Common use of Indemnification by the Members Clause in Contracts

Indemnification by the Members. Effective at and after the consummation of the Closing and subject to Section 12.03, the Members shall, severally (pro rata based on such Member’s Holdings Allocation Percentage, or otherwise as determined by the Member Representative upon written notice to Parent), but not jointly (subject to the last sentence of Section 12.03(e)), indemnify Parent and its Affiliates and Representatives (excluding Holdings and its Subsidiaries, provided that for purposes of determining a De Minimis Breach pursuant to Section 12.03(b), the Damages of Holdings and its Subsidiaries shall be taken into account) (each, a “Parent Indemnitee”) against and hold each of them harmless from any and all Damages incurred by a Parent Indemnitee arising out of, relating to, resulting from, in connection with or otherwise in respect of: (i) any inaccuracy or breach of any representation or warranty set forth in Article 4 or Article 5 as of the Closing (other than any representation or warranty made as of a certain date, in which case, as of such date), or in the certificates delivered pursuant to Section 2.10(a) (with respect to such representations and warranties) or Section 2.10(g) (each such breach of a representation or warranty, a “Group Warranty Breach”); (ii) any breach of a covenant or agreement pursuant to this Agreement, the Restructuring Agreement or the Escrow Agreement made or to be performed by (x) an Acquired Entity prior to the consummation of the Closing or (y) the Member Representative, at any time (each such breach of a covenant or agreement, together with any Group Warranty Breach, a “Group Breach”); (iii) (w) Pre-Closing Taxes of any Acquired Entity or any Subsidiary thereof, (x) obligations of any Acquired Entity or any Subsidiary thereof under unclaimed property and escheat Laws, to the extent actually paid to a Governmental Authority, arising out of gift cards issued prior to the Closing Date, (y) Transaction Expenses, to the extent not paid in connection with the Closing or pursuant to Section 2.12, including the matters set forth on Schedule 12.02(a)(iii) of the Disclosure Schedule, and (z) the portion of any Post-Closing New Venue Opening Expenses indirectly borne by Parent after the Closing (based on Parent’s Percentage Share (as defined in the A&R Holdings LLC Agreement)) that would not have been borne by Parent in accordance with the definition of New Venue Opening Amount had such Post-Closing New Venue Opening Expenses been paid prior to the Closing and incorporated in the calculation of the New Venue Opening Amount (i.e., because, based on the definition of New Venue Opening Amount, Parent (A) bears only fifty percent (50%) of any New Venue Opening Expenses and (B) is not obligated to bear any portion of New Venue Opening Expenses in excess of the New Venue Opening Amount Cap); or (iv) (x) any error or inaccuracy in the Member Allocation Schedule attached as Annex D (including with respect to the Holdings Pre-Closing Percentages, Holdings Allocation Percentage, Rollover Class A Allocated Investment Percentages, or Rollover Class A Investment Percentage), in any allocation or apportionment of consideration or Liability by the Member Representative or any Liability under the Restructuring Agreement except to the extent resulting from any action taken by Parent in breach of the Transaction Documents, or in account wiring instructions delivered by the Member Representative or any Member; (y) any Liability (including any Proceeding with respect thereto) with respect to any Member or other holder of Equity Interests in an Acquired Entity or any Subsidiary thereof, with respect to such Member or holder’s capacity as a Member or holder of Equity Interests or otherwise relating to his, her or its relationship and rights as a Member or holder of Equity Interests (whether pursuant to an LLC Agreement, Side Letter or other Contract in respect of any Acquired Entity, such Member’s Letter of Transmittal, or any Liability with respect to Rollover Holdco in connection with the transaction contemplated by this Agreement, the Restructuring Agreement or the other Transaction Documents to the extent such claim is brought by a Member except to the extent resulting from any action taken by Parent in breach of the Transaction Documents) in an Acquired Entity or any Subsidiary thereof, whether such Liability (or Proceeding) involves Parent or an Affiliate of Parent, Rollover Holdco or an Acquired Entity or any Subsidiary thereof (or any manager, director, officer or employee of an Acquired Entity or any Subsidiary thereof) including, without limitation, any Proceeding brought by or against such Person or his, her or its heirs, successors or assigns, or other Persons on behalf of such Persons with respect to the consummation of the Closing or the other Transactions (including the Restructuring or Deal Approval, and including the adequacy or allocation of any consideration hereunder with respect to the Transactions or the obligations on any Member or holder of Equity Interests in an Acquired Entity or any Subsidiary thereof under the Letter of Transmittal, including any release thereunder or appointment of Member Representative as a representative), or this Agreement or the other Transaction Documents (excluding, for the avoidance of doubt, any indemnification claim against Parent to the extent duly made pursuant to Section 12.02(c)); or (z) any Member Released Claim.

Indemnification by the Members. Effective at The Members shall jointly and after severally indemnify the consummation of Parent, Merger Sub, and the Closing and subject to Section 12.03, the Members shall, severally (pro rata based on such Member’s Holdings Allocation Percentage, or otherwise as determined by the Member Representative upon written notice to Parent), but not jointly (subject to the last sentence of Section 12.03(e)), indemnify Parent and its Affiliates and Representatives (excluding Holdings and its Subsidiaries, provided that for purposes of determining a De Minimis Breach pursuant to Section 12.03(b), the Damages of Holdings and its Subsidiaries shall be taken into account) (each, a “Parent Indemnitee”) against and hold each of them harmless from any and all Damages incurred by a Parent Indemnitee arising out of, relating to, resulting from, in connection with or otherwise Surviving Company in respect of, and hold it harmless against, loss, liability, deficiency, damages, expense or cost (including without limitation amounts paid in settlement, interest, court costs, costs of investigators, fees and expenses of attorneys, accountants, financial advisors and other experts, and other expenses of litigation, arbitration or otherwise) (“Damages”) incurred or suffered by Parent, Merger Sub, and/or the Surviving Company resulting from: (a) any misrepresentation, breach of warranty or failure to perform any covenant or agreement of OneLove or the Members contained in this Agreement; (b) any claim by a Member or former Member of OneLove, or any other person or entity, seeking to assert, or based upon: (i) any inaccuracy ownership or breach rights to ownership of any representation or warranty set forth in Article 4 or Article 5 as of the Closing (other than any representation or warranty made as of a certain date, in which case, as of such date), or in the certificates delivered pursuant to Section 2.10(a) (with respect to such representations and warranties) or Section 2.10(g) (each such breach of a representation or warranty, a “Group Warranty Breach”); OneLove Membership Interests; (ii) any breach rights under the Articles of a covenant Organization or operating agreement pursuant to this Agreement, the Restructuring Agreement of OneLove; or the Escrow Agreement made or to be performed by (x) an Acquired Entity prior to the consummation of the Closing or (y) the Member Representative, at any time (each such breach of a covenant or agreement, together with any Group Warranty Breach, a “Group Breach”); (iii) (w) Pre-Closing Taxes of any Acquired Entity or any Subsidiary thereof, (x) obligations of any Acquired Entity or any Subsidiary thereof under unclaimed property and escheat Laws, to the extent actually paid to a Governmental Authority, arising out of gift cards issued prior to the Closing Date, (y) Transaction Expenses, to the extent not paid in connection with the Closing or pursuant to Section 2.12, including the matters set forth on Schedule 12.02(a)(iii) of the Disclosure Schedule, and (z) the portion of any Post-Closing New Venue Opening Expenses indirectly borne by Parent after the Closing (based on Parent’s Percentage Share (as defined in the A&R Holdings LLC Agreement)) claim that would not have been borne by Parent in accordance with the definition of New Venue Opening Amount had such Post-Closing New Venue Opening Expenses been paid prior to the Closing and incorporated in the calculation of the New Venue Opening Amount (i.e., because, based on the definition of New Venue Opening Amount, Parent (A) bears only fifty percent (50%) of any New Venue Opening Expenses and (B) is not obligated to bear any portion of New Venue Opening Expenses in excess of the New Venue Opening Amount Cap); or (iv) (x) any error or inaccuracy in the Member Allocation Schedule attached as Annex D (including with respect to the Holdings Pre-Closing Percentages, Holdings Allocation Percentage, Rollover Class A Allocated Investment Percentages, or Rollover Class A Investment Percentage), in any allocation or apportionment of consideration or Liability by the Member Representative or any Liability under the Restructuring Agreement except to the extent resulting from any action taken by Parent in breach of the Transaction Documents, or in account wiring instructions delivered by the Member Representative or any Member; (y) any Liability (including any Proceeding with respect thereto) with respect to any Member or other holder of Equity Interests in an Acquired Entity or any Subsidiary thereof, with respect to such Member or holder’s capacity as a Member or holder of Equity Interests or otherwise relating to his, her or its relationship OneLove Membership Interests were wrongfully repurchased cancelled or reissued by OneLove. The Members expressly acknowledge and rights as a Member or holder of Equity Interests (whether agree that its indemnification pursuant to an LLC Agreement, Side Letter or other Contract in respect this Section is wholly independent of any Acquired Entity, such Member’s Letter of Transmittal, other indemnity owed by any other party or any Liability other remedy available to the Parent, Merger Sub and/or the Surviving Company (as applicable, the “Indemnitee”). The Indemnitee may enforce the indemnity provided herein independently of any other remedy the Indemnitee may have against any other party at any time, and it shall not be necessary for the Indemnitee to proceed upon or against and/or exhaust any other remedy before proceeding to enforce the indemnity provided herein. The Members expressly waive any right to require the Indemnitee to proceed against any other party and agrees that Indemnitee may proceed against the Members or any other party in such order as Indemnitee shall determine in its sole and absolute discretion. Indemnitee may file a separate action or actions against the Members, whether action is brought or prosecuted with respect to Rollover Holdco in connection with the transaction contemplated by this Agreement, the Restructuring Agreement or the other Transaction Documents to the extent such claim is brought by a Member except to the extent resulting from any action taken by Parent in breach of the Transaction Documents) in an Acquired Entity or any Subsidiary thereof, whether such Liability (or Proceeding) involves Parent or an Affiliate of Parent, Rollover Holdco or an Acquired Entity or any Subsidiary thereof (or any manager, director, officer or employee of an Acquired Entity or any Subsidiary thereof) including, without limitation, any Proceeding brought by or against such Person or his, her or its heirs, successors or assignsany other Person, or whether any other Persons on behalf of Person is joined in any such Persons with respect to the consummation of the Closing action or the other Transactions (including the Restructuring or Deal Approval, and including the adequacy or allocation of any consideration hereunder with respect to the Transactions or the obligations on any Member or holder of Equity Interests in an Acquired Entity or any Subsidiary thereof under the Letter of Transmittal, including any release thereunder or appointment of Member Representative as a representative), or this Agreement or the other Transaction Documents (excluding, for the avoidance of doubt, any indemnification claim against Parent to the extent duly made pursuant to Section 12.02(c)); or (z) any Member Released Claimactions.

