Common use of Indemnification by Seller Clause in Contracts

Indemnification by Seller. Seller hereby agrees to indemnify Purchaser and its Affiliates and their respective officers, directors, stockholders, employees and agents (the “Purchaser Indemnified Parties”) against, and agrees to hold them harmless from, any Loss to the extent such Loss arises from or in connection with the following: (i) any breach by Seller of any representation or warranty contained in this Agreement; (ii) any breach by Seller of any of its covenants contained in this Agreement; or (iii) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liability.

Indemnification by Seller. (a) Subject to the other provisions of this Article 11, effective at or after the Closing, Seller hereby agrees to shall indemnify Purchaser Buyer and its Affiliates (including the Subsidiary) and their respective officers, directors, stockholders, employees successors and agents assigns (the “Purchaser Indemnified PartiesBuyer Indemnitees”) against, and Seller hereby agrees to hold each of them harmless fromfrom any and all damage, any Loss to the extent such Loss arises from or loss, Liability and expense (including reasonable expenses of investigation and reasonable attorneys’ fees and expenses in connection with any Legal Proceeding whether involving a third-party claim or a claim solely between the followingparties hereto) (“Damages”) incurred or suffered by any Buyer Indemnitee or any of their respective successors and assigns arising out of: (i) any inaccuracy in, misrepresentation or breach of warranty (each such inaccuracy in, misrepresentation and breach of warranty, a “Warranty Breach”) made by Seller pursuant to this Agreement (provided that the determination of whether there has been any representation inaccuracy, misrepresentation or warranty breach, and the calculation of Damages, shall be made without giving effect to any materiality, Material Adverse Effect or similar qualifiers contained in this Agreementtherein other than those qualifiers specified on Schedule 10.02(a)(ii) hereto); (ii) any breach of covenant or agreement made or to be performed by Seller of any of its pursuant to this Agreement (other than covenants contained in this AgreementArticle 8, which are addressed by Article 8 exclusively); (iii) the matters set forth on Schedule 3.14(c) (the “Disclosed Claims”) to the extent any Disclosed Claim results in any inaccuracy in, misrepresentation or breach of Seller’s warranties set forth in Section 3.14 (other than any such warranties set forth in the second sentence of Section 3.14(c)); (iv) any Seller Shared Program Costs; (v) any Excluded Liability; or (iiivi) any Excluded Liability. Notwithstanding Liability of Seller or its Affiliates (including the foregoingSubsidiary) to the extent that it is not a Liability arising out of or relating to the Business (as currently or formerly conducted), the indemnifications in favor Purchased Assets or the Real Property; regardless of whether such Damages arise as a result of the Purchaser Indemnified Parties contained negligence, strict liability or any other liability under any theory of law or equity of, or violation of any Applicable Law by, Buyer; provided that with respect to a claim for indemnification pursuant to (x) Section 11.02(a)(i) (other than a Warranty Breach of Sections 3.02 (Corporate Authorization; Binding Effect), 3.04 (Subsidiary Capital Structure) and 3.16 (Finders’ Fees), for which the following limitations will not apply), (y) Section 11.02(a)(iii) or (z) Section 11.02(a)(iv): (A) Seller shall not be liable for any individual item where the Damages relating thereto are less than $15,000; provided that any claims arising out of the same occurrence, transaction or event or series of related occurrences, transactions or events (including similar occurrences, transactions or events at multiple Real Property locations) will be treated as a single claim for determining whether the threshold set forth in this Section 7.2: clause (A) has been met; (B) Seller shall not be liable unless the aggregate amount of Damages with respect to all such indemnification claims not disallowed pursuant to clause (A), together with any Other Consent Costs for which Buyer has reimbursed Seller pursuant to Section 2.05, exceeds 1.25% of the Purchase Price and then only to the extent of such excess; and (C) Seller’s maximum Liability for all such indemnification claims shall not exceed 17.5% of the Purchase Price. (b) Notwithstanding anything in this Agreement to the contrary, the aggregate liability of Seller under this Agreement with respect to Damages to Buyer Indemnitees for indemnification under this Section 11.02 (other than under Section 11.02(a)(v) and Section 11.02(a)(vi) for which the following limitation shall not apply) shall not be effective until in excess of the aggregate dollar total amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded LiabilityPurchase Price.

Indemnification by Seller. (a) Seller hereby agrees to indemnify Purchaser and its Affiliates hold harmless each Buyer Group Member from and their respective officers, directors, stockholders, employees against any and agents (the “Purchaser Indemnified Parties”) against, all Losses and agrees to hold them harmless from, any Loss to the extent Expenses incurred by such Loss arises from or Buyer Group Member in connection with the following: or arising from (i) any breach of any representation, warranty, covenant or agreement (A) made by Seller in this Agreement (other than representations and warranties made by Seller in Sections 5.2(b), 5.2(c) and 5.4(c) and covenants and agreements made by Seller in Section 8.2) or in any certificate delivered by or on behalf of Seller pursuant hereto or (B) made by Seller or SFFC in the Accounts Receivable Purchase Agreement, (ii) any breach of any representation or warranty contained made by Seller in this Agreement; (iiSection 5.2(b), 5.2(c) and 5.4(c) and any breach of any covenant or agreement made by Seller of any of its covenants contained in this Agreement; or Section 8.2, (iii) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; Liability and (Biv) shall terminate once any failure by Seller to pay the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2Post-Closing Adjustment, if applicable; provided, however, that Seller shall be required to indemnify and hold harmless any Buyer Group Member under clause (i) of this Section 11.1(a) with respect to Losses and Expenses incurred thereby only to the foregoing limitations on Seller’s indemnification obligations extent that the aggregate amount of all Losses and Expenses incurred thereby under clause (i) exceeds the amount set forth as the Basket Amount in Schedule 11.1 (the "Basket Amount") (which Basket Amount is an aggregate deductible amount which shall not be recoverable from Seller under clause (i) of this Section 11.1); and provided, further, that the aggregate amount required to be paid by Seller pursuant to clause (i) of this Section 7.2 11.1(a) shall not apply exceed the amount set forth as the Cap in Schedule 11.1 (the "Cap" and, together with the Basket Amount, the "Aggregate Limits"). Seller's obligation to indemnify any Buyer Group Member for Losses and Expenses pursuant to clauses (ii), (iii) and (iv) of this Section 11.1(a) shall not be subject to the Basket Amount or the Cap. (b) The indemnification provided for in Section 11.1(a) shall terminate one year after the Closing Date (and no claims shall be made by any Buyer Group Member under Section 11.1(a) thereafter), except that the indemnification by Seller shall continue as to: (i) the covenants of Seller set forth in Section 13.6, which shall survive for the period of time set forth therein; (ii) the covenants of Seller set forth in Section 8.2, which shall survive until the expiration of the relevant statutory period of limitations applicable to the underlying claim, giving effect to any breach of waiver, mitigation or extension thereof; (iii) the representations and warranties contained of Seller set forth in Sections 4.1Section 5.7, 4.2which shall survive until the expiration of the relevant statutory period of limitations applicable to the underlying claim, 4.3giving effect to any waiver, 4.4 mitigation or extension thereof; (iv) the obligation of Seller with respect to the Excluded Liabilities, as to which no time limit shall apply; (v) the representations and warranties set forth in Section 5.2(b), 5.2(c) and 5.4(c), as to which no time limit shall apply; and (vi) any Losses asserted againstor Expenses of which any Buyer Group Member has notified Seller in accordance with the requirements of Section 11.3 on or prior to the date such indemnification would otherwise terminate in accordance with this Section 11.1, imposed upon or incurred by as to which the Purchaser Indemnified Parties resulting from any Excluded Liabilityobligation of Seller shall continue until the liability of Seller shall have been determined pursuant to this Article XI, and Seller shall have reimbursed all Buyer Group Members for such Losses and Expenses in accordance with this Article XI.

Indemnification by Seller. 7.2.1 Seller hereby agrees agrees, subject to the other terms, conditions and limitations of this Article 7, to indemnify Purchaser Buyer and its Affiliates and each of their respective officers, directors, stockholdersofficers, employees and agents representatives (collectively, the “Purchaser Buyer Indemnified Parties”) against, and agrees to hold them the Buyer Indemnified Parties harmless from, all Losses paid, suffered, incurred or accrued by any Loss Buyer Indemnified Party arising out of or related to: (a) any breach of any representation or warranty of Seller set forth in Article 3 or any Ancillary Agreement; (b) any Indemnified Taxes; (c) any Excluded Company Liabilities; or (d) any inaccuracy in the Closing Financial Certificate. 7.2.2 Seller agrees, subject to the other terms, conditions and limitations of this Article 7, to indemnify the Buyer Indemnified Parties against, and to hold the Buyer Indemnified Parties harmless from, all Losses paid, suffered, incurred or accrued by any Buyer Indemnified Party arising out of or related to: (a) any breach of any representation or warranty of Seller set forth in Article 4, or (b) any failure by Seller to perform or comply with any covenant or agreement in this Agreement or any Ancillary Agreement. 7.2.3 Seller shall not have any obligation to indemnify any Buyer Indemnified Party pursuant to Section 7.2.1(a) or Section 7.2.2(a): (i) unless and until the aggregate amount of Losses suffered by Buyer Indemnified Parties for which the Buyer Indemnified Parties would otherwise be entitled to indemnification pursuant to Section 7.2.1(a) exceeds Seventy Five Thousand Dollars ($75,000) (the “Deductible”) (in which case Seller shall be liable for all Losses in excess of the Deductible); and (ii), subject to the additional limitations in Section 7.8, to the extent such Loss arises from or the aggregate amount of Losses suffered by Buyer Indemnified Parties exceeds the sum of the Third Installment Payment and the Fourth Installment Payment; provided that the limitations contained in connection this Section 7.2.3 shall not apply with the following: respect to (ix) any breach breaches of, or inaccuracy in, any Fundamental Warranties made by Seller in this Agreement or (y) any claims of, or causes of action arising from, the intentional fraud of Seller with respect to any representation or warranty contained in this Agreement;. (ii) any breach by 7.2.4 The total amount of indemnification payments that Seller of any of its covenants contained in this Agreement; or (iii) any Excluded Liability. Notwithstanding can be required to make to the foregoing, the indemnifications in favor of the Purchaser Buyer Indemnified Parties contained in this Section 7.2: (A) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any breaches of, or inaccuracy in, any Fundamental Warranties made by Seller in this Agreement under Section 7.2.1(a), under Section 7.2.1(b)-(d) or under Section 7.2.2(a) shall be limited to the amount of Total Consideration. 7.2.5 Any claim for indemnification shall be calculated net of all insurance proceeds, if any, actually received by a Buyer Indemnified Party in respect of the same matter as the claim for indemnification against Seller, less any increase in premiums or other recovery costs or expenses as a result of such Losses referred to in this Section 7.2claim for insurance proceeds; provided, however, that (i) in the foregoing limitations event that the Company has purchased and fully paid for an insurance policy that is in effect on Seller’s the Closing Date and such insurance policy covers Losses which are otherwise indemnifiable under Section 7.2.1(a) or Section 7.2.1(c), then a Buyer Indemnified Party shall exercise commercially reasonable efforts to recover such Losses from such insurance policy (provided that (x) doing so does not limit the coverage amount available under such insurance policy for insurance claims for matters which are not indemnifiable under Section 7.2.1(a) or Section 7.2.1(c), (y) doing so will not preclude a Buyer Indemnified Party from first making a claim under Section 7.2.1(a) or Section 7.2.1(c) to reserve its rights hereunder, and (z) in no event will a Buyer Indemnified Party be required to pursue such insurance recovery for a period beyond three (3) months or commence litigation, arbitration or any other similar legal proceeding in order to enforce collection of such insurance recovery) and (ii) except as expressly set forth in the preceding clause (i) no Buyer Indemnified Party shall have any obligation to make insurance claims or otherwise take any action to obtain such payments from an insurer relating to any Losses for which it is seeking indemnification obligations or has obtained indemnification pursuant to this Section 7.2 Article 7, and if a Buyer Indemnified Party elects not to make any such insurance claim, such Losses shall in no way be reduced and the right of such Indemnified Party to pursue indemnification for such Losses from the Seller hereunder shall not apply to be limited in any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liabilityrespect.

Indemnification by Seller. (a) Subject to the provisions of this Article X and except with respect to indemnification for Taxes, effective as of and after the Closing, Seller hereby agrees to indemnify shall indemnify, defend and hold harmless Purchaser and its Affiliates (including members of the Alkali Group) and their respective managers, officers, directors, stockholdersemployees, employees representatives, successors and agents assigns (collectively, the “Purchaser Indemnified Parties”) against), from and agrees to hold them harmless fromagainst any and all Losses incurred or suffered by any of the Purchaser Indemnified Parties, any Loss to the extent such Loss arises from arising out of or in connection with the following: relating to (i) any inaccuracy or breach by Seller of any representation or warranty of Seller contained in Article III of this Agreement (except for Section 3.13 (Taxes)) or in any schedule or certificate delivered hereunder, (ii) any nonfulfillment or breach of any covenant or agreement of Seller contained in this AgreementAgreement or in any schedule or certificate delivered hereunder, and (iii) any Excluded Liabilities (other than Taxes). (b) Notwithstanding any other provision to the contrary, Seller shall not be required to indemnify, defend or hold harmless any Purchaser Indemnified Party against, or reimburse any Purchaser Indemnified Party for, any Losses pursuant to Section 10.2(a)(i): (i) to the extent that such Losses were included in the calculation of Working Capital and reflected or reserved for on the Final Post-Closing Adjustment Statement or otherwise included in the calculation of the Post-Closing Adjustment; (ii) any breach by Seller unless such claim individually or a series of any related claims involves Losses in excess of its covenants contained in $250,000 (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 aggregate amount of the Purchaser Indemnified Parties’ Losses under this Agreement; orSection 10.2(b); (iii) any Excluded Liability. Notwithstanding until the foregoing, the indemnifications in favor aggregate amount of the Purchaser Indemnified Parties contained in this Parties’ Losses under Section 7.2: (A10.2(a)(i) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 $16,400,000 (the “Threshold AmountDeductible”), in which event it being understood that if such Losses exceed the Deductible, Seller shall be liable obligated for all only the Purchaser Indemnified Parties’ Losses including under Section 10.2(a)(i) in excess of the Threshold AmountDeductible; and and (Biv) shall terminate once for any Losses under Section 10.2(a)(i) to the extent that the aggregate dollar amount of all such Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 exceed $164,000,000 (the “Cap AmountCap”). (c) and Seller shall thereafter have Notwithstanding any other provision to the contrary (including Section 10.2(b)), no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s claim for indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach 10.2(a)(i) either (i) arising out of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liabilityinaccuracy or breach of a Fundamental Representation or (ii) constituting fraud of Seller or its Affiliates shall be subject to the De Minimis Amount, the Deductible or the Cap.

Indemnification by Seller. (a) Seller hereby agrees to indemnify Purchaser that from and after the Closing it shall indemnify, defend and hold harmless Buyer, its Affiliates Affiliates, and their respective directors, officers, directorsshareholders, stockholderspartners, members, attorneys, accountants, agents, representatives and employees (other than the Business Employees) and agents their heirs, successors and permitted assigns, each in their capacity as such (the “Purchaser Buyer Indemnified Parties” and, collectively with the Seller Indemnified Parties, the “Indemnified Parties”) against, and agrees to hold them harmless from, against and in respect of any Loss to Losses actually incurred or suffered by, any of the extent such Loss arises Buyer Indemnified Parties arising out of or resulting from or in connection with the following: (i) subject to Section 8.3(b), any breach by Seller of any representation or warranty contained made by Seller in Article IV of this Agreement; Agreement (including as if such representations and warranties were made as of the Closing (except for such representations and warranties that are made as of a specific date)) for the period such representation or warranty survives, (ii) any breach by Seller of any covenant or agreement of its covenants Seller contained in this Agreement; or , (iii) any of the Excluded LiabilityLiabilities, and (iv) all USF contributions that relate to the provision of ILEC Services prior to the Closing. (b) Seller shall not be liable to the Buyer Indemnified Parties for any Losses with respect to the matters contained in Section 8.3(a)(i) unless the Losses therefrom exceed an aggregate amount equal to $30,000,000 (the “Indemnity Threshold”) and then only for Losses in excess of that amount and up to an aggregate amount equal to $200,000,000 (the “Indemnity Cap”), provided, however, that any Losses up to an aggregate amount equal to $100,000,000 arising from any breach of any of the representations and warranties in Section 4.17 (Assets) shall not be counted towards the Indemnity Cap (it being understood that Seller’s maximum aggregate liability for Losses in respect of breaches of the representations and warranties in Section 4.17 (Assets) shall be $300,000,000, less any other Losses under other representations and warranties for which Seller is liable and are applied to the Indemnity Cap). Seller shall not be liable to the Buyer Indemnified Parties in respect of any individual claim or series of claims arising out of a similar occurrence or set of facts for indemnification under Section 8.3(a)(i) involving Losses of less than $75,000; provided, however, Seller shall not be liable to the Buyer Indemnified Parties in respect of any individual claim for indemnification of any breach of any representation or warranty made by Seller in the first sentence of Section 4.17 involving Losses of less than $25,000. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained limitations set forth in this Section 7.2: (A8.3(b) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller claims for any breach Losses resulting from or arising out of breaches of the representations and warranties in Section 4.2 (Capital Structure), Section 4.3 (Corporate Authorization), Section 4.6 (Binding Effect) and Section 4.21 (Finders’ Fees), or due to fraud by or on behalf of the Seller. (c) For purposes of this Article VIII, any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality, Seller Material Adverse Effect or other similar qualification contained in Sections 4.1or otherwise applicable to such representation or warranty, 4.2provided that (A) such “material” and “Seller Material Adverse Effect” qualifiers shall not be disregarded in Section 4.7(c) (Financial Statements), 4.3Section 4.8 (Litigation and Claims), 4.4 Section 4.10(i) (Employees and Employee Benefits), Section 4.15(a) (Contracts), Section 4.16 (Absence of Changes), the second sentence of Section 4.17 (Assets), the first sentence of Section 4.18 (Communications Licenses) or Section 4.19(b) (Title to Property), and (B) the word “material” shall not be disregarded where it immediately precedes (1) the term “Seller Benefit Plans” in Section 4.10 (Employees and Employee Benefit Plans) and (2) the term “Governmental Authorizations” in Section 4.12 (Compliance with Laws; Communications Authorizations). The rights of an Indemnified Party to indemnification under this Agreement or any Losses asserted againstAncillary Documents shall not be affected by any investigation conducted or actual or constructive knowledge acquired at any time by such Indemnified Party, imposed upon whether before or incurred by after the Purchaser Indemnified Parties resulting from date of this Agreement or any Excluded LiabilityClosing Date.

Indemnification by Seller. Following the Closing, Seller hereby agrees to indemnify Purchaser and hold harmless Buyer and its Affiliates and their respective officers, directors, stockholders, employees and agents Representatives (the “Purchaser Buyer Indemnified Parties”) against, from and agrees to hold them harmless from, against any Loss to the extent such Loss arises from or and all Damages incurred by any Buyer Indemnified Party in connection with the followingwith, relating to or arising from: (i) 9.2.1 any breach by Seller of any warranty or the inaccuracy of any representation or warranty of Seller contained in this Agreement, the Ancillary Agreements or in any other agreement or instrument contemplated by this Agreement; (ii) 9.2.2 any breach by Seller of any of its Seller’s covenants contained in this Agreement, the Ancillary Agreements or in any other agreement or instrument contemplated by this Agreement; [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. 9.2.3 any Excluded Liability; or 9.2.4 any third-party claim to the extent Damages resulting therefrom are (iiii) as a result of the use of, or the research, development, manufacture, commercialization, use or sale of, the BMN-673 or any Excluded LiabilityProduct by or on behalf of Seller or any of its Affiliates, licensees or sublicensees prior to the Closing Date and (ii) not Damages for which the Seller Indemnitees are entitled to seek indemnification pursuant to Section 9.3. Notwithstanding the foregoing, the indemnifications aggregate liability of Seller for Damages paid with respect to the indemnification described in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) 9.2.1 shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent exceed (2%a) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount[*]; and (Bb) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 ([*], the “Cap AmountSeller Indemnification Cap”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2); provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 Seller Indemnification Cap shall not apply to the indemnification described in Section 9.2.1 with respect to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting Damages arising from any Excluded Liabilityfraud.

Indemnification by Seller. (a) Seller hereby agrees to indemnify Purchaser that from and after the Closing it shall indemnify, defend and hold harmless Buyer, its Affiliates Affiliates, and their respective directors, officers, directorsshareholders, stockholderspartners, members, attorneys, accountants, agents, representatives and employees (other than the Business Employees) and agents their heirs, successors and permitted assigns, each in their capacity as such (the “Purchaser Buyer Indemnified Parties” and, collectively with the Seller Indemnified Parties, the “Indemnified Parties”) against, and agrees to hold them harmless from, against and in respect of any Loss to Losses actually incurred or suffered by any of the extent such Loss arises Buyer Indemnified Parties arising out of or resulting from or in connection with the following: (i) subject to Section 8.3(b), any breach by Seller of any representation or warranty contained made by Seller in Article IV of this Agreement; Agreement (including as if such representations and warranties were made as of the Effective Time (except for such representations and warranties that are made as of a specific date)) for the period such representation or warranty survives, (ii) any breach by Seller of any covenant or agreement of its covenants Seller contained in this Agreement; or , (iii) any of the Excluded LiabilityLiabilities, (iv) all USF contributions that relate to the Transferred Business prior to the Closing, and (v) any Indebtedness of the Transferred Companies existing as of immediately prior to the Closing (after taking into account the Pre-Closing Reorganization) and not reflected on the Final Closing Statement. (b) Seller shall not be liable to the Buyer Indemnified Parties for any Losses with respect to the matters contained in Section 8.3(a)(i) unless the Losses therefrom exceed an aggregate amount equal to $131,750,000 (the “Indemnity Threshold”) and then only for Losses in excess of that amount and up to an aggregate amount equal to $1,054,000,000 (the “Indemnity Cap”). Seller shall not be liable to the Buyer Indemnified Parties in respect of any individual claim or series of claims arising out of a similar occurrence or set of facts for indemnification under Section 8.3(a)(i) involving Losses of less than $300,000 and no such amounts shall be taken into account for purposes of satisfying the Indemnity Threshold. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained limitations set forth in this Section 7.2: (A8.3(b) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification claims for Losses resulting from or arising out of breaches of the Specified Representations or Section 4.9(l) or due to fraud by Seller for or on behalf of Seller. (c) For purposes of this Article VIII, any inaccuracy in or breach of any representation or warranty shall be determined without regard to any “material”, “materially”, “in all material respects”, “in any material respect”, “material to the representations Transferred Business” and warranties “Seller Material Adverse Effect” qualification contained in Sections 4.1or otherwise applicable to such representation or warranty, 4.2provided that (A) such qualifiers shall not be disregarded in Section 4.7(d) (Financial Statements), 4.3Section 4.8 (Litigation and Claims), 4.4 Section 4.10(i) (Employees and Employee Benefits), Section 4.15(a) (Contracts), Section 4.16 (Absence of Changes), the first sentence of Section 4.18 (Communications Licenses) or Section 4.19 (Title to Property), and (B) the word “material” shall not be disregarded where it immediately precedes (1) the term “Seller Benefit Plan” in Section 4.10 (Employees and Employee Benefits) and (2) the term “Governmental Authorizations” in Section 4.12 (Compliance with Laws; Communications Authorizations). The rights of an Indemnified Party to indemnification under this Agreement or any Losses asserted againstAncillary Documents shall not be affected by any investigation conducted or actual or constructive knowledge acquired at any time by such Indemnified Party, imposed upon whether before or incurred by after the Purchaser Indemnified Parties resulting from date of this Agreement or any Excluded LiabilityClosing Date.

Indemnification by Seller. A. Subject to the provisions stated in B. below, Seller hereby agrees to indemnify Purchaser shall indemnify, defend and its Affiliates hold harmless Purchasers and their respective officers, directorsdirectors and employees until November 15, stockholders2005, employees from and agents (the “Purchaser Indemnified Parties”) against, and agrees to hold them harmless from, against any Loss resulting from non-compliance with, falsehood or inaccuracy of any representation, warranty, commitment or arrangement of Seller under this Agreement, or any Annex or certificate issued by Seller in accordance with the terms hereof. The maximum aggregate amount up to which Seller shall indemnify Purchasers, subject to the extent such Loss arises from or in connection with the following: (i) any breach by Seller of any representation or warranty contained in this Agreement; (ii) any breach by Seller of any of its covenants contained in this Agreement; or (iii) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor provisions of the Purchaser Indemnified Parties contained in this Section 7.2: (A) preceding paragraph, shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two equal to Fifteen percent (215%) of the amount actually paid under Article 3 (the “Threshold Amount”)Purchase Price, in which event Seller shall be liable i.e. US$632,168 for all Losses including the Threshold AmountAPCO; US$448,240 for NETHERFIELD; and US$304,921 for ROCH (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) ). The Cap Amount shall be considered as a comprehensive amount covering any and all claims for indemnification, subject to the requirements stated in the first paragraph of this section, and it shall not be taken separately for each claim. B. Purchasers hereby irrevocably waive any claim against Seller based on any of the Excluded Contingencies. Seller shall thereafter have no further obligations or liabilities with respect not hold Purchasers harmless from and against any Excluded Contingency. Purchasers hereby authorize Seller to exclude the concepts and contingencies that fall within Excluded Contingencies hereunder, as exceptions to the representations under Article III, and agree that their possible inclusion therein shall not entitle Purchasers to claim any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations compensation whatsoever pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liability.6.1.A.

Indemnification by Seller. From and after the Closing Date, Seller hereby agrees to shall indemnify Purchaser and hold harmless Buyer, its Affiliates and Affiliates, each of their respective officers, directors, stockholdersofficers, employees and agents agents, and each of the heirs, executors, successors, transferees and assigns of any of the foregoing (collectively, the “Purchaser "Buyer Indemnified Parties”") againstfrom and against any and all damages, claims, losses, expenses, costs, obligations and liabilities, including without limitation liabilities for all reasonable attorneys', accountants', and agrees experts' fees and expenses including those incurred to hold them harmless fromenforce the terms of this Agreement (collectively, any Loss to "Covered Liabilities"), suffered, incurred by or asserted, directly or indirectly, against the extent such Loss arises from Buyer Indemnified Parties by reason or in connection with the following: arising out of (i) any breach by of any representation or warranty, covenant or agreement of Seller contained herein or in any instrument or certificate delivered pursuant hereto (each of which for purposes of this paragraph shall be read as though none of them contains any Adverse Affect, Change or Effect or other materiality qualifier), (ii) any Retained Liability or (iii) any Environmental Liability; provided, however, that, except for a breach of any representation or warranty contained in this Agreement; (ii) any breach by Section 3.15, Seller of any of its covenants contained in this Agreement; or (iii) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) shall not be effective until required to indemnify the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities Buyer Indemnified Parties with respect to any claim for indemnification pursuant to clause (i) of this Section 11.2 unless and until the aggregate amount of all claims against Seller under this Section 11.2 exceeds $3,800,000 and then only to the extent such Losses referred aggregate amount exceeds such amount, and; provided, further, that in no event shall Seller be required to pay or otherwise be liable for an amount in excess of $150,000,000 with respect to claims made under clause (i) and (iii) of this Section. The indemnity provided in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 11.2 shall not apply to any indemnification by Seller for any breach of if the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 Covered Liability previously has been recovered under Section 5.11 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded LiabilitySection 5.23 hereof.

Indemnification by Seller. Subject to the provisions of this Article VII, Seller hereby agrees to indemnify Purchaser shall indemnify, defend and hold harmless Buyer and its Affiliates and their respective officers, directors, stockholders, employees and agents (collectively, the “Purchaser Indemnified PartiesBuyer Indemnitees”) againstfrom and after the Closing Date from and against any and all claims, losses, damages, Liabilities, awards, judgments, costs and agrees expenses (including reasonable attorneys’ fees) (subject to hold them harmless fromSection 7.5(a), any Loss “Damages”) incurred by the Buyer Indemnitees to the extent such Loss arises from or in connection with the following: caused by (i) any breach by Seller of any representation or warranty contained of the representations and warranties made in this Agreement; Agreement by Seller, (ii) any breach by Seller of any covenant or agreement of its covenants contained in this Agreement; or Seller made herein or (iii) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) Seller shall not be effective liable to indemnify any Buyer Indemnitees against Damages arising under clause (i) above unless and until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 such Damages exceeds two percent (2%) of the amount actually paid under Article 3 $750,000 (the “Threshold Amount”), in which event Seller whereupon the Buyer Indemnitees shall be liable entitled to indemnification for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar full amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2Damages; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant maximum Liability to the Buyer Indemnitees for all Damages arising under clause (i) above shall not exceed $5,163,750 (the “Maximum Amount”); provided, further, however, that the Threshold Amount and Maximum Amount shall not apply with respect to Damages arising out of any failure of the representations and warranties set forth in Sections 3.1 (Organization and Related Matters), 3.2(a) (Authority) and 3.5 (No Broker) to be true and correct, in which case Seller’s maximum Liability to the Buyer Indemnitees shall not exceed the Purchase Price. The limitations set forth in this Section 7.2 shall not apply to in respect of any indemnification obligation arising out of or resulting from fraud or willful misrepresentation by Seller. Notwithstanding anything herein to the contrary, for purposes of determining the amount of any Damages related to a breach of any representation or warranty made by Seller for any breach of in this Agreement, the representations and warranties contained made by Seller in Sections 4.1, 4.2, 4.3, 4.4 this Agreement shall be considered without regard to any “material,” “Material Adverse Effect” or any Losses asserted against, imposed upon similar term or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liabilitylimitation contained therein.

Indemnification by Seller. (a) Subject to the provisions of this ‎Article ‎X and except with respect to Closing Payment Adjustments (which shall be governed exclusively by Article ‎II) and indemnification for Taxes (which shall be governed exclusively by ‎Article ‎VII), effective as of and after the Closing, Seller hereby agrees to shall indemnify and hold harmless Purchaser and its Affiliates Affiliates, and each of their respective directors, officers, directorsemployees, stockholdersagents and representatives (collectively, employees and agents (the “Purchaser Indemnified Parties”) against), from and agrees to hold them harmless from, against any Loss to and all Losses incurred or suffered by any of the extent such Loss arises from Purchaser Indemnified Parties arising out of or in connection with the followingrelated to: (i) any breach by Seller of any Seller Fundamental Representation, at and as of the Closing as though made at and as of the Closing, or any breach of the representation or and warranty contained made in this AgreementSection ‎3.16; (ii) any breach by Seller of any covenant or agreement of its covenants Seller contained in this AgreementAgreement to be performed prior to the Closing; orand (iii) any Excluded Liability. breach of any covenant or agreement of Seller contained in this Agreement to be performed, in whole or in part, after the Closing. (b) Notwithstanding any other provision to the foregoingcontrary (except with respect to indemnification for Taxes (which shall be governed exclusively by ‎Article ‎VII)): (i) Seller shall not be required to indemnify or hold harmless any Purchaser Indemnified Party against, or reimburse any Purchaser Indemnified Party for, any Losses pursuant to Section ‎10.2(a)(ii), solely to the indemnifications in favor extent such Losses arise out of or relate to a breach of Section ‎5.1, until the aggregate amount of the Purchaser Indemnified Parties contained in this Parties’ Losses under Section 7.2: (A‎10.2(a)(ii) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 $20,000,000 (the “Threshold AmountThreshold”), in after which event Seller shall be liable obligated for all the Purchaser Indemnified Parties’ Losses including under Section ‎10.2(a)(ii) for the Threshold Amountfull amount of such Losses, from the first dollar thereof and without regard to the Threshold; and (Bii) the cumulative indemnification obligations of Seller under Section ‎10.2(a) shall terminate once in no event exceed, in aggregate, the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 Purchase Price (the “Cap AmountCap”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liability).

