the right, title and interest of the Contributor (or its Members) therein, and in any distributions payable pursuant thereto, except and solely to the extent the Units so issued have been exchanged by the Contributor (or its Members) for REIT Shares or sold or otherwise transferred by the Contributor (or its Members), in which event such liability may be satisfied out of any assets of the Contributor or the Members, subject to a maximum limitation of liability equal to the market value of the Units (i.e., the number of Units multiplied by the closing price on the NYSE of the respective Common Stock or Preferred Stock into which the Units are exchangeable) issued to such Contributor (or its Members) as of Closing. Any indemnification of FWRLP by the Contributor or its Members shall survive Closing for a period of three (3) years (other than indemnification for breach of the securities representations set forth in Section 5(i)(r) hereof which shall survive Closing without limitation and each personother than indemnification for breach of other representations or warranties pursuant to clause (a) of the first sentence of this Section 14(a) which are subject to a limited survival period under this Agreement (Section 5 (ii) (f)), in which case the survival of such indemnification shall be limited to the survival period, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, as follows: (a) against any and all Loss and expense whatsoever, as incurred, arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement (or any amendment thereto) pursuant to which the Registrable Shares were registered under the Securities Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (or any amendment or supplement thereto), including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (b) against any and all Loss and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of each such Contributor (which consent will not be unreasonably withheld); and (c) against any and all expense whatsoever, as incurred (including reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any Loss or any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not a party, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (a) or (b) above; provided, however, that the indemnity provided pursuant to this Section 2.1 -------- ------- shall only apply with respect to any Loss or expense to the extent arising out of (i) any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by each such Contributor expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto), or (ii) each such Contributor's failure to deliver an amended or supplemental Prospectus if such Loss or expense would not have arisen had such delivery occurred. Notwithstanding the provisions of this Section 2.2, no Contributor or any permitted assignee shall be required to indemnify the Company, its indemnified persons hereunder with respect to any amount in excess of the amount of the total proceeds to each such Contributor or such permitted assignee, as the case may be, from sales of the Registrable Shares of such Contributor under the Registration Statement with respect to such offering, and no Contributor shall be liable under this Section 2.2 for any statements representation or omissions of any other Contributorwarranty).

Indemnification by Contributor. Each Contributor who ------------------------------ participates in an offering or sale of Registrable Shares (and each permitted assignee of such a Contributor, on a several basis) agrees Any limitation contained herein to indemnify and hold harmless the Company, each person (if any) who participates as an underwriter in any offering and sale of Registrable Shares and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, as followscontrary notwithstanding: (a) From and after the Closing, but subject to the terms of Section 8.2 above and Section 8.3(b) below, Contributor shall indemnify and hold NM, its Related Parties and its affiliates and their respective partners, members, policyowners, officers, trustees, directors, employees, representatives and agents of each of the foregoing harmless from and against any and all Loss costs, fees, expenses, damages, deficiencies, interest and expense whatsoeverpenalties (including, as incurredwithout limitation, reasonable attorneys’ fees and disbursements) suffered or incurred by any such indemnified party in connection with any and all claims, losses, damages, liabilities, costs and expenses (collectively, “Losses”), arising out of, or in any way relating to breach of any representation or based upon any untrue statement or alleged untrue statement warranty of a material fact Contributor contained in this Agreement and discovered by NM during the Survival Period. The foregoing indemnity shall be deemed to include only actual Losses. In the event NM becomes aware of any Registration Statement (or any amendment thereto) pursuant to which the Registrable Shares were registered under the Securities Act, including all documents incorporated therein by reference, such Losses or the omission likelihood of such Losses, NM shall give prompt written notice to Contributor, then Contributor shall have the right and opportunity to defend against such Losses with counsel selected by Contributor and acceptable to NM and the Company. In no event shall Contributor be liable for any Losses relating to any breach of any representation or alleged omission therefrom warranty contained herein, if NM had Knowledge, of a material fact required such breach prior to be stated therein or necessary Closing and NM elects to make proceed to Closing notwithstanding the statements therein not misleading or arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (or any amendment or supplement thereto), including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;same. (b) against any and all Loss and expense whatsoever, as incurred, In addition to the extent limitations set forth in Sections 8.2 and 8.3(a), NM acknowledges and agrees that (i) Contributor has no liability to NM or the Company for any Losses unless claims of Losses exceed, individually or collectively in the aggregate for each