Indemnification by the Members. Effective at Each Member severally (and after not jointly) shall indemnify and hold harmless the consummation Company and each of its Affiliates, directors, officers, executives, employees, members, managers, agents and each Person who controls the Company (within the meaning of Section 15 of the Closing and subject to Securities Act or Section 12.03, 20 of the Members shall, severally (pro rata based on such Member’s Holdings Allocation Percentage, or otherwise as determined by the Member Representative upon written notice to ParentExchange Act), but not jointly any underwriter that facilitates the sale of Registrable Securities and any Person who controls such underwriter (subject within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the last sentence of Section 12.03(e))fullest extent permitted by applicable law, indemnify Parent from and its Affiliates and Representatives (excluding Holdings and its Subsidiaries, provided that for purposes of determining a De Minimis Breach pursuant to Section 12.03(b), the Damages of Holdings and its Subsidiaries shall be taken into account) (each, a “Parent Indemnitee”) against and hold each of them harmless from any and all Damages incurred by Losses to which they or any of them may become subject insofar as such Losses arise out of or are based upon any untrue or alleged untrue statement of a Parent Indemnitee arising material fact contained in any Registration Statement pursuant to which Registrable Securities were registered, Prospectus, preliminary Prospectus, road show or in any amendment thereof or supplement thereto, or arise out ofof or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in the case of any Prospectus, relating to, resulting frompreliminary prospectus or road show, in connection with or otherwise in respect of: (i) any inaccuracy or breach of any representation or warranty set forth in Article 4 or Article 5 as light of the Closing (other than any representation or warranty made as of a certain datecircumstances under which they were made, in which case, as of such date), or in to make the certificates delivered pursuant to Section 2.10(a) (with respect to such representations and warranties) or Section 2.10(g) (each such breach of a representation or warranty, a “Group Warranty Breach”); (ii) any breach of a covenant or agreement pursuant to this Agreement, the Restructuring Agreement or the Escrow Agreement made or to be performed by (x) an Acquired Entity prior to the consummation of the Closing or (y) the Member Representative, at any time (each such breach of a covenant or agreement, together with any Group Warranty Breach, a “Group Breach”); (iii) (w) Pre-Closing Taxes of any Acquired Entity or any Subsidiary thereof, (x) obligations of any Acquired Entity or any Subsidiary thereof under unclaimed property and escheat Lawsstatements therein not misleading, to the extent actually paid to a Governmental Authorityextent, arising out of gift cards issued prior but only to the Closing Dateextent, (y) Transaction Expenses, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information furnished to the extent not paid in connection with the Closing or pursuant to Section 2.12, including the matters set forth on Schedule 12.02(a)(iii) of the Disclosure Schedule, and (z) the portion of any Post-Closing New Venue Opening Expenses indirectly borne by Parent after the Closing (based on Parent’s Percentage Share (as defined in the A&R Holdings LLC Agreement)) that would not have been borne by Parent in accordance with the definition of New Venue Opening Amount had such Post-Closing New Venue Opening Expenses been paid prior to the Closing and incorporated in the calculation of the New Venue Opening Amount (i.e., because, based on the definition of New Venue Opening Amount, Parent (A) bears only fifty percent (50%) of any New Venue Opening Expenses and (B) is not obligated to bear any portion of New Venue Opening Expenses in excess of the New Venue Opening Amount Cap); or (iv) (x) any error or inaccuracy in the Member Allocation Schedule attached as Annex D (including with respect to the Holdings Pre-Closing Percentages, Holdings Allocation Percentage, Rollover Class A Allocated Investment Percentages, or Rollover Class A Investment Percentage), in any allocation or apportionment of consideration or Liability by the Member Representative or any Liability under the Restructuring Agreement except to the extent resulting from any action taken by Parent in breach of the Transaction Documents, or in account wiring instructions delivered by the Member Representative or any Member; (y) any Liability (including any Proceeding with respect thereto) with respect to any Member or other holder of Equity Interests in an Acquired Entity or any Subsidiary thereof, with respect to such Member or holder’s capacity as a Member or holder of Equity Interests or otherwise relating to his, her or its relationship and rights as a Member or holder of Equity Interests (whether pursuant to an LLC Agreement, Side Letter or other Contract in respect of any Acquired Entity, such Member’s Letter of Transmittal, or any Liability with respect to Rollover Holdco in connection with the transaction contemplated by this Agreement, the Restructuring Agreement or the other Transaction Documents to the extent such claim is brought by a Member except to the extent resulting from any action taken by Parent in breach of the Transaction Documents) in an Acquired Entity or any Subsidiary thereof, whether such Liability (or Proceeding) involves Parent or an Affiliate of Parent, Rollover Holdco or an Acquired Entity or any Subsidiary thereof (or any manager, director, officer or employee of an Acquired Entity or any Subsidiary thereof) including, without limitation, any Proceeding brought Company by or against such Person or his, her or its heirs, successors or assigns, or other Persons on behalf of such Persons with respect Member specifically for inclusion therein; provided, however, that the maximum amount to be indemnified by such Member pursuant to this Section 10.11(b) shall be limited to the consummation of net proceeds (after deducting underwriters’ discounts and commissions) received by such Member in the Closing registration to which such Registration Statement, Prospectus, preliminary prospectus or the other Transactions (including the Restructuring or Deal Approvalroad show relates; provided, and including the adequacy or allocation of further, that a Member shall not be liable in any consideration hereunder with respect to the Transactions or the obligations on any Member or holder of Equity Interests in an Acquired Entity or any Subsidiary thereof under the Letter of Transmittal, including any release thereunder or appointment of Member Representative as a representative), or this Agreement or the other Transaction Documents (excluding, for the avoidance of doubt, any indemnification claim against Parent case to the extent duly that prior to the filing of any such Registration Statement, Prospectus, preliminary prospectus or road show or any amendment thereof or supplement thereto, each Member has furnished in writing to the Company, information expressly for use in, and within a reasonable period of time prior to the effectiveness of such Registration Statement or the use of the Prospectus, preliminary prospectus or road show, or any amendment thereof or supplement thereto which corrected or made pursuant not misleading information previously provided to Section 12.02(c)); or (z) the Company. This indemnity agreement will be in addition to any liability which any such Member Released Claimmay otherwise have.

Indemnification by the Members. Effective at The Members severally and after the consummation of the Closing and subject to Section 12.03, the Members not jointly shall, severally (pro rata based on such Member’s Holdings Allocation Percentage, or otherwise the Percentage Basis as determined by the Member Representative upon written notice to Parent), but not jointly (subject to the last sentence of Section 12.03(e))defined below, indemnify Parent and hold Onyx and its Affiliates officers, directors and Representatives affiliates (excluding Holdings and its Subsidiaries, provided that for purposes of determining a De Minimis Breach pursuant to Section 12.03(b), the Damages of Holdings and its Subsidiaries shall be taken into account"Indemnified Parties") (each, a “Parent Indemnitee”) against and hold each of them ------------------- harmless from and against, and shall reimburse the Indemnified Parties for, any and all Damages incurred loss, obligation, deficiency, damage, claim, liability, cost and expense (including, without limitation, in the case of a claim by a Parent Indemnitee third party, the amount of any settlement entered into pursuant hereto, and all reasonable legal fees and other expenses) ("Losses") arising out of, relating to, resulting from, in connection with or otherwise in respect of: of (ia) any inaccuracy or ------ misrepresentation in, or breach of any representation or warranty set forth in Article 4 or Article 5 as of the Closing (other than of, any representation or warranty made as of a certain dateby the Company or any Member in this Agreement or in any Operative Document or in any certificate delivered pursuant hereto or thereto; (b) any failure by the Company or the Members to perform or comply, in which case, as of such date), whole or in the certificates delivered pursuant to Section 2.10(a) (part, with respect to such representations and warranties) or Section 2.10(g) (each such breach of a representation or warranty, a “Group Warranty Breach”); (ii) any breach of a covenant or agreement pursuant to in this Agreement, the Restructuring Agreement or in any Operative Document; (c) any claim by any third party arising out of the Escrow Agreement made Company's operation of the Company's business or the ownership, use or distribution of the Company's assets on or before the Closing, other than claims arising from facts disclosed in the Company Disclosure Memorandum; provided, however, that the foregoing exclusion shall not apply to be performed by the facts disclosed in paragraph 1 of Schedule 2.12 of the Company Disclosure Memorandum; (xd) an Acquired Entity all liability for taxes of the Company assessed during or attributable to any taxable period ending on or prior to the consummation of the Closing or (y) the Member Representative, at any time (each such breach of a covenant or agreement, together with any Group Warranty Breach, a “Group Breach”); (iii) (w) Pre-Closing Taxes of any Acquired Entity or any Subsidiary thereof, (x) obligations of any Acquired Entity or any Subsidiary thereof under unclaimed property and escheat Laws, to the extent actually paid to a Governmental Authority, arising out of gift cards issued prior to the Closing Date, (y) Transaction Expenses, to the extent not paid in connection with the Closing or pursuant to Section 2.12, including the matters set forth on Schedule 12.02(a)(iii) of the Disclosure ScheduleClosing, and (z) the portion of any Post-Closing New Venue Opening Expenses indirectly borne by Parent after taxable period that includes, but does not end on, the Closing (based on Parent’s Percentage Share (as defined in the A&R Holdings LLC Agreement)) that would not have been borne by Parent in accordance with the definition of New Venue Opening Amount had such Post-Closing New Venue Opening Expenses been paid prior to the Closing and incorporated in the calculation of the New Venue Opening Amount (i.e., because, based on the definition of New Venue Opening Amount, Parent (A) bears only fifty percent (50%) of any New Venue Opening Expenses and (B) is not obligated to bear any portion of New Venue Opening Expenses in excess of the New Venue Opening Amount Cap); or (iv) (x) any error or inaccuracy in the Member Allocation Schedule attached as Annex D (including with respect to the Holdings Pre-Closing Percentages, Holdings Allocation Percentage, Rollover Class A Allocated Investment Percentages, or Rollover Class A Investment Percentage), in any allocation or apportionment of consideration or Liability by the Member Representative or any Liability under the Restructuring Agreement except Date to the extent such taxes exceed the reserve for tax liability (rather than any reserve for deferred taxes established to reflect timing differences between book and tax income) set forth on the face of the Company Balance Sheet (rather than in any notes thereto); and (e) any liability for Taxes resulting from any action taken by Parent in breach of the Transaction Documents, or in account wiring instructions delivered by the Member Representative or any Member; (y) any Liability (including any Proceeding with respect thereto) with respect to any Member or other holder of Equity Interests in an Acquired Entity or any Subsidiary thereof, with respect to such Member or holder’s capacity as a Member or holder of Equity Interests or otherwise relating to his, her or its relationship and rights as a Member or holder of Equity Interests (whether pursuant to an LLC Agreement, Side Letter or other Contract in respect of any Acquired Entity, such Member’s Letter of Transmittal, or any Liability with respect to Rollover Holdco in connection with the transaction transactions contemplated by this Agreement, the Restructuring Agreement or the other Transaction Documents to the extent such claim is brought by a Member except to the extent resulting from any action taken by Parent in breach of the Transaction Documents) in an Acquired Entity or any Subsidiary thereof, whether such Liability (or Proceeding) involves Parent or an Affiliate of Parent, Rollover Holdco or an Acquired Entity or any Subsidiary thereof (or any manager, director, officer or employee of an Acquired Entity or any Subsidiary thereof) including, without limitation, any Proceeding brought by or against such Person or histransfer, her or its heirssales, successors or assignsuse, or other Persons on behalf excise, conveyance and similar taxes. The "Percentage Basis" applicable to the indemnification obligations set forth ---------------- in this Article VI shall mean that 60% of such Persons with respect obligation is allocated to the consummation Class A Member, and the remaining 40% of such obligation is allocated to the Class B Members as a group, such 40% to be allocated pro rata among the Class B Members according to the portion of the Closing or total Class B Consideration that each Class B Member received under Section 1.3 hereof. XxXxx Xxxxxxx and Xxxxx X. Xxxxx shall severally but not jointly indemnify and hold the other Transactions (including the Restructuring or Deal ApprovalIndemnified Parties harmless from and against, and including shall reimburse the adequacy or allocation Indemnified Parties for, any Losses arising out of any consideration hereunder with respect the litigation identified in paragraph 1 of Schedule 2.12 to the Transactions or Company Disclosure Memorandum (the obligations on any Member or holder of Equity Interests in an Acquired Entity or any Subsidiary thereof under the Letter of Transmittal, including any release thereunder or appointment of Member Representative as a representative"Litigation"), or this Agreement or the other Transaction Documents (excluding, for the avoidance of doubt, any indemnification claim against Parent to the extent duly made pursuant to Section 12.02(c)); or (z) any Member Released Claim.. ----------