Indemnification by Seller. (a) Except as otherwise set forth herein, Seller hereby agrees to indemnify shall indemnify, defend and hold harmless Purchaser and its Affiliates the Company, and each of their respective representatives, employees, officers, directors, stockholders, employees controlling persons and agents Affiliates (collectively, the “"Purchaser Indemnified Parties”) againstPersons"), for, and agrees shall pay to hold them harmless fromthe Purchaser Indemnified Persons the amount of, any Loss to loss, liability, claim, damage (including incidental and consequential damages), expense (including interest, penalties, costs of investigation and defense and the extent such Loss arises reasonable fees and expenses of attorneys and other professionals and experts) or diminution of value, whether or not involving a third-party claim (collectively, "Damages"), directly or indirectly, arising from or in connection with the following: (i) any breach by Seller of any representation covenant, representation, warranty, agreement or warranty obligation of Seller contained in this Agreement; , (ii) any breach contingent liabilities disclosed by Seller of any of its covenants contained in to Purchaser pursuant to Section 6.9 after the date hereof that do not materially or adversely affect the benefits to be obtained by Purchaser under this Agreement; or , (iii) any Excluded Liability. Notwithstanding claim by any Person that the foregoingtransactions contemplated by this Agreement may be a fraudulent transfer, the indemnifications or (iv) any claims in favor respect of Change-in-Control Amounts arising out of Section 6 of the Purchaser Indemnified Parties contained Employment Agreements. (b) Without duplication and subject to the terms and limitations set forth in this Section 7.2: (A) 10.1(b), Seller shall not be effective until indemnify, defend and hold harmless the aggregate dollar Company for, and shall pay to the Company or any Company Subsidiary the amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount any Damages actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from Company or such Company Subsidiary following the Closing relating to any Excluded amounts actually paid by the Company to Barclays Bank PLC ("Barclays") on or before January 31, 1999 in respect of a"swap breakage amount" (such amounts, the "Special Contingent Liability").

Indemnification by Seller. Seller hereby agrees to indemnify Purchaser shall indemnify, defend, and hold harmless Buyer its Affiliates Affiliates, their respective directors, officers, employees and agents, and their respective officerssuccessor, directorsheirs and assigns (collectively, stockholdersthe “Buyer Indemnitees”), employees and against all Losses imposed on one or more Buyer Indemnitees, as a direct result of Claims, arising out of: (a) the research, development, manufacture, use, sale or other exploitation of the Assets by or on behalf of Seller or any of its Affiliates, sublicensees, distributors or agents (the “Purchaser Indemnified Parties”) againstexcluding, and agrees to hold them harmless fromfor clarity, any Loss Buyer), prior to the extent such Loss arises from or in connection with the following: Agreement Date; (ib) any Seller’s breach by Seller of any representation or warranty contained in this Agreement; (ii) any breach by Seller of any of its representations, warranties, covenants contained or obligations in this Agreement, except to the extent arising out of or relating to Buyer’s breach of any of its representations, warranties, covenants or obligations in this Agreement; or (iiic) the gross negligence or willful misconduct of any Seller Indemnitees; or (d) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor liabilities or obligations of the Purchaser Indemnified Parties contained Seller other than the Assumed Liabilities, in this each case excluding any Buyer Indemnitees Claims and Losses for which Buyer has an obligation to indemnify Seller Indemnitees pursuant to Section 7.2: (A) 6.1, as to which Claims and Losses each Party shall not be effective until indemnify the other to the extent of their respective liability for such Claims and Losses; provided that Seller’s aggregate dollar amount of all Losses indemnified against liability under this Section 7.2 exceeds two percent (2%) of 6.2, shall be limited to the amount of cash consideration actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on received by Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liability.

Indemnification by Seller. Subject to the limitations set forth in Section 8.4, Seller hereby agrees that, from and after the Closing, Seller and/or Redwood Design & Supply (it being understood and agreed that Seller shall cause Redwood Design & Supply to indemnify Purchaser satisfy any such obligations) shall indemnify, defend and hold harmless Buyer and its Affiliates (including, for the avoidance of doubt, the Acquired Companies), and its and their respective directors, managers, officers, directorssuccessors and permitted assigns, stockholdersin each case, employees and agents in their capacity as such (the “Purchaser Buyer Indemnified Parties”) againstfrom and against any and all Losses actually suffered or incurred by any of the Buyer Indemnified Parties, and agrees to hold them harmless from, any Loss to the extent such Loss arises from or in connection with the following: arising out of: (ia) any inaccuracy in or breach by Seller of any representation or warranty contained in this Agreement; (ii) any breach by Seller of any of its covenants contained in this Agreement; or (iii) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained of Seller in Sections 4.1Article 3 or the Key Persons in Article 4 and, 4.2in each case, 4.3the references thereto in the certificate contemplated by Section 7.2(e), 4.4 for the period such representations and warranties survive pursuant to Section 8.1 (provided, that for purposes of determining the existence of any such inaccuracy or breach or the amount of any Losses with respect thereto, all such representations and warranties that are qualified as to materiality, “Material Adverse Effect” or any Losses asserted againstother qualifier of similar import shall be deemed to be not so qualified, imposed upon except with respect to the term “Material Contract” and except with respect to the representations and warranties set forth in Section 3.7(b), Section 3.8 and Section 3.9); (b) any breach of any covenant or incurred by agreement of Seller or the Purchaser Key Persons in this Agreement for the period such covenant or agreement survives pursuant to Section 8.1; (c) the items set forth in Section 8.2 of the Seller Disclosure Schedule (the “Special Indemnity Items”); and (d) any Indemnified Parties resulting from any Excluded LiabilityTaxes.

Indemnification by Seller. (a) Subject to the limitations on survivability set forth in Section 8.5 and to the other limitations set forth in this Article VIII, Seller hereby agrees to indemnify Purchaser shall indemnify, defend and hold harmless Buyer, its Affiliates and their respective employees, officers, directorsagents and directors (collectively, stockholders, employees and agents (the “Purchaser "Buyer Indemnified Parties”") against, and agrees to hold them harmless fromreimburse any Buyer Indemnified Party for, any Loss to the extent and all Losses that such Loss arises from Buyer Indemnified Party may at any time suffer or incur, or become subject to, as a result of or in connection with the followingwith: (i) the inaccuracy in or breach of any breach representations and warranties made by Seller of any representation in either this Agreement or warranty contained in this Agreement;the documents and instruments delivered pursuant hereto; or (ii) any breach breach, non-fulfillment or default by Seller in the performance of any of its covenants contained or agreements under this Agreement and in this Agreement; orthe documents and instruments delivered pursuant hereto; (iii) any Excluded Liability. Notwithstanding ; and (iv) any enforcement of this indemnity. (b) In no event shall Seller be liable under Section 8.2 or otherwise under this Agreement in an amount aggregating in excess of $5 Million Dollars (the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: "Seller Cap"). (Ac) Seller shall not be effective required to indemnify, defend or hold Buyer harmless from and against any Losses under Section 8.2(a) unless and until the aggregate dollar amount of all such Losses indemnified against under this Section 7.2 exceeds two percent (2%) of equals $500,000 in the amount actually paid under Article 3 aggregate (the “Threshold "Seller Basket Amount”"), in which event Seller shall be liable for all Losses including obligated to indemnify Buyer, and Buyer may assert its right to indemnification hereunder to the Threshold Amount; and (B) shall terminate once the aggregate dollar amount full extent of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) up to the Seller Cap, but only for Losses in excess of the amount actually paid under Article 3 (the “Cap Seller Basket Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liability.

Indemnification by Seller. Subject to the other terms and conditions of this Article VIII, from and after the Closing Seller hereby agrees to shall indemnify Purchaser and defend each of Buyer and its Affiliates (including the Surviving Company) and their respective officersRepresentatives (collectively, directors, stockholders, employees and agents (the “Purchaser Indemnified PartiesBuyer Indemnitees”) against, and agrees to shall hold each of them harmless fromfrom and against, and shall pay and reimburse each of them for, any Loss and all Losses incurred or sustained by, or imposed upon, the Buyer Indemnitees based upon, arising out of, with respect to the extent such Loss arises from or in connection with the following: by reason of (ia) any inaccuracy in or breach by Seller of any representation or warranty contained in this Agreement; (ii) any breach by Seller of any of its covenants the representations or warranties of Seller contained in this Agreement; or or (iiib) any Excluded Liabilitybreach or non-fulfillment of any covenant, agreement or obligation to be performed by Seller pursuant to this Agreement. All such calculations of Losses shall take into account any insurance proceeds received by the Buyer Indemnitees in connection with the matter out of which such Damages shall arise, net of directly related increases of premiums on such insurance policies. The Buyer Indemnitees agree to use commercially reasonable efforts to obtain such insurance proceeds. If an indemnification payment is received by any Buyer Indemnitee, and such Buyer Indemnitee later receives insurance proceeds or other third party recoveries, such Buyer Indemnitee shall promptly pay to Seller such amount. Notwithstanding anything herein to the foregoingcontrary, (a) the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) Buyer Indemnitees shall not be effective entitled to seek indemnification under clause (a) of the first sentence of Section 8.02 with respect to any Losses unless and until the aggregate dollar amount of all Losses indemnified against suffered by the Buyer Indemnitees under this Section 7.2 exceeds two percent clause (2%a) of the amount actually paid under Article 3 first sentence of Section 8.02 exceeds, in the aggregate, $250,000 (the “Threshold AmountDeductible”), in and then the Buyer Indemnitees shall only be entitled to indemnification for such aggregate amount of Losses that exceeds the Deductible; (b) the aggregate amount of all payments to which event Seller the Buyer Indemnitees shall be liable for all Losses including entitled to receive under clause (a) of the Threshold Amountfirst sentence of Section 8.02 shall in no event exceed $1,200,000 (the “Cap”); and (Bc) the Buyer Indemnitees shall terminate once not be entitled to seek indemnification for Losses to the aggregate dollar amount extent that the items giving rise to such Losses had been accounted for in the calculation of all Losses indemnified against under this Closing Working Capital pursuant to Section 7.2 aggregates fifty percent 2.04. The limitations set forth in clause (50%a) and clause (b) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 preceding sentence shall not apply to any indemnification by Seller for any breach Losses relating to breaches of the representations and warranties contained in Sections 4.1Fundamental Representations, 4.2, 4.3, 4.4 claims for indemnification under Section 6.03 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liabilityfraud.

Indemnification by Seller. From and after the Closing and subject to Sections 11.3, 11.6 and 11.7, Seller hereby agrees to shall indemnify Purchaser and hold Buyer, its Affiliates Affiliates, members and their respective partners, and the partners, shareholders, officers, directors, stockholdersemployees, employees representatives and agents of each of the foregoing (collectively, the “Purchaser Indemnified PartiesBuyer-Related Entities”) againstharmless from and against any and all costs, fees, expenses, damages (excluding consequential damages), deficiencies, interest and agrees to hold them harmless frompenalties (including, without limitation, reasonable attorneys’ fees and disbursements) actually suffered or incurred by any Loss to the extent such Loss arises from or indemnified party in connection with the following: any and all losses, liabilities, claims, damages and expenses (i“Losses”), arising out of, or resulting from, (a) any breach by Seller of any representation or warranty of Seller contained in this Agreement; Agreement or in any Closing Document and (iib) any breach by of any covenant of Seller which expressly survives the Closing contained in this Agreement or in any Closing Document. Notwithstanding anything to the contrary contained herein, Seller shall have no liability or obligation to indemnify and hold Buyer-Related Entities harmless from any Losses to the extent such Losses result from or are related to any acts or omissions of any of its covenants contained in this Agreement; or (iii) any Excluded Liabilitythe Buyer-Related Entities. Notwithstanding the foregoing, the indemnifications in favor The provisions of the Purchaser Indemnified Parties contained in this Section 7.2: 11.1 shall survive the Closing pursuant to Section 11.4, subject, however, to the provisions of Section 11.6. BXXXX Hotel Holdings LLC, a Delaware limited liability company (A“Seller Guarantor”) shall not be effective until guaranty the aggregate dollar amount obligations of all Losses indemnified against Seller under this Section 7.2 exceeds two percent (2%) of 11.1. The Seller Guarantor is executing the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against Joinder to this Agreement to confirm its agreement to its obligations under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liability11.1.

Indemnification by Seller. (a) Subject to the provisions of this Article 8 and except with respect to Closing Working Capital and Closing Indebtedness (which shall be governed exclusively by Article 2) and indemnification for Taxes (which shall be governed exclusively by Section 6.12), effective as of and after the Closing, Seller hereby agrees to shall indemnify Purchaser and hold harmless Buyer and its Affiliates Affiliates, and each of their respective directors, officers, directorsemployees, stockholdersagents and representatives (collectively, employees and agents (the “Purchaser Buyer Indemnified Parties”) against), from and agrees to hold them harmless from, against any Loss to and all Losses incurred or suffered by any of the extent such Loss arises from Buyer Indemnified Parties arising out of or in connection with the followingrelated to: (i) any breach by Seller of any representation or warranty contained in this AgreementAgreement and in any certificate or other writing delivered pursuant hereto by Seller; (ii) any breach by Seller of any covenant or agreement of its covenants Seller contained in this Agreement; orand (iii) the Indemnified Litigation. (b) Notwithstanding any Excluded Liability. Notwithstanding other provision to the foregoingcontrary: (i) Seller shall not be required to indemnify or hold harmless any Buyer Indemnified Party against, the indemnifications in favor of the Purchaser or reimburse any Buyer Indemnified Parties contained in this Section 7.2Party for, any Losses: (A) shall not be effective until to the aggregate dollar amount extent the related Liabilities were reflected in, reserved for or taken into account in the determination of all Final Working Capital; (B) pursuant to Section 8.02(a)(i), for any claim unless such claim or series of related claims involve Losses indemnified against under this Section 7.2 exceeds two percent (2%) in excess of the amount actually paid under Article 3 $100,000 (the “Threshold De Minimis Amount”), in and 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 Buyer Indemnified Parties’ Losses under Section 8.02(b)(i)(C); or (C) pursuant to Section 8.02(a)(i), until the aggregate amount of the Buyer Indemnified Parties’ Losses under Section 8.02(a)(i) exceeds $8,050,000 (the “Threshold”), after which event Seller shall be liable obligated for all the Buyer Indemnified Parties’ Losses including the Threshold Amount; and (Bunder Section 8.02(a)(i) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of for the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2that exceeds the Threshold; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 8.02(b)(i)(B) and (C) shall not apply to any the indemnification by obligations of Seller for any breach in respect of breaches of the Fundamental Representations or the representations and warranties contained set forth in Sections 4.1Section 4.16 (Tax); and (ii) the cumulative indemnification obligations of Seller under Section 8.02(a)(i) shall in no event exceed, 4.2in aggregate, 4.3$34,500,000 (the “Cap”); provided, 4.4 that the Cap shall not apply to the indemnification obligations of Seller in respect of breaches of the Fundamental Representations or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liabilityrepresentations and warranties set forth in Section 4.16 (Tax).

Indemnification by Seller. Seller hereby agrees to will indemnify Purchaser and hold harmless Buyer, its Affiliates (including the Warrantholder), and each of their respective directors, officers, directorsmanagers, partners, members, stockholders, employees equity holders, employees, agents and agents representatives (collectively, the “Purchaser Buyer Indemnified Parties”) againstfor, and agrees will pay to hold them harmless fromthe Buyer Indemnified Parties the amount of, any Loss to the extent such Loss arises from loss, liability, claim, damage or in connection with the followingexpense (including costs of investigation and defense and reasonable attorneys’ fees) or diminution of value (collectively, “Losses”), whether or not involving a third-party claim, arising out of or relating to: (ia) any breach of any representation or warranty made by Seller in this Agreement or any Other Transaction Document; (b) any breach by Seller of any representation covenant or warranty contained obligation of Seller in this AgreementAgreement or any Other Transaction Document; (iic) any breach Excluded Liability; (d) without limiting Section 5.1(f), Section 5.1(g) or any other provision of this Agreement, any Encumbrance claimed by Seller of Platinum Long Term Growth VII LLC or any of its covenants contained in this AgreementAffiliates or any of their respective successors or assigns on any of the Purchased Assets; or (iiie) without limiting Section 5.1(f), Section 5.1(g) or any Excluded Liabilityother provision of this Agreement, that certain assignment dated as of February 8, 2006, by Wxxxxxx X. Xxxxxxx in favor of “QuantRx Medical Corporation, a corporation organized under the laws of the State or Oregon” with respect to U.S. Patent No. 6,811,549 and the failure of such assignment to properly name the Seller as the assignee; Notwithstanding the foregoing, the indemnifications in favor no claim for indemnification under Section 7.1(a) may be made by Buyer on behalf of the Purchaser Buyer Indemnified Parties contained Parties, and no payment in this Section 7.2: (A) respect of such a claim for indemnification shall not be effective required from Seller for any such claim until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 which the Buyer Indemnified Parties have incurred on a cumulative basis exceeds two percent fifty thousand thousand United States dollars (2%$50,000) of the amount actually paid under Article 3 (the “Threshold AmountDeductible”), in after which event Seller the Buyer Indemnified Parties shall be liable indemnified for all such Losses including in excess of the Threshold AmountDeductible; provided that the Deductible shall not apply, and (B) the Buyer Indemnified Parties shall terminate be entitled to indemnification without regard to satisfaction of the Deductible, in the event of fraud or with respect to, claims for breach of any Fundamental Representation. For the avoidance of doubt, the Deductible shall apply only once the aggregate dollar amount in respect of all Losses indemnified against claims for indemnification under this Section 7.2 aggregates fifty percent 7.1(a) (50%) except, in each case, in the event of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations fraud or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller claims for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred Fundamental Representation) by the Purchaser Buyer Indemnified Parties resulting from any Excluded LiabilityParties.

Indemnification by Seller. Subject to the limits set forth in this Article V, Seller hereby agrees to indemnify Purchaser indemnify, defend and hold Purchaser, its Affiliates and their respective officers, directors, stockholders, employees agents and agents Affiliates (the “Purchaser Indemnified Parties”) against"PURCHASER INDEMNIFIED PARTIES"), harmless from and agrees to hold them harmless fromin respect of any and all losses, any Loss to the extent such Loss arises from or damages, costs and reasonable expenses (including, without limitation, reasonable expenses of investigation and defense fees and disbursements of counsel and other professionals and losses in connection with the following: any clean-up or remedial action pursuant to Environmental Laws), (i) collectively, "LOSSES"), that they may incur arising out of or due to any breach by Seller inaccuracy of any representation or warranty the breach of any warranty, covenant, undertaking or other agreement of Seller contained in this Agreement; (ii) Agreement or the Disclosure Schedule; PROVIDED, HOWEVER, that Seller shall have no liability to Purchaser under this Section 5.1 unless Purchaser Indemnified Parties shall have met the aggregate deductible requirements of Section 5.3. Notwithstanding any breach by Seller other provision of any of its covenants contained in this Agreement; or (iii) any Excluded Liability. Notwithstanding the foregoing, including this Section 5.1, the indemnifications in favor of Seller shall have no obligation to indemnify, or otherwise have any liability to, the Purchaser Indemnified Parties contained in this Section 7.2: (A) shall not be effective until for any Loss arising out of, or relating to the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) business or operations of the amount actually paid under Article 3 Seller Subsidiaries following the date hereof (the “Threshold Amount”"EXCLUDED LOSSES"), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing without limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded LiabilityBreach (as defined below) unless written notice of a Loss occurring during the first 20 business days after the date hereof is provided as contemplated by Section 7.1(e) within 35 days following the date hereof.

Indemnification by Seller. (a) Subject to Section 8.8, Seller hereby agrees to shall indemnify Purchaser and its Affiliates and each of their respective officers, directors, employees, stockholders, employees agents and agents Representatives (the “Purchaser Indemnified PartiesIndemnitees”) against, and agrees to hold them harmless from, any Loss actual and direct loss (including a diminution in value of the Acquired Assets), liability, claim, damage or expense (including reasonable legal fees and expenses) (“Losses”), as incurred (payable promptly upon written request), to the extent such Loss arises from or in connection with the followingarising from: (i) any breach by Seller of any representation or warranty of Seller that survives the Effective Time and is contained in this Agreement or in any Related Instrument or Ancillary Agreement; provided that Seller shall not be required to indemnify any Person, and shall not have any liability under this Section 8.2(a)(i) to the extent the liability or obligation is directly caused by any action taken or omitted to be taken by any Purchaser Indemnitee; (ii) any breach by Seller of any covenant of its covenants Seller contained in this Agreement; orAgreement or in any Related Instrument; (iii) any Excluded Liability; and (iv) any fees, expenses or other payments incurred or owed by Seller to any brokers, financial advisors or comparable other Persons retained or employed by it in connection with the transactions contemplated by this Agreement or by any Related Instrument or Ancillary Agreement. (b) Seller shall have no indemnification obligations pursuant to Section 8.2 (a)(i), except to the extent that the aggregate amount of Losses incurred or suffered by Purchaser that Seller is otherwise responsible for under Section 8.2(a)(i) exceeds [*****] (the “Deductible”), at which time Purchaser shall be entitled to assert claims against Seller for Losses in excess of, but excluding, the Deductible; provided, that the maximum liability of Seller for all claims by Purchaser under Section 8.2(a)(i) shall not in any case exceed [*****]. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (Ai) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller there shall be liable for all Losses including no Deductible and the Threshold Amount; and (B) maximum liability shall terminate once be the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities Purchase Price with respect to any indemnifiable Losses arising out of such Seller’s breach of its representations or warranties in Sections 2.2, 2.4 or 2.5(a); (ii) the maximum liability for indemnifiable product liability Losses referred shall be [*****], and (iii) Seller shall indemnify Purchaser for all Losses based on fraud or intentional misconduct on the part of Seller. When calculating the amount of Losses arising out of or relating to any breach of a representation or warranty by Seller for purposes of determining whether the Deductible provided in this Section 7.2; providedsection has been satisfied, however, that the foregoing limitations on Seller’s references to “Material Adverse Effect” or other materiality qualifications (or correlative terms) will be disregarded. (c) Purchaser shall have no right to offset any claim for indemnification obligations pursuant to this Section 7.2 shall not apply 8.2 against any Milestone Payment or other amount that Purchaser is obligated to pay Seller pursuant to this Agreement, any indemnification by Seller for Ancillary Agreement, any breach of the representations and warranties contained in Sections 4.1Related Instrument, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon other agreement or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liabilityundertaking.

Indemnification by Seller. From and after the Closing Date, Seller hereby agrees to shall indemnify Purchaser and its Affiliates hold harmless Buyer and the Company, each of their respective officers, directors, stockholdersofficers, employees and agents agents, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Purchaser "Buyer Indemnified Parties”") against, from and agrees to hold them harmless from, against any Loss to and all Covered Liabilities incurred by or asserted against any of the extent such Loss arises from or Buyer Indemnified Parties in connection with the following: or arising from (i) any breach by Seller of any representation or warranty its covenants and agreements contained in this Agreement; herein; (ii) the Retained Liabilities or (iii) any breach by Seller of its representations and warranties contained herein (it being agreed that solely for purposes of establishing whether any of its covenants contained in this Agreement; or (iii) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations matter is indemnifiable pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach clause (iii), with the exception of the representations and warranties contained set forth in Sections 4.1Section 3.14 hereof, 4.2the accuracy of such representations and warranties shall be determined without giving effect to the qualifications to such representations and warranties, 4.3if any, 4.4 concerning "materiality" or "Material Adverse Effect"); provided that (A) Seller shall be required to indemnify Buyer Indemnified Parties pursuant to this clause 10.3(iii) only to the extent that the aggregate Covered Liabilities indemnifiable pursuant to this clause 10.3(iii) exceeds $50 million in the aggregate (provided that no claim may be counted toward such $50 million unless it exceeds $2 million), (B) Seller shall not be required to indemnify the Buyer Indemnified Parties pursuant to this clause (iii) in an aggregate amount in excess of $200 million and (C) any Losses asserted againstclaim for indemnification under this clause (iii) must be made during the applicable survival period set forth in Section 10.1. Any payment made pursuant to this Section 10.3 shall be treated by Seller and Buyer as an adjustment to the Initial Purchase Price, imposed upon or and Seller and Buyer agree, and Buyer agrees to cause the Company and the Subsidiaries, not to take any position inconsistent therewith for any purpose. If any of Seller's undertakings set forth in this Section 10.3 should be unenforceable, Seller shall contribute the maximum amount that it is permitted under applicable law to the payment and satisfaction of all indemnifiable liabilities incurred by the Purchaser Buyer Indemnified Parties resulting from any Excluded LiabilityParities. The parties acknowledge and agree that Seller's tax indemnification obligations shall be governed by Article VII.

Indemnification by Seller. (a) Seller hereby agrees to will save, defend and indemnify Purchaser and its Affiliates and each of their respective officers, directors, stockholdersofficers and employees (collectively with Purchaser and its Affiliates, employees and agents (the “Purchaser Indemnified PartiesIndemnitees”) against, and agrees to hold each of them harmless from, any Loss to and all Losses incurred or suffered by any Purchaser Indemnitees and arising out of or resulting from (1) the extent such Loss arises from or in connection with the following: (i) any breach by Seller failure of any representation or warranty contained made by Seller to be true and correct as of the Closing as if made on the Closing Date, (2) any breach of an agreement or covenant made by Seller in this Agreement; , (ii3) any breach by failure of Seller of or any of its covenants contained Affiliates to comply with any applicable “bulk sales” or similar Requirements of Law in this Agreement; or connection with the consummation of the transactions contemplated hereby or (iii4) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor Liability related to or arising out of the Purchaser Indemnified Parties contained Aggregate Assets or the Program. (b) The indemnification provided for in this Section 7.2: (A) 10.2 shall not be effective until terminate on the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) 18-month anniversary of the amount actually paid under Article 3 Closing Date, except for: (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B1) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained of Seller set forth in Sections 4.14.1(a), 4.2(b), 4.3(e) and (n) (collectively, 4.4 the “Fundamental Representations”) and the indemnification obligations set forth in Sections 10.2(a)(3) and 10.2(a)(4), which shall survive indefinitely; (2) the covenants set forth in Section 6.1, all of which shall survive for 60 days following the expiration of the relevant statutes of limitations; and (3) any Loss of which any Purchaser Indemnitee has notified Seller in accordance with the requirements of Section 10.6 on or any Losses asserted againstprior to the date such indemnification would otherwise terminate in accordance with this Section 10.2, imposed upon or incurred by as to which the obligation of Seller shall continue until the liability of Seller shall have been determined pursuant to this Article X, and Seller shall have reimbursed all Purchaser Indemnified Parties resulting from any Excluded LiabilityIndemnitees for the full amount of such Loss in accordance with the terms hereof.

Indemnification by Seller. Seller hereby agrees to shall indemnify Purchaser and Buyer, its Affiliates and each of their respective officers, directors, stockholders, employees and agents (the “Purchaser Indemnified Parties”) against, and agrees to hold them harmless fromfrom any Liability, damage or expense (including reasonable legal fees and expenses) or Claims with respect thereto (“Losses”) suffered or incurred by any Loss such indemnified party to the extent such Loss arises arising from or in connection with the following: (i) any breach by Seller of any representation or warranty of Seller contained in this Agreement; Agreement and the other agreements contemplated hereby which survives the Closing, (ii) any breach by Seller of any covenant of its covenants Seller contained in this Agreement; or Agreement and the other agreements contemplated hereby requiring performance after the Closing Date and (iii) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) Seller shall not be effective until have any liability under clause (i) above for breaches of representations and warranties unless the aggregate dollar amount of all Losses indemnified against under relating thereto for which Seller would, but for this Section 7.2 limitation, be liable exceeds two percent on a cumulative basis an amount equal to four million five hundred thousand dollars (2%$4,500,000) of (and then the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses the full extent of such Indemnified Losses, including the Threshold Amountaforementioned four million five hundred thousand dollars ($4,500,000)); and (B) Seller shall terminate once not have any liability under clause (i) above for any individual item where the aggregate dollar amount Loss relating to such item is less than $25,000, and such items resulting in an individual Loss of all Losses indemnified against under less than $25,000 shall not be aggregated for purposes of the first limitation in this Section 7.2 aggregates fifty 11(a); (C) Seller’s aggregate liability under clause (i) of this Section 11(a) shall in no event exceed twenty percent (5020%) of the amount actually paid Final Purchase Price; and (D) Seller’s aggregate liability under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.211(a) shall in no event exceed the Final Purchase Price; provided, however, provided that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller Claims for any Losses arising from a breach of the representations and warranties contained set forth in Sections 4.1, 4.2, 4.3, 4.4 the first sentence of Section 4(c) with respect to title to the Assets shall not be subject to the limitations set forth in clause (A) or any (C) of this Section 11(a) and Claims for Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting arising from any Excluded LiabilityLiability shall not be subject to any of the limitations set forth in this Section 11(a).

Indemnification by Seller. (a) Subject to the limitations set forth in Section 23.2(b) below, as the exclusive remedy of Buyer under this Contract after Closing, other than the remedies set forth in Section 24 below, Seller hereby agrees to indemnify Purchaser and its Affiliates and their respective Buyer (who for purposes of this Section 23, shall include the affiliates, officers, directors, stockholderspartners, employees employees, agents, representatives, successors and agents (the “Purchaser Indemnified Parties”permitted assigns) against, and agrees to hold each of them harmless fromagainst and pay on behalf of or reimburse Buyer in respect of any liability (including, without limitation, interest, penalties, reasonable attorneys fees and expenses, court costs and amounts paid in investigation, defense or settlement of any Loss of the foregoing) (collectively, "Losses") which Buyer may suffer, sustain or become subject to, as a result of, in connection with, relating or incidental to or by virtue of the breach by Seller of any covenant, representation or warranty made by a Seller under this Contract (a "Seller's Breach"). (b) The indemnification provided for in Section 23.2(a) above is subject to the extent such Loss arises from or in connection with the followingfollowing limitations: (i) Seller will not be liable to Buyer to the extent that any breach of Seller's representations and warranties set forth in this Contract become untrue or misleading in a material respect at any time after the Effective Closing Date, but prior to Closing, as a result of knowledge acquired by Seller of any representation or warranty contained in this Agreement;through Buyer's due diligence. (ii) any breach by Seller of any of its covenants contained in this Agreement; or (iii) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) shall will not be effective liable for any Losses arising from Seller's Breach unless and until the aggregate dollar amount of all such Losses indemnified against under this Section 7.2 relating to all such Seller's Breaches exceeds two percent (2%) of the amount actually paid under Article 3 $75,000 (the “"Threshold Amount”"), in which event case Seller shall be liable for the amount of all such Losses including in excess of the Threshold Amount; and (B) shall terminate once provided that the aggregate dollar amount liability of Seller hereunder shall not exceed Two Million Five Hundred Thousand Dollars ($2,500,000.00) (the "Cap Amount") in respect of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s for which indemnification obligations is sought by Buyer pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liabilityhereto.