Property, the sum of Ten Thousand and No/100ths Dollars ($10,000.00) (the “Deductible”), in which event the amount of such valid claims for each Property in excess of the Deductible for each Property shall be actionable, up to the liability cap set forth in the following clause, (ii) recovery against Contributor for any Losses for each Property shall be limited in all events for each Property to the sum of One Million and No/100ths Dollars ($1,000,000.00), in the aggregate amount paid in settlement of any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with per Property (the written consent of each such Contributor (which consent will not be unreasonably withheld“Cap”); and. (c) against any and all expense whatsoever, as incurred (including reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any Loss or any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not a party, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (a) or (b) above; provided, however, that the indemnity provided pursuant to this This Section 2.1 -------- ------- 8.3 shall only apply with respect to any Loss or expense to the extent arising out of (i) any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by each such Contributor expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto), or (ii) each such Contributor's failure to deliver an amended or supplemental Prospectus if such Loss or expense would not have arisen had such delivery occurred. Notwithstanding the provisions of this Section 2.2, no Contributor or any permitted assignee shall be required to indemnify the Company, its indemnified persons hereunder with respect to any amount in excess of the amount of the total proceeds to each such Contributor or such permitted assignee, as the case may be, from sales of the Registrable Shares of such Contributor under the Registration Statement with respect to such offering, and no Contributor shall be liable under this Section 2.2 for any statements or omissions of any other Contributorsurvive Closing.

Indemnification by Contributor. Each (a) Contributor who ------------------------------ participates in an offering or sale of Registrable Shares (and each permitted assignee of such a Contributor, on a several basisthe “Indemnifying Party”) agrees to the fullest extent permitted by applicable law, to indemnify and hold Contributee (and its officers, directors, employees, agents and representatives) (each, an “Indemnitee”) harmless the Companyagainst all losses, each person liabilities, obligations, damages, penalties, fines, forfeitures, legal fees, and related costs and judgments and other costs, disbursements, fees and reasonable expenses imposed upon or incurred by or asserted against any Indemnitee (if any) who participates as an underwriter in any offering and sale of Registrable Shares collectively, “Liabilities,” and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, a “Liability”) and their respective directors, trustees, officers, partners, agents, employees and affiliates, as follows: (a) against any and all Loss and expense whatsoever, as incurred, Action arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement (or any amendment thereto) pursuant to which the Registrable Shares were registered under the Securities Act, including all documents incorporated therein by referencerelating to, or resulting from (i) the omission breach by the Indemnifying Party of any representation, warranty or alleged omission therefrom of a material fact required covenant under this Agreement, (ii) the Indemnifying Party’s negligence, bad faith or willful misconduct or (iii) with respect to be stated therein or necessary to make the statements therein not misleading or arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (or any amendment or supplement thereto)Contributed Asset, including all documents incorporated therein Liability payable by reference, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;Contributee. (b) Any Indemnitee that proposes to assert the right to be indemnified under Section 4.4(a) will promptly, after receipt of notice of the commencement of any Action against such party in respect of which a claim is to be made against the Indemnifying Party under such section, notify the Indemnifying Party of the commencement of such Action, enclosing a copy of all papers served. In the event that any Action shall be brought against any and all Loss and expense whatsoeverIndemnitee, as incurred, to such Indemnitee shall notify the extent Indemnifying Party of the aggregate amount paid in settlement of any litigationcommencement thereof and the Indemnifying Party shall be entitled to participate in, or investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of each such Contributor (which consent will not be unreasonably withheld); and (c) against any and all expense whatsoever, as incurred (including reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any Loss or any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not a party, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that it shall wish, to assume the defense thereof, with its counsel reasonably satisfactory to such Indemnitee; provided that the Indemnifying Party shall not enter into any settlement with respect to any Action unless such expense is settlement includes an unconditional release of such Indemnitee from all Liability on claims that are the subject matter of such settlement and fully discharges with prejudice against the plaintiff the Action against such Indemnitee and does not paid under subparagraph (a) include a statement as to, or (b) abovean admission of, fault, culpability or failure to act by or on behalf of such Indemnitee; and provided, howeverfurther, that the indemnity provided Indemnitee shall have the right to employ its own counsel at its sole expense in any such Action, the defense of which is assumed by the Indemnifying Party in accordance with this Section 4.4. No Indemnitee shall settle or compromise any Action covered pursuant to this Section 2.1 -------- ------- 4.4 without the prior written consent of the Indemnifying Party, which shall only apply with respect to any