Indemnification by the Members. Effective at and after the consummation of the Closing and subject to Section 12.03, the Members shall, severally (pro rata based on such Member’s Holdings Allocation Percentage, or otherwise as determined by the In connection with any Registration Statement in which any Member Representative upon written notice to Parent), but not jointly (subject to the last sentence of Section 12.03(e)), indemnify Parent and its Affiliates and Representatives (excluding Holdings and its Subsidiaries, provided that for purposes of determining a De Minimis Breach is participating pursuant to Section 12.03(b)10.1, the Damages of Holdings and its Subsidiaries shall be taken into account) (each, a “Parent Indemnitee”) against and hold each of them harmless from any and all Damages incurred by a Parent Indemnitee arising out of, relating to, resulting from, in connection with or otherwise in respect of: (i) any inaccuracy or breach of any representation or warranty set forth in Article 4 or Article 5 as of the Closing (other than any representation or warranty made as of a certain date, in which case, as of such date), or in the certificates delivered pursuant to Section 2.10(a) (with respect to such representations and warranties) 10.2 or Section 2.10(g) (10.4 hereof, each such breach of a representation or warranty, a “Group Warranty Breach”); (ii) any breach of a covenant or agreement pursuant to this Agreement, the Restructuring Agreement or the Escrow Agreement made or to be performed by (x) an Acquired Entity prior Member shall promptly furnish to the consummation of the Closing or (y) the Member Representative, at any time (each Company in writing such breach of a covenant or agreement, together with any Group Warranty Breach, a “Group Breach”); (iii) (w) Pre-Closing Taxes of any Acquired Entity or any Subsidiary thereof, (x) obligations of any Acquired Entity or any Subsidiary thereof under unclaimed property and escheat Laws, to the extent actually paid to a Governmental Authority, arising out of gift cards issued prior to the Closing Date, (y) Transaction Expenses, to the extent not paid in connection with the Closing or pursuant to Section 2.12, including the matters set forth on Schedule 12.02(a)(iii) of the Disclosure Schedule, and (z) the portion of any Post-Closing New Venue Opening Expenses indirectly borne by Parent after the Closing (based on Parent’s Percentage Share (as defined in the A&R Holdings LLC Agreement)) that would not have been borne by Parent in accordance with the definition of New Venue Opening Amount had such Post-Closing New Venue Opening Expenses been paid prior to the Closing and incorporated in the calculation of the New Venue Opening Amount (i.e., because, based on the definition of New Venue Opening Amount, Parent (A) bears only fifty percent (50%) of any New Venue Opening Expenses and (B) is not obligated to bear any portion of New Venue Opening Expenses in excess of the New Venue Opening Amount Cap); or (iv) (x) any error or inaccuracy in the Member Allocation Schedule attached as Annex D (including with respect to the Holdings Pre-Closing Percentages, Holdings Allocation Percentage, Rollover Class A Allocated Investment Percentages, or Rollover Class A Investment Percentage), in any allocation or apportionment of consideration or Liability by the Member Representative or any Liability under the Restructuring Agreement except to the extent resulting from any action taken by Parent in breach of the Transaction Documents, or in account wiring instructions delivered by the Member Representative or any Member; (y) any Liability (including any Proceeding with respect thereto) with respect to any Member or other holder of Equity Interests in an Acquired Entity or any Subsidiary thereof, information with respect to such Member as the Company may reasonably request or holder’s capacity as may be required by law for use in connection with any such Registration Statement or prospectus and all information required to be disclosed in order to make the information previously furnished to the Company by such Member not materially misleading or necessary to cause such Registration Statement not to omit a Member or holder of Equity Interests or otherwise relating to his, her or its relationship and rights as a Member or holder of Equity Interests (whether pursuant to an LLC Agreement, Side Letter or other Contract in respect of any Acquired Entity, such Member’s Letter of Transmittal, or any Liability material fact with respect to Rollover Holdco such Member necessary in connection with order to make the transaction contemplated statements therein not misleading. Each Member agrees to indemnify and hold harmless the Company, its partners, directors, officers, Affiliates, any underwriter retained by this Agreementthe Company and each Person who controls the Company or such underwriter (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) from and against any and all Liabilities arising out of or based upon any untrue, or allegedly untrue, statement of a material fact contained in any Registration Statement, prospectus or preliminary prospectus (as amended or supplemented if the Restructuring Agreement Company shall have furnished any amendments or supplements thereto) or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the other Transaction Documents statements therein not misleading (or in the case of any prospectus, in light of the circumstances such statements were made), but if and only to the extent that such claim Liability arises out of or is brought based upon any untrue statement or alleged omission or alleged untrue statement or omission contained in such Registration Statement, preliminary prospectus or final prospectus in reliance and in conformity with information concerning such Member furnished in writing by a such Member except expressly for use therein, provided, however, that the total amount to the extent resulting from any action taken be indemnified by Parent in breach each Member pursuant to this Section 10.11(b) shall be limited to such Members’ pro rata portion of the Transaction Documentsnet proceeds (after deducting the underwriters’ discounts and commissions) received by such Member in an Acquired Entity the offering to which the Registration Statement or any Subsidiary thereof, whether such Liability (or Proceeding) involves Parent or an Affiliate of Parent, Rollover Holdco or an Acquired Entity or any Subsidiary thereof (or any manager, director, officer or employee of an Acquired Entity or any Subsidiary thereof) including, without limitation, any Proceeding brought by or against such Person or his, her or its heirs, successors or assigns, or other Persons on behalf of such Persons with respect to the consummation of the Closing or the other Transactions (including the Restructuring or Deal Approval, and including the adequacy or allocation of any consideration hereunder with respect to the Transactions or the obligations on any Member or holder of Equity Interests in an Acquired Entity or any Subsidiary thereof under the Letter of Transmittal, including any release thereunder or appointment of Member Representative as a representative), or this Agreement or the other Transaction Documents (excluding, for the avoidance of doubt, any indemnification claim against Parent to the extent duly made pursuant to Section 12.02(c)); or (z) any Member Released Claim.prospectus relates.‌

Indemnification by the Members. (a) After the Effective at and after the consummation of the Closing and subject to Section 12.03Time, the Members shall, severally (pro rata based on such Member’s Holdings Allocation Percentage, or otherwise as determined by the Member Representative upon written notice to Parent), but not jointly (subject to the last sentence of Section 12.03(e)), indemnify Parent and its Affiliates and Representatives affiliates (excluding Holdings and its Subsidiariesincluding, provided that for purposes of determining a De Minimis Breach pursuant to Section 12.03(bafter the Effective Time, the Surviving Corporation), officers, directors, employees, agents, successors and assigns (collectively, the Damages of Holdings and its Subsidiaries “Parent Indemnified Parties”) shall be taken into account) (eachindemnified and held harmless by the Members, a “Parent Indemnitee”) against jointly and hold each of them harmless from severally, for any and all Damages incurred liabilities, losses, damages of any kind, diminution in value, claims, costs, expenses, fines, fees, deficiencies, interest, awards, judgments, amounts paid in settlement and penalties (including, without limitation, attorneys’, consultants’ and experts’ fees and expenses and other costs of defending, investigating or settling claims) suffered, incurred, accrued (in accordance with GAAP) or paid by a Parent Indemnitee arising out ofthem (including, relating to, resulting fromwithout limitation, in connection with any action brought or otherwise in respect ofinitiated by any of them) (collectively, “Losses”) arising out of or resulting from: (i) any inaccuracy or breach of any representation or warranty set forth in Article 4 (without giving effect to any qualification as to materiality (or Article 5 as of similar qualifications) contained therein) made by the Closing (other than Company or any representation or warranty made as of a certain date, in which case, as of such date), or Member in the certificates delivered pursuant to Section 2.10(a) (with respect to such representations and warranties) or Section 2.10(g) (each such breach of a representation or warranty, a “Group Warranty Breach”)Acquisition Documents; (ii) any the breach of a any covenant or agreement pursuant to this Agreement, made by the Restructuring Agreement Company or any Member in the Escrow Agreement made or to be performed by (x) an Acquired Entity prior to the consummation of the Closing or (y) the Member Representative, at any time (each such breach of a covenant or agreement, together with any Group Warranty Breach, a “Group Breach”)Acquisition Documents; (iii) Losses from breach of contract or other claims made by any party that had a contractual or other right to acquire the Company’s membership interests or assets; (wiv) Pre-Closing Taxes any cost, loss or other expense (including the value of any Acquired Entity Tax deduction lost) as a result of the application of Section 280G of the Code to any of the transactions contemplated by this Agreement plus any necessary gross up amount; or (v) any Member Expenses paid by the Surviving Corporation following the Closing. (b) As used herein, “Losses” are not limited to matters asserted by third parties, but include Losses incurred or any Subsidiary thereof, sustained by the Parent Indemnified Parties in the absence of claims by third parties. (xc) obligations of any Acquired Entity or any Subsidiary thereof under unclaimed property and escheat Laws, Notwithstanding anything to the extent actually paid contrary contained in this Agreement, except with respect to a Governmental Authority, arising out of gift cards issued prior to the Closing Date, (y) Transaction Expenses, to the extent not paid in connection with the Closing or pursuant to Section 2.12, including the matters set forth on Schedule 12.02(a)(iii) of the Disclosure Schedule, and (z) the portion of any Post-Closing New Venue Opening Expenses indirectly borne by Parent after the Closing (based on Parent’s Percentage Share (as defined in the A&R Holdings LLC Agreement)) that would not have been borne by Parent in accordance with the definition of New Venue Opening Amount had such Post-Closing New Venue Opening Expenses been paid prior to the Closing and incorporated in the calculation of the New Venue Opening Amount (i.e., because, based on the definition of New Venue Opening Amount, Parent (A) bears only fifty percent (50%) of any New Venue Opening Expenses claims for equitable remedies and (B) is claims based on fraud or willful misrepresentation or misconduct: (i) the maximum aggregate amount of indemnifiable Losses arising out of or resulting from the causes enumerated in Sections 10.02(a) or 10.02(b) that may be recovered from the Members shall not obligated exceed $10,000,000; and (ii) no indemnification payment by the Members with respect to bear any portion indemnifiable Losses otherwise payable under Section 10.02(a) and arising out of New Venue Opening Expenses or resulting from the causes enumerated in Section 10.02(a)(i) shall be payable until such time as all such indemnifiable Losses shall aggregate to more than $500,000, after which time the Members shall be liable in full for all indemnifiable Losses in excess of the New Venue Opening Amount Cap); orfirst $500,000. (ivd) In the event of a claim relating to any Indemnification Claim any Parent Indemnified Person may have under Article X, Parent shall seek payment first out of the Escrow Fund. Such Indemnification Amounts shall be payable (xi) any error 75% in cash from the Escrow Amount and Proceeds and (ii) 25% in Escrow Shares; provided, that, the Members’ Representative may elect to have an Indemnification Amount paid from the Escrow Amount or inaccuracy Proceeds in cash in lieu of Escrow Shares in a percentage greater than 75% of such Adjustment Amount. If the Member Allocation Schedule attached as Annex D (including with respect Escrow Fund has been reduced to zero, Parent shall then be entitled to seek payment for an unsatisfied Indemnification Amount directly from the Members, subject to the Holdings Pre-Closing Percentages, Holdings Allocation Percentage, Rollover Class A Allocated Investment Percentages, or Rollover Class A Investment Percentage), terms and conditions set forth in any allocation or apportionment of consideration or Liability by the Member Representative or any Liability under the Restructuring Agreement except to the extent resulting from any action taken by Parent in breach of the Transaction Documents, or in account wiring instructions delivered by the Member Representative or any Member; (y) any Liability (including any Proceeding with respect thereto) with respect to any Member or other holder of Equity Interests in an Acquired Entity or any Subsidiary thereof, with respect to such Member or holder’s capacity as a Member or holder of Equity Interests or otherwise relating to his, her or its relationship and rights as a Member or holder of Equity Interests (whether pursuant to an LLC Agreement, Side Letter or other Contract in respect of any Acquired Entity, such Member’s Letter of Transmittal, or any Liability with respect to Rollover Holdco in connection with the transaction contemplated by this Agreement, the Restructuring Agreement or the other Transaction Documents to the extent such claim is brought by a Member except to the extent resulting from any action taken by Parent in breach of the Transaction Documents) in an Acquired Entity or any Subsidiary thereof, whether such Liability (or Proceeding) involves Parent or an Affiliate of Parent, Rollover Holdco or an Acquired Entity or any Subsidiary thereof (or any manager, director, officer or employee of an Acquired Entity or any Subsidiary thereof) including, without limitation, any Proceeding brought by or against such Person or his, her or its heirs, successors or assigns, or other Persons on behalf of such Persons with respect to the consummation of the Closing or the other Transactions (including the Restructuring or Deal Approval, and including the adequacy or allocation of any consideration hereunder with respect to the Transactions or the obligations on any Member or holder of Equity Interests in an Acquired Entity or any Subsidiary thereof under the Letter of Transmittal, including any release thereunder or appointment of Member Representative as a representative), or this Agreement or the other Transaction Documents (excluding, for the avoidance of doubt, any indemnification claim against Parent to the extent duly made pursuant to Section 12.02(c)); or (z) any Member Released Claim.Article X.