Indemnification by Seller. (a) Subject to Sections 7.1 and 7.3(b), and except as otherwise provided in Article VIII, Seller hereby agrees to indemnify Purchaser that it shall indemnify, defend and hold harmless Acquiror and, if applicable, its Affiliates and their respective directors, officers, directorsemployees, stockholdersrepresentatives, advisors, agents and Affiliates (other than employees and agents of the Snapple Companies) (the “Purchaser "Acquiror Indemnified Parties”") against, and agrees to hold them harmless from, against and in respect of any Loss Losses arising out of, relating to the extent such Loss arises from or in connection with the followingresulting from, directly or indirectly: (i) any breach by Seller breach, subject to the standard set forth in Section 3.20, of any representation or warranty made by Seller contained in this Agreement; (ii) any the breach by Seller of any covenant or agreement of its covenants Seller contained in this Agreement; orand (iii) any Excluded Liability. Notwithstanding the foregoingliabilities and expenses attributable to Employee Benefit Plans (other than Snapple Employee Benefit Plans) and Employee Arrangements (other than Snapple Employee Arrangements), the indemnifications in favor of the Purchaser Indemnified Parties contained in this except for liabilities and expenses to be paid by Acquiror and/or Snapple pursuant to Section 7.2: 5.8. (Ab) Seller shall not be effective until liable to the aggregate dollar amount of all Acquiror Indemnified Parties for any Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any the matters enumerated in Section 7.3(a) unless the Losses therefrom exceed an aggregate amount equal to 3% of the Purchase Price, and then only for such Losses referred in excess of 3% of the Purchase Price and only up to in this Section 7.2an aggregate amount equal to 25% of the Purchase Price; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller Losses for any breach claims under Article II of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liabilitythis Agreement.

Indemnification by Seller. Seller hereby agrees to indemnify Purchaser and its Affiliates and their respective officers, directors, stockholders, employees and agents (the “Purchaser Indemnified Parties”) against, and agrees to hold them harmless from, any Loss a. Subject to the extent such Loss arises limitations in paragraph (b) below, Seller and Parent agree, jointly and severally, to defend, indemnify and hold harmless Buyer's Indemnified Persons from and against all Losses directly or indirectly incurred by or sought to be imposed upon any of them resulting from or in connection with the followingarising out of: (i) any breach of any of the representations, warranties or covenants made by Seller of any representation in or warranty contained in pursuant to this Agreement, and Ancillary Agreement, or in any agreement, document or instrument contemplated hereby; (ii) any breach fraud or intentional misrepresentation by Seller of any of its covenants contained in this AgreementSeller; orand (iii) in respect of any Excluded Liability. Notwithstanding . b. The right to indemnification under paragraph (a) is subject to the foregoingfollowing limitations: (i) Seller shall have no liability under paragraph (a) unless one or more of Buyer's Indemnified Persons gives written notice to Seller asserting a claim for Losses, including reasonably detailed facts and circumstances pertaining thereto, before the indemnifications in favor expiration of one year from the Purchaser Indemnified Parties contained in this Section 7.2: Closing Date, except that for any claim based upon a covenant or undertaking which by its terms is to be performed after the Closing, then the one year period above shall commence on the date when such covenant or agreement should have been performed; (Aii) Indemnification for claims under paragraph (a) above shall not be effective until payable by Seller only if the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”)thereunder by Buyer's Indemnified Persons shall exceed $25,000, in at which event point Seller shall be liable responsible for all Losses the entire amount of such Losses, including the Threshold Amountfirst $25,000 of such Losses; and and (Biii) Under no circumstances (other than Seller's actual fraud) shall terminate once Seller's liability hereunder exceed $2,000,000. In no event will Seller be required to pay cash in respect of any liabilities hereunder beyond the aggregate dollar actual cash amount paid by Buyer under the Purchase Notes, it being understood that an additional source of all Losses indemnified indemnification payments for Buyer is by way of an offset against amounts owing by it under this the Purchase Notes, as provided in Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller any such offset shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by next required payment under the Purchaser Indemnified Parties resulting from any Excluded LiabilityPurchase Notes).

Indemnification by Seller. (a) Subject to Sections 11.1, 11.5 and 11.8, Seller hereby agrees to indemnify shall indemnify, defend and hold harmless Purchaser and its Affiliates (including, following the Closing Date, Metalsco, Skyliner and NSA) and its and their respective officers, directors, stockholdersemployees, employees agents, successors and agents assigns (the “each a "Purchaser Indemnified Parties”Party") againstfor any and all Liabilities, losses, damages, claims, costs and agrees to hold them harmless fromexpenses, interest, awards, judgments and -94- 100 penalties (including, without limitation, reasonable attorneys' and consultants' fees and expenses) actually suffered or incurred (including, without limitation, any Loss to the extent such Loss arises from Action brought or in connection with the followingotherwise initiated by any of them) (hereinafter a "Loss") arising out of or resulting from: (i) the breach of any breach representation or warranty made by Seller contained in this Agreement (other than in respect of (x) Section 3.17 and certain amounts indemnified against under Section 6.3, it being understood that the rights and obligations of the parties with respect to indemnification for any and all Tax matters (including the breach of any representation or warranty contained in this Agreement;Section 3.17) shall be governed by Section 6.3; (y) Section 3.24, it being understood that the rights of the Purchaser Indemnified Parties with respect to indemnification for Environmental Matters (including the breach of any representations or warranties contained in Section 3.24) shall be governed by Section 11.2(a)(iii) and Section 11.4; and (z) Sections 3.8 and 3.9, it being the intention of the parties following the adjustment of the Purchase Price contemplated by Section 2.5 that no further claims shall be made with respect to the breach of any representation or warranty contained in such sections); or (ii) the breach of any breach covenant or agreement by Seller contained in this Agreement (other than Section 6.3, it being understood that the rights and obligations of the parties with respect to indemnification for any and all Tax matters (including the breach of any covenant or agreement of Seller relating to Taxes set forth herein) shall be governed by Section 6.3); or (iii) Environmental Matters to the extent relating to: (A) the Unwanted Property and all other businesses or Properties engaged in or operated by Seller or any of its covenants contained Affiliates other than the Business and the Real Property, or (B) the Business conducted prior to the Closing Date, provided, however, (1) Seller shall only be required to indemnify any Purchaser Indemnified Party for Liabilities for Environmental Matters relating to or arising from any pre-Closing on-site disposal or Release of Hazardous Materials which is not Known to Seller as of the Closing Date to the extent provided for in Section -95- 101 11.4, and (2) Seller shall not be required to indemnify any Purchaser Indemnified Party for any Liability for any cleanup or remediation of or relating to any pre-Closing on-site disposal or Release of Hazardous Materials with respect to the Business to the extent such cleanup or remediation Liability arises as a result of (x) a change in any Environmental Law which takes effect after the Closing, (y) a change in the use of the Real Property or any portion thereof to anything other than industrial use or (z) Purchaser's own activities such as excavation, construction, renovation or demolition in any area of the Real Property that is or has been capped (including capping by soil or existing structures) in connection with, or the use of which is restricted pursuant to, the Record of Decision or any other Environmental Matter with respect to the Real Property for which Seller is responsible under the terms of this Agreement; or (iiiiv) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor Liabilities relating to or arising from employee claims as of the Purchaser Indemnified Parties contained Closing Date, including without limitation those described in this Section 7.2: (A) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article items 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2through 9 on Schedule 3.20; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 Seller shall not apply be required to indemnify any Purchaser Indemnified Party with respect to bonuses, costs and liabilities to be paid by Purchaser as provided in Section 7.1(c); or (v) Liabilities relating to the Employee Benefit Plans maintained prior to the Closing Date by Seller; or (vi) Liabilities arising from or related to any indemnification failure to comply with laws relating to bulk transfers or bulk sales with respect to the transactions contemplated by Seller for this Agreement; or (vii) Liabilities in the nature of product liability claims relating to or arising out of allegations of personal injury or property damage suffered by any breach third party (A) on or prior to the Closing Date or (B) attributable to products sold or shipped, or Inventory purchased or manufactured, in each case in respect of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 conduct of the Business on or any Losses asserted against, imposed upon or incurred by prior to the Purchaser Indemnified Parties resulting from any Excluded Liability.Closing Date; or

Indemnification by Seller. (a) Subject to the limitations contained in this Section 11 and in the other provisions of this Agreement (including the provisions of Section 5) after the Closing Date, Seller hereby agrees to shall hold harmless and indemnify Purchaser from and against any and all Damages 32 actually incurred by Purchaser, its Affiliates and their respective officers, directors, stockholders, employees and agents (the “Purchaser Indemnified Parties”) against, and agrees to hold them harmless and/or Representatives arising out of or resulting from, any Loss to the extent such Loss arises from or in connection with the following: : (i) any breach by Seller of any representation or warranty made by Seller in Section 3 of this Agreement; (ii) any breach of any covenant of Seller (A) set forth in this Agreement excluding Sections 6.10 and 7.8 hereof or (B) set forth in Sections 6.10 and 7.8 hereof; or (iii) the Excluded Liabilities. (b) Notwithstanding anything to the contrary contained in this Agreement; , Purchaser shall not be entitled to assert any claim for indemnification pursuant to Section 11.1(a)(i) and (iia)(ii)(A) with respect to any breach by Seller of any of its representations, warranties or covenants contained set forth in this Agreement; or (iii) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) and Seller shall not be effective until required to make any indemnification payments hereunder with respect to any Damages actually incurred by Purchaser, its Affiliates and/or Representatives as a result of all breaches of such representations, warranties and covenants, until, and except to the aggregate dollar extent that, the cumulative amount of all Losses indemnified against under this Section 7.2 such Damages actually exceeds two percent (2%) of the amount actually paid under Article 3 $650,000 (the “Threshold Amount”"Threshold"), in which event Seller shall be liable responsible for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) Damages, regardless of the Threshold. Seller's cumulative liability for all breaches of its representations, warranties and covenants shall in no event exceed, and the total amount actually paid of the indemnification payments that Seller shall be required to make under Article 3 Section 11.1(a)(i) or (ii) shall be limited in the aggregate to, a maximum of $6,500,000 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liability"Cap").

Indemnification by Seller. From and after the Closing Date, Seller hereby agrees to shall indemnify Purchaser and its Affiliates hold harmless Buyer and the Company, each of their respective officers, directors, stockholdersofficers, employees and agents agents, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Purchaser "Buyer Indemnified Parties”") against, from and agrees to hold them harmless from, against -54- 61 any Loss to and all Covered Liabilities incurred by or asserted against any of the extent such Loss arises from or Buyer Indemnified Parties in connection with the following: or arising from (i) any breach by Seller of any representation or warranty its covenants and agreements contained in this Agreement; herein; (ii) the Retained Liabilities or (iii) any breach by Seller of its representations and warranties contained herein (it being agreed that solely for purposes of establishing whether any of its covenants contained in this Agreement; or (iii) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations matter is indemnifiable pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach clause (iii), with the exception of the representations and warranties contained set forth in Sections 4.1Section 3.14 hereof, 4.2the accuracy of such representations and warranties shall be determined without giving effect to the qualifications to such representations and warranties, 4.3if any, 4.4 concerning "materiality" or "Material Adverse Effect"); provided that (A) Seller shall be required to indemnify Buyer Indemnified Parties pursuant to this clause 10.3(iii) only to the extent that the aggregate Covered Liabilities indemnifiable pursuant to this clause 10.3(iii) exceeds $50 million in the aggregate (provided that no claim may be counted toward such $50 million unless it exceeds $2 million), (B) Seller shall not be required to indemnify the Buyer Indemnified Parties pursuant to this clause (iii) in an aggregate amount in excess of $200 million and (C) any Losses asserted againstclaim for indemnification under this clause (iii) must be made during the applicable survival period set forth in Section 10.1. Any payment made pursuant to this Section 10.3 shall be treated by Seller and Buyer as an adjustment to the Initial Purchase Price, imposed upon or and Seller and Buyer agree, and Buyer agrees to cause the Company and the Subsidiaries, not to take any position inconsistent therewith for any purpose. If any of Seller's undertakings set forth in this Section 10.3 should be unenforceable, Seller shall contribute the maximum amount that it is permitted under applicable law to the payment and satisfaction of all indemnifiable liabilities incurred by the Purchaser Buyer Indemnified Parties resulting from any Excluded LiabilityParities. The parties acknowledge and agree that Seller's tax indemnification obligations shall be governed by Article VII.

Indemnification by Seller. Seller hereby agrees to SELLER shall indemnify Purchaser BUYER, its affiliates and its Affiliates and each of their respective officers, directors, stockholders, employees and agents (the “Purchaser Indemnified Parties”) against, and agrees to hold them harmless fromfrom and against any loss, liability, claim, cost, damage or expense (including reasonable legal fees and expenses) (collectively, “Losses”) suffered or incurred by any Loss such indemnified party to the extent such Loss arises from or in connection with the followingarising from: (ia) any breach by Seller or inaccuracy of any representation or warranty of SELLER contained in this Agreement (including in any certificate delivered pursuant to this Agreement on the Closing Date), (b) any breach of any covenant or agreement of SELLER contained in this Agreement;, and (iic) any breach by Seller of any of its covenants contained in this Agreement; or (iii) any the Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2Liabilities; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 (x) SELLER shall not apply have any liability under clause (a) above (other than with respect to breaches of Section 3.2 (Title to Tangible Assets), Section 3.3 (Intellectual Property), Section 3.7 (Brokers) and Section 3.16(b) (Sufficiency of Assets)) unless the aggregate of all Losses relating thereto for which SELLER would, but for this proviso, be liable exceeds on a cumulative basis, an amount equal to one percent (1%) of the Final Purchase Price (the “Basket”), and then only to the extent that the aggregate of all such Losses relating thereto exceeds the Basket, and (y) SELLER shall not have any liability under clause (a) above with respect to any indemnification by Seller breach or inaccuracy of any representation or warranty of SELLER contained in Section 3.3 (Intellectual Property) unless the aggregate of all Losses relating thereto for any breach which SELLER would, but for this proviso, be liable exceeds on a cumulative basis, an amount equal to one half of one percent (0.5%) of the representations Final Purchase Price (the “IP Basket”) and warranties contained then only to the extent that the aggregate of all such Losses relating thereto exceeds the IP Basket; and provided, further, however, that SELLER’s aggregate liability under clause (a) above (other than with respect to breaches of Section 3.7 (Brokers)) shall in Sections 4.1no event exceed fifteen percent (15%) of the Final Purchase Price (the “Cap”). For the avoidance of doubt, 4.2(1) Losses with respect to matters not subject to the Basket that are paid by SELLER to BUYER or its affiliates shall not count towards the Basket or the IP Basket, 4.3, 4.4 or (2) any Losses asserted against, imposed upon or incurred by that count towards the Purchaser Indemnified Parties resulting from IP Basket shall also count towards the Basket and (3) any Excluded LiabilityLosses that count towards the Basket shall also count towards the IP Basket.

Indemnification by Seller. Subject to all of the terms and conditions of this Article X, Seller hereby agrees to shall indemnify Purchaser and its Affiliates and their respective officershold harmless each Indemnified Buyer Affiliate from any Losses suffered or incurred by such Indemnified Buyer Affiliate ("Buyer Losses"), directors, stockholders, employees and agents (the “Purchaser Indemnified Parties”) against, and agrees to hold them harmless from, any Loss to the extent such Loss arises from or in connection with any Buyer Losses arise from: (a) if the following: (i) Closing occurs, any breach by Seller of any representation or warranty of Seller contained in this Agreement; Agreement or in any certificate, instrument or other document delivered pursuant hereto, (iib) any breach by Seller of any covenant (including, for avoidance of its doubt, the covenants in Section 5.4) of Seller contained in this Agreement; or Agreement requiring performance after the Closing Date or (iiic) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that Seller shall not have any obligation to indemnify any Indemnified Buyer Affiliate from and against any remediation or abatement Liability arising as a result of the presence of asbestos in or upon any of the improvements located on any Company Property. Seller shall not have any liability under clause 10.1(a) above, excluding any Liability resulting from a breach of the representation in the second sentence of Section 3.2(a), which shall be without limitation, unless the aggregate of all Losses for which Seller would, but for this proviso, be liable pursuant to Section 10.1(a) and the analogous provisions under the Other Agreements, exceeds One Million Dollars ($1,000,000) on a cumulative basis (and then only to the extent of any such excess). Notwithstanding the foregoing, in the event Buyer establishes in respect of the breach of a representation and warranty that the facts or circumstances constituting such breach were Known to MagneTek, the foregoing limitations on minimum amount limitation and the maximum amount limitation set forth below will not be applicable to Seller’s 's indemnification obligations pursuant obligation with respect to the Losses resulting from such breach. Seller's aggregate liability under Section 10.1(a) of this Section 7.2 shall not apply to Agreement, together with the analogous provisions of the Other Agreements, but excluding any indemnification by Seller for any Liabilities resulting from a breach of the representations and warranties contained in Sections 4.1(i) the second sentence of Section 3.2(a) or (ii) Section 3.21, 4.2which shall be without limitation, 4.3shall in no event exceed 25% of the Purchase Price (as adjusted), 4.4 or any provided that only the first Five Million Dollars ($5,000,000) of Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liabilitya breach by Seller of the representation and warranty in Section 3.21 (Absence of Certain Liabilities) will be included in determining whether this amount has been exceeded.

Indemnification by Seller. (a) From and after the Closing, and subject to this Article VIII, Seller hereby agrees to shall defend, indemnify Purchaser and hold harmless Buyer, and each of its Affiliates Affiliates, and their respective officersRepresentatives (collectively, directors, stockholders, employees and agents (the “Purchaser Indemnified PartiesBuyer Indemnitees”) from and against, and agrees to hold them harmless from, any Loss to pay or reimburse the extent such Loss arises Buyer Indemnitees for all Losses resulting from or in connection with the following: (i) any breach by Seller of any representation or warranty contained in this Agreement or any Additional Document, (ii) any breach or default in performance by Seller of any covenant of Seller, or (iii) any Retained Liability. (b) Notwithstanding anything to the contrary set forth in this Agreement, even if the Buyer Indemnitees would otherwise be entitled to recover a Loss pursuant to this Agreement: (i) No Person shall be entitled to any indemnification for a Loss pursuant to Section 8.2(a)(i) if, with respect to any individual Loss (or series of related Losses), such Loss (or series of related Losses) is less than $25,000 (each, a “De Minimis Claim”); (ii) No Person shall be entitled to any indemnification for a Loss pursuant to Section 8.2(a)(i) arising from a breach by Seller of any a Capped Representation unless the aggregate of its covenants contained in this Agreement; orall such indemnifiable Losses (excluding all De Minimis Claims) would exceed on a cumulative basis an amount equal to $1,000,000 (the “Deductible”), and then only to the extent such Losses exceed the Deductible; (iii) any Excluded Liability. Notwithstanding the foregoing, maximum amount of indemnifiable Losses that may be recovered by the indemnifications Buyer Indemnitees in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) shall not be effective until the aggregate dollar pursuant to Section 8.2(a)(i) for breaches of Capped Representations shall be an amount equal to $4,000,000; and (iv) the maximum amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of that may be recovered by the amount actually paid under Article 3 (the “Threshold Amount”), Buyer Indemnitees in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 Agreement shall not apply be equal to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded LiabilityPurchase Price.

Indemnification by Seller. (a) Seller hereby agrees shall indemnify, defend and hold Buyer harmless against and with respect to, and shall reimburse Buyer for: (i) losses, liabilities or damages resulting from any untrue representation, breach of warranty or nonfulfillment of any covenant by Seller contained herein or in any certificate delivered by Seller to indemnify Purchaser Buyer pursuant thereto; (ii) obligations of Seller not assumed by Buyer pursuant to the terms hereof; and its Affiliates (iii) actions, suits, proceedings, claims, demands, assessments, judgments, costs and their respective officersexpenses, directorsincluding reasonable legal fees and expenses, stockholdersresulting from any of the foregoing or incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, employees or in enforcing this indemnity. (b) Notwithstanding the above, (i) Seller shall have no indemnification obligations under this Agreement unless Buyer has given Seller written notice of such claims within the applicable survival period provided for in Section 6.1, and agents (ii) indemnification shall only be made for claims of Buyer that exceed Seven Thousand Five Hundred Dollars ($7,500) (the “Purchaser Indemnified PartiesThreshold”) against, in the aggregate and agrees to hold them harmless from, any Loss to the extent of such Loss arises from or in connection with excess over the following:Threshold; provided, that claims of Buyer pursuant to Section 6.2(a)(ii) shall be subject to indemnification without regard to the Threshold. Seller’s indemnification obligations under this Agreement shall be calculated net of any amounts recoverable under insurance policies and net of any related Tax benefits. (ic) any breach by Seller of any representation or warranty contained in In no event shall Seller’s aggregate obligation to indemnify Buyer pursuant to this Agreement; (ii) any breach by Seller of any of its covenants contained in this Agreement; or (iii) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) shall not be effective until the aggregate dollar Agreement exceed an amount of all Losses indemnified against under this Section 7.2 exceeds two equal to eighty percent (280%) of the amount actually Purchase Price paid by Buyer to Seller. (d) Notwithstanding the above, Seller’s obligation to Buyer under this Article 3 (VI with respect to a breach of the “Threshold Amount”), in which event Seller second sentence of Section 2.6 shall be liable for all Losses including determined by reference to such Customer Contract(s) that is the Threshold Amount; subject of such breach, and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities recovery with respect to any of such Losses referred breach shall be in an amount with respect to in this Section 7.2the applicable Customer Contract(s) equal to the revenues generated by such Customer Contract(s) during the previous twelve (12) months (less revenues received by Buyer under such Customer Contract after the Effective Time) divided by the revenues generated by all Customer Contracts during the previous twelve (12) months, multiplied by $750,000; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to there shall be no recovery under this Section 7.2 shall not apply 6.2(d) in the event that the customer(s) with respect to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 such Customer Contract(s) terminated to move such business to Buyer or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liabilityan affiliate thereof.

Indemnification by Seller. Subject to the provisions of this Article VII, Seller hereby agrees to indemnify Purchaser shall indemnify, defend and hold harmless Buyer and its Affiliates and their respective officers, directors, stockholders, employees and agents (collectively, the “Purchaser Indemnified Parties”"Buyer Indemnitees") againstfrom and after the Closing Date from and against any and all claims, losses, damages, Liabilities, awards, judgments, costs and agrees expenses (including reasonable attorneys' fees) (subject to hold them harmless fromSection 7.5(a), any Loss "Damages") incurred by the Buyer Indemnitees to the extent such Loss arises from or in connection with the following: caused by (i) any breach by Seller of any representation or warranty contained of the representations and warranties made in this Agreement; Agreement by Seller, (ii) any breach by Seller of any covenant or agreement of its covenants contained in this Agreement; or Seller made herein or (iii) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) Seller shall not be effective liable to indemnify any Buyer Indemnitees against Damages arising under clause (i) above unless and until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 such Damages exceeds two percent (2%) of the amount actually paid under Article 3 $750,000 (the “"Threshold Amount”"), in which event Seller whereupon the Buyer Indemnitees shall be liable entitled to indemnification for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar full amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2Damages; provided, however, that Seller's maximum Liability to the foregoing Buyer Indemnitees for all Damages arising under clause (i) above shall not exceed $5,163,750 (the "Maximum Amount"); provided, further, however, that the Threshold Amount and Maximum Amount shall not apply with respect to Damages arising out of any failure of the representations and warranties set forth in Sections 3.1 (Organization and Related Matters), 3.2(a) (Authority) and 3.5 (No Broker) to be true and correct, in which case Seller's maximum Liability to the Buyer Indemnitees shall not exceed the Purchase Price. The limitations on Seller’s indemnification obligations pursuant to set forth in this Section 7.2 shall not apply to in respect of any indemnification obligation arising out of or resulting from fraud or willful misrepresentation by Seller. Notwithstanding anything herein to the contrary, for purposes of determining the amount of any Damages related to a breach of any representation or warranty made by Seller for any breach of in this Agreement, the representations and warranties contained made by Seller in Sections 4.1, 4.2, 4.3, 4.4 this Agreement shall be considered without regard to any "material," "Material Adverse Effect" or any Losses asserted against, imposed upon similar term or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liabilitylimitation contained therein.

Indemnification by Seller. Seller hereby agrees to will indemnify Purchaser in full Buyer and its Affiliates and their respective officershold it harmless against any Loss, directors, stockholders, employees and agents (the “Purchaser Indemnified Parties”) against, and agrees to hold them harmless from, any Loss to the extent such Loss arises arising from or in connection with the following: (i) relating to: any breach by or inaccuracy in any of the representations and warranties of Seller of any representation or warranty contained in this Agreement; Agreement or in any closing certificate delivered by or on behalf of Seller pursuant to this Agreement (ii) the calculation of Loss resulting from any such breach or inaccuracy to be determined without regard to any qualification as to "materially", "in all material respects" or similar qualification); any breach by Seller of any of its the agreements or covenants of Seller contained in this Agreement; or or the Pending Xxxxxx Action (iii) any Excluded Liability. Notwithstanding the foregoingcollectively, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) "Buyer Losses"). Buyer shall not be effective until entitled to recover from Seller for any Buyer Losses arising pursuant to Sections 1.1(a)(i) or 1.1(a)(ii): (x) in respect of any individual item, or group of items arising out of the aggregate dollar amount same event, where the Buyer Losses relating thereto are less than $25,000 (the "Sub-Basket Amount "); and (y) in respect of each individual item, or group of items arising out of the same event, where the Buyer Losses relating thereto are equal to or greater than the Sub-Basket Amount, unless the total of all Buyer Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 $125,000 (the “Threshold Amount”"Basket Amount "), in which event Seller the Buyer will be entitled to indemnification only for such Buyer Losses in excess of the Basket Amount. Seller's liability for Buyer Losses arising pursuant to Section 1.1(a)(i) or 1.1(a)(ii) or any Loss arising pursuant to Section 1.1(a) will not exceed $500,000 (the "Cap" and, together with the Sub-Basket Amount and the Basket Amount, the "Indemnity Limitations"). For clarity, none of the Indemnity Limitations shall be liable apply to Seller's liability under Section 1.1(a)(iii). If Buyer has a claim for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against indemnification under this Section 7.2 aggregates fifty percent 0, Buyer must deliver to Seller one or more written notices of Buyer Losses (50%each a "Buyer Claim") of within twelve (12) months after the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations Closing Date, except for Buyer Losses arising from a breach or liabilities with respect to any of such Losses referred to inaccuracy in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties made in Sections (a), (b), (b), (d) and 0 or Buyer Losses arising from any post-Closing breach of any of the agreements by Seller contained in Sections 4.1this Agreement, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred for which Buyer must deliver a Buyer Claim prior to two months after the expiration of the applicable statute of limitations. Seller will have no liability under this Section 0 unless the written notices required by the Purchaser Indemnified Parties resulting preceding sentence are given by the date specified. Any Buyer Claim will state in reasonable detail the basis for such Buyer Losses to the extent then known by Buyer and the nature of Buyer Losses for which indemnification is sought, and it may state the amount of Buyer Losses claimed. If such Buyer Claim (or an amended Buyer Claim) states the amount of Buyer Losses claimed and Seller notifies Buyer that Seller does not dispute the claim described in such notice or fails to notify Buyer within forty-five (45) Business Days after delivery of such notice by Buyer whether Seller disputes the claim described in such notice, Buyer Losses in the amount specified in Buyer's notice will be admitted by Seller, and Seller will pay the amount of such Buyer Losses to Buyer. If Seller has timely disputed the liability of Seller with respect to a Buyer Claim (or an amended Buyer Claim) stating the amount of Buyer Losses claimed, Seller and Buyer will proceed in good faith to negotiate a resolution of such dispute. If a claim for indemnification has not been resolved within thirty (30) calendar days after delivery of the Seller's notice, Buyer may seek judicial recourse. If a Buyer Claim does not state the amount of Buyer Losses claimed, such omission will not preclude Buyer from recovering from Seller the amount of Buyer Losses described in such Buyer Claim if any Excluded Liabilitysuch amount is subsequently provided in an amended Buyer Claim (although in that event, Seller will have the right to dispute the claim in accordance with the provisions of this Section 1.1(c)). In order to assert its right to indemnification under this Article 0, Buyer will not be required to provide any notice except as provided in this Section 1.1(c). Seller will pay the amount of any Buyer Losses to Buyer within ten (10) Business Days following a determination of Seller's liability for and the amount of Buyer Losses (whether such determination is made pursuant to the procedures set forth in this Section 0, by agreement between Buyer and Seller, by arbitration award or by final adjudication).

Indemnification by Seller. (a) Seller hereby agrees to will save, defend and indemnify Purchaser and its Affiliates and each of their respective officers, directors, stockholdersofficers and employees (collectively with Purchaser and its Affiliates, employees and agents (the “Purchaser Indemnified PartiesIndemnitees”) against, and agrees to hold each of them harmless from, any Loss to and all Losses incurred or suffered by any Purchaser Indemnitees and arising out of or resulting from (1) the extent such Loss arises from or in connection with the following: (i) any breach by Seller failure of any representation or warranty contained made by Seller to be true and correct as of the Closing as if made on the Closing Date, (2) any breach of an agreement or covenant made by Seller in this Agreement; , (ii3) any breach by failure of Seller to comply with any applicable “bulk sales” or similar Requirements of any Law in connection with the consummation of its covenants contained in this Agreement; or the transactions contemplated hereby or (iii4) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor Liability of Seller related to or arising out of the Purchaser Indemnified Parties contained Acquired Assets or the Program. (b) The indemnification provided for in this Section 7.2: (A) 10.2 shall not be effective until terminate on the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) 18-month anniversary of the amount actually paid under Article 3 Closing Date, except for: (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B1) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained of Seller set forth in Sections 4.14.1(a), 4.2(b), 4.3(e) and (h) (collectively, 4.4 the “Fundamental Representations”) and the indemnification obligations set forth in Sections 10.2(a)(3) and 10.2(a)(4), which shall survive indefinitely; (2) the covenants set forth in Section 6.1, all of which shall survive for 60 days following the expiration of the relevant statutes of limitations; and (3) any Loss of which any Purchaser Indemnitee has notified Seller in accordance with the requirements of Section 10.6 on or any Losses asserted againstprior to the date such indemnification would otherwise terminate in accordance with this Section 10.2, imposed upon or incurred by as to which the obligation of Seller shall continue until the liability of Seller shall have been determined pursuant to this Article X, and Seller shall have reimbursed all Purchaser Indemnified Parties resulting from any Excluded LiabilityIndemnitees for the full amount of such Loss in accordance with the terms hereof.

Indemnification by Seller. From and after the Closing Date, except for the Assumed Environmental Obligations and the matters for which Buyer indemnifies Seller hereby agrees under Article 9.4, Seller shall indemnify, defend and hold Buyer harmless from and against any and all Claims suffered by Buyer as a result of (a) any brokers’ or finders’ fees or commissions arising with respect to indemnify Purchaser brokers or finders retained or engaged by Seller and its Affiliates and their respective officersresulting from or relating to the transactions contemplated in this Agreement; (b) the breach of, directors, stockholders, employees and agents (the “Purchaser Indemnified Parties”) against, and agrees or failure to hold them harmless fromperform or satisfy, any Loss of the covenants of Seller set forth in this Agreement which are to be performed after the extent such Loss arises from or in connection with the following: Closing Date; and (ic) any breach by Seller of any representation or warranty contained of Seller set forth in this Agreement; , except for a breach of Article 4.8. Seller’s indemnity obligations under this Article 9.2 shall expire as to any claim for indemnification not asserted by Buyer within twelve (ii12) any breach by Seller of any of its covenants contained in months after the Closing Date. In no event shall Seller’s indemnity obligation under this Agreement; or Article 9.2 exceed ten (iii10) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor percent of the Purchaser Indemnified Parties contained in Mayell Net Closing Amount. The terms and provisions of this Section 7.2: (A) Article 9.2 shall not be effective until the aggregate dollar amount sole and exclusive remedy of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) each of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses persons indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities hereunder with respect to any the indemnified matters, regardless of whether such Losses referred to in this Section 7.2; providedClaims are based on contract, howevertort, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1strict liability, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liabilityother principles.