Loss not be unreasonably withheld or expense to the extent arising out of (i) any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by each such Contributor expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto), or (ii) each such Contributor's failure to deliver an amended or supplemental Prospectus if such Loss or expense would not have arisen had such delivery occurreddelayed. Notwithstanding the The provisions of this Section 2.2, no Contributor or any permitted assignee 4.4 shall be required to indemnify survive the Company, its indemnified persons hereunder with respect to any amount in excess termination of the amount of the total proceeds to each such Contributor or such permitted assignee, as the case may be, from sales of the Registrable Shares of such Contributor under the Registration Statement with respect to such offering, and no Contributor shall be liable under this Section 2.2 for any statements or omissions of any other ContributorAgreement.

Indemnification by Contributor. Each The Contributor who ------------------------------ participates in an offering or sale of Registrable Shares (indemnifies, defends and each permitted assignee of such a Contributorholds harmless Clarant and its respective officers, on a several basis) agrees to indemnify and hold harmless the Company, each person (if any) who participates as an underwriter in any offering and sale of Registrable Shares and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partnersemployees, agents, employees representatives and affiliatesAffiliates (each, as follows: a "Clarant Indemnified Party"), at all times from and after this Agreement harmless from and against, and to promptly pay to a Clarant Indemnified Party or reimburse a Clarant Indemnified Party for, any and all liabilities, obligations, deficiencies, demands, claims, suits, actions, or causes of action, assessments, losses, reasonable costs and expenses, filing fees, interest, fines, penalties, or damages or costs or expenses of any and all investigations, proceedings (including appeals, arbitration and mediation), judgments, environmental analyses, remediations, settlements and compromises (including reasonable fees and expenses of attorneys, accountants and other experts) (individually and collectively, the "Losses") sustained or incurred by any Clarant Indemnified Party resulting from or arising out of (a) against any breach of the representations and all Loss and expense whatsoeverwarranties of the Contributor set forth herein or on the schedules, as incurredexhibits or certificates delivered in connection herewith, (b) any breach of any covenant or agreement on the part of the Contributor under this Agreement, (c) any liability under the 1933 Act, the 1934 Act, or other Federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained relating to the Contributor, and provided in any writing to Clarant or its counsel by the Contributor expressly for inclusion in the Registration Statement (or any prospectus forming a part thereof, or any amendment thereof or supplement thereto) pursuant to which the Registrable Shares were registered under the Securities Act, including all documents incorporated therein by reference, or the arising out of or based upon any omission or alleged omission therefrom of to state therein a material fact relating to the Contributor required to be stated therein or necessary to make the statements therein not misleading or arising out misleading, (d) the matters disclosed on SCHEDULE 11.1(d); (e) any liability of or based upon the Contributor for Taxes and any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (or any amendment or supplement thereto), including all documents incorporated therein by reference, liability for Taxes relating to the Business or the omission Acquired Assets for any Pre-Closing Period; (f) any liability for Taxes relating to any failure to comply with applicable Tax or alleged omission therefrom of a material fact necessary other commercial law concerning bulk sales or bulk transfers in order to make either case resulting from the statements therein, in the light of the circumstances under which they were made, not misleading; (b) against any and all Loss and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of each such Contributor (which consent will not be unreasonably withheld); and (c) against any and all expense whatsoever, as incurred (including reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any Loss or any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not a party, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (a) or (b) abovetransactions contemplated hereby; provided, however, that in the case of any indemnity provided arising pursuant to this Section 2.1 -------- ------- clause (c) such indemnity shall only apply with respect not inure to any Loss or expense the benefit of Clarant, to the extent arising out of (i) any that such untrue statement or omission (or alleged untrue statement statement) was made in, or omission made (or alleged omission) occurred in, any preliminary prospectus and the Contributor provided in reliance upon writing corrected information to Clarant counsel and in conformity with written information furnished to the Company by each such Contributor expressly Clarant for use inclusion in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto), or (ii) each such Contributor's failure to deliver an amended or supplemental Prospectus if such Loss or expense would not have arisen had such delivery occurred. Notwithstanding the provisions of this Section 2.2, no Contributor or any permitted assignee shall be required to indemnify the Company, its indemnified persons hereunder with respect to any amount in excess of the amount of the total proceeds to each such Contributor or such permitted assignee, as the case may be, from sales of the Registrable Shares of such Contributor under the Registration Statement with respect to such offeringfinal prospectus, and no Contributor shall be liable under this Section 2.2 for any statements such information was not so included or omissions of any other Contributorproperly delivered.