Indemnification by the Members. Effective at (a) Subject to the terms and after the consummation conditions of the Closing and subject to Section 12.03this Article, the Members shallMembers, severally (pro rata based on such Member’s Holdings Allocation Percentageand not jointly, or otherwise as determined by the Member Representative upon written notice agree to Parent)indemnify, but not jointly (subject to the last sentence of Section 12.03(e)), indemnify Parent defend and hold Purchaser and its Affiliates directors, officers, agents, attorneys and Representatives affiliates (excluding Holdings and its Subsidiaries, provided that for purposes of determining a De Minimis Breach pursuant to Section 12.03(b), the Damages of Holdings and its Subsidiaries shall be taken into account"Purchaser Indemnitees") (each, a “Parent Indemnitee”) against and hold each of them harmless from any and against all Damages asserted against or incurred by a Parent Indemnitee arising out of, relating to, such indemnitees by reason of or resulting from, in connection with or otherwise in respect of: (i) any inaccuracy or a breach by such Member of any representation or warranty set forth made by such Member in Article 4 or Article 5 as of the Closing (other than any representation or warranty made as of a certain date, in which case, as of such date), or in the certificates delivered pursuant to Section 2.10(a) (with respect to such representations and warranties) or Section 2.10(g) (each such breach of a representation or warranty, a “Group Warranty Breach”)3.A.; (ii) a breach by such Member of any breach of a covenant or agreement pursuant to of such Member in this Agreement, the Restructuring Agreement or the Escrow Agreement made or to be performed by (x) an Acquired Entity prior to the consummation of the Closing or (y) the Member Representative, at any time (each such breach of a covenant or agreement, together with any Group Warranty Breach, a “Group Breach”); (iii) (w) Pre-Closing Taxes a breach by such Member of any Acquired Entity representation, warranty or covenant made by such Member in any Subsidiary thereofother Member Delivered Document; (iv) all taxes upon or arising from the transactions contemplated hereby and all taxes of the Company related to taxable periods or portions thereof ending on or before the Closing Date, except as set forth on Schedule 3.11B(2); or (xv) obligations all transaction expenses of the Company over the aggregate amount of $30,000.00. (b) Subject to the terms and conditions of this Article, the Principal Members, jointly and severally, agree to indemnify, defend and hold the Purchaser Indemnitees harmless from and against all Damages asserted against or incurred by such indemnities by reason of or resulting from: (i) a breach of any Acquired Entity representation, warranty or covenant of the Company or Principal Members contained herein, in any Subsidiary thereof under unclaimed property schedule or certificate delivered hereunder, or in any agreement executed in connection with the transactions contemplated hereby; and (ii) any liabilities, contingent or otherwise (known or unknown and escheat Laws, to the extent actually paid to a Governmental Authority, asserted or unasserted) arising out of gift cards issued the Company's conduct or its business prior to Closing and the liabilities of the Company created prior to Closing or arising out of transactions effected or events occurring on or prior to the Closing Date (including, without limitation, litigation matters which arose from events or circumstances occurring on or prior to the Closing Date, (y) Transaction Expenses, to the extent not paid in connection with the Closing or pursuant to Section 2.12, including the matters set forth on Schedule 12.02(a)(iii) of the Disclosure Schedule, and (z) the portion of any Post-Closing New Venue Opening Expenses indirectly borne by Parent after the Closing (based on Parent’s Percentage Share (as defined in the A&R Holdings LLC Agreement)) that would not have been borne by Parent in accordance with the definition of New Venue Opening Amount had such Post-Closing New Venue Opening Expenses been paid prior to the Closing and incorporated in the calculation of the New Venue Opening Amount (i.e., because, based on the definition of New Venue Opening Amount, Parent (A) bears only fifty percent (50%) of any New Venue Opening Expenses and (B) is not obligated to bear any portion of New Venue Opening Expenses in excess of the New Venue Opening Amount Cap); or (iv) (x) any error or inaccuracy in the Member Allocation Schedule attached as Annex D (including with respect to the Holdings Pre-Closing Percentages, Holdings Allocation Percentage, Rollover Class A Allocated Investment Percentages, or Rollover Class A Investment Percentage), in any allocation or apportionment except as disclosed herein (unless such liability is specifically a subject of consideration or Liability by indemnification hereunder. Notwithstanding the Member Representative or any Liability under above paragraphs, the Restructuring Agreement except Principal Members shall not be required to indemnify the extent resulting from any action taken by Parent in breach of the Transaction Documents, or in account wiring instructions delivered by the Member Representative or any Member; (y) any Liability (including any Proceeding with respect thereto) with respect to any Member or other holder of Equity Interests in an Acquired Entity or any Subsidiary thereof, with respect to such Member or holder’s capacity as a Member or holder of Equity Interests or otherwise relating to his, her or its relationship and rights as a Member or holder of Equity Interests (whether pursuant to an LLC Agreement, Side Letter or other Contract Purchaser Indemnitees in respect of any Acquired EntityDamages pursuant to Section 7.1(b) until the aggregate amount of all such Damages exceeds $50,000, whereupon the Principal Members shall be required to indemnify the Purchaser Indemnitees in respect of such Member’s Letter of Transmittal, or any Liability with respect to Rollover Holdco in connection with the transaction contemplated by this Agreement, the Restructuring Agreement or the other Transaction Documents Damages only to the extent that such claim is brought by a Member except to the extent resulting from any action taken by Parent in breach of the Transaction Documents) in an Acquired Entity or any Subsidiary thereof, whether such Liability (or Proceeding) involves Parent or an Affiliate of Parent, Rollover Holdco or an Acquired Entity or any Subsidiary thereof (or any manager, director, officer or employee of an Acquired Entity or any Subsidiary thereof) including, without limitation, any Proceeding brought by or against such Person or his, her or its heirs, successors or assigns, or other Persons on behalf of such Persons with respect to the consummation of the Closing or the other Transactions (including the Restructuring or Deal Approval, and including the adequacy or allocation of any consideration hereunder with respect to the Transactions or the obligations on any Member or holder of Equity Interests in an Acquired Entity or any Subsidiary thereof under the Letter of Transmittal, including any release thereunder or appointment of Member Representative as a representative), or this Agreement or the other Transaction Documents (excluding, for the avoidance of doubt, any indemnification claim against Parent to the extent duly made pursuant to Section 12.02(c)); or (z) any Member Released ClaimDamages exceed $50,000.

Indemnification by the Members. Effective at and after the consummation of the Closing and subject to Section 12.03, the Members shall, severally (pro rata based on such Member’s Holdings Allocation Percentage, or otherwise as determined by the In connection with any Registration Statement in which any Member Representative upon written notice to Parent), but not jointly (subject to the last sentence of Section 12.03(e)), indemnify Parent and its Affiliates and Representatives (excluding Holdings and its Subsidiaries, provided that for purposes of determining a De Minimis Breach is participating pursuant to Section 12.03(b), the Damages of Holdings and its Subsidiaries shall be taken into account) (each, a “Parent Indemnitee”) against and hold each of them harmless from any and all Damages incurred by a Parent Indemnitee arising out of, relating to, resulting from, in connection with or otherwise in respect of: (i) any inaccuracy or breach of any representation or warranty set forth in Article 4 or Article 5 as of the Closing (other than any representation or warranty made as of a certain date, in which case, as of such date), or in the certificates delivered pursuant to Section 2.10(a) (with respect to such representations and warranties) 1.1 or Section 2.10(g) (1.2, each such breach of a representation or warranty, a “Group Warranty Breach”); (ii) any breach of a covenant or agreement pursuant to this Agreement, the Restructuring Agreement or the Escrow Agreement made or to be performed by (x) an Acquired Entity prior Member shall promptly furnish to the consummation of the Closing or (y) the Member Representative, at any time (each Company in writing such breach of a covenant or agreement, together with any Group Warranty Breach, a “Group Breach”); (iii) (w) Pre-Closing Taxes of any Acquired Entity or any Subsidiary thereof, (x) obligations of any Acquired Entity or any Subsidiary thereof under unclaimed property and escheat Laws, to the extent actually paid to a Governmental Authority, arising out of gift cards issued prior to the Closing Date, (y) Transaction Expenses, to the extent not paid in connection with the Closing or pursuant to Section 2.12, including the matters set forth on Schedule 12.02(a)(iii) of the Disclosure Schedule, and (z) the portion of any Post-Closing New Venue Opening Expenses indirectly borne by Parent after the Closing (based on Parent’s Percentage Share (as defined in the A&R Holdings LLC Agreement)) that would not have been borne by Parent in accordance with the definition of New Venue Opening Amount had such Post-Closing New Venue Opening Expenses been paid prior to the Closing and incorporated in the calculation of the New Venue Opening Amount (i.e., because, based on the definition of New Venue Opening Amount, Parent (A) bears only fifty percent (50%) of any New Venue Opening Expenses and (B) is not obligated to bear any portion of New Venue Opening Expenses in excess of the New Venue Opening Amount Cap); or (iv) (x) any error or inaccuracy in the Member Allocation Schedule attached as Annex D (including with respect to the Holdings Pre-Closing Percentages, Holdings Allocation Percentage, Rollover Class A Allocated Investment Percentages, or Rollover Class A Investment Percentage), in any allocation or apportionment of consideration or Liability by the Member Representative or any Liability under the Restructuring Agreement except to the extent resulting from any action taken by Parent in breach of the Transaction Documents, or in account wiring instructions delivered by the Member Representative or any Member; (y) any Liability (including any Proceeding with respect thereto) with respect to any Member or other holder of Equity Interests in an Acquired Entity or any Subsidiary thereof, information with respect to such Member as the Company may reasonably request or holder’s capacity as may be required by Law for use in connection with any such Registration Statement or prospectus and all information required to be disclosed in order to make the information previously furnished to the Company by such Member not materially misleading or necessary to cause such Registration Statement not to omit a material fact with respect to such Member necessary in order to make the statements therein not misleading. Each Member agrees to indemnify and hold harmless the Company, its partners, directors, officers, Affiliates, any Company Underwriter and each Person who controls the Company or holder such Company Underwriter (within the meaning of Equity Interests Section 15 of the Securities Act or otherwise relating Section 20 of the Exchange Act) from and against any and all Liabilities arising out of or based upon (i) any untrue, or allegedly untrue, statement of a material fact contained in any Registration Statement, prospectus or preliminary prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), (ii) any omission or alleged omission to hisstate therein a material fact required to be stated therein or necessary to make the statements therein not misleading (or in the case of any prospectus, her in light of the circumstances such statements were made) or (iii) any violation or alleged violation by the indemnifying party (or any of its relationship agents or Affiliates) of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under any of the foregoing, but if and rights as only to the extent that such Liability arises out of or is based upon any untrue statement or alleged omission or alleged untrue statement or omission contained in such Registration Statement, preliminary prospectus or final prospectus in reliance and in conformity with information concerning such Member furnished in writing by such Member expressly for use therein and has not been corrected in a subsequent writing prior to or concurrently with the sale of the Registrable Securities to the person asserting such loss, claim, damage, liability or expense; provided, however, that the total amount to be indemnified by each Member or holder of Equity Interests (whether pursuant to an LLC Agreement, Side Letter or other Contract in respect of any Acquired Entity, this Section 1.9(b) shall be limited to such Member’s Letter of Transmittal, or any Liability with respect to Rollover Holdco in connection with the transaction contemplated by this Agreement, the Restructuring Agreement or the other Transaction Documents to the extent such claim is brought by a Member except to the extent resulting from any action taken by Parent in breach pro rata portion of the Transaction Documentsnet proceeds (after deducting the underwriters’ discounts and commissions) received by such Member in an Acquired Entity the offering to which the Registration Statement or any Subsidiary thereof, whether such Liability (or Proceeding) involves Parent or an Affiliate of Parent, Rollover Holdco or an Acquired Entity or any Subsidiary thereof (or any manager, director, officer or employee of an Acquired Entity or any Subsidiary thereof) including, without limitation, any Proceeding brought by or against such Person or his, her or its heirs, successors or assigns, or other Persons on behalf of such Persons with respect to the consummation of the Closing or the other Transactions (including the Restructuring or Deal Approval, and including the adequacy or allocation of any consideration hereunder with respect to the Transactions or the obligations on any Member or holder of Equity Interests in an Acquired Entity or any Subsidiary thereof under the Letter of Transmittal, including any release thereunder or appointment of Member Representative as a representative), or this Agreement or the other Transaction Documents (excluding, for the avoidance of doubt, any indemnification claim against Parent to the extent duly made pursuant to Section 12.02(c)); or (z) any Member Released Claimprospectus relates.