Indemnification by Seller. (a) Subject to the provisions of this ‎Article ‎X and except with respect to Closing Payment Adjustments (which shall be governed exclusively by Article ‎II) and indemnification for Taxes (which shall be governed exclusively by ‎Article ‎VII), effective as of and after the Closing, Seller hereby agrees to shall indemnify and hold harmless Purchaser and its Affiliates Affiliates, and each of their respective directors, officers, directorsemployees, stockholdersagents and representatives (collectively, employees and agents (the “Purchaser Indemnified Parties”) against), from and agrees to hold them harmless from, against any Loss to and all Losses incurred or suffered by any of the extent such Loss arises from Purchaser Indemnified Parties arising out of or in connection with the following: related to: (i) any breach by Seller of any Seller Fundamental Representation, at and as of the Closing as though made at and as of the Closing, or any breach of the representation or and warranty contained made in this Agreement; Section ‎3.16; (ii) any breach by Seller of any covenant or agreement of its covenants Seller contained in this AgreementAgreement to be performed prior to the Closing; or and (iii) any Excluded Liability. breach of any covenant or agreement of Seller contained in this Agreement to be performed, in whole or in part, after the Closing. (b) Notwithstanding any other provision to the foregoingcontrary (except with respect to indemnification for Taxes (which shall be governed exclusively by ‎Article ‎VII)): (i) Seller shall not be required to indemnify or hold harmless any Purchaser Indemnified Party against, or reimburse any Purchaser Indemnified Party for, any Losses pursuant to Section ‎10.2(a)(ii), solely to the indemnifications in favor extent such Losses arise out of or relate to a breach of Section ‎5.1, until the aggregate amount of the Purchaser Indemnified Parties contained in this Parties’ Losses under Section 7.2: (A‎10.2(a)(ii) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 $20,000,000 (the “Threshold AmountThreshold”), in after which event Seller shall be liable obligated for all the Purchaser Indemnified Parties’ Losses including under Section ‎10.2(a)(ii) for the Threshold Amountfull amount of such Losses, from the first dollar thereof and without regard to the Threshold; and (Bii) the cumulative indemnification obligations of Seller under Section ‎10.2(a) shall terminate once in no event exceed, in aggregate, the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 Purchase Price (the “Cap AmountCap”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liability).

Indemnification by Seller. (i) Seller hereby agrees to and Parent shall indemnify and save harmless Purchaser and its Affiliates and their respective officers, directors, stockholdersemployees, employees Affiliates and agents (the “Purchaser Indemnified Parties”) against, advisers from and agrees to hold them harmless from, against any Loss Losses suffered or incurred by any such indemnified party to the extent such Loss arises arising directly or indirectly from or in connection with the following: (iA) any breach by Seller of any representation or warranty contained of Seller in this Agreement; (B) any breach of any agreement, covenant or undertaking of Seller in this Agreement or any Transaction Document; and (C) the Excluded Assets or the Excluded Liabilities to the extent such Losses are due to facts and circumstances occurring prior to Closing; (ii) any breach no claim of Purchaser for indemnification by Seller of any of its covenants contained in this Agreement; or (iiia Loss pursuant to Section 5.2(a)(i) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) shall not may be effective made until the aggregate dollar amount of all such Losses indemnified against under this Section 7.2 exceeds two percent would reasonably be expected to exceed five hundred thousand dollars (2%) of the amount actually paid under Article 3 (the “Threshold Amount”$500,000), in at which event point Seller shall be liable for all Losses from the first dollar (including the Threshold Amountfirst $500,000); and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, provided however, that the foregoing limitations on Seller’s indemnification obligations pursuant to limitation in this Section 7.2 5.2(a)(ii) shall not apply to any claim for indemnification pursuant to Section 5.2(a)(i)(C); and (iii) any amount of indemnification owed by Seller up to six million dollars ($6,000,000) will be not be paid to Purchaser but will, instead, be credited against the book value of the tangible Transferred Assets, which book value at the time of Closing is agreed by the Parties to be in excess of six million dollars ($6,000,000), and any amount owed by Seller for indemnification in excess of six million dollars ($6,000,000) will be paid by Seller, if at all, as an offset against milestone and royalty payments due Seller pursuant to the terms of this Agreement; Purchaser’s sole means of collecting any breach such amounts in excess of six million dollars ($6,000,000) will be by such offset, and in the representations event this Agreement expires or is terminated before the amount of milestone and warranties contained royalty payments used for such offset reaches the amount owed pursuant to such excess, then Purchaser’s claim for all Losses will be deemed to have been fully satisfied and Seller will have no further obligation relating to such Losses, even if no milestone or royalty payment has accrued in Sections 4.1order to be used for such offset; provided however, 4.2, 4.3, 4.4 or that the limitation in this Section 5.2(a)(iii) shall not apply to any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liabilityclaim for indemnification pursuant to Section 5.2(a)(i)(C).

Indemnification by Seller. Subject to the limitations set forth in this Article IX, Seller hereby agrees to indemnify Purchaser shall indemnify, defend, save and its hold Purchaser, Purchaser’s Affiliates (including, after the Closing, the Company) and their respective officersthe Representatives of any of them (collectively, directors, stockholders, employees and agents (the “Purchaser Indemnified PartiesIndemnitees”) against, harmless from and agrees to hold them harmless from, against any Loss to the extent such Loss arises from or in connection with the followingand all Losses incurred by any Purchaser Indemnitee arising out of: (ia) any breach by Seller of any representation or warranty contained in this Agreement; (ii) any breach made by Seller of any of its covenants contained in this Agreement; or (iii) provided that Seller shall not have any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in liability under this Section 7.2: (A9.2(a) shall not be effective with respect to breaches of such representations and warranties until the aggregate dollar amount Losses arising out of all such breaches equal or exceed $250,000, at which point Purchaser shall be entitled to recover only such Losses indemnified against in excess of such amount; provided, further, that the foregoing limitation shall not apply to any claim made under this Section 7.2 exceeds two percent (2%9.2(a) for any breach of any Title and Authorization Warranties; and provided, further that for purposes of determining the amount actually paid under Article 3 (the “Threshold Amount”Loss arising from Seller’s breach of any representation or warranty for purposes of this Section 9.2(a), all “knowledge” and “materiality” qualifications therein shall be disregarded; (b) any breach of any covenant made by Seller or the Company in which event this Agreement, including, but not limited to, Section 5.17; (c) any Environmental Liabilities with respect to the Real Property (other than Seller’s Environmental Remediation Actions), provided that Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against not have any liability under this Section 7.2 aggregates fifty percent 9.2(c) with respect to any such Environmental Liabilities until the aggregate Losses arising out of such Environmental Liabilities equal or exceed $250,000, at which point Purchaser shall be entitled to recover only such Losses in excess of such amount; (50%d) of the amount actually paid under Article 3 Seller’s Environmental Remediation Actions; (the “Cap Amount”e) and Seller shall thereafter have no further any obligations or liabilities with respect to the Retained Liabilities; (f) any liability for Taxes of such Losses referred the Company attributable to in this Section 7.2any Pre-Closing Tax Period which exceeds the amount of accrued Taxes set forth on the Closing Balance Sheet; provided, however, that the foregoing limitations on Seller’s indemnification obligations and (g) product claims for which Seller is responsible pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liability5.11.

Indemnification by Seller. (i) Seller hereby agrees to indemnify Purchaser shall indemnify, defend and hold harmless Buyer and each of its Affiliates (each, a "Buyer Indemnitee") from and their respective officers, directors, stockholders, employees and agents (the “Purchaser Indemnified Parties”) against, and agrees shall reimburse each Buyer Indemnitee for, all demands, claims, actions or causes of action, assessments, losses, damages, liabilities, costs and expenses, including, without limitation, interest, penalties, court costs and reasonable attorneys' fees and expenses (including, without limitation, reasonable expenses of investigation and reasonable attorneys' and accountants' fees) imposed upon or incurred by such Buyer Indemnitee, directly or indirectly (a "Loss" or "Losses") with respect to hold them harmless from(A) any misrepresentation or breach of warranty contained in Article III hereof, any Loss to the extent such Loss arises from or in connection with the following: (iB) any breach by Seller of any representation covenant or warranty agreement of Seller contained in or arising out of this Agreement;, unless deemed to be waived by Buyer pursuant to paragraph (a) of this Section 7.8, and (C) any unpaid Taxes of any Company for any Pre-Closing Period, other than Taxes against which Buyer has indemnified Seller pursuant to Section 7.8(c) below. (ii) Notwithstanding Section 7.8(b)(i), Seller shall not have any breach by Seller liability under Section 7.8(b)(i) in respect of any of its covenants contained in this Agreement; or (iii) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) shall not be effective claim for indemnification until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 otherwise subject to indemnification equals or exceeds two percent (2%) $1,500,000, at which time only those Losses in excess of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller $1,500,000 shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2recoverable; provided, however, that in no event shall (i) Seller's aggregate liability for a breach of the foregoing limitations on representations and warranties contained in Section 3.17 hereof exceed $4,500,000 and (ii) Seller’s indemnification obligations pursuant to this 's aggregate liability under Section 7.2 shall not apply to 7.8(b)(i) (including, without limitation, any indemnification by Seller liability for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or Section 3.17 hereof) exceed $8,500,000. Seller's obligation to indemnify the Buyer Indemnitees shall terminate on the first anniversary of the Closing Date except that any Losses asserted against, imposed upon or incurred by claim for indemnification in respect of which notice is given in accordance with the Purchaser Indemnified Parties resulting from any Excluded Liabilityprovisions of Section 7.8 hereof prior to the first anniversary of the Closing Date shall survive with respect to such claim until final resolution thereof.

Indemnification by Seller. Subject to limitations set forth in this Article XI, from and after the Closing, Seller hereby agrees to and Guarantor (together, the “Seller Indemnitors”), jointly and severally, will indemnify Purchaser and its Affiliates Buyer, Parent, and their respective officers, directors, stockholdersAffiliates, employees employees, agents and agents representatives (collectively, the “Purchaser Buyer Indemnified Parties”) against), in full and agrees to hold them harmless fromagainst any Loss, whether or not actually incurred prior to Closing, incurred by any Loss to the extent such Loss arises Buyer Indemnified Party, resulting from or in connection with the followingarising out of: (i) any breach by or inaccuracy in any of the representations or warranties of Seller contained in this Agreement or in the Disclosure Schedule (without giving effect to any Disclosure Supplement) or the certificate delivered pursuant to Section 2.2(c)(i)(A); (ii) any breach of any representation or warranty of the agreements of Seller contained in this Agreement; (iiiii) (1) the indemnification obligations of the Company under the Purchase Agreements, by and among Guarantor, the subsidiary guarantors party thereto, and Credit Suisse First Boston LLC and Citigroup Global Markets Inc., as representatives of the initial purchasers listed on Schedule A thereto, dated August 5, 2003, November 17, 2003 and May 25, 2004, respectively (collectively, the “Note Purchase Agreements”), and (2) the Company’s obligations under the Registration Rights Agreements, by and among Guarantor, the subsidiary guarantors party thereto and Credit Suisse First Boston LLC, Citigroup Global Markets Inc., Deutsche Bank Securities Inc., X.X. Xxxxxx Securities Inc. and Banc One Capital Markets, Inc., dated August 13, 2003, November 17, 2003 and May 25, 2004, respectively (the “Registration Rights Agreements”); (iv) the claim by Royal Indemnity Company for damages of $600,000, plus interests and costs, as set forth in Royal Indemnity Company’s demand for arbitration, dated March 16, 2004 (the “Royal Indemnity Arbitration”); (v) any liability under the WARN Act or any similar state or local Law that may result from an “Employment Loss,” as defined by 29 U.S.C. 2101(a)(6), caused by any action of the Company prior to the Closing; (vi) any breach by Seller the Company of any of its covenants contained in this Agreement; orobligations under any Material Contract identified on Schedule 4.14 of the Disclosure Schedule as not having been provided to Buyer; (iiivii) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor third party claim alleging that any of the Purchaser Indemnified Parties contained in this Section 7.2: (A) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%statements set forth on Schedule 11.1(a)(vii) of the amount actually paid under Article 3 Disclosure Schedule, which statements have been authorized by Guarantor for use in the offering circular to be distributed by Parent and Buyer in connection with the Equity Offering, contain any untrue statement or omission of a material fact necessary to make such statements not misleading; and (viii) any Plan established or maintained by the Company (clauses (i) - (viii), collectively, “Threshold AmountBuyer Losses”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liability.

Indemnification by Seller. (a) Subject to Section 12.2(b), Seller hereby agrees to indemnify Purchaser and its Buyer, Buyer’s Affiliates and their respective officers, directors, stockholders, directors and employees and agents (the “Purchaser Buyer Indemnified Parties”) against, and agrees to hold them harmless from, any Loss to the extent such Loss arises from or in connection with the following: (i) any breach by Seller or any of Seller’s Affiliates of any representation or warranty made by Seller or any of Seller’s Affiliates contained in this Agreement or in any other Transaction Document (other than the Services Agreement, the Supply Agreement or the Transition Services Agreement); (ii) any breach by Seller or any of Seller’s Affiliates of any covenants of its covenants Seller or any of Seller’s Affiliates contained in this Agreement or in any other Transaction Document (other than the Services Agreement, the Supply Agreement or the Transition Services Agreement); or (iii) any Excluded Liability. Notwithstanding the foregoing, the indemnifications Pre-Closing Liabilities. (b) The indemnification in favor of the Purchaser Buyer Indemnified Parties contained in this Sections 12.2(a)(i) and 12.2(a)(ii) (but, for the avoidance of doubt, not Section 7.2: 12.2(a)(iii)) shall be subject to the following limitations: (Ai) Seller shall not be effective liable for such indemnification until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 claimed thereunder exceeds two percent Five Hundred Thousand Dollars (2%) of the amount actually paid under Article 3 (the “Threshold Amount”$500,000), in which event and then only to the extent such aggregate amount of Losses exceeds such amount; and ***CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. (ii) Seller shall not be liable for all Losses including the Threshold Amount; and (B) shall terminate once such indemnification after the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent claimed thereunder is equal to Three Million Dollars (50%$3,000,000) of the amount actually paid under Article 3 (the “Seller Cap Amount”) ), and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to Losses. (c) Buyer acknowledges and agrees that the indemnification provided in this Section 7.212.2 shall be Buyer’s sole and exclusive remedy for all Losses related to or arising at law, under any statute or in equity, or otherwise out of this Agreement, any of the other Transaction Documents (other than the Services Agreement, the Supply Agreement or the Transition Services Agreement) or any of the transactions contemplated hereby or thereby (other than claims of, or causes of action arising from, fraud) and, in furtherance thereof, Buyer waives, from and after the Closing, to the fullest extent permitted under applicable law, any and all rights, claims, actions or causes of action (other than claims of, or causes of action arising from, fraud) it may have against Seller or any of Seller’s Affiliates relating to the subject matter of this Agreement, any of the other Transaction Documents (other than the Services Agreement, the Supply Agreement or the Transition Services Agreement) or any of the transactions contemplated hereby or thereby, other than the remedies provided in this Section 12.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant Buyer shall be entitled to seek temporary or permanent injunctive relief or specific performance in order to enforce its rights under this Section 7.2 shall not apply to Agreement or any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1other Transaction Documents (other than the Services Agreement, 4.2, 4.3, 4.4 the Supply Agreement or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded LiabilityTransition Services Agreement).

Indemnification by Seller. Subject to the limitations set forth in Section 8.4 (Limitations of Liability), Section 8.5 (Indemnification in Case of Certain Liability), Section 9.3 (Seller’s Tax Indemnification), Section 10.1 (Survival), Section 10.2 (No Other Representations) and ARTICLE XII (Limited Remedies and Damages), if the Closing occurs, Seller hereby agrees to indemnify and hold Purchaser and its Affiliates and their respective officersRelated Persons (each, directors, stockholders, employees and agents (the a “Purchaser Indemnified PartiesParty”), harmless from and against (and to reimburse each Purchaser Indemnified Party as the same are incurred for) against, any and agrees to hold them harmless from, all Losses incurred by any Loss to the extent such Loss arises Purchaser Indemnified Party resulting from or in connection with any of the following: (i) 8.1.1 any breach by Seller of any a representation or warranty contained made by Seller in this Agreement; (ii) any 8.1.2 the breach by Seller of of, or default in the performance by Seller of, any of its covenants contained covenant, agreement or obligation to be performed by Seller pursuant to this Agreement or any Ancillary Agreement to which it is a party; 8.1.3 any fraud or willful misconduct by Seller in connection with this AgreementAgreement or the Ancillary Agreements or the transactions contemplated hereby or thereby; 8.1.4 the Excluded Assets or the Excluded Liabilities; or (iii) provided, that any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Party shall have the right, at such party’s sole discretion, to elect to pursue recovery for any such Losses under either Section 7.2: 8.1.1 (A) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in Section 3.18 (Environmental Matters)) or this Section 7.28.1.4 (with respect to Section 2.1.4(a) (Excluded Liabilities)); provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liability.or

Indemnification by Seller. (a) Subject to the provisions of this Article X, effective as of and after the Closing, Seller hereby agrees to shall indemnify and hold harmless Purchaser and its Affiliates and their respective officerssuccessors (collectively, directors, stockholders, employees and agents (the “Purchaser Indemnified Parties”), from and against any and all Covered Losses (or, in the case of clause (iii) againstbelow, and agrees to hold them harmless from, Special Covered Losses) actually incurred or suffered by any Loss of the Purchaser Indemnified Parties to the extent such Loss arises resulting from or arising out of (i) any breach of any covenant or agreement of Seller contained in connection this Agreement that survives the Closing, for the period it survives, (ii) any Retained Liability, and (iii) subject to Section 10.8 and only to the extent not a covered loss or a coverable loss (other than as a result of losses constituting the deductible or in excess of coverage limitations) under the RWI Policy, any non-compliance with GCP found from the followingGCP audit and data integrity audit of the CLARIDHY or AGILE clinical studies to the extent conducted by Purchaser during the period beginning upon the execution of this Agreement and ending at the Closing, as contemplated by Section 10.8. (b) Notwithstanding anything in this Agreement to the contrary: (i) Seller shall not be required to indemnify or hold harmless any breach by Seller of Purchaser Indemnified Party against, or reimburse any representation Purchaser Indemnified Party for, any Covered Losses to the extent that such Covered Losses or warranty contained the related Liabilities are actually reflected, reserved, accrued, recorded or included in the Business Financial Information, the Closing Working Capital or the Adjustment Amount as finally determined pursuant to this Agreement; (ii) any breach by the indemnification obligation of Seller of any of its covenants contained under Section 10.2(a)(i) shall in this Agreementno event exceed the Final Purchase Price; orand (iii) any Excluded Liability. Notwithstanding the foregoingwith respect to indemnification by Seller pursuant to Section 10.2(a)(iii), the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) Seller shall not be effective liable or required to indemnify or hold harmless any Purchaser Indemnified Party against any Special Covered Losses unless and until the aggregate dollar amount of all Special Covered Losses indemnified against under this Section 7.2 with respect thereto exceeds two percent $13,500,000, and then only to the extent of such excess and (2%B) the aggregate amount of the amount actually paid under Article 3 (the “Threshold Amount”), in Special Covered Losses for which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liabilityexceed $200,000,000.

Indemnification by Seller. (a) Seller hereby agrees to shall indemnify Purchaser and hold harmless Buyer and its Affiliates and their respective officers, directors, stockholdersmembers, employees agents and agents affiliates, from and against any and all demands, claims, actions or causes of action, assessments, losses, diminution in value, damages liabilities, costs and expenses, including but not limited to reasonable attorneys' fees (the “Purchaser Indemnified Parties”) against"Losses"), and agrees to hold them harmless from, suffered or incurred by any Loss to the extent such Loss arises from party by reason of or in connection with arising out of any of the following: (i) any the Excluded Liabilities; (ii) the breach by Seller of any representation or warranty contained in this Agreement; (ii) Article 2 hereof or in any breach Acquisition Document, Schedule, Exhibit or certificate delivered by Seller of any of its covenants contained in this Agreementconnection therewith; orand (iii) the non-fulfillment of any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor covenant or agreement of the Purchaser Indemnified Parties Seller contained in this Section 7.2: the Acquisition Documents or in any Schedule, Exhibit or certificate delivered by Seller in connection therewith. (Ab) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable No claim for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities indemnification with respect to any alleged misrepresentation or breach of such Losses referred to in this Section 7.2warranty may be made after two (2) years following the Closing Date; provided, however, that the foregoing limitations on Seller’s right to indemnification obligations pursuant shall extend to this Section 7.2 shall not apply four (4) years following the Closing Date such period with respect to any indemnification by Seller claim brought for any a misrepresentation or breach of Section 2.9(a) of this Agreement. (c) Buyer shall be entitled to seek indemnification hereunder only when the representations and warranties contained aggregate amount of all such Losses exceeds $50,000, in Sections 4.1such case, 4.2Buyer may recover all of its Losses from Seller, 4.3provided, 4.4 or any however, that the maximum liability of Seller to Buyer for all Losses asserted against, imposed upon or incurred by subject to indemnification hereunder shall be equal to the Purchaser Indemnified Parties resulting from any Excluded LiabilityPurchase Price.

Indemnification by Seller. Subject to the limitations set forth in this Article XII, from and after the Closing, Seller hereby agrees to indemnify Purchaser will indemnify, defend and its Affiliates hold harmless Purchaser, the Company, their respective Subsidiaries and their respective officers, directorsdirectors and employees (collectively, stockholders, employees and agents (the “Purchaser Indemnified Parties”) (a) against, from and agrees to hold them harmless from, against any Loss to the extent Covered Losses incurred by any such Loss arises Purchaser Indemnified Party resulting from or in connection with arising out of the following: (i) any breach by Seller or inaccuracy of any representation or warranty of Seller contained in this AgreementAgreement or the certificate provided by Seller pursuant to Section 10.02(c); (iib) from and against any breach Covered Losses incurred by any such Purchaser Indemnified Party resulting from or arising out of any failure by Seller of to comply with any of its covenants contained covenant or agreement made by Seller in this Agreement; orand (iiic) from and against any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Covered Losses incurred by such Purchaser Indemnified Parties contained Party resulting from or arising out of Loss Sharing Claims to the extent necessary so that Seller (and the other Seller Indemnified Parties) shall bear, whether directly or through the indemnification provided in this Section 7.2: 12.02(c), (Ai) shall not be effective first, eighty percent (80%) of each claim in respect of such Covered Losses until the aggregate dollar amount of all Losses indemnified against under paid pursuant to this Section 7.2 exceeds two 12.02(c) is equal to eighty percent (280%) of the Shared Loss Cap and (ii) thereafter, twenty percent (20%) of any such Covered Losses until the amount actually paid under Article 3 pursuant to this Section 12.02(c) is equal to the Shared Loss Cap; and (the “Threshold Amount”), in which event Seller d) from and against any Retained Liability. The following shall be liable deemed payments by Seller pursuant to Section 12.02(c) for all Losses including purposes of the Threshold Amount; and Shared Loss Cap: (Bi) shall terminate once eighty percent (80%) of any Pre-Closing Loss Sharing Claim Payments (for the portion, if any, of the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates Pre-Closing Loss Sharing Claim Payments and Loss Sharing Reserves that are less than fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”Purchase Price Cap) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach (ii) twenty percent (20%) of the representations Pre-Closing Loss Sharing Claim Payments and warranties contained in Sections 4.1Loss Sharing Reserves (for the portion, 4.2if any, 4.3of the aggregate Pre-Closing Loss Sharing Claim Payments and Loss Sharing Reserves that are less than one hundred percent (100%) of the Purchase Price Cap). In the event a Covered Loss would be eligible for indemnity under either Section 12.02(a) or Section 12.02(c), 4.4 such Covered Loss shall be recoverable only under Section 12.02(a). In the event a Covered Loss would be eligible for indemnity under (i) either Section 12.02(a) or any Losses asserted againstSection 12.02(c) and (ii) Section 12.02(d), imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liabilitysuch Covered Loss shall be recoverable only under Section 12.02(d).

Indemnification by Seller. (a) Except for (i) any claims for Damages under this Section 10.2 that properly constitute claims for Taxes under Section 10.3 (which claims shall be governed exclusively by Section 10.3 hereof and not by this Section 10.2) and (ii) any claims for Damages under this Section 10.2 that properly constitute claims related to Third Party Reimbursement under Section 10.4 (which claims shall be governed exclusively by Section 10.4 hereof and not by this Section 10.2), and (iii) any claims for Damages under this Section 10.2 that properly constitute claims related to the Litigation Accrual under Section 3.27 (which claims shall be exclusively governed by Section 3.27 and not this Section 10.2; provided that (i) the Board of Mediators procedure set forth in Section 10.2(d)(iii) shall govern any dispute between Seller hereby agrees and Purchaser under Section 3.27 and (ii) Section 10.2(b) shall apply to the Litigation Accrual) and subject to the provisions and limitations set forth in this Section 10.2, Seller shall indemnify Purchaser and its Affiliates the Acquired Companies and their respective officersdirectors and officers (each, directorsan "INDEMNIFIED PARTY") against any Damages that an Indemnified Party incurs as a result of any misrepresentation or breach of any representation, stockholderswarranty or covenant of Seller set forth in this Agreement. (b) Without limiting the effect of any of the other limitations set forth herein, employees Seller shall not be required to make any indemnification payment under Section 10.2 hereof with respect to any breach of any of such representations and agents warranties referenced in this Section 10.2, until the cumulative amount of the Damages incurred by the Indemnified Parties as a result of all such breaches of such representations and warranties exceeds the THRESHOLD AMOUNT (defined below); at which point Seller shall be required to pay the “Purchaser Damages incurred by the Indemnified Parties”Parties above the THRESHOLD AMOUNT. The "THRESHOLD AMOUNT" shall be $100,000 and there shall be excluded from the THRESHOLD AMOUNT (i) againstany and all Damages with respect to Taxes and Third Party Reimbursement which shall be governed exclusively by Section 10.3 and Section 10.4, and agrees respectively. The parties agree that as to hold them harmless fromclaims which are the subject of Section 3.27, any Loss the Litigation Accrual shall have been exhausted prior to utilization of the extent Threshold Amount as to such Loss arises from claims. (c) The total amount of the payments that Seller shall be required to make under or in connection with Section 10.2 of this Agreement (including all indemnification payments required to be made to the followingIndemnified Parties) shall be limited in the aggregate to Thirty-Five Million Dollars ($35,000,000.00) (d) All claims for indemnification by any Indemnified Party under Section 10.2 will be asserted and resolved as follows: (i) In the event any breach claim or demand in respect of which an Indemnified Party might seek indemnity under Section 10.2(a) is asserted against or sought to be collected from such Indemnified Party by a Person other than Seller (a "THIRD PARTY CLAIM"), the Indemnified Party shall deliver a Claim Notice within sixty days to Seller. Seller will notify the Indemnified Party as soon as practicable but in not more than twenty (20) days within the Dispute Period whether Seller disputes its liability to the Indemnified Party under Section 10.2, and whether Seller desires, at its sole cost and expense, to defend the Indemnified Party against such Third Party Claim. (A) If Seller notifies the Indemnified Party within the Dispute Period that Seller desires to defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 10.2(d), then Seller will have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at the sole cost and expense of Seller, such Third Party Claim by all appropriate proceedings, which proceedings will be prosecuted by Seller to a final conclusion or will be settled at the discretion of Seller (but only with the consent of the Indemnified Party in the case of any representation settlement that provides for any relief other than the payment of monetary damages or warranty contained that provides for the payment of monetary damages as to which the Indemnified Party will not be indemnified in full pursuant to Section 10.2); PROVIDED, HOWEVER, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to Seller's delivery of the notice referred to in the first sentence of this Agreement; clause (ii) A), file any breach motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and PROVIDED FURTHER, that if requested by Seller, the Indemnified Party will, at the sole cost and expense of Seller, provide reasonable cooperation to Seller in contesting any Third Party Claim that Seller elects to contest. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by Seller of any of pursuant to this clause (A), and except as provided in the preceding sentence, the Indemnified Party will bear its covenants contained in this Agreement; or (iii) any Excluded Liabilityown costs and expenses with respect to such participation. Notwithstanding the foregoing, the indemnifications in favor Indemnified Party may take over the control of the Purchaser defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section 10.2, with respect to such Third Party Claim. (B) If Seller fails to notify the Indemnified Parties contained Party within the Dispute Period that Seller desires to defend the Third Party Claim pursuant to Section 10.2 or if Seller gives such notice but fails to prosecute or settle the Third Party Claim, or if Seller fails to give any notice whatsoever within the Dispute Period in respect of the foregoing, then the Indemnified Party will have the right to defend, at the sole cost and expense of Seller, the Third Party Claim by all commercially reasonable proceedings, which proceedings will be prosecuted by the Indemnified Party in a reasonable manner and in good faith or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof; PROVIDED, HOWEVER, that if requested by the Indemnified Party, Seller will, at its sole cost and expense, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Seller may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this clause (B), and Seller will bear its own costs and expenses with respect to such participation. (C) If Seller notifies the Indemnified Party that it does not dispute its liability to the Indemnified Party with respect to the Third Party Claim under Section 10.2, or fails to notify the Indemnified Party within the Dispute Period that it disputes its liability to the Indemnified Party with respect to such Third Party Claim, the Damages in the amount specified in the Claim Notice will be conclusively deemed a liability of Seller under Section 10.2, and Seller shall pay the amount of such Damages to the Indemnified Party on demand. If Seller has timely disputed its liability with respect to such claim, Seller and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved in accordance with paragraph (iii) of this Section 7.2: 10.2(d). (Aii) In the event any Indemnified Party should have a claim under Section 10.2 against Seller that does not involve a Third Party Claim, the Indemnified Party shall deliver an Indemnity Notice within sixty (60) days to Seller. If Seller notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period that Seller disputes the claim described in such Indemnity Notice, the Damages in the amount specified in the Indemnity Notice will be effective until conclusively deemed a liability of Seller under Section 10.2, and Seller shall pay the aggregate dollar amount of all Losses indemnified against such Damages to the Indemnified Party on demand. If Seller has timely disputed its liability with respect to such claim, Seller and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within the Resolution Period, such dispute shall be resolved in accordance with paragraph (iii) of this Section 10.2. (iii) Any dispute arising under this Section 7.2 exceeds two percent (2%) 10.2 between the parties hereto or between a party hereto and any Indemnified Party that is not a party hereto which is not resolved by mutual agreement prior to the expiration of the amount actually paid under Article 3 applicable Resolution Period, shall, upon the written request of one or more parties to such dispute, be finally and conclusively determined by the decision of a board of mediators consisting of three (3) members (hereinafter sometimes called the “Threshold Amount”)"BOARD OF MEDIATORS") selected as hereinafter provided. Each of the Indemnified Party and Seller shall, in which event Seller within ten (10) working days of receipt of written request from the aforementioned, select one (1) member and the third member shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) selected by mutual agreement of the amount actually paid under Article 3 other members, or if the other members fail to reach agreement on a third member within ten (the “Cap Amount”10) and Seller days after their selection, such third member shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred be selected by the Purchaser Indemnified Parties resulting from any Excluded Liability.American Arbitration Association upon application made to it for such purpose by the

Indemnification by Seller. (a) Subject to the provisions of this Article X and except with respect to indemnification for Taxes, effective as of and after the Closing Date, Seller hereby agrees to indemnify shall indemnify, defend and hold harmless Purchaser and its Affiliates and their respective managers, officers, directors, stockholdersemployees, employees successors and agents assigns (collectively, the “Purchaser Indemnified Parties”) against), from and agrees to hold them harmless fromagainst any and all Losses actually incurred or suffered by any of the Purchaser Indemnified Parties, any Loss to the extent such Loss arises from arising out of or in connection with the following: relating to (i) any breach by Seller of any representation or warranty of Seller contained in Article III of this Agreement (except for Section 3.13 (Taxes)) or any breach of any representation or warranty of Dutch BV contained in the Canadian Purchase Agreement; (ii) any breach of any covenant or agreement of Seller contained in this Agreement or any breach of any covenant or agreement of Dutch BV in the Canadian Purchase Agreement; and (iii) any Retained Liabilities. (b) Notwithstanding any other provision to the contrary, Seller shall not be required to indemnify, defend or hold harmless any Purchaser Indemnified Party against, or reimburse any Purchaser Indemnified Party for, any Losses pursuant to Section 10.2(a)(i): (i) to the extent such Losses were included in the calculation of the Adjusted Net Asset Amount or otherwise included in the calculation of the Post-Closing Adjustment; (ii) any breach by Seller unless such claim individually or series of any related claims involves Losses in excess of its covenants contained in $250,000 (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 aggregate amount of the Purchaser Indemnified Parties’ Losses under this Agreement; orSection 10.2(b); (iii) any Excluded Liability. Notwithstanding until the foregoing, the indemnifications in favor aggregate amount of the Purchaser Indemnified Parties contained in this Parties’ Losses under Section 7.2: (A10.2(a)(i) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 $20,000,000 (the “Threshold AmountDeductible”), in which event it being understood that if such Losses exceed the Deductible, Seller shall be liable obligated for all only the Purchaser Indemnified Parties’ Losses including under Section 10.2(a)(i) in excess of the Threshold AmountDeductible; and and (Biv) shall terminate once for any Losses or Taxes under Section 10.2(a)(i) or Section 7.1 to the extent the aggregate dollar amount of all such Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 or Taxes exceed $300,000,000 (the “Cap AmountCap”) and Seller shall thereafter have no further obligations or liabilities with ); provided that in respect to of any claim involving Losses arising out of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any a breach of the representations and warranties contained made in Sections 4.1Section 3.2(a) (Capitalization of the Members -85- of the Commercial Air Group), 4.2Section 3.3 (Authority Relative to this Agreement) or Section 3.18 (Brokers) of this Agreement or Section 4(a) (Incorporation and Qualification), 4.3Section 4(b) (Corporate Authority; Execution and Binding Obligation) and Section 4(c) (Authorized and Issued Capital; Title to Purchased Shares) of the Canadian Purchase Agreement, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded LiabilityDeductible and the De Minimis Amount shall not apply and the Cap shall be equal to the Purchase Price.