Indemnification by Contributor. Each Contributor who ------------------------------ participates in an offering or sale of Registrable Shares (and each permitted assignee of such a Contributor, on a several basis) agrees Any limitation contained herein to indemnify and hold harmless the Company, each person (if any) who participates as an underwriter in any offering and sale of Registrable Shares and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and their respective directors, trustees, officers, partners, agents, employees and affiliates, as followscontrary notwithstanding: (a) From and after the date hereof and until the expiration of the applicable Survival Period, but subject to the terms of Section 4.2 above and Section 4.3(b) below, Contributor indemnifies and holds the Company and its affiliates, TPG and its affiliates, and the respective partners, members, shareholders, officers, directors, employees, representatives and agents of each of the foregoing (each, an “Indemnified Party” and, collectively, the “Indemnified Parties”) harmless from and against any and all Loss costs, fees, expenses, damages, deficiencies, interest and expense whatsoeverpenalties (including, as incurredwithout limitation, reasonable and out-of-pocket attorneys’ fees and disbursements) suffered or incurred by any such Indemnified Party in connection with any and all claims, losses, damages, liabilities, costs and expenses arising out of, or in any way relating to breach of any covenant, representation or warranty of Contributor contained in this Agreement or in the Transaction Documents and discovered by TPG or the Company during the applicable Survival Period (collectively, “Indemnified Losses”). The foregoing indemnity includes actual Indemnified Losses only, and not punitive, indirect or consequential damages. If TPG or the Company provides written notice of a claim of an Indemnified Loss within the applicable Survival Period, then Contributor shall have the right and opportunity to defend against such Indemnified Losses with counsel selected by Contributor. In no event shall Contributor be liable for any Indemnified Losses relating to any breach of any covenant, representation or warranty contained herein or in the Transaction Documents if TPG had Knowledge of such breach prior to Closing. (b) In addition to the limitations set forth in Sections 4.2 and 4.3(a), TPG acknowledges and agrees that (i) Contributor has no liability to TPG for any Indemnified Losses unless claims for such Indemnified Losses exceed, individually or collectively in the aggregate, the sum of One Hundred Thousand Dollars and No/100ths Dollars ($100,000.00) (the “Basket”), in which event the entire amount of such valid claims (including any amount up to and including the Basket) shall be actionable, up to the applicable liability cap set forth in the following clauses (ii) through (iv), (ii) recovery against Contributor for any Indemnified Losses with respect to any of the Entity Representations shall be limited in all events to the sum of Eighteen Million, Eight Hundred Fifty-Four Thousand Seven Hundred Thirteen and 80/100ths Dollars ($18,854,713.80), in the aggregate (the “Special Cap”), (iii) recovery against Contributor for any Indemnified Losses with respect to any of the Fundamental Entity Representations or any of the Tax Representations shall be limited in all events to TPG’s Capital Contribution, and (iv) recovery against Contributor for any Indemnified Losses other than Indemnified Losses with respect to the Entity Representations, the Fundamental Entity Representations and the Tax Representations shall be limited in all events to the sum of Two Million Eight Hundred Twenty-Eight Thousand Two Hundred Seven and 07/100ths Dollars ($2,828,207.07), in the aggregate (the “Cap”). (c) For a period of five (5) years after Closing, Contributor shall indemnify and hold the Indemnified Parties harmless from and against any and all costs, fees, expenses, damages, deficiencies, interest and penalties (including, without limitation, reasonable and out-of-pocket attorneys’ fees and disbursements) suffered or incurred by any such Indemnified Party as a direct consequence of liabilities or obligations, whether ordinary or extraordinary, contractual or otherwise, and whether accrued, absolute, contingent, known or unknown or otherwise, to any Person, in each case that arose or accrued prior to the Closing and during the period that a Contribution Entity owned the applicable Property (collectively, the “Pre-Closing