Indemnification by the Members. Effective at Subject to Sections 9.7 and after the consummation of the Closing and subject to Section 12.039.8, the ------------------------------ ------------ --- Members shalljointly and severally agree to indemnify, severally defend and save the CenterPoint Indemnified Parties (pro rata based on such Member’s Holdings Allocation Percentage, or otherwise as determined by the Member Representative upon written notice to Parenthereinafter defined), but not jointly (subject to the last sentence of Section 12.03(e)), indemnify Parent and its Affiliates and Representatives (excluding Holdings and its Subsidiaries, provided that for purposes of determining a De Minimis Breach pursuant to Section 12.03(b), the Damages of Holdings and its Subsidiaries shall be taken into account) (each, a “Parent Indemnitee”) against and hold each of them forever harmless from and against, and to promptly pay to a CenterPoint Indemnified Party or reimburse a CenterPoint Indemnified Party for, any and all Damages Losses (hereinafter defined) sustained or incurred by a Parent Indemnitee any CenterPoint Indemnified Party resulting from, arising out of, relating to, resulting from, in connection with or otherwise in respect by virtue of: (ia) any inaccuracy misrepresentation or breach of any representation or warranty set forth in Article 4 or Article 5 as of the Closing (other than any representation or warranty made as of a certain date, in which case, as of such date), or in the certificates delivered pursuant to Section 2.10(a) (with respect to such representations and warranties) or Section 2.10(g) (each such breach of a representation or warranty made in Article V herein or in any certificate, schedule, document, exhibit --------- or other instrument delivered hereunder by any Member or any action, demand or claim by any third party against or affecting any CenterPoint Indemnified Party which, if successful, would give rise to a breach of any such representation or warranty, a “Group Warranty Breach”)except that the obligation of the Members to indemnify, defend and save harmless for any misrepresentation or breach of representation or warranty made in Section 5.1 hereof or in any ----------- certificate, schedule, document, exhibit or other instrument delivered in respect thereof shall not be joint and several, but such obligation shall be several only and limited to the several Member(s) making such misrepresentation or breach; (iib) any failure by Seller or any Member to observe or perform any of their covenants and agreements set forth herein related to the period prior to the Closing except that the obligation of the Members to indemnify, defend and save harmless for any failure to observe or perform any covenant or agreement shall not be joint and several, but such obligation shall be several only and limited to the several Member(s) failing to observe or perform such covenant or agreement, except that the obligations of the Members to indemnify, defend and save harmless for any breach of a covenant or agreement pursuant to this Agreementby a Member shall not be joint and several, the Restructuring Agreement or the Escrow Agreement made or to but such obligation shall be performed by (x) an Acquired Entity prior several only and limited to the consummation of the Closing or (yseveral Member(s) the Member Representative, at any time (each committing such breach of a covenant or agreement, together with any Group Warranty Breach, a “Group Breach”)breach; (iiic) (w) Pre-Closing Taxes of any Acquired Entity liability under the 1933 Act, the 1934 Act or any Subsidiary thereofother federal or state law or regulation, (x) obligations of any Acquired Entity at common law or any Subsidiary thereof under unclaimed property and escheat Laws, to the extent actually paid to a Governmental Authorityotherwise, arising out of gift cards issued prior or based upon any untrue statement or alleged untrue statement of a material fact relating to Seller or the Company, contained in any preliminary prospectus relating to the Closing DateIPO, (y) Transaction Expensesthe Registration Statements or any proxy statement or prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission to state therein a material fact relating to Seller or the Company required to be stated therein or necessary to make the statements therein not misleading, and not provided to CenterPoint or its counsel by Seller or the Company; provided, however, that such indemnity shall not inure to the benefit of -------- ------- any CenterPoint Indemnified Party to the extent that such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and (i) Seller or the Company provided, in writing, corrected information to CenterPoint or its counsel for inclusion in the final prospectus prior to distributing such prospectus, and such information was not paid in connection so included, or (ii) CenterPoint did not provide Seller, the Company and their counsel with the Closing or information required to be provided pursuant to Section 2.12, including the matters set forth on Schedule 12.02(a)(iii) of the Disclosure Schedule8.2.2, and such information is ------------- the basis for the untrue statement or omission (zor alleged untrue statement or omission) the portion of any Post-Closing New Venue Opening Expenses indirectly borne by Parent after the Closing (based on Parent’s Percentage Share (as defined in the A&R Holdings LLC Agreement)) that would not have been borne by Parent in accordance with the definition of New Venue Opening Amount had such Post-Closing New Venue Opening Expenses been paid prior giving rise to the Closing and incorporated in the calculation of the New Venue Opening Amount (i.e., because, based on the definition of New Venue Opening Amount, Parent (A) bears only fifty percent (50%) of any New Venue Opening Expenses and (B) is not obligated to bear any portion of New Venue Opening Expenses in excess of the New Venue Opening Amount Capliability under this Section 9.1(c); or-------------- (ivd) notwithstanding anything contained in this Agreement to the contrary, (xi) any error or inaccuracy in the Member Allocation Schedule attached as Annex D (including with respect to the Holdings Pre-Closing Percentages, Holdings Allocation Percentage, Rollover Class A Allocated Investment Percentages, or Rollover Class A Investment Percentage), in any allocation or apportionment of consideration or Liability by the Member Representative or any Liability under the Restructuring Agreement except to the extent resulting from any action taken by Parent in breach of the Transaction Documents, or in account wiring instructions delivered by the Member Representative or any Member; (y) any Liability (including any Proceeding with respect thereto) with respect to any Member or other holder of Equity Interests in an Acquired Entity or any Subsidiary thereof, with respect to such Member or holder’s capacity as a Member or holder of Equity Interests or otherwise relating to his, her or its relationship and rights as a Member or holder of Equity Interests (whether pursuant to an LLC Agreement, Side Letter or other Contract in respect of any Acquired Entity, such Member’s Letter of Transmittal, or any Liability with respect to Rollover Holdco in connection with the transaction contemplated by this Agreement, the Restructuring Agreement or the other Transaction Documents to the extent such claim is brought by a Member except to the extent resulting from any action taken by Parent in breach of the Transaction Documents) in an Acquired Entity or any Subsidiary thereof, whether such Liability (or Proceeding) involves Parent or an Affiliate of Parent, Rollover Holdco or an Acquired Entity or any Subsidiary thereof (or any manager, director, officer or employee of an Acquired Entity or any Subsidiary thereof) including, without limitation, any Proceeding brought arrangements made by or against such Person or his, her or its heirs, successors or assigns, or other Persons on behalf of such Persons with respect to the consummation of the Closing Members, Seller or the other Transactions (including the Restructuring or Deal Approval, and including the adequacy or allocation of any consideration hereunder with respect to the Transactions or the obligations on any Member or holder of Equity Interests in an Acquired Entity or any Subsidiary thereof under the Letter of Transmittal, including any release thereunder or appointment of Member Representative as a representative), or this Agreement or the other Transaction Documents (excluding, for the avoidance of doubt, any indemnification claim against Parent to the extent duly made pursuant to Section 12.02(c)); or (z) any Member Released Claim.Company in