Indemnification by Seller. (a) For the period commencing on the Closing Date and ending, as the case may be, upon the expiration of the periods specified in Section 9.1 (Survival of Representations, Warranties, Covenants and Agreements) hereof (if applicable), Seller hereby agrees shall, subject to indemnify Purchaser the limitations set forth in Section 9.1 (Survival of Representations, Warranties, Covenants and Agreements) hereof, indemnify, defend and hold harmless Buyer and its Affiliates and their respective directors, officers, directorsemployees, stockholders, employees shareholders and agents (the “Purchaser "Buyer Indemnified Parties”" and, collectively with the Seller Indemnified Parties, the "Indemnified Parties") againstagainst and in respect of (i) all Losses sustained, incurred, arising out of, in connection with or relating to any breaches of Seller's representations and agrees warranties set forth in this Agreement (other than representations and warranties set forth in Article V (Tax Matters), as to hold them harmless fromwhich the indemnification provisions set forth in Article V (Tax Matters) shall govern), any Loss (ii) Losses arising out of or relating to the matters set forth on Schedule 9.3 to the extent such Loss arises set forth thereon, (iii) all Losses incurred in connection with litigation that was omitted from the Schedules hereto in breach of the representations set forth in Section 3.8 (Litigation) hereof and (iv) all Losses to the extent relating to any assets, properties or businesses of the Companies and their Subsidiaries transferred or to be transferred to Seller or any of its Affiliates (other than the Companies and their Subsidiaries), in connection with the following:transactions contemplated hereby on or prior to the Closing Date. (ib) any breach by Seller of any representation or warranty contained in this Agreement; (ii) any breach by Seller of any of its covenants contained in this Agreement; or (iii) any Excluded Liability. Notwithstanding In addition to the foregoing, and without regard to and without being counted in calculating the indemnifications Deductible, but to be included in favor of determining if the Purchaser Limit has been reached, from and after the Closing Seller shall indemnify, defend and hold harmless the Buyer Indemnified Parties contained against and in this Section 7.2: (A) shall not be effective until the aggregate dollar amount respect of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of all Losses in excess of $5 million per Qualifying Customer Litigation (as defined below). A "Qualifying Customer Litigation" is a case or group of consolidated cases with substantially identical claims brought by customers of both the amount actually paid under Article 3 (Business and customers of similar businesses of Seller to the “Cap Amount”) extent relating to the conduct of the Business prior to the Closing Date and filed with a Court after the date hereof and prior to the third anniversary of the Closing Date. For purposes of this Section 9.3(b), any case filed against Seller or its Affiliates before the date hereof which does not currently name or involve the Companies or their Subsidiaries or the Business, but subsequent to the date hereof, is modified so that it does name or involve the Companies or their Subsidiaries or the Business, shall be deemed to have been filed after the date hereof. Except as specifically provided in this Agreement, Seller shall thereafter have no further obligations or liabilities liability to Buyer with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach extent relating or arising out of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 conduct of the Business on or any Losses asserted against, imposed upon or incurred by after the Purchaser Indemnified Parties resulting from any Excluded LiabilityClosing Date.

Indemnification by Seller. (a) Subject to the provisions of this Article IX, effective as of and after the Closing, Seller hereby agrees to shall indemnify and hold harmless Purchaser and its Affiliates and their respective officers(collectively, directors, stockholders, employees and agents (the “Purchaser Indemnified Parties”) against), from and agrees to hold them harmless fromagainst any and all Covered Losses incurred or suffered by any of the Purchaser Indemnified Parties, any Loss to the extent resulting from: (i) any breach of any Fundamental Representation as of the Closing (unless made as of a specific date, in which case as of such Loss arises from date), (ii) any breach of any covenant or agreement of Seller contained in connection with this Agreement that survives the followingClosing, for the period it survives; (iii) any Retained Liabilities; or (iv) Indemnified Taxes. (b) Notwithstanding anything in this Agreement to the contrary: (i) Seller shall not be required to indemnify or hold harmless any breach by Seller of Purchaser Indemnified Party against, or reimburse any representation Purchaser Indemnified Party for, any Covered Losses to the extent that such Covered Losses or warranty contained the related Liabilities are reflected, reserved, accrued, recorded or included in the Business Financial Statements, the Closing Working Capital, the Adjustment Amount or the Closing Funded Debt as finally determined pursuant to this Agreement;; and (ii) any breach by the cumulative indemnification obligation of Seller of any of its covenants contained in this Agreement; or (iiiunder Section 9.2(a)(i) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this and Section 7.2: (A9.2(a)(ii) shall not be effective until in no event exceed the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded LiabilityClosing Purchase Price.

Indemnification by Seller. From and after the Closing, subject to the provisions of this Article VIII (including the limitations set forth in Sections 8.1 and 8.4), Seller hereby agrees to shall indemnify Purchaser and its Affiliates and their respective officers(each, directors, stockholders, employees and agents (the a “Purchaser Indemnified PartiesParty”) against, be liable to the Purchaser Indemnified Parties for and agrees to hold them each Purchaser Indemnified Party harmless from, any Loss and all Losses incurred or suffered by each Purchaser Indemnified Party to the extent such Loss arises arising out of any of the following: (a) any breach of or inaccuracy in any representation or warranty made by Seller in Article III; (b) any breach of or failure by Seller to perform any covenant or obligation of Seller contained in this Agreement; (c) any Excluded Asset or Retained Obligation; or (d) as expressly set forth in Sections 5.9 and 10.17. Additionally, from the date hereof until the Closing, subject to the provisions of this Article VIII (including the limitations set forth in Sections 8.4 and 8.9), Seller shall indemnify the Purchaser Indemnified Parties against, be liable to the Purchaser Indemnified Parties for and hold each Purchaser Indemnified Party harmless from, any and all Losses incurred or in connection with suffered by each Purchaser Indemnified Party to the extent arising out of any of the following: (i) any breach by Seller of or inaccuracy in any representation or warranty contained made by Seller in this Agreement;the Security and Mortgage Agreement (a “Mortgage Representation Breach”); or (ii) any breach of or failure by Seller to perform any covenant or obligation of any of its covenants Seller contained in this the Security and Mortgage Agreement; or (iii) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liability.

Indemnification by Seller. Following the Closing and subject to the remainder of this Section 11.4 and Sections 10.2, 16.8 and 16.15, Seller hereby agrees to indemnify and hold harmless Purchaser from and against any and all suits, claims, losses, damages, liabilities, costs and expenses (including, but not limited to, reasonable and actual attorneys’ fees and court costs) (collectively, “Losses”), and pay all Losses, suffered or incurred by Purchaser after Closing in connection with any of Seller’s representations or warranties set forth in Section 11.1 herein, as qualified by Sections 11.1 and 11.3, not being true and correct in any material respect. Seller’s aggregate liability for its Affiliates indemnification obligations under this Section 11.4.1 shall not exceed the Maximum Liability Cap (defined below in Section 16.15), and their respective officers, directors, stockholders, employees no claim by Purchaser may be made and agents Seller shall not be liable for any Losses unless and until Purchaser’s claims for such Losses are for an aggregate amount in excess of Thirty-Five Thousand and No/100 Dollars ($35,000.00) (the “Purchaser Indemnified Parties”) against, and agrees to hold them harmless from, any Loss to the extent such Loss arises from or in connection with the following: (i) any breach by Seller of any representation or warranty contained in this Agreement; (ii) any breach by Seller of any of its covenants contained in this Agreement; or (iii) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold AmountLiability Basket”), in which event Seller Seller’s liability respecting any Losses shall be liable for all Losses including the Threshold Amount; and entire amount thereof (B) shall terminate once as applicable), subject to the aggregate dollar amount of all Losses indemnified against Maximum Liability Cap. Notwithstanding the foregoing, Seller’s liability under this Section 7.2 aggregates fifty percent (50%) indemnity provision, shall be limited in accordance with the remainder of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided11.4 and Sections 10.2, however16.8 and 16.15 hereof, it being agreed that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties indemnity contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded LiabilitySection 11.1.1 hereof is not so limited.

Indemnification by Seller. (a) Subject to the provisions of this Article X, effective as of and after the Closing, Seller hereby agrees to shall indemnify and hold harmless, on an after Tax basis, Purchaser and its Affiliates and their respective officers(collectively, directors, stockholders, employees and agents (the “Purchaser Indemnified Parties”) against), from and agrees to hold them harmless from, against any Loss and all Covered Losses incurred or suffered by any of the Purchaser Indemnified Parties to the extent such Loss arises resulting from or in connection with the following: (i) any breach by Seller of any representation or warranty contained in Article III, (ii) any breach of any covenant or agreement of Seller contained in this AgreementAgreement that survives the Closing, for the period it survives, or (iii) the indemnification obligations contained in Section 10.3. (b) Notwithstanding anything in this Agreement to the contrary: (i) Seller shall not be required to indemnify or hold harmless any Purchaser Indemnified Party against, or reimburse any Purchaser Indemnified Party for, any Covered Losses pursuant to Section 10.2(a)(i) for a breach of a Seller Fundamental Representation to the extent that such Covered Losses or the related Liabilities are reflected, reserved, accrued, recorded or included in the Business Financial Information, the Purchased Entity Financial Information, the Working Capital, the Adjustment Amount or Indebtedness, in each case as finally determined pursuant to Section 2.5; (ii) The cumulative indemnification obligation of Seller for breaches of the Seller’s Representations and Warranties (other than the Seller Fundamental Representations) shall in no event exceed €1 (the “Cap”); (iii) Seller shall not be required to indemnify, defend or hold harmless any Purchaser Indemnified Party against, or reimburse any Purchaser Indemnified Party for, any Covered Losses pursuant to Section 10.2(a)(ii) for a breach by Seller of any of its the covenants or agreements contained in Section 5.2 and Section 5.6 until the aggregate amount of the Purchaser Indemnified Parties’ Covered Losses under Section 10.2(a)(ii) for such breach exceeds €100,000, it being understood that if such Covered Losses exceed such minimum amount, Seller shall be obligated for only such Covered Losses in excess of such minimum amount, subject to the other provisions of this Article X; provided that the cumulative indemnification obligation of Seller pursuant to Section 10.2(a)(ii) for a breach of any of the covenants or agreements contained in Section 5.2 or Section 5.6 shall in no event exceed €40,000,000; (iv) The cumulative indemnification obligation of Seller for breaches of the Seller Fundamental Representations, any covenant or agreement of Seller contained in this Agreement, and for the indemnification obligations contained in Section 10.3 shall in no event exceed the Closing Purchase Price; orand (iiiv) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained No limitation on liability set out in this Section 7.2: (A) Agreement shall not be effective until apply where there has been Fraud in relation to the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect matter giving rise to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liabilitya claim.

Indemnification by Seller. (a) Following the Closing, subject to the terms of this Article IX, each of Parent and Seller hereby agrees to jointly and severally indemnify Purchaser and hold harmless Buyer and its Affiliates (including the Sold Companies) and their respective successors, permitted assigns, equityholders, officers, directors, stockholdersemployees, employees Representatives, members, partners and agents (collectively, the “Purchaser Buyer Indemnified PartiesPersons”) from and against, and agrees to hold them harmless fromwithout duplication, any Loss Losses incurred or suffered by any Buyer Indemnified Person arising out of, relating to the extent such Loss arises or resulting from or in connection with the following: (i) any breach by Seller of any representation of the representations or warranty contained warranties made by Parent and Seller in Article III of this Agreement; ; (ii) any breach by Seller of any of its the covenants contained or agreements of Parent and Seller in this Agreement; or (iii) any Excluded Liability. Notwithstanding the foregoing, Retained Liabilities (except those Liabilities described in Section 2.5(a)(vi) the indemnifications indemnity of which is provided for in favor Section 5.6); and (iv) the Liabilities set forth on Schedule 9.2(a)(iv). (b) The obligation of Parent and Seller to indemnify the Purchaser Buyer Indemnified Parties Persons for Losses with respect to the matters contained in this Section 7.29.2(a) other than Sections 9.2(a)(ii) – (iv) is subject to the following limitations: (Ai) neither Parent nor Seller shall not be effective until required to provide indemnification to any Buyer Indemnified Person pursuant to Section 9.2(a)(i), unless the aggregate dollar amount of all Losses indemnified against under this incurred or suffered by Buyer Indemnified Persons from the matters contained in Section 7.2 9.2(a)(i) exceeds two one half of one percent (20.5%) of the amount actually paid under Article 3 Initial Purchase Price (the “Threshold AmountDeductible”), in which event Seller and then Buyer Indemnified Persons shall be liable entitled to indemnification for all Losses including only the Threshold Amountamount in excess of the Deductible; and (Bii) in no event shall terminate once the aggregate dollar amount of all Losses indemnified against under this for which Parent and Seller are obligated to indemnify Buyer Indemnified Persons pursuant to Section 7.2 aggregates fifty 9.2(a)(i) exceed one half of one percent (500.5%) of the amount actually paid under Article 3 Initial Purchase Price (the “Cap AmountCap”) and Seller shall thereafter have no further obligations or liabilities with respect ). In addition to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on limitations, in no event shall Parent’s and Seller’s indemnification obligations pursuant to under Section 9.2(a) exceed, in the aggregate, the Final Purchase Price. For the avoidance of doubt, except for the previous sentence, none of the limitations set forth in this Section 7.2 9.2(b) shall not apply to any claims for indemnification by Seller for any under Section 5.6(a) or Sections 9.2(a)(ii) – (iv) or claims arising out of or relating to a breach of the Seller Fundamental Representations. (c) If applicable, any Losses that the Buyer Indemnified Persons are entitled to recover pursuant to Section 9.2(a)(i) for any inaccuracy or breach of Seller Fundamental Representations shall be satisfied in the following order of recovery: (i) first, directly from Parent and/or Seller, solely to the extent, and in the amount of, the remaining retention (if any) under the buyer-side representations and warranties contained insurance policy purchased by Buyer in Sections 4.1connection with this Agreement (the “R&W Policy”), 4.2subject to the other limitations set forth in this Section 9.2, 4.3(ii) second, 4.4 from the R&W Policy, solely to the extent that any such Losses are covered under the R&W Policy (subject to the terms and conditions of the R&W Policy), and (iii) third, directly from Parent and/or Seller, solely to the extent that (A) the limit of liability under the R&W Policy has been fully exhausted or (B) any such Losses asserted againstare not otherwise covered under the R&W Policy, imposed upon or incurred by subject to the Purchaser Indemnified Parties resulting from any Excluded Liabilityother limitations set forth in this Section 9.2.

Indemnification by Seller. (a) Subject to Sections 7.1 and 7.3(b), and except as otherwise provided in Article VIII, Seller hereby agrees to indemnify Purchaser that it shall indemnify, defend and hold harmless Acquiror and, if applicable, its Affiliates and their respective directors, officers, directorsemployees, stockholdersrepresentatives, advisors, agents and Affiliates (other than employees and agents of the Snapple Companies) (the “Purchaser "Acquiror Indemnified Parties”") against, and agrees to hold them harmless from, against and in respect of any Loss Losses arising out of, relating to the extent such Loss arises from or in connection with the following:resulting from, directly or indirectly: NYFS09...:\69\68669\0030\165\AGRN266W.00J (i) any breach by Seller breach, subject to the standard set forth in Section 3.20, of any representation or warranty made by Seller contained in this Agreement; (ii) any the breach by Seller of any covenant or agreement of its covenants Seller contained in this Agreement; orand (iii) any Excluded Liability. Notwithstanding the foregoingliabilities and expenses attributable to Employee Benefit Plans (other than Snapple Employee Benefit Plans) and Employee Arrangements (other than Snapple Employee Arrangements), the indemnifications in favor of the Purchaser Indemnified Parties contained in this except for liabilities and expenses to be paid by Acquiror and/or Snapple pursuant to Section 7.2: 5.8. (Ab) Seller shall not be effective until liable to the aggregate dollar amount of all Acquiror Indemnified Parties for any Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any the matters enumerated in Section 7.3(a) unless the Losses therefrom exceed an aggregate amount equal to 3% of the Purchase Price, and then only for such Losses referred in excess of 3% of the Purchase Price and only up to in this Section 7.2an aggregate amount equal to 25% of the Purchase Price; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller Losses for any breach claims under Article II of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liabilitythis Agreement.

Indemnification by Seller. (a) From and after the Closing, subject to the other provisions of this Article 8, Seller hereby agrees to indemnify Purchaser Buyer and its Affiliates and their respective officers, directors, stockholdersemployees, employees agents, attorneys, representatives, assigns and agents Affiliates (collectively, the “Purchaser Indemnified PartiesBuyer Entities”) and to hold each of them harmless from and against, any and agrees all Indemnifiable Losses suffered, paid or incurred by such Indemnified Buyer Entity and caused by any (i) breach of, inaccuracy in, or the failure to hold them harmless frombe true and correct of any of the representations and warranties made by Seller in Article 3 or in any certificate delivered pursuant to this Agreement, (ii) breach of any Loss of the covenants or agreements of Seller contained in this Agreement, (iii) Taxes with respect to the Acquired Assets for any Pre-Closing Period (excluding Transfer Taxes imposed on or with respect to the transactions contemplated by this Agreement), other than any Taxes to the extent the Indemnified Seller Entities are entitled to indemnification from Buyer for such Loss arises from Taxes pursuant to Section 8.02(a)(ii) or (iv) Retained Liabilities (excluding Indemnifiable Losses that are the subject of Section 8.01(a)(iii)). (b) Notwithstanding anything to the contrary contained in connection with this Section 8.01, the followingIndemnified Buyer Entities shall be entitled to indemnification: (i) any breach by Seller of any representation or warranty contained in this Agreement; (ii) any breach by Seller of any of its covenants contained in this Agreement; or (iii) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any claim for indemnification pursuant to Section 8.01(a)(i), only if the aggregate Indemnifiable Losses to all Indemnified Buyer Entities with respect to all such claims exceeds $3,500,000 (the “Deductible”) whereupon (subject to the provisions of clauses (ii) and (iii) below) Seller shall be obligated to pay in full all such amounts but only to the extent such aggregate Indemnifiable Losses referred to are in this Section 7.2excess of the amount of the Deductible; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 Deductible shall not apply to any indemnification by obligation of Seller for related to any breach of any of the representations Seller Specified Representations; (ii) with respect to any claim for indemnification pursuant to Section 8.01(a)(i) and warranties Section 8.01(a)(ii), only with respect to individual items and aggregated items arising out of the same facts, events or circumstances where the Indemnifiable Losses relating thereto are in excess of $100,000 (provided, that any items less than such threshold, other than aggregated items arising out of the same facts, events or circumstances, shall not be aggregated for the purposes of the immediately preceding clause (i)); provided, that the foregoing shall not apply to any indemnification obligation related to (x) any breach of any of the Seller Specified Representations; and (iii) only if such claims are made on or before the expiration of the survival period pursuant to Section 7.01 for the applicable representation, warranty, covenant or agreement. (c) Notwithstanding anything to the contrary contained in Sections 4.1this Agreement, 4.2in no event shall the Indemnified Buyer Entities be entitled to aggregate Indemnifiable Losses (i) with respect to all claims for indemnification pursuant to Section 8.01(a)(i) (other than any indemnification obligation related to the Seller Specified Representations) and Section 8.01(a)(ii) in excess of $35,000,000 (the “Cap”), 4.3, 4.4 or any (ii) with respect to claims for indemnification pursuant to Section 8.01(a)(i) (only with respect to the Seller Specified Representations) and claims for indemnification pursuant to Section 8.01(a)(iii) (when aggregated with all other Indemnifiable Losses asserted against, imposed upon or incurred by of the Purchaser Indemnified Parties resulting from any Excluded LiabilityBuyer Entities) in excess of the Base Purchase Price. (d) This Section 8.01 is subject to the limitations set forth in Section 7.03(b).

Indemnification by Seller. From and after the Closing Date, Seller hereby agrees to shall indemnify Purchaser and its Affiliates hold harmless Buyer and the Company, each of their respective officers, directors, stockholdersofficers, employees and agents agents, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Purchaser "Buyer Indemnified Parties”") against, from and agrees to hold them harmless from, against any Loss to and all Covered Liabilities incurred by or asserted against any of the extent such Loss arises from or Buyer Indemnified Parties in connection with the following: or arising from (i) any breach by Seller of any representation or warranty its covenants and agreements contained in this Agreement; herein; (ii) the Retained Liabilities or (iii) any breach by Seller of its representations and warranties contained herein (it being agreed that solely for purposes of establishing whether any of its covenants contained in this Agreement; or (iii) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations matter is indemnifiable pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach clause (iii), with the exception of the representations and warranties contained set forth in Sections 4.1Section 3.14 hereof, 4.2the accuracy of such representations and warranties shall be determined without giving effect to the qualifications to such representations and warranties, 4.3if any, 4.4 concerning "materiality" or "Material Adverse Effect"); provided that (A) Seller shall be required to indemnify Buyer Indemnified Parties pursuant to this clause 10.3(iii) only to the extent that the aggregate Covered Liabilities indemnifiable pursuant to this clause 10.3(iii) exceeds $5.8 million in the aggregate (provided that no claim may be counted toward such $5.8 million unless it exceeds $270,000), (B) Seller shall not be required to indemnify the Buyer Indemnified Parties pursuant to this clause (iii) in an aggregate amount in excess of $75 million and (C) any Losses asserted againstclaim for indemnification under this clause (iii) must be made during the applicable survival period set forth in Section 10.1. Any payment made pursuant to this Section 10.3 shall be treated by Seller and Buyer as an adjustment to the Initial Purchase Price, imposed upon or and Seller and Buyer agree, and Buyer agrees to cause the Company and the Subsidiaries, not to take any position inconsistent therewith for any purpose. If any of Seller's undertakings set forth in this Section 10.3 should be unenforceable, Seller shall contribute the maximum amount that it is permitted under applicable law to the payment and satisfaction of all indemnifiable liabilities incurred by the Purchaser Buyer Indemnified Parties resulting from any Excluded LiabilityParities. The parties acknowledge and agree that Seller's tax indemnification obligations shall be governed by Article VII.

Indemnification by Seller. (a) The Seller hereby agrees to indemnify Purchaser and its Affiliates and their respective officerswill indemnify, directors, stockholders, employees and agents (the “Purchaser Indemnified Parties”) againstdefend, and agrees to hold them harmless from, the Purchaser from and against any Loss and all Damages incurred by it which result from or relate to the extent such Loss arises from or in connection with the following: (i) any breach by Seller of any representation or warranty contained in this Agreement; (ii) any breach by the Seller of any of its representations or warranties contained in Section 2 of this Agreement or any of its covenants or agreements contained in this Agreement; or. Except as expressly provided in Section 5.1(b) hereof, the foregoing represents Seller's sole indemnification obligations, and Purchaser's sole remedy, related to this Agreement and the transactions contemplated hereby. (b) Notwithstanding the above, the Seller will indemnify, defend, and hold harmless the Purchaser from and against any and all Damages incurred by it which result from or relate to genuine, bona fide claims raised by Mazowiecka Wytwornia Xxxxx i Drozdzy ,,Polmos" ("POLMOS") that the Seller "Direct Invoice" software licensed to Polmos by the Company, under that certain Master Software License Agreement dated 1996.10.31, fails to conform to the description of that software provided to Polmos by the Seller and the Company prior to the Closing. In addition to the conditions set forth in Section 5.3 hereof, the indemnity obligations set forth in this subsection (b) are subject to the following conditions and limitations: (i) to be subject to this subsection, the claims of Polmos must relate to actions taken, or failed to be taken, by the Seller (or by the Company with the express approval of the Seller) prior to the Closing, (ii) the Purchaser shall, and the Purchaser shall cause Xxxxxxxx and the Company to, hereafter use their good faith best efforts, at their sole expense, to make the licensed software work to the satisfaction of Polmos and to otherwise prevent Polmos from raising claims subject to this subsection, (iii) any Excluded Liability. Notwithstanding the foregoingnotwithstanding Section 5.3(i), the indemnifications in favor Purchaser must give the Seller immediate written notice of any claim of Polmos, upon the Company's first learning of the intent of Polmos to possibly assert such claim, to which the Purchaser Indemnified Parties contained intends the indemnity obligations set forth in this Section 7.2: subsection (Ab) shall not be effective until to apply, and the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of Purchaser, the amount actually paid under Article 3 (Company and Xxxxxxxx must fully cooperate with and assist any efforts by the “Threshold Amount”)Seller to resolve such claim directly with Polmos, in which event Seller shall be liable for all Losses including the Threshold Amount; and (Biv) shall terminate once in no event will the Seller's aggregate dollar amount of all Losses indemnified against liability under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further indemnity obligations or liabilities with respect to any of such Losses referred to set forth in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liabilitysubsection (b) exceed US$100,000.

Indemnification by Seller. 7.2.1 Seller hereby agrees agrees, subject to the other terms, conditions and limitations of this Article 7, to indemnify Purchaser Buyer and its Affiliates and their each of its respective officers, directors, stockholdersofficers, employees and agents representatives (collectively, the “Purchaser Buyer Indemnified Parties”) against, and agrees to hold them the Buyer Indemnified Parties harmless from, all Adverse Consequences suffered or incurred by any Loss to the extent such Loss arises from Buyer Indemnified Party arising out of or in connection with the following: related to: (ia) any breach by Seller of any representation or warranty contained set forth in Article 3; (b) Indemnified Taxes; or (c) any of the Contracts described on Schedule 7.2.1(c). 7.2.2 Seller agrees, subject to the other terms, conditions and limitations of this Article 7, to indemnify the Buyer Indemnified Parties against, and to hold the Buyer Indemnified Parties harmless from, all Adverse Consequences suffered or incurred by any Buyer Indemnified Party arising out of or related to: (a) any breach of any representation or warranty of Seller set forth in Article 4, or (b) any failure by Seller to perform or comply with any covenant or agreement in this Agreement;. (ii) any breach by 7.2.3 Seller of any of its covenants contained in this Agreement; or (iii) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) shall not be effective have any obligation to indemnify any Buyer Indemnified Party pursuant to Section 7.2.1(a) or Section 7.2.2(a): (i) unless and until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification Adverse Consequences suffered by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Buyer Indemnified Parties resulting from any Excluded Liability.for which the Buyer Indemnified Parties would otherwise be entitled to indemnification pursuant to

Indemnification by Seller. (a) Seller hereby agrees to shall indemnify Purchaser and its Affiliates affiliates and each of their respective officers, directors, employees, stockholders, employees agents and agents (the “Purchaser Indemnified Parties”) representatives against, and agrees to hold them harmless from, any Loss to the extent such Loss arises from loss, liability, claim, damage or expense (including reasonable legal fees and expenses) ("Losses"), as incurred (payable promptly upon written request), arising from, in connection with the followingor otherwise with respect to: (i) any breach by Seller of any representation or warranty of Seller that survives the Closing and is contained in this Agreement or in any certificate delivered in connection herewith (it being agreed and acknowledged by the parties that for purposes of Purchaser's right to indemnification pursuant to this Section 8.01 the representations and warranties of Seller shall be deemed not qualified by any references therein to materiality generally or to whether or not any breach results or may result in a Seller Material Adverse Effect); (ii) any breach of any covenant of Seller contained in this Agreement; (ii) any breach by Seller of any of its covenants contained in this Agreement; or (iii) any Excluded Liability. Notwithstanding ; (iv) the foregoingfailure to comply with statutory provisions relating to bulk sales and transfers, if applicable; and (v) any fees, expenses or other payments incurred or owed by Seller to any brokers, financial advisors or comparable other persons retained or employed by it in connection with the indemnifications transactions contemplated by this Agreement; (b) Subject to the exclusions set forth in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A8.01(c) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”)below, in which event Seller shall be liable under Section 8.01(a)(i) (excluding any liability for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any a breach of the representations and warranties contained in Sections 4.13.04 and 3.09 hereto), 4.28.01(a)(ii), 4.38.01 (a)(iv) and 8.01 (a)(v) in respect of Losses only to the extent that the aggregate of such Losses exceeds fifty thousand dollar ($50,000), 4.4 or in which case the Seller shall be liable under this Section 8.01 for the amount of such Losses in excess of fifty thousand dollars ($50,000), up to a maximum aggregate amount of two million dollars ($2,000,000). Solely in respect of Seller's liability under Section 8.01(a)(i) (excluding any liability for a breach of the representations and warranties contained in Sections 3.04 and 3.09 hereto), 8.01(a)(ii), 8.01 (a)(iv) and 8.01 (a)(v), Article VIII shall provide the sole and exclusive remedy for any Losses asserted against, imposed upon sustained or incurred by Purchaser or its successors and permitted assigns. (c) Notwithstanding the Purchaser Indemnified Parties resulting from any above, the limitations set forth in Section 8.01(b) shall not apply to Seller's liability under Section 8.01 (a)(i) regarding the representations and warranties contained in Sections 3.04 and 3.09 and Section 8.01 (a)(iii) regarding the Excluded LiabilityLiabilities.