Losses”). The foregoing indemnity shall not include any claim based upon any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement (or any amendment thereto) pursuant to which the Registrable Shares were registered under the Securities Act, including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of patent or based upon any untrue statement or alleged untrue statement latent defects in the physical condition of a material fact contained in any Prospectus (or any amendment or supplement thereto)the Properties, including all documents incorporated therein by referencetitle and zoning matters, governmental approvals, valuation, and compliance of the Properties with laws, or which are the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (b) against any and all Loss and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement subject matter of any litigation, representations or investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of each such Contributor warranties set forth in Section 4.1(a) (which consent will not be unreasonably withheld); and (c) against any and all expense whatsoever, as incurred (including reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any Loss or any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not a party, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (a) or (b) above; provided, however, that the foregoing shall not be deemed to limit TPG’s or any other Indemnified Party’s rights under this Agreement in the event of a breach of any such representations or warranties). Subject to the foregoing limitation, this indemnity provided pursuant shall include, without limitation (A) liabilities or obligations with respect to this Section 2.1 -------- ------- shall only apply federal, state or local fees, taxes (including Taxes) of any nature whatsoever with respect to any Loss Property, together with any and all penalties and additions thereto or expense interest thereon, (B) liabilities or obligations arising by reason of the failure of Contributor and/or any Contribution Entity (or any prior owner) to have duly filed all federal, state and local franchise, income and other tax returns required to be filed by it with respect to any Property in respect to periods prior to the extent arising out Closing, and (C) liabilities or obligations with respect to the failure of any employee benefit, fringe benefit, incentive compensation, union contracts or bonus plans, programs, arrangements, commitments, contracts, agreements and/or practices of Contributor and/or any Contribution Entity, including without limitation, any “employee benefit plan” within the meaning of Section 3(3) of ERISA, to be administered, maintained or operated prior to the Closing by Contributor and/or any Contribution Entity in accordance with the terms of each thereof and all applicable Laws. The foregoing indemnity includes actual Pre-Closing Losses only, and not punitive, indirect or consequential damages. If TPG provides written notice of a claim of a Pre-Closing Loss, then Contributor shall have the right and opportunity to defend against such Pre-Closing Losses with counsel selected by Contributor. In no event, however, shall (i) any untrue statement or omission or alleged untrue statement or omission made in reliance upon Contributor’s liability for Pre-Closing Losses and in conformity Indemnified Losses with written information furnished respect to the Company by each such Contributor expressly for use Entity Representations exceed, in the Registration Statement (or any amendment thereto) or aggregate, the Prospectus (or any amendment or supplement thereto)Special Cap, or (ii) each such Contributor's failure to deliver an amended or supplemental Prospectus if such Loss or expense would not have arisen had such delivery occurred. Notwithstanding ’s liability for Pre-Closing Losses and Indemnified Losses exceed, in the provisions of this aggregate, TPG’s Capital Contribution. (d) This Section 2.2, no Contributor or any permitted assignee shall be required to indemnify 4.3 survives Closing until the Company, its indemnified persons hereunder with respect to any amount in excess expiration of the amount of the total proceeds to each such Contributor or such permitted assignee, as the case may be, from sales of the Registrable Shares of such Contributor under the Registration Statement with respect to such offering, and no Contributor shall be liable under this Section 2.2 for any statements or omissions of any other Contributorapplicable Survival Period.