Indemnification by the Members. Effective at Subject to the other terms and after the consummation conditions of the Closing and subject to Section 12.03this ARTICLE IX, the Members shallMembers; (a) jointly and severally, severally (pro rata based on such Member’s Holdings Allocation Percentage, or otherwise as determined by the Member Representative upon written notice to Parent), but not jointly (subject to the last sentence shall indemnify and defend each of Section 12.03(e)), indemnify Parent Purchaser and its Affiliates and Representatives (excluding Holdings and its Subsidiariesincluding, provided that for purposes of determining a De Minimis Breach pursuant to Section 12.03(bafter the Effective Time, the Surviving Corporation), their respective Representatives and each of their successors and permitted assigns (collectively, the Damages of Holdings and its Subsidiaries shall be taken into account) (each, a “Parent IndemniteePurchaser Indemnitees”) against against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Damages Losses incurred by a Parent Indemnitee or sustained by, or imposed upon, the Purchaser Indemnitees based upon, arising out of, relating to, resulting from, in connection with respect to or otherwise in respect by reason of: (i) any inaccuracy in or breach of any of the Fundamental Representations of Target as of the date such representation or warranty set forth in Article 4 was made or Article 5 as if such representation or warranty was made on and as of the Closing Date (other than any representation or warranty made as of except for representations and warranties that expressly relate to a certain specified date, the inaccuracy in or breach of which case, as of such date), or in the certificates delivered pursuant to Section 2.10(a) (will be determined with respect reference to such representations and warranties) or Section 2.10(g) (each such breach of a representation or warranty, a “Group Warranty Breach”specified date); (ii) any inaccuracy in or breach of any of the representations or warranties of Target contained in this Agreement (other than the Fundamental Representations), the other Transaction Documents or any other certificate furnished by the Target, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a covenant specified date, the inaccuracy in or breach of which will be determined with reference to such specified date); (iii) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Target (at or prior to the Effective Time) pursuant to this Agreement, the Restructuring Agreement other Transaction Documents or any certificate or instrument delivered by the Escrow Agreement made or Target pursuant to be performed by (x) an Acquired Entity prior to the consummation of the Closing or (y) the Member Representative, at any time (each such breach of a covenant or agreement, together with any Group Warranty Breach, a “Group Breach”)this Agreement; (iiiiv) (w) any Closing Transaction Expenses in excess of the amounts set forth on the Pre-Closing Taxes of any Acquired Entity or any Subsidiary thereof, (x) obligations of any Acquired Entity or any Subsidiary thereof under unclaimed property and escheat Laws, to the extent actually paid to a Governmental Authority, arising out of gift cards issued prior to the Closing Date, (y) Transaction ExpensesStatement, to the extent not paid in connection with by the Closing Target or pursuant to Section 2.12, including such Member at Closing; (v) any violation or alleged violation by the matters set forth on Schedule 12.02(a)(iiiCompany or APN of Healthcare Information Laws; (vi) any Lindenbrook Claims; (vii) any Xxxxx Claims; (viii) any Li Claims; (ix) any breach by Lindenbrook or the Lindenbrook Owners of the Disclosure Schedule, and (z) the portion of any Post-Closing New Venue Opening Expenses indirectly borne by Parent after the Closing (based on Parent’s Percentage Share (as defined in the A&R Holdings LLC Lindenbrook Assignment Agreement)) that would not have been borne by Parent in accordance with the definition of New Venue Opening Amount had such Post-Closing New Venue Opening Expenses been paid prior to the Closing and incorporated in the calculation of the New Venue Opening Amount (i.e., because, based on the definition of New Venue Opening Amount, Parent (A) bears only fifty percent (50%) of any New Venue Opening Expenses and (B) is not obligated to bear any portion of New Venue Opening Expenses in excess of the New Venue Opening Amount Cap); or; (iv) (x) any error breach by Xxxxx of the Xxxxx Agreement; (xi) any breach by Li of the Li Agreement; (xii) the operation of APN’s business, or inaccuracy any act or omission of APN or its Representatives (in their capacity as such), whether before or after Closing, including without limitation the Member Allocation Schedule attached as Annex D APN Divestment. (including with respect b) Subject to the Holdings Pre-Closing Percentagesother terms and conditions of this ARTICLE IX, Holdings Allocation Percentagethe Members, Rollover Class A Allocated Investment Percentagesseverally and not jointly, shall indemnify and defend each of the Purchaser Indemnitees against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or Rollover Class A Investment Percentage)imposed upon, in any allocation or apportionment of consideration or Liability by the Member Representative or any Liability under the Restructuring Agreement except to the extent resulting from any action taken by Parent in breach of the Transaction DocumentsPurchaser Indemnitees based upon, or in account wiring instructions delivered by the Member Representative or any Member; (y) any Liability (including any Proceeding with respect thereto) with respect to any Member or other holder of Equity Interests in an Acquired Entity or any Subsidiary thereofarising out of, with respect to or by reason of: (i) any inaccuracy in or breach of any of the Member’s Fundamental Representations made by such Member as of the date such representation or holderwarranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date); (ii) any inaccuracy in or breach of any of the representations or warranties of such Member contained in this Agreement (other than the Member’s capacity Fundamental Representations), the other Transaction Documents or any other certificate furnished by such Member, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date); and (iii) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by such Member or holder of Equity Interests or otherwise relating to his, her or its relationship and rights as a Member or holder of Equity Interests (whether pursuant to an LLC Agreement, Side Letter or other Contract in respect of any Acquired Entity, such Member’s Letter of Transmittal, or any Liability with respect to Rollover Holdco in connection with the transaction contemplated by this Agreement, the Restructuring Agreement or the other Transaction Documents to the extent such claim is brought by a Member except to the extent resulting from any action taken by Parent in breach of the Transaction Documents) in an Acquired Entity or any Subsidiary thereof, whether certificate or instrument delivered by such Liability (or Proceeding) involves Parent or an Affiliate of Parent, Rollover Holdco or an Acquired Entity or any Subsidiary thereof (or any manager, director, officer or employee of an Acquired Entity or any Subsidiary thereof) including, without limitation, any Proceeding brought by or against such Person or his, her or its heirs, successors or assigns, or other Persons on behalf of such Persons with respect to the consummation of the Closing or the other Transactions (including the Restructuring or Deal Approval, and including the adequacy or allocation of any consideration hereunder with respect to the Transactions or the obligations on any Member or holder of Equity Interests in an Acquired Entity or any Subsidiary thereof under the Letter of Transmittal, including any release thereunder or appointment of Member Representative as a representative), or this Agreement or the other Transaction Documents (excluding, for the avoidance of doubt, any indemnification claim against Parent to the extent duly made pursuant to Section 12.02(c)); or (z) any Member Released Claimthis Agreement.

Indemnification by the Members. Effective at Subject in all respects to this ARTICLE VIII, from and after the consummation Closing, each Member, jointly and severally, covenants and agrees to indemnify, defend, protect and hold harmless the Buyer Indemnified Parties from, against and in respect of all Damages suffered, sustained or incurred following the Closing and subject to Section 12.03in connection with, resulting from or arising out of (whether or not involving a Third Party Claim): (i) the Members shall, severally (pro rata based on such Member’s Holdings Allocation Percentage, breach of any representation or otherwise as determined warranty made by any Seller Party set forth in ARTICLE III of this Agreement or in any Seller Party Closing Certificate delivered by the Member Representative upon written notice to Parent), but not jointly Company; (subject to ii) the last sentence breach of any covenant or agreement on the part of any Seller Party set forth in this Agreement or in Seller Party Closing Certificate delivered by the Company (other than any covenant or agreement set forth in ARTICLE IX or Section 12.03(e6.4(b)), indemnify Parent in each case to be performed after the Closing under this Agreement; (iii) any matter described on Appendix B; (iv) any claim asserted or held by any current, former or alleged member, option holder, warrant holder or other security holder of the Company (A) relating to this Agreement or any transaction contemplated hereby, or (B) alleging or involving any ownership of, interest in or right to acquire any membership interest or other securities of the Company; and its Affiliates (v) any and Representatives all Liabilities for Taxes (excluding Holdings 1) of any Company Entity for any Tax period (or portion thereof) ending before the Closing Date (determined, with respect to Straddle Periods, in accordance with the allocation provisions of Section 6.7(b), and its Subsidiarieswith respect to a Company Joint Venture, provided only as to the Company’s direct or indirect share of such Taxes), or (2) owing by any Person (other than a Company Entity) for which any Company Entity becomes liable where the Liability of such Company Entity for such Taxes is attributable to an event or transaction occurring before the Closing, including, without limitation, (A) in respect of Taxes payable by any Member, (B) under Treasury Regulation Sections 1.1502-6 (or any predecessor or successor thereof or any analogous or similar provision of Law), (C) as a transferee or successor or (D) by Contract; provided, however, that this clause (2) shall not apply to any Liability of any Company Entity arising from a Contract entered into following the Closing. To the extent that any Member is required to pay for purposes of determining a De Minimis Breach pursuant to any Damages under this Section 12.03(b8.1(a), the Damages of Holdings Parties agree that each Member, jointly and its Subsidiaries severally, shall be taken into account) (each, a “Parent Indemnitee”) indemnify the Buyer Indemnified Parties against and hold each of them the Buyer Indemnified Parties harmless from and against any and all Damages incurred by a Parent Indemnitee arising out of, relating to, resulting from, in connection with or otherwise in respect of: (i) any inaccuracy or breach of Buyer Indemnified Party to successfully enforce any representation or warranty set forth in Article 4 or Article 5 as of the Closing (other than any representation or warranty made as of a certain date, in which case, as of such date), or in the certificates delivered pursuant to rights under Section 2.10(a8.1(a) (with respect to such representations and warranties) or Section 2.10(g) (each such breach of a representation or warranty, a “Group Warranty Breach”); (ii) any breach of a covenant or agreement pursuant to this Agreement, the Restructuring Agreement or the Escrow Agreement made or to be performed by (x) an Acquired Entity prior to the consummation of the Closing or (y) the Member Representative, at any time (each such breach of a covenant or agreement, together with any Group Warranty Breach, a “Group Breach”); (iii) (w) Pre-Closing Taxes of any Acquired Entity or any Subsidiary thereof, (x) obligations of any Acquired Entity or any Subsidiary thereof under unclaimed property and escheat Laws, to the extent actually paid to a Governmental Authority, arising out of gift cards issued prior to the Closing Date, (y) Transaction Expenses, to the extent not paid in connection with the Closing or pursuant to Section 2.12, including the matters set forth on Schedule 12.02(a)(iii) of the Disclosure Schedule, and (z) the portion of any Post-Closing New Venue Opening Expenses indirectly borne by Parent after the Closing (based on Parent’s Percentage Share (as defined in the A&R Holdings LLC Agreement)) that would not have been borne by Parent in accordance with the definition of New Venue Opening Amount had such Post-Closing New Venue Opening Expenses been paid prior to the Closing and incorporated in the calculation of the New Venue Opening Amount (i.e., because, based on the definition of New Venue Opening Amount, Parent (A) bears only fifty percent (50%) of any New Venue Opening Expenses and (B) is not obligated to bear any portion of New Venue Opening Expenses in excess of the New Venue Opening Amount Cap); or (iv) (x) any error or inaccuracy in the Member Allocation Schedule attached as Annex D (including with respect to the Holdings Pre-Closing Percentages, Holdings Allocation Percentage, Rollover Class A Allocated Investment Percentages, or Rollover Class A Investment Percentage), in any allocation or apportionment of consideration or Liability by the Member Representative or any Liability under the Restructuring Agreement except to the extent resulting from any action taken by Parent in breach of the Transaction Documents, or in account wiring instructions delivered by the Member Representative or any Member; (y) any Liability (including any Proceeding with respect thereto) with respect to any Member or other holder of Equity Interests in an Acquired Entity or any Subsidiary thereof, with respect to such Member or holder’s capacity as a Member or holder of Equity Interests or otherwise relating to his, her or its relationship and rights as a Member or holder of Equity Interests (whether pursuant to an LLC Agreement, Side Letter or other Contract in respect of any Acquired Entity, such Member’s Letter of Transmittal, or any Liability with respect to Rollover Holdco in connection with the transaction contemplated by this Agreement, the Restructuring Agreement or the other Transaction Documents to the extent such claim is brought by a Member except to the extent resulting from any action taken by Parent in breach of the Transaction Documents) in an Acquired Entity or any Subsidiary thereof, whether such Liability (or Proceeding) involves Parent or an Affiliate Buyer Indemnified Parties’ reasonable expenses of Parent, Rollover Holdco or an Acquired Entity or any Subsidiary thereof (or any manager, director, officer or employee of an Acquired Entity or any Subsidiary thereof) including, without limitation, any Proceeding brought by or against such Person or his, her or its heirs, successors or assigns, or other Persons on behalf of such Persons with respect to the consummation of the Closing or the other Transactions (including the Restructuring or Deal Approval, and including the adequacy or allocation of any consideration hereunder with respect to the Transactions or the obligations on any Member or holder of Equity Interests in an Acquired Entity or any Subsidiary thereof under the Letter of Transmittal, including any release thereunder or appointment of Member Representative as a representativeattorneys), or this Agreement or the other Transaction Documents (excluding, for the avoidance of doubt, any indemnification claim against Parent to the extent duly made pursuant to Section 12.02(c)); or (z) any Member Released Claim.