Indemnification by Seller. (a) Seller hereby agrees to indemnify Purchaser and its Affiliates and their respective officers, directors, stockholders, directors and employees and agents (the “"Purchaser Indemnified Parties”") against, and agrees to hold them harmless from, any Loss to the extent such Loss arises from or in connection with the following: (i) any breach by Seller of any representation or warranty contained in this Agreement;Agreement or any other agreement or documents delivered in connection herewith, (ii) any breach by Seller of any of its covenants contained in this Agreement; (iii) any and all claims made by third parties arising out of the operation of the Business or the Acquired Assets by Seller prior to the Closing Date; or (iiiiv) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.211.1 shall be effective only as follows: (Ax) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller there shall be liable for all no indemnification in respect of any Losses including in an amount less than $50,000 in the Threshold Amountaggregate; and (By) there shall terminate once the aggregate dollar amount be no indemnification in respect of all any Losses indemnified against under of which notice has not been given to Seller that indemnification is sought pursuant to this Section 7.2 aggregates fifty percent (50%) of 11.1 during the amount actually paid under Article 3 period from the Closing Date until the 365th day after the Closing Date (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2"Twelve-Month Period"); provided, however, that the foregoing limitations on Seller’s 's indemnification obligations pursuant to this Section 7.2 11.1 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liability. (b) Purchaser acknowledges and agrees that its sole and exclusive remedy with respect to any and all claims relating to the subject matter of this Agreement shall be pursuant to the indemnification provisions set forth in this Article XI. The Escrowed Funds, other than the Deposit, shall serve as security for Seller's obligations under Agreement and the other documents being delivered in connection herewith (the "Closing Documents"). The Indemnity Escrow shall survive until December 31, 2002, at which time the Indemnity Escrow shall terminate and the Indemnity Escrow and any interest earned thereon shall be distributed to the Seller, and the Additional Indemnity Escrow shall survive until September 30, 2002, at which time the Additional Indemnity Escrow shall terminate and the Additional Indemnity Escrow shall be distributed to the Seller, unless on or prior to either termination date, Purchaser shall have given written notice to Seller of a claim or claims for indemnification in accordance with the provisions of Section 11.6 hereof or any other claim under this Agreement or any Closing Document, in which case the amounts claimed shall remain in escrow until such claims shall have been determined in accordance with the provisions of this Article XI or by a court of competent jurisdiction. In furtherance of the foregoing and to secure the indemnification obligations of Seller to Purchaser, Purchaser shall have the right to set off against any amounts that may be due and payable to Seller pursuant to Purchaser Note A or Purchaser Note B an amount (the "Offset Amount") equal to any amounts for which Seller shall be obligated to pay to Purchaser pursuant to the provisions of this Agreement or any Closing Document. Such right to set off against amounts due and payable to Seller pursuant to Purchaser Notes A and B shall only apply if the amount of the claim at the time it is asserted exceeds the amount of the Indemnity Escrow. Following the assertion of a claim in accordance with the provisions of Section 11.6(a) or any other claim under this Agreement or any Closing Document, Purchaser shall nonetheless be obligated to make all payments under Purchaser Note A and Purchaser Note B as and when due to Seller, except the Offset Amount shall be paid to the Escrow Agent and held in escrow until the claim shall have been determined in accordance with the provisions of this Article XI or by a court of competent jurisdiction. In furtherance of the foregoing, Purchaser hereby waives, to the fullest extent permitted under applicable law, any and all rights, claims and causes of action it may have against Seller arising under or based upon any Governmental Rule.

Indemnification by Seller. Seller hereby agrees to indemnify Purchaser shall indemnify, defend and hold harmless Purchaser, its Affiliates and their respective officersAffiliates, directors, stockholdersofficers, employees and agents agents, and, effective upon the Closing, the Company and HRM (the each a “Purchaser Indemnified PartiesIndemnitee”) againstfrom and against any and all losses, liabilities, damages, judgments, settlements and agrees to hold them harmless expenses (including reasonable attorneys’ fees and expenses incurred in the investigation or defense of any of the same or in asserting, preserving or enforcing any of rights hereunder) (collectively, “Damages”), arising from, any Loss relating to the extent such Loss arises from or in connection with (a) any breach by Seller of its representations and warranties or covenants contained in this Agreement or any of the following: other Transaction Agreements, except that (i) any breach by Seller of any representation or warranty its representations and warranties contained in Section 3.8 hereof with respect to any item that is used in the calculation of the Net Accounts Receivable or the Tangible Net Worth shall be governed exclusively by Section 1.4 and excluded from Seller’s indemnification obligations under this Agreement; Section 7 and (ii) any breach by Seller of any of its covenants contained in this Agreement; or (iii) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred Section 3.13 hereof shall be governed by Section 7.4 and excluded from Seller’s indemnification obligations under this Section 7.1 (it being agreed and acknowledged by the parties that for purposes of a Purchaser Indemnified Parties resulting from Indemnitee’s rights to indemnification under Section 7.1(a), the representations and warranties of Seller contained herein shall be read without giving effect to any Excluded Liabilityreferences therein to materiality or to Material Adverse Effect qualifiers); (b) the obligations and liabilities relating to the Reimbursement Business in accordance with the penultimate sentence of Section 5.8(a); and (c) the Retained Seller Claims.

Indemnification by Seller. From and after the Closing Date, Seller hereby agrees to shall indemnify Purchaser and hold harmless Buyer, its Affiliates and affiliates, each of their respective officers, directors, stockholdersofficers, employees and agents (the “Purchaser Indemnified Parties”) againstagents, and agrees each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the "BUYER INDEMNIFIED PARTIES") from and against any and all Covered Liabilities resulting from any breach of any representation or warranty, covenant or agreement of Seller contained herein; PROVIDED, HOWEVER, that, except with respect to hold them harmless fromthe representations made in Sections 3.1 or 3.2, or with respect to any Loss fraud or intentional misstatement or omission without regard to materiality, Seller shall not be required to indemnify the Buyer Indemnified Parties with respect to any claim for indemnification pursuant to this Section 10.2, other than claims made under Section 3.1 or 3.2, or with respect to any fraud or intentional misstatement or omission without regard to materiality unless and until the aggregate amount of all claims against Seller under this Section 10.2 exceeds two (2) percent of the Adjusted Purchase Price and then only to the extent such Loss arises from aggregate amount exceeds such amount, and PROVIDED, FURTHER, that in no event shall Seller be required to pay or otherwise be liable for an amount in connection with the following: excess of fifteen (i15) any breach by Seller of any representation or warranty contained in this Agreement; (ii) any breach by Seller of any of its covenants contained in this Agreement; or (iii) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor percent of the Purchaser Indemnified Parties contained in Adjusted Purchase Price with respect to claims made under this Section 7.2: (A) shall not be effective until the aggregate dollar amount Section. The indemnification obligations of all Losses indemnified against Seller under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller 10.2 shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities only apply with respect to any claims arising out of such Losses referred matters occurring prior to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liabilityclosing.

Indemnification by Seller. (a) Subject to the provisions of this Article X, effective as of and after the Closing, Seller hereby agrees to indemnify shall indemnify, defend and hold harmless Purchaser and its Affiliates and their respective officers(including, directorsfollowing the Closing, stockholdersthe MMIS Entities) (collectively, employees and agents (the “Purchaser Indemnified Parties”) against), from and agrees to hold them harmless from, against any Loss and all Losses incurred or suffered by any of the Purchaser Indemnified Parties to the extent such Loss arises resulting from or in connection with the followingarising out of: (i) any breach by Seller or nonfulfillment of any representation or warranty contained in this AgreementSurviving Covenant of Seller; (ii) any breach by Seller of any of its covenants contained Indemnified Matter after Purchaser has incurred Losses in this Agreementconnection with such Indemnified Matter in an amount equal to $12,500,000; or (iii) any Excluded Liability. Liabilities. (b) Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained anything in this Section 7.2Agreement to the contrary: (A) Seller shall not be effective until required to indemnify or hold harmless any Purchaser Indemnified Party against, or reimburse any Purchaser Indemnified Party for, any Losses to the aggregate dollar amount of all extent that such Losses indemnified against under this Section 7.2 exceeds two percent (2%) of or the amount actually paid under Article 3 (related Liabilities are included in the “Threshold Closing Net Working Capital, the Closing Cash, the Closing Indebtedness or the Adjustment Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; providedeach case, however, that the foregoing limitations on Seller’s indemnification obligations as finally determined pursuant to this Agreement; and the indemnification obligations of Seller under Section 7.2 10.02(a)(i) and Section 10.02(a)(ii) shall not apply to any indemnification by Seller for any breach in no event exceed the amount of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded LiabilityClosing Payment.

Indemnification by Seller. (i) Subject to Sections 9.b.(ii) and 9.h, from and after the Closing Date, Seller hereby agrees to shall indemnify Purchaser and defend Buyer, its respective Affiliates and each of their respective officers, directors, stockholders, employees Representatives, successors and agents permitted assigns (the collectively, “Purchaser Indemnified PartiesBuyer Indemnitees”) against, and agrees to hold them harmless to the fullest extent permitted by Law from, any Loss and all Losses sustained or incurred by any Buyer Indemnitee, to the extent such Loss arises from or arising from, in connection with the followingor otherwise with respect to: (i1) any breach by Seller of, or any inaccuracy in, as of the date hereof or as of the Closing Date (or if expressly stated to be made as of a specified date, as of such specified date), of any representation or warranty contained in this Agreement; (ii) any breach by of Seller of any of its covenants contained in this Agreement; orprovided, however, that Seller shall not be required to indemnify any Buyer Indemnitee, and shall not have any liability under this Section 9.b(i)(1) to the extent the liability or obligation is directly caused by any action taken or omitted to be taken by any Buyer Indemnitee; (iii2) any breach of any covenant or agreement of Seller contained in this Agreement; and 3) any Excluded Asset or Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: . (Aii) Seller shall not be effective have no indemnification obligations hereunder unless and until the aggregate dollar amount of all Losses indemnified against incurred or suffered by the Buyer Indemnitees that Seller would otherwise be responsible for under this Section 7.2 9.b(i) exceeds two percent Seventy-Five Thousand Dollars (2%$75,000) of the amount actually paid under Article 3 (the “Threshold AmountIndemnification Threshold”), in at which event Seller txxx Xxxxxx shall be liable obligated to indemnify the Buyer Indemnitees for all only such Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) in excess of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2Indemnification Threshold; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to aggregate Liability of Seller for all Losses of the Buyer Indemnitees under Section 9.b(i) shall not in any case exceed One Million Five Hundred Thousand Dollars ($1,500,000) (the “Cap”). Nothing in this Agreement (including this Section 7.2 9.b) shall not apply be deemed to limit or restrict any indemnification by Seller for any breach of the representations and warranties contained Buyer Indemnitees’ rights to maintain or recover any amounts at any time in Sections 4.1, 4.2, 4.3, 4.4 connection with any action or claim based on actual fraud or intentional misconduct of Seller or any Affiliate of Seller. For the avoidance of doubt, Losses asserted against, imposed upon shall be determined with respect to either or incurred by both Acquired Centers in the Purchaser Indemnified Parties resulting from any Excluded Liabilityaggregate for purposes of the Indemnification Threshold and Cap.

Indemnification by Seller. (a) Subject to the limitations set forth in this Article VIII, after the Closing, Seller hereby agrees to defend and indemnify Purchaser and each of its Affiliates officers and their respective officers, directors, stockholders, employees and agents directors (the “Purchaser Indemnified PartiesIndemnitees”) against, and agrees to save and hold each of them harmless from, against any Loss to the extent such Loss arises from or in connection with the following: Losses incurred by them as a result of: (i) any breach by Seller failure of any representation or warranty made by Seller contained in this Agreement; Article III to be true and correct on and as of the Closing Date (it being agreed that any materiality or Material Adverse Effect qualification in a representation and warranty shall be disregarded in determining whether any such representation and warranty has been breached except as set forth in Schedule 6.2(b) of the Seller Disclosure Letter); (ii) any breach of any covenant or agreement by Seller of any of its contained in this Agreement (other than covenants contained in this AgreementArticle VII, which are addressed by Article VII exclusively); or and (iii) any Excluded Retained Liability. Notwithstanding . (b) Subject to the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained rights and limitations set forth in this Section 7.2: 8.2 and Sections 8.4(b), 8.4(d), 8.5, 8.6, 8.7 and 8.8, after the Closing, Seller agrees to defend and indemnify the Purchaser Indemnitees and save and hold each of them harmless against any Losses incurred by them as a result of (Ai) shall not be effective until the aggregate dollar amount presence or release of, or human exposure to, Hazardous Substances in, on, or beneath any Leased Real Property or any Real Property, in each case, to the extent existing or occurring on or prior to the Closing Date; and (ii) any violation of all any Environmental Law by the Business, any Asset Selling Entity (in connection with the Business) or any Conveyed Entity, to the extent relating to or arising from acts or omissions occurring on or prior to the Closing Date; provided it is understood that no Losses indemnified against relating to or arising from any violation occurring after the Closing Date are recoverable under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”8.2(b)(ii), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liability.

Indemnification by Seller. (a) Subject to the provisions of this ARTICLE XI, Seller hereby agrees to indemnify Purchaser shall indemnify, defend and hold harmless Buyer and its Affiliates and its and their respective stockholders, officers, directors, stockholdersemployees, employees representatives and agents (collectively, the “Purchaser Indemnified PartiesBuyer Indemnitees”) againstfrom and after the Signing Date from and against any and all claims, losses, damages, Liabilities, awards, judgments, costs and agrees to hold them harmless from, any Loss expenses (including reasonable attorneys’ fees) (“Damages”) incurred by the Buyer Indemnitees to the extent such Loss arises from or in connection with the followingcaused by: (i) any breach of any of the representations and warranties made in this Agreement by Seller or in any certificate or instrument delivered by or on behalf of Seller pursuant to this Agreement; provided, that in the case of any such representation or warranty contained in this Agreementthat is limited by “materiality,” “Material Adverse Effect” or any similar term or limitation, the amount of Damages shall be determined as if such “materiality,” “Material Adverse Effect” or similar term or limitation were not included therein; (ii) any breach by Seller of any covenant or agreement of its covenants contained Seller made herein, including, but not limited to, failing to liquidate and convert Investment Assets held in this Agreementthe Investment Accounts to Cash Assets as required by Section 5.5; or (iii) any Excluded Liability. . (b) Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (Ai) Seller shall not be effective liable to indemnify any Buyer Indemnitees against Damages arising under Section 11.2(a)(i) for any claim (or series of related claims) where the amount of Damages with respect to such claim (or related claims) does not exceed $10,000 (the “De Minimis Amount”) (and the amount of such Damages shall not be aggregated for purposes of clause (ii) of this sentence); (ii) Seller shall not be liable to indemnify any Buyer Indemnitees against Damages arising under Section 11.2(a)(i) unless and until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 such Damages exceeds two percent three hundred twenty five thousand U.S. dollars (2%$325,000) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller whereupon the Buyer Indemnitees shall be liable entitled to indemnification for all Losses including the amount of such Damages in excess of the Threshold Amount; and (Biii) Seller’s maximum Liability to the Buyer Indemnitees for all Damages arising under Section 11.2(a)(i) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent not exceed six million five hundred thousand U.S. dollars (50%$6,500,000) of the amount actually paid under Article 3 (the “Cap Maximum Amount”) ); provided, that the Threshold Amount and Seller Maximum Amount shall thereafter have no further obligations or liabilities not apply with respect to any failure of such Losses referred the Seller Fundamental Representations to be true and correct, in which case Seller’s maximum Liability to the Buyer Indemnitees shall not exceed the Purchase Price. Notwithstanding anything herein to the contrary, the limitations set forth in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 11.2(b) shall not apply to in respect of any indemnification by Seller for any breach obligation to the extent arising out of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liabilityfraud or willful misrepresentation by Seller.

Indemnification by Seller. (i) Subject to Sections 9.b(ii) and 9.h, from and after the Closing Date, Seller hereby agrees to shall indemnify Purchaser and defend Buyer, its respective Affiliates and each of their respective officers, directors, stockholders, employees Representatives, successors and agents permitted assigns (the collectively, “Purchaser Indemnified PartiesBuyer Indemnitees”) against, and agrees to hold them harmless to the fullest extent permitted by Law from, any Loss and all Losses sustained or incurred by any Buyer Indemnitee, to the extent such Loss arises from or arising from, in connection with the followingor otherwise with respect to: (i1) any breach by Seller of, or any inaccuracy in, as of the date hereof or as of the Closing Date (or if expressly stated to be made as of a specified date, as of such specified date), of any representation or warranty contained in this Agreement; (ii) any breach by of Seller of any of its covenants contained in this Agreement; orprovided, however, that Seller shall not be required to indemnify any Buyer Indemnitee, and shall not have any liability under this Section 9.b(i)(1) to the extent the liability or obligation is directly caused by any action taken or omitted to be taken by any Buyer Indemnitee; (iii2) any breach of any covenant or agreement of Seller contained in this Agreement; and 3) any Excluded Asset or Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: . (Aii) Seller shall not be effective have no indemnification obligations hereunder unless and until the aggregate dollar amount of all Losses indemnified against incurred or suffered by the Buyer Indemnitees that Seller would otherwise be responsible for under this Section 7.2 9.b(i) exceeds two percent Seventy-Five Thousand Dollars (2%$75,000) of the amount actually paid under Article 3 (the “Threshold AmountIndemnification Threshold”), in at which event Seller txxx Xxxxxx shall be liable obligated to indemnify the Buyer Indemnitees for all only such Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) in excess of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2Indemnification Threshold; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to aggregate Liability of Seller for all Losses of the Buyer Indemnitees under Section 9.b(i) shall not in any case exceed One Million Five Hundred Thousand Dollars ($1,500,000) (the “Cap”). Nothing in this Agreement (including this Section 7.2 9.b) shall not apply be deemed to limit or restrict any indemnification by Seller for any breach of the representations and warranties contained Buyer Indemnitees’ rights to maintain or recover any amounts at any time in Sections 4.1, 4.2, 4.3, 4.4 connection with any action or claim based on actual fraud or intentional misconduct of Seller or any Affiliate of Seller. For the avoidance of doubt, Losses asserted against, imposed upon shall be determined with respect to either or incurred by both Acquired Centers in the Purchaser Indemnified Parties resulting from any Excluded Liabilityaggregate for purposes of the Indemnification Threshold and Cap.

Indemnification by Seller. Seller hereby agrees Subject to the terms and conditions of this Article X, Sellers, jointly and severally, shall indemnify Purchaser and defend Buyer and each of its Affiliates and their respective Affiliates, officers, directors, stockholders, employees and agents (the “Purchaser Indemnified Parties”) against, and agrees to hold them harmless from, any Loss suffered or incurred by any such Indemnified Person to the extent such Loss arises arising from (a) if the Closing occurs, any breach of any representation or warranty of Sellers contained in this Agreement or any of the other Transaction Documents which survives the Closing or in connection any certificate, instrument or other document delivered pursuant hereto or thereto, (b) any nonperformance or breach of any covenant of Sellers contained in this Agreement or any of the other Transaction Documents, (c) if the Closing occurs, the existence of, or the failure of Sellers to pay, perform and discharge when due, any of the Excluded Liabilities (including, without limitation, any Losses as a result of the failure of Sellers to comply with any Bulk Sales Laws referred to in Section 7.2) or (d) if the following: Closing occurs, those product liability claims relating to a product that was sold by any of the Sellers to any third party prior to the Closing Date (“Product Liability Claim”) which individually results in actual Losses (the amount of such Losses for each such Product Liability Claim, the “Shared Cost Product Liability Amount”) (excluding, for the purposes of this Section 10.1(d), any Losses related to out-of-pocket expenses, reasonable attorneys’, experts’ and accountants’ fees and other disbursements and costs of investigation or defense) in excess of Two Million Five Hundred Thousand Dollars ($2,500,000) (the “Shared Cost Product Liability Threshold Amount”); provided, however, that (i) Sellers shall have no liability under Section 10.1(a) unless the aggregate of all Losses relating thereto for which Seller would, but for this proviso, be liable exceeds Five Hundred Thousand Dollars ($500,000) (and then from the first dollar such liability), (ii) Sellers’ aggregate liability under Section 10.1(a) shall in no event exceed Twelve Million Dollars ($12,000,000) and (iii) Sellers shall only be liable under Section 10.1(d) for, and shall make payments to Buyer with respect to (A) half of the first Eight Million Dollars ($8,000,000) of any individual Shared Cost Product Liability Amount and (B) all amounts in excess of the first Eight Million Dollars ($8,000,000) of any individual Shared Cost Product Liability Amount, which such amounts for the purposes of this clause (iii) shall include out-of-pocket expenses, reasonable attorneys’, experts’ and accountants’ fees and other disbursements and costs of investigation or defense. Notwithstanding anything to the contrary in this Agreement, Sellers shall not be liable for any Taxes related to the Acquired Properties as a result of the breach by Seller of any representation or warranty contained in this Agreement; (ii) any breach by Seller of any of its covenants contained in this Agreement; or (iii) any Excluded Liability. Notwithstanding Section 4.5 to the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of extent that such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller Taxes are for any breach of period after the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded LiabilityClosing Date.

Indemnification by Seller. (a) Seller hereby agrees to shall indemnify Purchaser and hold harmless Purchaser, Purchaser’s Affiliates (including the Company and its Affiliates Subsidiaries) and each of their respective officersRepresentatives (collectively, directors, stockholders, employees and agents (the “Purchaser Indemnified Parties”) againstfrom and against any and all Claims suffered, and agrees to hold them harmless fromsustained, any Loss to incurred or paid by the extent such Loss arises Purchaser Indemnified Parties in connection with, resulting from or arising out of any breach of any representation or warranty of Seller contained in Article IV of this Agreement. (b) Seller shall indemnify and hold harmless the Purchaser Indemnified Parties from and against any and all Claims suffered, sustained, incurred or paid by the Purchaser Indemnified Parties in connection with with, resulting from or arising out of any of the following: (i) any breach by Seller of any representation or warranty contained set forth in Article III of this Agreement; (ii) any breach by Seller of any of its covenants contained in this Agreement; orIndemnified Taxes; (iii) any Excluded Liabilitybreach or nonfulfillment of any covenant or agreement set forth in this Agreement on the part of Seller; (iv) any Funded Debt or Unpaid Transaction Expenses that are not satisfied as a result of the payments described in subclause (ii) of Section 2.3(b); or (v) any Environmental Claims, but only as provided in and subject to the provisions set forth in Section 8.1(d). For clarity, this indemnification obligation of Seller is in addition to Seller’s obligation to indemnify and hold harmless Purchaser for breach of the environmental representations and warranties set forth in Section 3.22 pursuant to Section 8.1(b)(i). (c) Subject to Section 8.1(d), Seller shall not have any liability under Section 8.1(b)(i) unless and until the amount of the aggregate indemnification obligations exceeds $1,250,000 (the “Threshold”), whereupon Seller shall indemnify and hold harmless the Purchaser Indemnified Parties for the amount of all Claims under Section 8.1(b)(i) in excess of the Threshold; provided, that (i) no individual Claim under Section 8.1(b)(i) shall be included toward the achievement of the Threshold unless the amount of such Claim exceeds $10,000, and (ii) the aggregate amount of Seller’s liability under Section 8.1(b)(i) shall not exceed ten percent (10%) of the Purchase Price. Notwithstanding the foregoing, this Section 11.1(c) shall not apply with respect to any liability under Section 11.1(b)(i) on account of any breach of any Fundamental Representation. Before seeking any recourse against Seller pursuant to Section 8.1(b)(i), Purchaser shall use commercially reasonable efforts to seek payment from the indemnifications R&W Insurance Policy if applicable (without any requirement to commence or participate in favor of any litigation, arbitration, mediation or similar proceeding). In no event shall the maximum aggregate amount to be paid by Seller pursuant to Section 11.1(a) and (b) exceed the Purchase Price, less any amounts paid to the Purchaser Indemnified Parties contained in this from the Environmental Claims Escrow Deposit. (d) For all Environmental Claims: (i) before seeking any recourse against Seller (but subject to an ability to submit a claim for indemnification against Seller) pursuant to Section 7.2: (A8.1(b)(i) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this or Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”8.1(b)(v), Purchaser shall use commercially reasonable efforts to seek payment from the Environmental Claims Insurance Policy, if applicable (without any requirement to commence or participate in which event any litigation, arbitration, mediation or similar proceeding), provided that Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates bear fifty percent (50%) of any deductible applied under the amount actually Environmental Claims Insurance Policy; (ii) the initial $3,000,000 of Claims suffered, sustained, incurred or paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties in connection with, resulting from or arising out of any Excluded LiabilityEnvironmental Claim (including a contingent Claim) asserted on or prior to the third anniversary of the Closing Date shall be borne fifty percent (50%) by Purchaser and fifty percent (50%) from the Environmental Claims Escrow Deposit; (iii) if Claims suffered, sustained, incurred or paid by the Purchaser Indemnified Parties in connection with, resulting from or arising out of any Environmental Claim (including a contingent Claim) asserted on or prior to the third anniversary of the Closing Date exceed $3,000,000 and also relate to a breach of representation or warranty by Seller, Purchaser shall be entitled to seek indemnification under Section 8.1(b)(i) for such excess (subject to the limitations set forth in this Article VIII applicable to Claims for breach of representation or warranty under Section 8.1(b)(i)); (iv) Purchaser shall not be entitled to assert a Claim relating to any Environmental Claim (including a contingent Claim under this Section 8.1(d)) after the third anniversary of the Closing Date, provided that any representation, warranty, covenant or obligation as to which a Claim (including a contingent Claim under this Section 8.1(d)) shall have been asserted prior to the third anniversary of the Closing Date shall continue in effect with respect to such Claim until such Claim shall have been finally resolved or settled; and (v) notwithstanding anything to the contrary in this Section 8.1(d), Purchaser shall have no recourse to the Environmental Claims Escrow Deposit for any costs relating to an Environmental Claim arising out of the discovery of a release of Hazardous Materials as a result of excavation at the real property located at 21 Seneca St., Defiance, Ohio or soil or groundwater sampling at the real property located at 21 Seneca St., Defiance, Ohio or 06728 St. Rt. 66 North, Defiance, Ohio conducted by or allowed by Purchaser, but, in each case, only to the extent such excavation or sampling is not required under Environmental Law or mandated by a Governmental Authority.

Indemnification by Seller. Seller hereby agrees to indemnify Purchaser and its Affiliates and their respective officers, directors, stockholders, employees and agents (the “Purchaser Indemnified Parties”a) against, and agrees to hold them harmless from, any Loss Subject to the extent such Loss arises from limitations set forth in this Section 11, following the Initial Closing, Seller shall indemnify Buyer against any Losses suffered or in connection with the followingincurred by Buyer as a result of or arising out of: (i) any breach by Seller of any representation or warranty made by Seller contained in this Agreement;, as qualified and limited by the Disclosure Schedule; or (ii) any breach of or failure to perform a covenant or agreement by Seller of any of its covenants contained in this Agreement; or (iii) any liability of Buyer for Taxes arising out of or in connection with ownership or operation of the Assets or the Business prior to the relevant Closing Date related thereto, other than the Assumed Liabilities as described in Section 2.1 and Taxes for which Buyer is responsible pursuant to Section 3 or Section 12; or (iv) any Excluded Liability. Notwithstanding . (b) Seller will have no obligation to indemnify the foregoingBuyer pursuant to Section 11.1(a)(i) in respect of Losses arising from the breach of, the indemnifications in favor of the Purchaser Indemnified Parties contained or inaccuracy in, any representation or warranty in this Section 7.2: Agreement (Ax) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities except with respect to any Loss that is equal to or greater than $25,000 individually (a "Qualified Claim"), and (y) unless the aggregate amount of Losses from all Qualified Claims incurred or suffered by Buyer exceeds 5% of the Aggregate Base Acquisition Consideration actually received by Seller (the "Deductible Amount") at which point Seller will indemnify Buyer for all such Losses referred to in this Section 7.2respect of Qualified Claims in excess (on an aggregate basis) of the Deductible Amount; provided, however, that Seller's aggregate liability in respect of all claims for indemnification pursuant to Section 11.1(a)(i) shall not exceed 10% of the Aggregate Base Acquisition Consideration actually received by Seller; provided, further, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall will not apply to Losses resulting from the fraud of Seller. Claims for indemnification pursuant to any other provision of Section 11.1(a) are not subject to the monetary limitations set forth in this Section 11.1(b). (c) For the purposes of this Section 11.1, in computing Losses, the amount of each claim shall be deemed to be an amount net of any insurance proceeds and any indemnity, contribution or other similar payment actually received by or for the benefit of Buyer from Seller or any third party with respect thereto. Notwithstanding the preceding sentence, to the extent Buyer recovers federal or state income taxes, whether in the form of a reduction in Taxes payable, or by the receipt of a refund of Taxes (collectively, "Tax Recovery") or insurance proceeds or other payments, amounts, consideration or credits ("Mitigation Amounts"), in respect of or as a result of a claim arising under this Section 11.1 for which payment has already been made by or on behalf of Seller, Buyer shall, promptly following such Tax Recovery or receipt of such Mitigation Amounts, refund the amount or value of such duplicative or excess Tax Recovery or Mitigation Amounts to Seller. (d) Seller shall not be liable hereunder to any person (including Buyer) for any consequential, incidental, special, exemplary or punitive damages, including lost profits or damages determined as a multiple of income, revenue or the like, relating to the breach or alleged breach of any representation, warranty, covenant or agreement in this Agreement or any other Transaction Document. (e) Following the Initial Closing, in the absence of Seller's fraud, Buyer's sole and exclusive remedy with respect to any claims relating to the subject matter of this Agreement or the transactions contemplated hereby (including claims for breaches of representations, warranties, covenants, and agreements contained in this Agreement or any other Transaction Document) shall be pursuant to the indemnification provisions set forth in this Section 11; provided, however, that nothing in this Section 11.1(e) shall be deemed a waiver by any party of any right to specific performance or injunctive relief. (f) Seller will not be liable under Section 11.1 with respect to any Losses to the extent arising from Buyer's willful misconduct, bad faith or intentional or willful failure to take, or cause to be taken, such action as Buyer, in the prudent management, operation or ownership of the Assets or Assumed Liabilities and of its business and other assets generally, should reasonably pursue to protect its interests or otherwise to mitigate the amount of such Losses. (g) Seller will not be liable for any breach of a representation or warranty solely to the extent resulting from the addition or removal of Acquired Locations, Partially Acquired Locations or Excluded Locations after the date of this Agreement in accordance with Section 1.6, or other amendments or updates to the Disclosure Schedule and Exhibits permitted or required by this Agreement, which render the representations and warranties contained made by Seller as of a prior date inaccurate in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liabilityrespect.