Indemnification by the Members. Effective at The Members jointly and severally agree subsequent to the Closing to indemnify and hold the Company, Buyer, Nextera, Holdings, and their respective subsidiaries and affiliates and persons serving as officers, directors, partners, managers, stockholders, members, employees and agents thereof (other than the Members, except to the extent of liabilities incurred in their capacities as such an officer, director or employee after the consummation Closing) (individually a "Buyer Indemnified Party" and collectively the "Buyer Indemnified Parties") harmless from and against any damages, liabilities, losses, taxes, fines, penalties, costs, and expenses (including, without limitation, reasonable fees of counsel) of any kind or nature whatsoever (whether or not arising out of third-party claims and including all amounts paid in investigation, defense or settlement of the foregoing) which may be sustained or suffered by any of them arising out of or based upon any of the following matters: (a) fraud, intentional misrepresentation or the cause or knowledge of a deliberate or willful breach of any representations, warranties or covenants of the Company or the Members under this Agreement or in any certificate, schedule or exhibit delivered pursuant hereto (collectively, "Fraud Claims"); (b) any breach of any representation or warranty of the Members set forth in Section 2.3 of this Agreement (collectively, "Ownership Claims"); (c) any liability of the Company or the Members for Taxes arising from the activities of the Company and all events and transactions on or prior to the Closing and subject any breach of the representations and warranties set forth in Section 2.8 hereof and any covenant with respect to Section 12.03Taxes or tax related matters (collectively, "Tax Claims"); (d) any liability of the Company, Buyer or Nextera with respect to the Excluded Interests (collectively, "Excluded Liability Claims"); and (e) other than Fraud Claims, Ownership Claims, Tax Claims or Excluded Liability Claims, any other breach of any representation, warranty or covenant of the Members shall, severally (pro rata based on such Member’s Holdings Allocation Percentageunder this Agreement or in any schedule or exhibit delivered pursuant hereto, or otherwise as determined by the reason of any claim, action or proceeding asserted or instituted growing out of any matter or thing constituting a breach of such representations, warranties or covenants (collectively, "General Claims"). Each Member Representative upon written notice to Parent)severally, but not jointly jointly, agrees subsequent to the Closing to indemnify and hold all Buyer Indemnified Parties harmless from and against any damages, liabilities, losses, taxes, fines, penalties, costs, and expenses (including, without limitation, reasonable fees of counsel) of any kind or nature whatsoever (whether or not arising out of third-party claims and including all amounts paid in investigation, defense or settlement of the foregoing) which may be sustained or suffered by any of them arising out of or based upon fraud, intentional misrepresentation or any breach (whether or not deliberate or willful) of any representation or warranty of such Member contained in Section 3, or by reason of any claim, action or proceeding asserted or instituted growing out of any matter or thing constituting a breach of such representation or warranty (collectively, "Individual Claims"). In the event that an indemnification claim is payable with respect to a breach of a representation or warranty of the Members under Section 2.9 that relates to a receivable or unbilled revenue not being enforceable or collectible or which is subject to the last sentence of Section 12.03(e)), indemnify Parent and its Affiliates and Representatives (excluding Holdings and its Subsidiaries, provided that for purposes of determining a De Minimis Breach pursuant to Section 12.03(b)set off or counterclaim, the Damages of Holdings and its Subsidiaries amount payable by the Members to the Buyer Indemnified Party with respect to such claim shall be taken into account) (each, a “Parent Indemnitee”) against and hold each of them harmless from any and all Damages incurred by a Parent Indemnitee arising out of, relating to, resulting from, in connection with or otherwise in respect ofdetermined as follows: (i) any inaccuracy or breach of any representation or warranty set forth in Article 4 or Article 5 as of the Closing (other than any representation or warranty made as of a certain date, in which case, as of such date), or in the certificates delivered pursuant to Section 2.10(a) (claim with respect to a receivable or unbilled revenues related to Company revenue for 1997 in excess of $10 million shall not be the basis for any recovery for breach of Section 2.9; provided, however, that such representations and warranties) events may still be subject to indemnification by the Members to the Buyer Indemnified Party to the extent that such event resulted in an overpayment to the Members under Section 1.8 or Section 2.10(g) (each such breach of a representation or warranty, a “Group Warranty Breach”)6.2; (ii) for any breach of a covenant or agreement pursuant to this Agreementclaim not covered by (i) above, the Restructuring Agreement or amount payable by the Escrow Agreement made or to be performed by (x) an Acquired Entity prior Members to the consummation Buyer Indemnified Party with respect to up to $750,000 of such receivables or unbilled revenues shall be twice the amount of the Closing receivable or (y) the Member Representative, at any time (each such breach of a covenant unbilled revenue which is not enforceable or agreementcollectible or subject to set off or counterclaim, together with any Group Warranty Breach, a “Group Breach”);all other items otherwise subject to indemnification under this Section 10.1; and (iii) for any claim not covered by (wi) Pre-Closing Taxes of any Acquired Entity or any Subsidiary thereof(ii) above, (x) obligations of any Acquired Entity or any Subsidiary thereof under unclaimed property and escheat Laws, to the extent actually paid to a Governmental Authority, arising out of gift cards issued prior to the Closing Date, (y) Transaction Expenses, to the extent not paid in connection with the Closing or pursuant to Section 2.12, including the matters standard provisions for indemnification set forth on Schedule 12.02(a)(iii) of the Disclosure Schedule, and (z) the portion of any Post-Closing New Venue Opening Expenses indirectly borne by Parent after the Closing (based on Parent’s Percentage Share (as defined in the A&R Holdings LLC Agreement)) that would not have been borne by Parent in accordance with the definition of New Venue Opening Amount had such Post-Closing New Venue Opening Expenses been paid prior to the Closing and incorporated in the calculation of the New Venue Opening Amount (i.e., because, based on the definition of New Venue Opening Amount, Parent (A) bears only fifty percent (50%) of any New Venue Opening Expenses and (B) is not obligated to bear any portion of New Venue Opening Expenses in excess of the New Venue Opening Amount Cap); or (iv) (x) any error or inaccuracy in the Member Allocation Schedule attached as Annex D (including with respect to the Holdings Pre-Closing Percentages, Holdings Allocation Percentage, Rollover Class A Allocated Investment Percentages, or Rollover Class A Investment Percentage), in any allocation or apportionment of consideration or Liability by the Member Representative or any Liability under the Restructuring Agreement except to the extent resulting from any action taken by Parent in breach of the Transaction Documents, or in account wiring instructions delivered by the Member Representative or any Member; (y) any Liability (including any Proceeding with respect thereto) with respect to any Member or other holder of Equity Interests in an Acquired Entity or any Subsidiary thereof, with respect to such Member or holder’s capacity as a Member or holder of Equity Interests or otherwise relating to his, her or its relationship and rights as a Member or holder of Equity Interests (whether pursuant to an LLC Agreement, Side Letter or other Contract in respect of any Acquired Entity, such Member’s Letter of Transmittal, or any Liability with respect to Rollover Holdco in connection with the transaction contemplated by this Agreement, the Restructuring Agreement or the other Transaction Documents to the extent such claim is brought by a Member except to the extent resulting from any action taken by Parent in breach of the Transaction Documents) in an Acquired Entity or any Subsidiary thereof, whether such Liability (or Proceeding) involves Parent or an Affiliate of Parent, Rollover Holdco or an Acquired Entity or any Subsidiary thereof (or any manager, director, officer or employee of an Acquired Entity or any Subsidiary thereof) including, without limitation, any Proceeding brought by or against such Person or his, her or its heirs, successors or assigns, or other Persons on behalf of such Persons with respect to the consummation of the Closing or the other Transactions (including the Restructuring or Deal Approval, and including the adequacy or allocation of any consideration hereunder with respect to the Transactions or the obligations on any Member or holder of Equity Interests in an Acquired Entity or any Subsidiary thereof under the Letter of Transmittal, including any release thereunder or appointment of Member Representative as a representative), or this Agreement or the other Transaction Documents (excluding, for the avoidance of doubt, any indemnification claim against Parent to the extent duly made pursuant to Section 12.02(c)); or (z) any Member Released Claim10 shall apply.

Indemnification by the Members. Effective at (a) Subject to Sections 6.1(b) and after the consummation of the Closing and subject to Section 12.036.1(c) hereof, the Members shallhereby agree, jointly and severally, except as otherwise specifically provided throughout this Agreement with respect to representations and warranties made severally (pro rata based on such Member’s Holdings Allocation Percentage, or otherwise as determined by the Member Representative upon written notice to Parent), but and not jointly (subject by each Member as to the last sentence of Section 12.03(e))which each such Member hereby severally and not jointly agrees, to indemnify Parent and its Affiliates and Representatives (excluding Holdings and its Subsidiaries, provided that for purposes of determining a De Minimis Breach pursuant to Section 12.03(b), the Damages of Holdings and its Subsidiaries shall be taken into account) (each, a “Parent Indemnitee”) hold harmless Xceed against and hold each in respect of them harmless from any all damages, claims, losses and all Damages expenses (including, without limitation, reasonable attorneys' fees and disbursements) reasonably incurred by a Parent Indemnitee Xceed (all such amounts may hereinafter be referred to as the "Damages") arising out of, relating to, resulting from, in connection with or otherwise in respect of: : (i) any inaccuracy misrepresentation or breach of any representation or warranty set forth in Article 4 made by the Company or Article 5 as the Members pursuant to the provisions of the Closing (other than any representation or warranty made as of a certain date, in which case, as of such date), this Agreement or in any statement, certificate or other document furnished by the certificates delivered pursuant to Section 2.10(a) (with respect to such representations and warranties) Company or Section 2.10(g) (each such breach of a representation or warranty, a “Group Warranty Breach”); (ii) any breach of a covenant or agreement the Members pursuant to this Agreement; and (ii) the nonperformance or breach of any covenant, agreement or obligation of the Company or the Members contained in this Agreement which has not been waived by Xceed in writing. The Members shall have no right to seek contribution from the Company in the event that they are required to make any payments hereunder. (b) Subject to Section 3.3 hereof, the Restructuring Agreement or the Escrow Agreement made or Members shall be obligated to be performed by (x) an Acquired Entity prior indemnify Xceed pursuant to this Section 6.1 with respect to claims for Damages as to which Xceed shall have given written notice to the consummation Company and the Members on or before the close of business on the sixtieth (60) day following the first anniversary of the Closing Date. The Members shall be obligated to indemnify Xceed with respect to claims for Damages arising out of any misrepresentation or breach of warranty made by the Company or the Members relating to Subsection 3.1(s) as to which Xceed shall have given notice on or before the close of business on the sixtieth (60) day following the later of: (i) the expiration date of the statute of limitations applicable to any indemnified federal, state, foreign or local tax liability; or (yii) the Member Representativefinal determination of any such tax liability, at any time (each such breach of a covenant or agreement, together with any Group Warranty Breach, a “Group Breach”);including the final administrative and/or judicial determination thereof. (iiic) Notwithstanding the indemnification provided pursuant to Subsection 6.1 (wa) Pre-Closing Taxes and 6.1(b) above, no amount shall be payable by the Members in indemnification hereunder or under any other provision of any Acquired Entity this Agreement unless the aggregate amount of such Damages in respect of which the Company or any Subsidiary thereofthe Members would be liable, but for operation and application of the provisions of this Section 6.1(c), exceeds on a cumulative basis Fifty Thousand Dollars (x$50,000) obligations of any Acquired Entity or any Subsidiary thereof under unclaimed property and escheat Laws, then only to the extent actually paid to of such excess. (d) In any case where the Members have indemnified Xceed for any Damages and Xceed recovers from a Governmental Authoritythird party all or any part of the amount so indemnified by the Members, arising out of gift cards issued prior Xceed shall promptly reimburse to the Closing Date, (y) Transaction Expenses, to Members the extent not paid in connection with the Closing or pursuant to Section 2.12, including the matters set forth on Schedule 12.02(a)(iii) of the Disclosure Schedule, and (z) the portion of any Post-Closing New Venue Opening Expenses indirectly borne by Parent after the Closing (based on Parent’s Percentage Share (as defined in the A&R Holdings LLC Agreement)) that would not have been borne by Parent in accordance with the definition of New Venue Opening Amount had such Post-Closing New Venue Opening Expenses been paid prior to the Closing and incorporated in the calculation of the New Venue Opening Amount (i.e., because, based on the definition of New Venue Opening Amount, Parent (A) bears only fifty percent (50%) of any New Venue Opening Expenses and (B) is not obligated to bear any portion of New Venue Opening Expenses in excess of the New Venue Opening Amount Cap); or (iv) (x) any error or inaccuracy in the Member Allocation Schedule attached as Annex D (including with respect to the Holdings Pre-Closing Percentages, Holdings Allocation Percentage, Rollover Class A Allocated Investment Percentages, or Rollover Class A Investment Percentage), in any allocation or apportionment of consideration or Liability by the Member Representative or any Liability under the Restructuring Agreement except to the extent resulting from any action taken by Parent in breach of the Transaction Documents, or in account wiring instructions delivered by the Member Representative or any Member; (y) any Liability (including any Proceeding with respect thereto) with respect to any Member or other holder of Equity Interests in an Acquired Entity or any Subsidiary thereof, with respect to such Member or holder’s capacity as a Member or holder of Equity Interests or otherwise relating to his, her or its relationship and rights as a Member or holder of Equity Interests (whether pursuant to an LLC Agreement, Side Letter or other Contract in respect of any Acquired Entity, such Member’s Letter of Transmittal, or any Liability with respect to Rollover Holdco in connection with the transaction contemplated by this Agreement, the Restructuring Agreement or the other Transaction Documents to the extent such claim is brought by a Member except to the extent resulting from any action taken by Parent in breach of the Transaction Documents) in an Acquired Entity or any Subsidiary thereof, whether such Liability (or Proceeding) involves Parent or an Affiliate of Parent, Rollover Holdco or an Acquired Entity or any Subsidiary thereof (or any manager, director, officer or employee of an Acquired Entity or any Subsidiary thereof) including, without limitation, any Proceeding brought by or against such Person or his, her or its heirs, successors or assigns, or other Persons on behalf of such Persons with respect to the consummation of the Closing or the other Transactions (including the Restructuring or Deal Approval, and including the adequacy or allocation of any consideration hereunder with respect to the Transactions or the obligations on any Member or holder of Equity Interests in an Acquired Entity or any Subsidiary thereof under the Letter of Transmittal, including any release thereunder or appointment of Member Representative as a representative), or this Agreement or the other Transaction Documents (excluding, for the avoidance of doubt, any indemnification claim against Parent to the extent duly made pursuant to Section 12.02(c)); or (z) any Member Released Claimamount so recovered.