Indemnification by Seller. (a) Seller hereby agrees to shall indemnify Purchaser and its Affiliates and their respective (which include, without limitation, the UK Subsidiary), partners, principals, officers, directorsmanagers, stockholdersmembers, employees employees, independent contractors, agents and agents representatives, in their capacities as such, and the successors, heirs and personal representatives of any of them (the “collectively, "Purchaser Indemnified Parties”") against, against and agrees to hold them harmless fromfrom any and all damage, claim, loss, liability and expense (including, without limitation, reasonable expenses of investigation and attorneys' fees and expenses) and amounts paid in settlement (collectively, net of any Loss tax effects arising as a result of indemnification, "Damages") incurred or suffered by any Purchaser Indemnified Party arising out of or relating to the extent such Loss arises from or in connection with the following: (i) any breach by Seller of any representation representation, warranty, covenant or warranty other agreement of any Seller contained in this Agreement; herein, (ii) any breach by Seller of any of its covenants contained in this Agreement; or the Excluded Liabilities, (iii) any Excluded debt, liability or obligation of Seller as of the Closing Date that is not an Assumed Liability. Notwithstanding , (iv) the foregoingownership, operation and use of the Business or Purchased Assets before the Closing (including, without limitation, the indemnifications in favor employment of or dealings with the Employees by Seller prior to the Closing), or (v) the non-compliance by Seller with any applicable bulk transfer provisions of the Uniform Commercial Code. (b) No claim for indemnification shall be made by Purchaser Indemnified Parties contained in this Section 7.2: (A) shall not be effective hereunder unless and until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 Damages exceeds two percent (2%) of the amount actually paid under Article 3 $25,000 (the “Threshold "Minimum Amount”"), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that at such time as the foregoing limitations aggregate amount of the Damages exceeds the Minimum Amount, Purchaser may assert a claim for the full amount of such Damages. (c) Seller shall indemnify the present and former officers, directors, employees, stockholders (including, in the case of stockholder Kulen Capital, L.P., the partners and affiliates thereof), agents and representatives of Seller and their successors, heirs and personal representatives, other than J. Daniel Snyder ("Snyder") xxx Xxxx Xxxx ("Xxxx") (collectively, the "Individual Indemnified Parties") against, and hold them harmless from, only the following: (i) any and all Damages incurred or suffered by any Individual Indemnified Party arising out of or relating to the actions, proceedings or claims which Snyder or Weil (or any otxxx xxecutxxx or stockholder acting at their instigation) has asserted or may hereafter assert on Seller’s the basis of matters occurring on or prior to the Closing Date (collectively, the "Snyder Litigation"), inclxxxxx, without limitation, the currently pending actions titled Snyder v. de Havenon (Cirxxxx Xourt, Cook County, Illinois), Wxxx v. de Havenon (Circuit Court, Cook County, Illinois), Sxxxxr v. Calumet Coach Cx. (Xxate of Illinois, Department of Labor), and Calumet Acquisition Corp. v. J. Daniel Snyder (American Axxxxxxxxxx Xxsociation), (ii) if Purchaser is no longer obligated (and cannot become obligated) in any manner under Section 9.3(d) (giving effect to Mitigating Reimbursements), any and all Damages incurred or suffered by any Named Indemnified Party arising out of or relating to any actions taken or permitted to be taken by such Named Indemnified Party on or prior to the Closing Date in the capacity as an officer, director, employee, stockholder, agent or representative of Seller and (iii) any Damages incurred or suffered by any Named Indemnified Party for which (A) the Named Indemnified Party is entitled to seek indemnification obligations pursuant to this Section 7.2 9.3(d), (B) Purchaser is obligated (subject to the stated limitations) to provide indemnification pursuant to Section 9.3(d), and (C) Purchaser refuses or fails to provide indemnification in breach of the terms of Section 9.3(d). (d) The indemnification pursuant to Section 9.2(c) shall not apply be subject to the Minimum Amount. (e) Any and all liability of Seller under this Agreement, including without limitation this Article IX, shall be satisfied exclusively from the Primary Escrow Amount or the Secondary Escrow Amount, and none of the Purchaser Indemnified Parties, the Named Indemnified Parties or the Individual Indemnified Parties shall have any indemnification by right to assert a claim against Seller for any breach Damages, except to the extent payment or reimbursement of such Damages out of the representations Primary or Secondary Escrow Amount is permitted hereunder and warranties contained under the respective Escrow Agreement; and, accordingly, that the maximum aggregate amount of the liability of Seller pursuant to Section 9.2(a) shall be the amount of the Primary Escrow Amount less the Accounting Fee Escrow Amount ($750,000), minus any adjustment to the Purchase Price in Sections 4.1favor of Purchaser pursuant to Section 3.2, 4.2and the maximum aggregate amount of the liability of Seller pursuant to Section 9.2(c) shall be the amount of the Secondary Escrow Amount ($340,000), 4.3minus any Mitigating Reimbursements. Seller expressly acknowledges that it is not (except through Mitigating Reimbursements) entitled to seek payment or reimbursement from the Secondary Escrow Amount for amounts paid in respect of Non-Reimbursable Damages; provided that Seller is entitled to seek reimbursement of Non-Reimbursable Damages if as a condition to the payment of such reimbursement (a "Mitigating Reimbursement"), 4.4 the maximum indemnification obligation of Purchaser pursuant to Section 9.3(d) is reduced, dollar for dollar by such reimbursement, or is already zero. Seller further acknowledges that neither Purchaser nor the Escrow Agent shall have any Losses asserted against, imposed upon obligation or incurred by responsibility to ensure that the Purchaser Secondary Escrow Amount is distributed or allocated evenly (or in any manner other than on a first come first serve basis) among the Individual Indemnified Parties resulting from any Excluded LiabilityParties.

Indemnification by Seller. (a) Subject to the provisions of this Article X and except with respect to indemnification for Taxes, effective as of and after the Closing Date, Seller hereby agrees to indemnify shall indemnify, defend and hold harmless Purchaser and its Affiliates and their respective managers, officers, directors, stockholdersemployees, employees successors and agents assigns (collectively, the “Purchaser Indemnified Parties”) against), from and agrees to hold them harmless fromagainst any and all Losses actually incurred or suffered by any of the Purchaser Indemnified Parties, any Loss to the extent such Loss arises from arising out of or in connection with the following: relating to (i) any breach by Seller of any representation or warranty of Seller contained in Article III of this Agreement (except for Section 3.13 (Taxes)) or any breach of any representation or warranty of Dutch BV contained in the Canadian Purchase Agreement; (ii) any breach of any covenant or agreement of Seller contained in this Agreement or any breach of any covenant or agreement of Dutch BV in the Canadian Purchase Agreement; and (iii) any Retained Liabilities. (b) Notwithstanding any other provision to the contrary, Seller shall not be required to indemnify, defend or hold harmless any Purchaser Indemnified Party against, or reimburse any Purchaser Indemnified Party for, any Losses pursuant to Section 10.2(a)(i): (i) to the extent such Losses were included in the calculation of the Adjusted Net Asset Amount or otherwise included in the calculation of the Post-Closing Adjustment; (ii) any breach by Seller unless such claim individually or series of any related claims involves Losses in excess of its covenants contained in $250,000 (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 aggregate amount of the Purchaser Indemnified Parties’ Losses under this Agreement; orSection 10.2(b); (iii) any Excluded Liability. Notwithstanding until the foregoing, the indemnifications in favor aggregate amount of the Purchaser Indemnified Parties contained in this Parties’ Losses under Section 7.2: (A10.2(a)(i) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 $20,000,000 (the “Threshold AmountDeductible”), in which event it being understood that if such Losses exceed the Deductible, Seller shall be liable obligated for all only the Purchaser Indemnified Parties’ Losses including under Section 10.2(a)(i) in excess of the Threshold AmountDeductible; and and (Biv) shall terminate once for any Losses or Taxes under Section 10.2(a)(i) or Section 7.1 to the extent the aggregate dollar amount of all such Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 or Taxes exceed $300,000,000 (the “Cap AmountCap”) and Seller shall thereafter have no further obligations or liabilities with ); provided that in respect to of any claim involving Losses arising out of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any a breach of the representations and warranties contained made in Sections 4.1Section 3.2(a) (Capitalization of the Members of the Commercial Air Group), 4.2Section 3.3 (Authority Relative to this Agreement) or Section 3.18 (Brokers) of this Agreement or Section 4(a) (Incorporation and Qualification), 4.3Section 4(b) (Corporate Authority; Execution and Binding Obligation) and Section 4(c) (Authorized and Issued Capital; Title to Purchased Shares) of the Canadian Purchase Agreement, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded LiabilityDeductible and the De Minimis Amount shall not apply and the Cap shall be equal to the Purchase Price.

Indemnification by Seller. (a) Subject to the limitations contained in this Section 11 and in the other provisions of this Agreement (including the provisions of Section 5) after the Closing Date, Seller hereby agrees to shall hold harmless and indemnify Purchaser from and against any and all Damages actually incurred by Purchaser, its Affiliates and their respective officers, directors, stockholders, employees and agents (the “Purchaser Indemnified Parties”) against, and agrees to hold them harmless and/or Representatives arising out of or resulting from, any Loss to the extent such Loss arises from or in connection with the following: (i) any breach by Seller of any representation or warranty contained made by Seller in Section 3 of this Agreement; (ii) any breach of any covenant of Seller (A) set forth in this Agreement excluding Sections 6.10 and 7.8 hereof or (B) set forth in Sections 6.10 and 7.8 hereof; or (iii) the Excluded Liabilities. (b) Notwithstanding anything to the contrary contained in this Agreement, Purchaser shall not be entitled to assert any claim for indemnification pursuant to Section 11.1(a)(i) and (a)(ii)(A) with respect to any breach by Seller of any of its representations, warranties or covenants contained set forth in this Agreement; or (iii) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) and Seller shall not be effective until required to make any indemnification payments hereunder with respect to any Damages actually incurred by Purchaser, its Affiliates and/or Representatives as a result of all breaches of such representations, warranties and covenants, until, and except to the aggregate dollar extent that, the cumulative amount of all Losses indemnified against under this Section 7.2 such Damages actually exceeds two percent (2%) of the amount actually paid under Article 3 $650,000 (the “Threshold Amount”"Threshold"), in which event Seller shall be liable responsible for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) Damages, regardless of the Threshold. Seller's cumulative liability for all breaches of its representations, warranties and covenants shall in no event exceed, and the total amount actually paid of the indemnification payments that Seller shall be required to make under Article 3 Section 11.1(a)(i) or (ii) shall be limited in the aggregate to, a maximum of $6,500,000 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liability"Cap").

Indemnification by Seller. Seller hereby agrees (a) Subject to indemnify Purchaser the limitations in this Article IX, effective as of and its Affiliates after the Closing, Purchaser, KPI, their respective Affiliates, their respective directors, managers, officers, employees, consultants, investment bankers, attorneys, accountants and other advisors and representatives, and their respective officerssuccessors and permitted assigns (collectively, directors, stockholders, employees and agents (the “Purchaser Indemnified Parties”) againstshall be entitled to be indemnified and held harmless, jointly and agrees to hold them harmless fromseverally, by Seller and the Transferring Affiliate, for, from and against any Loss to the extent such Loss arises and all Losses actually incurred or suffered by any Purchaser Indemnified Party as a result -38- of or arising from or in connection with the following: (i) any the breach by Seller of any representation or warranty contained in Article VI existing at the Closing, (ii) the breach of any covenant of Seller contained in this AgreementAgreement and (iii) any of the matters set forth on Schedule 9.2(a) (the “Special Indemnity Matters”). [Redacted – commercially sensitive information]. (b) Notwithstanding any other provision in this Agreement to the contrary, the indemnification provided for in Section 9.2(a)(i), Section 9.2(a)(ii) with respect to breaches of the covenants contained in Section 8.1 and Section 9.2(a)(iii) shall be subject to the following limitations: (i) The Purchaser Indemnified Parties shall not be entitled to be indemnified or held harmless in respect of any Losses for which the Purchaser Indemnified Parties would recover under Section 9.2(a)(i) and Section 9.2(a)(iii) unless and until the aggregate amount of such Losses equals or exceeds $1,870,000 (the “Threshold”), in which case the Purchaser Indemnified Parties (as a group) shall be entitled to recover all Losses regardless of the Threshold, subject to Section 9.2(b)(ii) and Section 9.2(b)(iii) below; (ii) any breach by Seller The Purchaser Indemnified Parties shall not be entitled to be indemnified or held harmless in respect of any Losses for which the Purchaser Indemnified Parties would recover under Section 9.2(a)(i) with respect to breaches of its representations and warranties, Section 9.2(a)(ii) with respect to breaches of the covenants contained in Section 8.1 or Section 9.2(a)(iii) that arise from any individual item, occurrence, circumstance, act or omission (or series of related items, occurrences, circumstances, acts or omissions) unless and until the aggregate amount of Losses resulting therefrom exceeds $75,000 (the “Per Claim Amount”), nor shall any Losses excluded pursuant to this Agreement; orclause (ii) be taken into account for purposes of determining whether the Cap or the General Cap, as applicable, or the Threshold has been exceeded in respect of claims made by the Purchaser Indemnified Parties; (iii) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of (A) Seller’s aggregate liability for Losses for which the Purchaser Indemnified Parties would recover under Section 9.2(a)(i) (other than with respect to any claims arising out of a breach of the Fundamental Representations), Section 9.2(a)(ii) with respect to breaches of the covenants contained in this Section 7.2: (A8.1 and Section 9.2(a)(iii) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 in no event exceed $25,000,000.00 (the “Threshold AmountGeneral Cap”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) with respect to breaches of the Fundamental Representations, Seller’s aggregate liability for Losses shall terminate once be increased to the aggregate dollar amount lesser of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of $200,000,000.00 and the amount actually paid under Article 3 by Purchaser to Seller pursuant to Section 3.1 and Section 3.3 at the applicable time (such amount the “Cap”, which shall qualify the General Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to breaches of the Fundamental Representations and not be in addition to the General Cap for any claim or purpose other than breaches of such Losses referred the Fundamental Representations). (iv) [Redacted – commercially sensitive information implicating prospective operations]. (c) Notwithstanding anything to the contrary herein, for purposes of this Article IX only, each representation and warranty made by Seller contained in this Section 7.2; providedAgreement shall be deemed to be made without any qualification or limitation as to materiality (including any qualification or limitation made by reference to a “material” or “Material Adverse Effect”) and, howeverwithout limiting the foregoing, that the foregoing words “material” and “Material Adverse Effect” and words of similar import shall be deemed deleted from any such representation or warranty. (d) Notwithstanding anything herein to the contrary, any Claims with respect to which there is a finding or judgment of actual fraud by Seller by an Arbitration Panel in accordance with the terms of this Agreement shall not be subject to the limitations on Seller’s indemnification obligations pursuant to under this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liability9.2.

Indemnification by Seller. Seller hereby agrees to indemnify Purchaser indemnify, defend and hold Buyer and its Affiliates harmless from and their respective officersagainst any and all losses, directorsliabilities, stockholdersclaims, employees demands, damages, costs and agents expenses (the “Purchaser Indemnified Parties”including reasonable attorneys' fees and disbursements) againstof every kind, nature and agrees to hold them harmless fromdescription (collectively, "Claims") sustained by Buyer or any Loss to the extent such Loss arises from of its Affiliates based upon, arising out of or otherwise in connection with the following: respect of (i) any breach by Seller the inaccuracy of any representation or warranty warranty, or the breach of any covenant or agreement, of Seller contained in this Agreement or in any certificate, agreement, document or instrument delivered pursuant to this Agreement; , (ii) any breach by Seller the ownership, management or use of any of its covenants contained in this Agreement; or the Purchased Assets prior to the Closing or (iii) any Excluded Liability. Notwithstanding the foregoingRetained Liabilities; except, the indemnifications in favor of the Purchaser Indemnified Parties contained in that Seller shall have no liability pursuant to this Section 7.2: (A) shall not be effective until 11.2 for the first $150,000 of aggregate dollar amount Claims in respect of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) breaches of the amount actually paid under Article 3 representations or warranties by Seller (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”"Buyer Basket") and Seller shall thereafter have no further obligations or liabilities with respect to any be responsible only for such amounts of such Losses referred to in this Section 7.2Claims as exceed the Buyer Basket; provided, provided however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 (i) such limitation shall not apply to any indemnification by Seller for any if such claims arise from a breach of the any representations and warranties contained set forth in Sections 4.15.2, 4.25.4, 4.35.5, 4.4 5.11, 5.13 and (ii) except for claims that arise from a breach of any representations and warranties set forth in Sections 5.2, 5.4, 5.5, 5.11, 5.13, which shall not be limited, the liability of Seller for its representations and warranties shall not exceed $9,000,000 in the aggregate. For purposes of the above indemnity, any representation or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liabilitywarranty given subject to a materiality qualifier shall be deemed to have been given without such qualifier.

Indemnification by Seller. From and after the Closing, Seller hereby agrees to shall indemnify Purchaser and hold harmless Buyer and its Affiliates and Affiliates, each of their respective officersmembers, shareholders, managers, directors, stockholdersofficers, employees and agents agents, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Purchaser Buyer Indemnified Parties”) against, from and agrees to hold them harmless from, against any Loss to and all Losses incurred by or asserted against any of the extent such Loss arises from or Buyer Indemnified Parties in connection with the followingor arising from: (ia) any breach by Seller of any representation or warranty its covenants and agreements contained in this Agreementherein; (iib) any breach by Seller of its representations and warranties contained herein, as of the date such representation or warranty was made and as if such representation or warranty was made anew on and as of the Closing Date (provided, that in each case after a breach has been established, the amount of Losses shall be determined without regard to any qualifications therein referring to “material”, “materiality”, “Material Adverse Effect”, or any other qualifications of its covenants contained in this Agreementsimilar import or effect); or (iiic) any the Excluded LiabilityLiabilities. Notwithstanding the foregoing, except in the indemnifications in favor case of the Purchaser Indemnified Parties contained in this Section 7.2: knowing and intentional fraud by Seller, (A) Seller shall not be effective required to indemnify the Buyer Indemnified Parties pursuant to Section 8.3(b) until the aggregate dollar Losses indemnifiable pursuant to Section 8.3(b) exceed (U.S.) $105,000 in the aggregate (except in connection with a breach by Seller of any of the representations or warranties contained in Sections 3.1, 3.2(e), 3.4, 3.20 and 3.26), at which point the Buyer Indemnified Parties shall be entitled to recover the entire amount of all such Losses indemnified against under this Section 7.2 exceeds two percent (2%) of from the amount actually paid under Article 3 (the “Threshold Amount”)first dollar, in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) Seller shall terminate once not be required to indemnify the aggregate dollar amount of all Losses indemnified against under this Buyer Indemnified Parties pursuant to Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”8.3(a) and Seller shall thereafter have no further obligations or liabilities with respect to any 8.3(b) in an aggregate amount in excess of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations (U.S.) $7,000,000. Any payment made pursuant to this Section 7.2 8.3 shall not apply to any indemnification be treated by Seller and Buyer as an adjustment to the Purchase Price to the extent permitted by applicable Law, and Seller and Buyer agree not to take any position inconsistent therewith for any purpose. For the avoidance of doubt, if Seller’s breach any of the representations and warranties contained set forth in Sections 4.1Section 3.20 relate to a failure to comply with Law, 4.2and Buyer continues such practices with respect to the Business after Closing that do not comply with Law, 4.3, 4.4 or any Buyer will not be entitled to indemnification from Seller with respect to those Losses asserted against, imposed upon or incurred by that arise out of the Purchaser Indemnified Parties resulting from any Excluded Liabilityfailure to comply with Law in a Post-Closing Tax Period.

Indemnification by Seller. (a) The Seller hereby agrees to indemnify Purchaser and hold the Buyer, its Affiliates Affiliates, and their respective officers, directors, stockholdersmanagers and employees, employees and agents (the “Purchaser Indemnified Parties”) againstharmless from all Losses suffered or paid, and agrees to hold them harmless fromdirectly or indirectly, any Loss to the extent such Loss arises from as a result of or in connection with the followingarising out of: (i) any breach or default in the performance by the Seller of any representation covenant or warranty agreement of the Seller contained in this AgreementAgreement or any related document executed pursuant hereto; (ii) any breach of warranty or inaccurate or erroneous representation made by the Seller of any of its covenants contained in this Agreement; orherein; (iii) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor failure of the Purchaser Indemnified Parties contained in this Section 7.2: Seller to fully pay and discharge as and when same are due the Retained Liabilities; and (Aiv) shall not be effective until without limiting the aggregate dollar amount generality of clause (iii), all Taxes or other Losses indemnified against under this Section 7.2 exceeds two percent (2%) that the Buyer becomes liable for as a result of the amount actually paid under Article 3 failure to file any applicable bulk sales notices or pay any of the Seller’s Taxes. (the “Threshold Amount”), in which event b) The Seller shall be liable reimburse the Buyer for all any Losses including directly arising from an event or circumstance to which the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2foregoing indemnities relate; provided, however, that the foregoing Buyer acknowledges that the aforementioned indemnification responsibilities of the Seller hereunder shall be, notwithstanding the prior terms hereof, limited as follows: (i) Buyer shall have no claim for indemnification under Section 8.3(a)(ii) until the aggregate amount of all Losses, damages and expenses incurred which would otherwise be subject to indemnification under Section 8.3(a)(ii) exceeds $25,000, then only to the extent of such excess, but in no event shall the aggregate amount of all Losses subject to indemnification under Section 8.3(a)(ii) exceed $620,000; provided, however, that the limitations on Seller’s indemnification obligations pursuant to set forth in this Section 7.2 8.3(b)(i) shall not apply to any Losses resulting from or arising out of, directly or indirectly, (A) any Special Claims, as to which the Seller shall have liability for the entire amount of such Loss up to the Purchase Price or (B) claims arising from any actual fraud on the part of the Seller, as for which the Seller shall have liability for the entire amount of such Loss without limitation; and (ii) The Seller will be entitled to receive as a credit against any indemnification amount owing to the Buyer hereunder an amount equal to the net proceeds of any insurance policy actually received by Seller the Buyer for any breach Loss for which the Seller agreed to indemnify the Buyer under this Section 8.3. To the extent the Buyer has obtained insurance coverage for matters occurring prior to the Effective Time, at the request of the representations and warranties Seller, the Buyer agrees to make a claim with its carrier with respect to any such Loss. Nothing contained herein will have the effect of requiring the Buyer to acquire such coverage. Any claims paid to the Buyer pursuant to this Article VIII shall be treated as a reduction in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded LiabilityPurchase Price.

Indemnification by Seller. (a) Except with respect to environmental matters (which are exclusively the subject of Section 8.3), Tax matters (which are governed by Section 5.11, except as provided in Section 8.1(a)(iii) with respect to Tax Liabilities), and subject to all applicable terms and conditions of this Article VIII, Seller hereby agrees to indemnify Purchaser and its Affiliates (which shall include the Railroads after the Closing) and their respective officers, directors, employees, stockholders, employees agents and agents (the “Purchaser Indemnified Parties”) Representatives against, and agrees to hold them harmless from, any Loss loss, liability, claim, damage or reasonable expense (including reasonable expenses of investigation and reasonable attorneys’ fees and expenses in connection with any action, suit or proceeding whether involving a Third Party Claim or a claim solely between the parties hereto) (collectively, “Losses”) as incurred to the extent such Loss arises from arising from, relating to or otherwise in connection with the followingrespect of: (i) any breach by Seller failure of any representation or warranty of Seller contained in this Agreement to be true and correct as of the Closing Date; provided, however, that (except with respect to the representations and warranties set forth in Sections 3.1, 3.2, 3.3, and 3.18) Seller shall not have any liability under this Section 8.1(a)(i) unless and until the aggregate of all Losses relating thereto for which Seller would, but for this proviso, be liable exceeds on a cumulative basis $1,000,000.00 (the “Seller Deductible”) at which xxxx Xxxxxx shall only be liable for amounts in excess of the Seller Deductible; (ii) any breach of any covenant or agreement of Seller contained in this Agreement; (iiiii) (A) any breach by Seller obligation or liability of any of its covenants contained in this Agreement; or (iii) the Railroads, Seller or any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of their respective Affiliates existing as of the Purchaser Indemnified Parties contained in this Section 7.2: (A) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) Closing Date or arising out of the amount actually paid under Article 3 (operation of the “Threshold Amount”)Railroads prior to the Closing Date, other than those liabilities and obligations expressly included in which event Seller shall be liable for all Losses including the Threshold Amount; Assumed Liabilities, and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) any of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; Excluded Liabilities, provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant with respect to Superfund Site Liabilities are dealt with exclusively in Section 8.3; (iv) any Employment-related Obligation arising or accruing with respect to any period prior to the Closing Date with respect to any Employee to the extent not reflected in the Final Working Capital Statement, other than liability for payments under any short-term disability or salary continuation plan for periods on and after the Closing or any reinstatement, rehire, provision of leave or similar obligations arising on or after the Closing Date under or with respect to any law regarding employment, including any law regarding family, medical, military or other leave of absence (for avoidance of doubt, the parties acknowledge that the Obligations covered by this Section 7.2 shall not apply 8.1(a)(iv) include any obligations to any Employee under any of the Seller’s employee pension benefit plans); (v) any fraud or willful misconduct of Seller in connection with the transactions contemplated by this Agreement; (vi) any indebtedness for borrowed money of any of the Railroads as of the Closing; (vii) the fees of any Person listed in Section 3.18 and any other fees, commissions or expenses asserted by any other Representative of Seller or any of its Affiliates on the basis of the transactions contemplated by this Agreement; (viii) any of the following to the extent that such liability exceeds the amount of any accrual for such liability in the Final Working Capital Statement: (A) any action, suit or proceeding filed or overtly threatened in writing against or with respect to the Railroads on or prior to the Closing Date (including the matters set forth on Schedule 3.7 hereto) or (B) any other third party claim with respect to which the Railroads have filed a claim for insurance on or prior to the Closing Date; or (C) any Administered Claim existing as of the Closing Date; or (ix) the litigation matter identified in Schedule 3.7. (b) Notwithstanding anything else set forth herein to the contrary, (i) the liability of Seller under Sections 8.1(a)(i) (except with respect to the representations and warranties set forth in Sections 3.1, 3.2, 3.3 and 3.18), in the aggregate, shall be limited to and shall in no event exceed $10,000,000.00; (ii) neither Purchaser nor any other Person shall be entitled to indemnification under this Article VIII for any Losses to the extent such Losses are specifically reflected in the calculation of the Closing Working Capital on the Final Working Capital Statement; and (iii) with respect to those representations and warranties made by Seller which are qualified by the language “Material Adverse Affect,” “materiality” or “to the Knowledge” of Seller, Seller agrees to indemnify Purchaser on the basis that such qualifications were not included in such representations and warranties (for avoidance of doubt, the parties acknowledge and agree that such qualifications will only be disregarded in determining Seller’s obligation to indemnify the Purchaser), and provided, further, that such indemnification obligations shall be subject to the limitations set forth in Section 8.1(c) as if Seller were in breach of a representation or warranty. (c) Except as set forth in Section 5.11 and Section 8.3 hereof, Purchaser acknowledges and agrees that its sole and exclusive remedy with respect to any and all claims (other than claims arising from fraud or willful misconduct on the part of Seller in connection with the transactions contemplated by this Agreement) for any breach of any representation, warranty, covenant or agreement set forth herein or otherwise relating to the representations subject matter of this Agreement (but not including any claims arising after the Closing under the express terms of any of the Ancillary Documents), shall be pursuant to the indemnification provisions set forth in this Article VIII. In furtherance of the foregoing, Purchaser hereby waives, to the fullest extent permitted under Law, any and warranties contained all rights, claims and causes of action for any breach of any representation, warranty, covenant or agreement set forth herein or otherwise relating to the subject matter of this Agreement it may have against Seller and its Affiliates and each of their respective officers, directors, employees, stockholders, agents and Representatives arising under or based upon any Law, except pursuant to the indemnification provisions set forth in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded LiabilitySection 5.11 and this Article VIII.

Indemnification by Seller. Seller hereby (a) From and after the Closing, subject to the other provisions of this Article VIII, Xxxxxx agrees to indemnify Purchaser Buyer and its Affiliates and each of their respective officersRepresentatives (collectively, directorsthe "Indemnified Buyer Entities") for, stockholders, employees and agents (the “Purchaser Indemnified Parties”) to hold each of them harmless from and against, any and agrees to hold them harmless all Indemnifiable Losses actually suffered, paid or incurred by such Indemnified Buyer Entity resulting from, any Loss to the extent such Loss arises from arising out of or in connection with the followingwith: (i) any breach of or inaccuracy in any of the representations and warranties made by Seller in Article III (or contained or referred to in any certificate delivered by or on behalf of any representation Seller pursuant hereto) or warranty contained in this the Employee Matters Agreement; (ii) any breach by failure to perform any covenant or agreement of Seller of any of its covenants contained in this Agreement; orAgreement or the Employee Matters Agreement and that survives the Closing (including in accordance with Section 7.01); (iii) any Excluded Liability. Notwithstanding Liabilities; (iv) any Excluded Assets; or (v) for all costs and expenses associated with (x) the foregoing, the indemnifications in favor transfer of the Purchaser Indemnified Parties Power Authority of the State of New York Master Decommissioning Trust from NYPA to ENOI and (y) the Fund Transfer (other than any administrative costs and expenses pursuant to which Seller or its Affiliates is permitted to withdraw pursuant to the proviso in Section 5.08(d)). (b) Notwithstanding anything to the contrary contained in this Section 7.2: (A) shall not be effective until 8.01, the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller Indemnified Buyer Entities shall be liable for all Losses including the Threshold Amount; and entitled to indemnification: (Bi) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s Claim for indemnification obligations pursuant to this Section 7.2 shall not apply 8.01(a)(i), only if the aggregate of Indemnifiable Losses to any indemnification by Seller for any breach all Indemnified Buyer Entities with respect to all such Claims exceeds $1,000,000 (the "Deductible"), whereupon (subject to the provisions of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liability.clauses (ii) and

Indemnification by Seller. Seller hereby agrees to shall indemnify Purchaser and its Affiliates hold Buyer harmless against and their respective officers, directors, stockholders, employees and agents (the “Purchaser Indemnified Parties”) againstwith respect to, and agrees to hold them harmless fromshall reimburse Buyer for any and all losses, any Loss to the extent such Loss arises liabilities or damages resulting from or in connection with the following:(collectively, "BUYER'S DAMAGES"): (ia) any breach by Seller of any representation or warranty warranty, or any nonfulfillment of any covenant by Seller contained in this Agreement; (iib) any breach Any and all obligations of Seller not assumed by Seller of any of its covenants contained in this AgreementBuyer pursuant to the terms hereof; orand (iiic) any Excluded Liabilitythe operation or ownership of the Business or the Purchased Assets prior to the Effective Time. Notwithstanding the foregoing, (a) Seller shall be required to indemnify Buyer for Buyer's Damages only to the indemnifications extent that the aggregate Buyer's Damages exceed $50,000 in favor of the Purchaser Indemnified Parties contained in this Section 7.2: aggregate (Aprovided that no claim may be counted toward such $50,000 unless it exceeds $5,000), (b) Seller shall not be effective until the required to indemnify Buyer for Buyer's Damages in an aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) in excess of the amount actually paid under Article 3 (which is the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar after-tax amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount of the Initial Payment, as adjusted, and the Deferred Payment, actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification received by Seller (which the parties agree shall be assumed to be 75%), and (c) any claim for any breach of indemnification under Section 7 hereof must be made during the representations and warranties contained applicable survival period set forth in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded LiabilitySection 7.1 hereof.

Indemnification by Seller. (a) From and after the Closing, and subject to Section 7.01(b), Section 7.02, Section 7.05, Section 7.06, Section 7.07, Section 7.08 and Section 8.01, Seller hereby agrees to indemnify shall indemnify, defend and hold harmless Purchaser and its Affiliates and their respective officersRepresentatives (collectively, directors, stockholders, employees and agents (the “Purchaser Indemnified Parties”) against, and agrees to hold them harmless fromreimburse any Purchaser Indemnified Party for, any Loss to the extent all Losses that such Loss arises from Purchaser Indemnified Party may suffer or in connection with the followingincur, or become subject to, as a result of: (i) any breach by Seller of any warranty or the inaccuracy of any representation of Seller contained or warranty contained referred to in this AgreementAgreement or any certificate delivered by or on behalf of Seller pursuant hereto; (ii) any breach or failure by Seller of to perform any of its covenants or obligations contained in this Agreement; orAgreement to be performed after the Closing; (iii) any actual direct out of pocket costs of the type described in Section 2.01(c)(v); or (iv) any Excluded Liability. . (b) Notwithstanding any other provision of this Agreement to the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2contrary: (Ai) Seller shall not be effective required to indemnify, defend or hold harmless any Purchaser Indemnified Party against, or reimburse any Purchaser Indemnified Party for, any Losses pursuant to Section 7.01(a)(i), Section 7.01(a)(ii) or Section 7.01(a)(iii) until the aggregate dollar amount of all Purchaser Indemnified Parties’ Losses indemnified against under this Section 7.2 (other than Losses with respect to representations and warranties made in Sections 3.01, 3.03, 3.07 and 3.13 which shall not be subject to such deductible) exceeds two percent (2%) of the amount actually paid under Article 3 $50,000 (the “Threshold Deductible Amount”), in after which event Seller shall only be liable obligated for all such aggregate Losses including of Purchaser Indemnified Parties in excess of the Threshold Deductible Amount; (ii) the cumulative indemnification obligation of Seller under Section 7.01(a)(i) and Section 7.01(a)(ii) (other than the indemnification obligation of Seller with respect to representations and warranties made in Section 3.01, Section 3.03, Section 3.07, and Section 3.13) shall in no event exceed $150,000; and (Biii) the cumulative indemnification obligation of Seller under Section 7.01(a)(i), Section 7.01(a)(ii) and Section 7.01(a)(iii) shall terminate once in no event exceed the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount net proceeds actually paid under Article 3 (the “Cap Amount”) and received by Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 Agreement and the Promissory Note. Notwithstanding anything in this Agreement to the contrary, in no event shall not apply Seller be obligated to make any indemnification by Seller for any breach of payment to Purchaser under this Article VII unless and until such time as the representations and warranties contained Promissory Note has been paid in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liabilityfull.

Indemnification by Seller. From and after the Closing Date, except for the matters for which Buyer indemnifies Seller hereby agrees under Article 9.4, Seller shall indemnify, defend and hold Buyer harmless from and against any and all Claims suffered by Buyer as a result of (a) any brokers’ or finders’ fees or commissions arising with respect to indemnify Purchaser brokers or finders retained or engaged by Seller and its Affiliates and their respective officersresulting from or relating to the transactions contemplated in this Agreement; (b) the breach of, directors, stockholders, employees and agents (the “Purchaser Indemnified Parties”) against, and agrees or failure to hold them harmless fromperform or satisfy, any Loss of the covenants of Seller set forth in this Agreement which are to be performed after the extent such Loss arises from or in connection with the following: Closing Date; and (ic) any breach by Seller of any representation or warranty contained of Seller set forth in this Agreement; , except for a breach of Article 4.8. Seller’s indemnity obligations under this Article 9.2 shall expire as to any claim for indemnification not asserted by Buyer within twelve (ii12) any breach by Seller of any of its covenants contained in months after the Closing Date. In no event shall Seller’s indemnity obligation under this Agreement; or Article 9.2 exceed five (iii5) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor percent of the Purchaser Indemnified Parties contained in Purchase Price. The terms and provisions of this Section 7.2: (A) Article 9.2 shall not be effective until the aggregate dollar amount sole and exclusive remedy of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) each of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses persons indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities hereunder with respect to any the indemnified matters, regardless of whether such Losses referred to in this Section 7.2; providedClaims are based on contract, howevertort, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties contained in Sections 4.1strict liability, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liabilityother principles.

Indemnification by Seller. (a) Subject to Sections 7.4, 9.1, the following provisions of this Section 9.3, and 9.4 hereof, Seller hereby agrees to shall indemnify Purchaser and its Affiliates and their respective officers(including JANY after the Closing) (collectively, directors, stockholders, employees and agents (the “"Purchaser Indemnified Parties”Group") againstfor, and agrees to shall hold them harmless from, any Loss to the extent such Loss arises from and all Liabilities asserted against or in connection incurred or sustained by Purchaser relating to, associated with the following: or arising out of: (i) any breach by Seller of any representation covenant or warranty agreement contained in this Agreement; Agreement by Seller, (ii) any breach by Seller of any of its covenants contained the warranties or representations set forth in Article 2 of this Agreement; or Agreement (other than Sections 2.18(b) and 2.32(g) hereof), (iii) any Excluded Liability. Notwithstanding the foregoingExtra Contractual Obligations, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (Aiv) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2Vanishing Premium Liabilities; provided, however, that Seller shall not be required to provide the foregoing limitations indemnification with respect to Vanishing Premium Liabilities related to any In Force Insurance Contract if Purchaser reduces the dividend scale applicable to such Insurance Contract or (v) the Insurance Contracts issued by JANY without Permits as identified on Seller’s indemnification obligations pursuant Schedule 2.9 attached hereto. (b) Subject to Section 9.1, the following provisions of this Section 7.2 9.3 and 9.4 hereof, Seller shall not apply indemnify the Purchaser Group for, and shall hold it harmless from, (i) one- half of any and all Liabilities up to an aggregate of $3,000,000 (i.e., $1.5 million of the first $3.0 million of such Liabilities) and (ii) any indemnification and all Liabilities in excess of $3,000,000 asserted against or incurred or sustained by Seller for the Purchaser Group relating to, associated with or arising out of any breach of the representations and warranties contained of Seller set forth in Sections 4.12.18(b) and 2.32(g) hereof and Section 3.22(g) of the Asset Purchase Agreement (without giving effect to the knowledge and materiality qualifiers set forth therein). (c) The Purchaser Group shall be entitled to indemnification under Section 9.3(a)(ii), 4.29.3(a)(iii) and 9.3(a)(iv) hereof only when the aggregate amount of all Liabilities with respect to which the Purchaser Group would otherwise be entitled to indemnification under Sections 9.3(a)(ii), 4.39.3(a)(iii) and 9.3(a)(v) hereof and Section 10.3(a)(ii) of the Asset Purchase Agreement exceeds $1.5 million. In addition, 4.4 as soon as practicable after such Liabilities exceeds $1.5 million, Seller shall pay to Purchaser $750,000. In no event shall the amount payable by Seller and its Affiliates to the Purchaser Group pursuant to Sections 9.3(a)(ii), 9.3(a)(iii) and 9.3(a)(v) hereof and Section 10.3(a)(ii) of the Asset Purchase Agreement exceeds $240,000,000. (d) If any event shall occur or circumstance shall exist which would otherwise entitle the Purchaser Group to indemnification hereunder, Liabilities shall be deemed reduced to the extent of any Losses asserted againstproceeds (other than (i) proceeds from self-insurance and (ii) proceeds under experience-rated insurance policies the premiums for which would be increased by reason of the filing of a claim thereunder with respect to such Liability) actually recovered, imposed upon net of the cost of such recovery, by the Purchaser Group from any third party (including, without limitation, any insurance company) with respect thereto. In furtherance of the immediately preceding sentence, Purchaser agrees to, and to cause its Affiliates to, (i) in good faith, diligently seek recovery, at its or their own expense, of all such proceeds from all third parties with respect to all Liabilities with respect to which it or they make or may make a claim for indemnification hereunder and (ii) keep Seller fully and promptly informed of all material matters related thereto. (e) To the extent that the undertakings set forth in Section 9.3(a) hereof may be unenforceable, Seller shall contribute the maximum amount that it is permitted to contribute under applicable Law to the payment and satisfaction of all Liabilities incurred by the Purchaser Indemnified Parties resulting from any Excluded LiabilityGroup.

Indemnification by Seller. Seller hereby agrees to indemnify Purchaser Sellers shall jointly and its Affiliates severally indemnify, defend and hold harmless Purchaser, the Companies, the Subsidiaries and their respective officers, directors, stockholders, employees and agents (the “Purchaser Indemnified Parties”) againstaffiliates, and agrees to hold them harmless fromRepresentatives, and shall reimburse each such Person on demand for any Loss to the extent such Loss arises Damages resulting from or in connection with any of the following: : (i) any breach or default in the performance by Seller any of the Sellers of any representation covenant or warranty agreement contained herein, in this Agreement; any agreement contemplated hereby or executed in connection herewith, or in any certificate or other instrument delivered or to be delivered by or on behalf of any of the Sellers pursuant hereto or thereto; (ii) any breach of warranty or inaccurate representation made by Seller of any of its covenants contained in this Agreementthe Sellers herein; or and (iii) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor operation of the Business of each of the Companies and their Subsidiaries prior to the Closing Date provided, however, that: 9.2.1.1 None of the Sellers shall be required to pay any Damages to Purchaser Indemnified Parties contained in this Section 7.2: (A) shall not be effective until unless the aggregate dollar amount of all Losses indemnified against under this Section 7.2 Damages exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”)$15,000, in which event Seller case all Damages shall be liable for all Losses including the Threshold Amount; paid, and (Bii) in no event shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of Damages payable by the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; Sellers exceed $350,000, provided, however, that the foregoing limitations this limit on Seller’s indemnification obligations pursuant to this Section 7.2 Damages shall not apply to any indemnification Damages for breaches of warranty or inaccurate representation made by Seller for any breach Sellers under Sections 3.2, 3.4, 3.5, 3.9.5, 3.15 and 3.19; and 9.2.1.2 Indemnity claims under this Section 9.2.1 shall be made first against the Indemnity Holdback Shares. For purposes of claims settled against the Indemnity Holdback Shares, each Indemnity Holdback Share shall be deemed to have a value of the representations greater of (x) the volume weighted average trading price for the Purchaser’s shares of Common Stock for the twenty (20) trading days prior to the settlement date and warranties contained (y) $1.35. In the event Damages for which the Purchaser seeks indemnification exceed the value of the Indemnity Holdback Shares, such amounts shall be paid in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred cash by the Purchaser Indemnified Parties resulting from any Excluded LiabilitySellers.

Indemnification by Seller. (a) Seller hereby agrees to indemnify Purchaser that from and after the Closing it shall indemnify, defend and hold harmless Buyer, its Affiliates Affiliates, and their respective directors, officers, directorsshareholders, stockholderspartners, members, attorneys, accountants, agents, representatives and employees (other than the Business Employees) and agents their heirs, successors and permitted assigns, each in their capacity as such (the “Purchaser Buyer Indemnified Parties” and, collectively with the Seller Indemnified Parties, the “Indemnified Parties”) against, and agrees to hold them harmless from, against and in respect of any Loss to Losses actually incurred or suffered by any of the extent such Loss arises Buyer Indemnified Parties arising out of or resulting from or in connection with the following: (i) subject to Section 8.3(b), any breach by Seller of any representation or warranty contained made by Seller in Article IV of this Agreement; Agreement (including as if such representations and warranties were made as of the Effective Time (except for such representations and warranties that are made as of a specific date)) for the period such representation or warranty survives, (ii) any breach by Seller of any covenant or agreement of its covenants Seller contained in this Agreement; or , (iii) any of the Excluded LiabilityLiabilities, (iv) all USF contributions that relate to the Transferred Business prior to the Closing, and (v) any Indebtedness of the Transferred Companies existing as of immediately prior to the Closing (after taking into account the Pre-Closing Reorganization) and not reflected on the Final Closing Statement. (b) Seller shall not be liable to the Buyer Indemnified Parties for any Losses with respect to the matters contained in Section 8.3(a)(i) unless the Losses therefrom exceed an aggregate amount equal to $131,750,000 (the “Indemnity Threshold”) and then only for Losses in excess of that amount and up to an aggregate amount equal to $1,054,000,000 (the “Indemnity Cap”). Seller shall not be liable to the Buyer Indemnified Parties in respect of any individual claim or series of claims arising out of a similar occurrence or set of facts for indemnification under Section 8.3(a)(i) involving Losses of less than $300,000 and no such amounts shall be taken into account for purposes of satisfying the Indemnity Threshold. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained limitations set forth in this Section 7.2: (A8.3(b) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification claims for Losses resulting from or arising out of breaches of the Specified Representations or Section 4.9(l) or due to fraud by Seller for or on behalf of Seller. (c) For purposes of this Article VIII, any inaccuracy in or breach of any representation or warranty shall be determined without regard to any “material”, “materially”, “in all material respects”, “in any material respect”, “material to the representations Transferred Business” and warranties “Seller Material Adverse Effect” qualification contained in Sections 4.1or otherwise applicable to such representation or warranty, 4.2provided that (A) such qualifiers shall not be disregarded in Section 4.7(d) (Financial Statements), 4.3Section 4.8 (Litigation and Claims), 4.4 Section 4.10(i) (Employees and Employee Benefits), Section 4.15(a) (Contracts), Section 4.16 (Absence of Changes), the first sentence of Section 4.18 (Communications Licenses) or Section 4.19 (Title to Property), and (B) the word “material” shall not be disregarded where it immediately precedes (1) the term “Seller Benefit Plan” in Section 4.10 (Employees and Employee Benefits) and (2) the term “Governmental Authorizations” in Section 4.12 (Compliance with Laws; Communications Authorizations). The rights of an Indemnified Party to indemnification under this Agreement or any Losses asserted againstAncillary Documents shall not be affected by any investigation conducted or actual or constructive knowledge acquired at any time by such Indemnified Party, imposed upon whether before or incurred by after the Purchaser Indemnified Parties resulting from date of this Agreement or any Excluded LiabilityClosing Date.

Indemnification by Seller. (a) If Seller hereby breachs any of its representations, warranties or covenants contained in this Agreement, and, if there is an applicable survival period pursuant to Section 11.2 above, Purchaser makes a written claim for indemnification against Seller within such survival period, then Seller agrees to indemnify indemnify, protect, defend as provided in Section 11.5, and hold harmless Purchaser and its Affiliates and their respective officersaffiliates, directors, stockholdersofficers, shareholders, employees and agents (individually a "Purchaser Indemnitee" and collectively the “"Purchaser Indemnified Parties”Indemnitees") against, from and agrees to hold them harmless against the entirety of any Adverse Consequences the Purchaser Indemnitees may suffer through and after the date of the claim for indemnification (including any Adverse Consequences the Purchaser Indemnitees may suffer after the end of any applicable survival period) resulting or arising from, any Loss to the extent such Loss arises from caused by or incurred in connection with the followingbreach; provided, however: (i) Seller shall not have any obligation to indemnify Purchaser Indemnitees against any Adverse Consequences resulting from, arising out of, relating to, in the nature of or caused by the breach by Seller of any representation or warranty contained in this Agreement;Sections 4.7 through 4.15 until the aggregate amount of the Adverse Consequences Purchaser Indemnitees have suffered by reason of all such breaches exceeds the sum of One Hundred Thousand Dollars (US$100,000.00) (after which point the Seller will be obligated to indemnify Purchaser Indemnities from and against the entirety of such Adverse Consequences, and (ii) there will be an aggregate maximum ceiling of One Million Dollars (US$1,000,000.00) on the obligation of Seller to indemnify Purchaser Indemnitees from and against any Adverse Consequences resulting from, arising out of, relating to, in the nature of or caused by the breach by Seller of any of its covenants contained in this Agreement; or (iii) any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations representation or liabilities with respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 shall not apply to any indemnification by Seller for any breach of the representations and warranties warranty contained in Sections 4.14.7 through 4.15. (b) Seller agrees to indemnify and hold harmless Purchaser Indemnitees from and against the entirety of any Adverse Consequences resulting from, 4.2arising out of, 4.3relating to, 4.4 in the nature of, or caused by any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from liability of Seller which is not an Assumed Liability (including any Excluded Liabilityliability under any bulk transfer law).

Indemnification by Seller. Seller hereby agrees to shall hold harmless and indemnify Purchaser Buyer and its Affiliates and their respective all of Buyer's stockholders, Affiliates, officers, directors, stockholdersemployees, employees agents, representatives, successors and agents assigns (the each a “Purchaser Indemnified PartiesBuyer Indemnitee”) against, from and agrees to hold them harmless against any and all Losses resulting from, any Loss to the extent such Loss arises from or in connection with the following: (ia) any inaccuracy in or breach by Seller of any representation or warranty contained in this Agreement; (ii) any breach by Seller of any of its covenants the representations or warranties of Seller contained in this Agreement; provided that solely with respect to a breach of a representation or warranty set forth in the fifth and eighth sentences of Section 4.07(a), or Sections 4.07(b), 4.14, 4.19 or 4.20, the amount of Losses arising from such a breach shall be determined without giving effect to any limitations or qualifications as to “materiality” (including the word “material”) or “Material Adverse Effect” set forth therein; (b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Seller pursuant to this Agreement or the Transaction Documents; (c) any Excluded Liabilities or Excluded Assets; or (iiid) any Excluded Liabilityclaim by any person for payment of any fees or expenses incurred by Seller in connection with the negotiation and execution of this Agreement and the transactions contemplated hereby. Notwithstanding the foregoing, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: (A) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with With respect to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on Seller’s indemnification obligations by Seller pursuant to this Section 7.2 7.02, the Buyer Indemnitees shall not apply be required to seek recovery of Losses (i) first, from the Escrow Amount (to the extent thereof) and (ii) second, to the extent that any indemnification by Seller for any breach amount of such Losses exceeds the representations and warranties contained in Sections 4.1remaining Escrow Amount (if any), 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting directly from any Excluded LiabilitySeller.

Indemnification by Seller. (i) Seller hereby agrees to indemnify Purchaser shall indemnify, defend and its Affiliates hold harmless the Company, Buyer and each of their respective officersAffiliates (each, directors, stockholders, employees a "Buyer Indemnitee") from and agents (the “Purchaser Indemnified Parties”) against, and agrees shall reimburse each Buyer Indemnitee for, all demands, claims, actions or causes of action, assessments, losses, damages, liabilities, costs and expenses, including, without limitation, interest, penalties, court costs and reasonable attorneys' fees and expenses (including, without limitation, reasonable expenses of investigation and reasonable attorneys' and accountants' fees imposed upon or incurred by such Buyer Indemnitee, directly or indirectly (a "Loss" or "Losses") arising out of or relating to hold them harmless from, any Loss to the extent such Loss arises from or in connection with the following: (iA) any misrepresentation or breach by Seller of any representation or warranty contained in this Agreement; Article III and (iiB) any breach by Seller in any material respect of any covenant or agreement of its covenants Seller contained in or arising out of this Agreement; or, unless deemed to be waived by Buyer pursuant to Section 8.1(a). (iiiii) Notwithstanding Section 8.2(a)(i), Seller shall not have any Excluded Liability. Notwithstanding the foregoing, the indemnifications liability under this Agreement in favor respect of the Purchaser Indemnified Parties contained in this Section 7.2: any claim for indemnification (A) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 (other than Losses covered by clause (B) below) otherwise subject to indemnification equals or exceeds two percent (2%) $4,000,000, at which time only those Losses in excess of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller $4,000,000 shall be liable for all Losses including the Threshold Amount; recoverable and (B) shall terminate once until the aggregate dollar amount of all Losses indemnified against under this arising out of or relating to a misrepresentation or breach by Seller of the representations or warranties contained in Section 7.2 aggregates fifty percent 3.10 hereof equals or exceeds $500,000, at which time only those Losses in excess of $500,000 (50%other than any Losses arising out of an eligible rollover distribution as defined in Section 401(a)(31) of the amount actually paid under Article 3 (the “Cap Amount”Code) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2be recoverable; provided, however, that in no event shall Seller's aggregate liability exceed $127,000,000. Seller's obligation to indemnify the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 Buyer Indemnities shall not apply to any indemnification by Seller for any breach terminate upon the expiration of the representations relevant representation, warranty or covenant, except that any claim for indemnification in respect of which notice is given in accordance with the provisions of Sections 8.1 and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liability8.2 prior to such date shall survive with respect to such claim until final resolution thereof.

Indemnification by Seller. (a) Subject to Section 10.01 to the extent applicable, Seller hereby agrees to shall indemnify Purchaser and hold Purchaser, its Affiliates and their respective officersemployees, directorsofficers and directors (collectively, stockholders, employees and agents (the “"Purchaser Indemnified Parties”") harmless from and against, and agrees to hold them harmless frompromptly defend any Purchaser Indemnified Party from and reimburse any Purchaser Indemnified Party for, any Loss to the extent and all Losses which such Loss arises from Purchaser Indemnified Party may at any time suffer or incur, or become subject to, as a result or in connection with the followingwith: (i) the inaccuracy as of the date of this Agreement or the Closing Date of any breach representations and warranties made by Seller of in or pursuant to this Agreement or in any representation instrument or warranty contained certificate delivered by Seller at the Closing in this Agreementaccordance herewith; (ii) any breach failure by Seller of to carry out, perform, satisfy and discharge any of its covenants contained in covenants, agreements, undertakings, liabilities or obligations under this Agreement or under any of the documents and/or other instruments delivered by Seller pursuant to this Agreement; (iii) Non-Assumed Liabilities; or (iiiiv) the failure to obtain prior to Closing any Excluded Liability. Notwithstanding the foregoing, the indemnifications in favor of the consents (on terms reasonably satisfactory to Purchaser) to the Contracts underlined in Section 3.16(a) of the Disclosure Schedule. (b) Notwithstanding any other provision to the contrary, Seller shall not be required to indemnify and hold harmless any Purchaser Indemnified Party pursuant to Section 9.02(a)(i), (i) unless Purchaser has asserted a claim with respect to such matters within the applicable survival period set forth in Section 10.01, and (ii) except for losses arising from the inaccuracy of any of the representations and warranties set forth in Sections 3.01(a), 3.07(b), 3.12(h) and 3.18 (the "Specified Sections"), until the aggregate amount of Purchaser Indemnified Parties' Losses exceeds $2,500,000, after which Seller shall be obligated for all Losses of Purchaser Indemnified Parties contained in this Section 7.2: (A) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) excess of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount first $1,250,000 of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2Losses; provided, however, that (A) except in respect of the foregoing limitations on Seller’s Specified Sections the cumulative indemnification obligations obligation of Seller under Section 9.01(a)(i) shall in no event exceed $150,000,000 and (B) the cumulative indemnification obligation of Seller under Section 9.02(a)(iv) shall in no event exceed $15,000,000. (c) For purposes of calculating the amount of Losses subject to indemnification pursuant to this Section 7.2 shall not apply Sections 9.01 and 9.02, it is understood and agreed between the parties hereto that to any indemnification by Seller for any determine if there has been an inaccuracy or breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 a representation or any Losses asserted against, imposed upon or incurred warranty which is qualified as to materiality by the Purchaser Indemnified Parties resulting from any Excluded Liabilityparty making such representation or warranty or contains an exception for matters that would not have a Material Adverse Effect, then such representation or warranty shall be read as if it were not so qualified or contained no such exception.

Indemnification by Seller. Seller hereby (a) Seller, jointly and severally, agrees to indemnify Purchaser and its Affiliates and their respective officershold each Indemnitee (as defined in Section 8.8), directorsharmless from all Losses incurred, stockholderssuffered or paid, employees and agents (the “Purchaser Indemnified Parties”) againstdirectly or indirectly, and agrees to hold them harmless from, any Loss to the extent such Loss arises from as a result of or in connection with the followingarising out of: (i) any breach or default in the performance by Seller of any representation covenant or warranty agreement of Seller contained in this AgreementAgreement or any related document executed pursuant hereto; (ii) any breach of warranty or inaccurate or erroneous representation made by Seller herein (except to the extent that a Buyer Representative had actual knowledge thereof in breach of any of its covenants contained in this Agreement; orSection 4.4); (iii) any Excluded Liability. Notwithstanding the foregoingRetained Liabilities; (iv) any Taxes of Seller, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Section 7.2: including, without limitation, (A) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 exceeds two percent (2%) of the amount actually paid under Article 3 (the “Threshold Amount”), in which event Seller shall be liable for all Losses including the Threshold AmountTransfer Taxes; and (B) the portion of real and personal property Taxes for which Seller is liable for pursuant to Section 1.7; and (v) any unpaid Taxes of any Person including under United States Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law) as a transferee or successor of Seller, by Contract or otherwise. (b) Notwithstanding anything herein to the contrary, Buyer shall terminate once have no claim for indemnification hereunder until the aggregate dollar total amount of all Losses indemnified against incurred which would otherwise be subject to indemnification hereunder, including Losses incurred by Seller and the Michigan Sellers in connection with the Michigan Asset Purchase and Sale Agreement, exceeds $200,000 and then only to the extent of such excess, but in no event shall the aggregate amount of all Losses subject to indemnification under this Section 7.2 aggregates fifty percent (50%) of 8.3 exceed the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of such Losses referred to in this Section 7.2Closing Purchase Price; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to amounts set forth in this Section 7.2 8.3(b) shall not apply to any Losses resulting from or arising out of, directly or indirectly, (i) any Special Claims, (ii) claims under Sections 8.3(a)(i), 8.3(a)(iii) (other than the Retained Liabilities identified in Section 1.5(b)(vi)), 8.3(a)(iv) or 8.3(a)(v) or (iii) claims arising from any actual fraud on the part of Seller, as to each of which Seller shall have liability for the entire amount of such Loss without any limitation; and (c) Except as provided in Section 8.7, the indemnification obligations of Seller hereunder shall be the exclusive remedy of Buyer with respect to any matter subject to indemnification hereunder. (d) Seller will be entitled to receive as a credit against any indemnification amount owing to Buyer hereunder an amount equal to the net proceeds of any insurance policy actually received by Seller Buyer for any breach of the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded LiabilityLoss for which Seller agreed to indemnify Buyer under this Section 8.3.

Indemnification by Seller. Subject to the remaining terms of this Article VIII, Seller hereby agrees to indemnify shall indemnify, defend and hold harmless Purchaser and its Affiliates and their respective officerspartners, members, directors, stockholdersofficers, employees shareholders, employees, successors, assigns and agents representatives (the “Purchaser Indemnified Parties”) againstfrom and against any and all damage, loss, liability or expense (including reasonable expenses of investigation and agrees to hold them harmless from, any Loss to the extent such Loss arises from or reasonable attorneys’ fees and expenses in connection with the following: any action, suit or proceeding) (i“Losses”) incurred or suffered by any Purchaser Party that arises out of, results from or constitutes (a) any breach by Seller of any representation or warranty contained made by Seller in this Agreement or any Ancillary Agreement; , (iib) any breach by the failure of Seller of to perform any of its agreements or covenants contained set forth in this Agreement; or Agreement or in any Transaction Document or (iiic) any Excluded Liability. Notwithstanding anything herein to the foregoingcontrary, the indemnifications in favor of the Purchaser Indemnified Parties contained in this Seller shall have no liability under Section 7.2: (A8.2(a) shall not be effective until the aggregate dollar amount of all Losses indemnified against under this Section 7.2 suffered by the Purchaser Parties exceeds two percent (2%) of the amount actually paid under Article 3 $1.5 million (the “Threshold Deductible Amount”), in which event ) and then Seller shall be liable under Section 8.2(a) for all Losses including the Threshold Amount; and (B) shall terminate once the aggregate dollar amount of all Losses indemnified against under this Section 7.2 aggregates fifty percent (50%) of the amount actually paid under Article 3 (the “Cap Amount”) and Seller shall thereafter have no further obligations or liabilities with respect to any of only such Losses referred to in this Section 7.2that exceed the Deductible Amount; provided, however, that the foregoing limitations on Seller’s indemnification obligations pursuant to this Section 7.2 Deductible Amount shall not apply to (and therefore Seller will be responsible for the first dollar of Losses suffered by any indemnification by Seller for Purchaser Party) any claim arising from a breach of representation or warranty relating to (i) any knowing misrepresentation or (ii) any of the representations and warranties contained set forth in Sections 4.14.1(a), 4.2(b), 4.3(g), 4.4 (i), (m), or any Losses asserted against(p) (the items referred to in clauses (i) and (ii) preceding are referred to as the “Excluded Items”). Notwithstanding anything herein to the contrary, imposed upon Seller’s maximum aggregate liability under Section 8.2(a) shall not exceed $22.5 million; provided, the foregoing cap shall not apply to the Excluded Items. Nothing herein shall be deemed to limit Seller’s liability under Sections 8.2(b) or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liability(c).

Indemnification by Seller. (a) Following the Closing, subject to the terms of this Article IX, Seller hereby agrees to indemnify Purchaser and hold harmless Buyer and its Affiliates (including the Sold Companies) and their respective successors, permitted assigns, stockholders, officers, directors, stockholdersemployees, employees representatives, members, partners and agents (collectively, the “Purchaser Buyer Indemnified PartiesPersons”) from and against, and agrees to hold them harmless fromwithout duplication, any Loss Losses incurred or suffered by any Buyer Indemnified Person arising out of, relating to the extent such Loss arises or resulting from or in connection with the following: (i) any breach of any of the representations or warranties made by Seller in Article III of any representation this Agreement or warranty contained in this Agreement; (ii) any breach by Seller of any of its the covenants contained or agreements of Seller in this Agreement; or. (iiib) any Excluded Liability. Notwithstanding The obligation of Seller to indemnify the foregoing, Buyer Indemnified Persons for Losses with respect to the indemnifications matters contained in favor Section 9.2(a)(i) is subject to the following limitations except with respect to Losses arising from breach of the Purchaser Indemnified Parties contained in this Section 7.2Seller Fundamental Representations: (Ai) Seller shall not be effective until required to provide indemnification to any Buyer Indemnified Person pursuant to Section 9.2(a)(i), unless the aggregate dollar amount of all Losses indemnified against under this incurred or suffered by Buyer Indemnified Persons from the matters contained in Section 7.2 9.2(a)(i) exceeds two one-half percent (20.5%) of the amount actually paid under Article 3 Enterprise Value (the “Threshold AmountDeductible”), in which event whereupon Seller shall be liable for all amounts in excess of the Deductible; (ii) the Buyer Indemnified Persons shall have no right to indemnification under Section 9.2(a)(i) with respect to any claim or series of substantially related claims for which the sum of all Losses including with respect thereto is less than $50,000 (for the Threshold Amountavoidance of doubt, such claim or series of related claims for which the sum of all Losses with respect thereto is less than $50,000 shall not count towards the Deductible); and (Biii) in no event shall terminate once the aggregate dollar amount of all Losses indemnified against under this for which Seller is obligated to indemnify Buyer Indemnified Persons pursuant to Section 7.2 aggregates fifty 9.2(a)(i) exceed ten percent (5010%) of the amount actually paid under Article 3 Enterprise Value (the “Cap AmountCap”) and Seller shall thereafter have no further obligations or liabilities with respect ). In addition to any of such Losses referred to in this Section 7.2; provided, however, that the foregoing limitations on limitations, (x) in no event shall Seller’s indemnification obligations pursuant to this under Section 7.2 9.2(a) and Section 5.6(a) exceed, in the aggregate, the Final Purchase Price and (y) the Deductible shall not apply to any Losses incurred or suffered by Buyer Indemnified Persons arising from breach of Section 3.20 [Affiliate Relationships] or Section 3.21 [Sufficiency of Assets]. For the avoidance of doubt, except for the previous sentence, none of the limitations set forth in this Section 9.2(b) shall apply to claims for indemnification by under Section 5.6(a) or Section 9.2(a)(ii), a claim arising out of or relating to a breach of the Seller Fundamental Representations, or claims for any fraud. Notwithstanding anything to the contrary in this Section 9.2(b), in the event of a claim for breach of Section 5.22(a) [Notification of Certain Matters] for failure to provide Buyer with a relevant Prior Event Disclosure or Subsequent Event Disclosure, such claim shall be subject to the limitations (and exceptions) set forth in this Section 9.2(b) as if such breach of Section 5.22(a) were a breach of the representations and warranties contained underlying the Prior Event Disclosure or Subsequent Event Disclosure required to be delivered to Buyer (except to the extent such breach was done willfully or intentionally, in Sections 4.1, 4.2, 4.3, 4.4 or any Losses asserted against, imposed upon or incurred by the Purchaser Indemnified Parties resulting from any Excluded Liabilitywhich case such limitations and exceptions will not apply).