Indemnification by the Members. (a) After the Effective at and after the consummation of the Closing and subject to Section 12.03Time, the Members shall, severally (pro rata based on such Member’s Holdings Allocation Percentage, or otherwise as determined by the Member Representative upon written notice to Parent), but not jointly (subject to the last sentence of Section 12.03(e)), indemnify Parent and its Affiliates and Representatives affiliates (excluding Holdings and its Subsidiariesincluding, provided that for purposes of determining a De Minimis Breach pursuant to Section 12.03(bafter the Effective Time, the Surviving Corporation), officers, directors, employees, agents, successors and assigns (collectively, the Damages of Holdings and its Subsidiaries “Parent Indemnified Parties”) shall be taken into account) (eachindemnified and held harmless by the Members, a “Parent Indemnitee”) against jointly and hold each of them harmless from severally, for any and all Damages incurred liabilities, losses, damages of any kind, diminution in value, claims, costs, expenses, fines, fees, deficiencies, interest, awards, judgments, amounts paid in settlement and penalties (including, without limitation, attorneys’, consultants’ and experts’ fees and expenses and other costs of defending, investigating or settling claims) suffered, incurred, accrued (in accordance with GAAP) or paid by a Parent Indemnitee arising out ofthem (including, relating to, resulting fromwithout limitation, in connection with any action brought or otherwise in respect ofinitiated by any of them) (collectively, “Losses”) arising out of or resulting from: (i) any inaccuracy or breach of any representation or warranty set forth in Article 4 (without giving effect to any qualification as to materiality (or Article 5 as of similar qualifications) contained therein) made by the Closing (other than Company or any representation or warranty made as of a certain date, in which case, as of such date), or Member in the certificates delivered pursuant to Section 2.10(a) (with respect to such representations and warranties) or Section 2.10(g) (each such breach of a representation or warranty, a “Group Warranty Breach”)Acquisition Documents; (ii) any the breach of a any covenant or agreement pursuant to this Agreement, made by the Restructuring Agreement Company or any Member in the Escrow Agreement made or to be performed by (x) an Acquired Entity prior to the consummation of the Closing or (y) the Member Representative, at any time (each such breach of a covenant or agreement, together with any Group Warranty Breach, a “Group Breach”)Acquisition Documents; (iii) Losses from breach of contract or other claims made by any party that had a contractual or other right to acquire the Company’s membership interests or assets; (wiv) Pre-Closing Taxes any cost, loss or other expense (including the value of any Acquired Entity Tax deduction lost) as a result of the application of Section 280G of the Code to any of the transactions contemplated by this Agreement plus any necessary gross up amount; or (v) any Member Expenses paid by the Surviving Corporation following the Closing. (b) As used herein, “Losses” are not limited to matters asserted by third parties, but include Losses incurred or any Subsidiary thereof, sustained by the Parent Indemnified Parties in the absence of claims by third parties. (xc) obligations of any Acquired Entity or any Subsidiary thereof under unclaimed property and escheat Laws, Notwithstanding anything to the extent actually paid contrary contained in this Agreement, except with respect to a Governmental Authority, arising out of gift cards issued prior to the Closing Date, (y) Transaction Expenses, to the extent not paid in connection with the Closing or pursuant to Section 2.12, including the matters set forth on Schedule 12.02(a)(iii) of the Disclosure Schedule, and (z) the portion of any Post-Closing New Venue Opening Expenses indirectly borne by Parent after the Closing (based on Parent’s Percentage Share (as defined in the A&R Holdings LLC Agreement)) that would not have been borne by Parent in accordance with the definition of New Venue Opening Amount had such Post-Closing New Venue Opening Expenses been paid prior to the Closing and incorporated in the calculation of the New Venue Opening Amount (i.e., because, based on the definition of New Venue Opening Amount, Parent (A) bears only fifty percent (50%) of any New Venue Opening Expenses claims for equitable remedies and (B) is claims based on fraud or willful misrepresentation or misconduct: (i) the maximum aggregate amount of indemnifiable Losses arising out of or resulting from the causes enumerated in Sections 10.02(a) or 10.02(b) that may be recovered from the Members shall not obligated exceed $10,000,000; and (ii) no indemnification payment by the Members with respect to bear any portion indemnifiable Losses otherwise payable under Section 10.02(a) and arising out of New Venue Opening Expenses or resulting from the causes enumerated in Section 10.02(a)(i) shall be payable until such time as all such indemnifiable Losses shall aggregate to more than $500,000, after which time the Members shall be liable in full for all indemnifiable Losses in excess of the New Venue Opening Amount Cap); orfirst $500,000. (ivd) (x) In the event of a claim relating to any error Indemnification Claim any Parent Indemnified Person may have under Article X, Parent shall seek payment first out of the Escrow Fund. Such Indemnification Amounts shall be payable in Escrow Shares; provided, that, the Members’ Representative may elect to have all or inaccuracy a portion of an Indemnification Amount paid from Proceeds or other cash provided by the Members in lieu of Escrow Shares. If the Member Allocation Schedule attached as Annex D (including with respect Escrow Fund has been reduced to zero, Parent shall then be entitled to seek payment for an unsatisfied Indemnification Amount directly from the Members, subject to the Holdings Pre-Closing Percentages, Holdings Allocation Percentage, Rollover Class A Allocated Investment Percentages, or Rollover Class A Investment Percentage), terms and conditions set forth in any allocation or apportionment of consideration or Liability by the Member Representative or any Liability under the Restructuring Agreement except to the extent resulting from any action taken by Parent in breach of the Transaction Documents, or in account wiring instructions delivered by the Member Representative or any Member; (y) any Liability (including any Proceeding with respect thereto) with respect to any Member or other holder of Equity Interests in an Acquired Entity or any Subsidiary thereof, with respect to such Member or holder’s capacity as a Member or holder of Equity Interests or otherwise relating to his, her or its relationship and rights as a Member or holder of Equity Interests (whether pursuant to an LLC Agreement, Side Letter or other Contract in respect of any Acquired Entity, such Member’s Letter of Transmittal, or any Liability with respect to Rollover Holdco in connection with the transaction contemplated by this Agreement, the Restructuring Agreement or the other Transaction Documents to the extent such claim is brought by a Member except to the extent resulting from any action taken by Parent in breach of the Transaction Documents) in an Acquired Entity or any Subsidiary thereof, whether such Liability (or Proceeding) involves Parent or an Affiliate of Parent, Rollover Holdco or an Acquired Entity or any Subsidiary thereof (or any manager, director, officer or employee of an Acquired Entity or any Subsidiary thereof) including, without limitation, any Proceeding brought by or against such Person or his, her or its heirs, successors or assigns, or other Persons on behalf of such Persons with respect to the consummation of the Closing or the other Transactions (including the Restructuring or Deal Approval, and including the adequacy or allocation of any consideration hereunder with respect to the Transactions or the obligations on any Member or holder of Equity Interests in an Acquired Entity or any Subsidiary thereof under the Letter of Transmittal, including any release thereunder or appointment of Member Representative as a representative), or this Agreement or the other Transaction Documents (excluding, for the avoidance of doubt, any indemnification claim against Parent to the extent duly made pursuant to Section 12.02(c)); or (z) any Member Released Claim.Article X.

Indemnification by the Members. Effective at Subject to the other terms and after conditions of this Article IX, Xxxxx Xxxxxxxxxxx and Xxxxxx Xxxxxxx Xxxxxxxxxx shall jointly and severally, and the consummation of the Closing other Members, shall severally and subject to Section 12.03, the Members shall, severally (pro rata based on such Member’s Holdings Allocation Percentage, or otherwise as determined by the Member Representative upon written notice to Parent), but not jointly (subject to the last sentence of Section 12.03(e)in accordance with their Pro Rata Percentages), indemnify and defend each of Parent and its Affiliates (including Merger Sub and its Affiliates) and their respective Representatives (excluding Holdings and its Subsidiaries, provided that for purposes of determining a De Minimis Breach pursuant to Section 12.03(b)collectively, the Damages of Holdings and its Subsidiaries shall be taken into account) (each, a “Parent IndemniteeIndemnitees”) against against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Damages Losses incurred by a or sustained by, or imposed upon, the Parent Indemnitee Indemnitees based upon, arising out of, relating to, resulting from, in connection with respect to or otherwise in respect by reason of: (ia) any inaccuracy in or breach of any representation or warranty set forth in Article 4 or Article 5 as of the Closing representations or warranties of the Company and the Members contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Company and/or the Members pursuant to this Agreement; (b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by the Company or the Members pursuant to this Agreement (other than any representation breach or warranty made as of a certain date, in which case, as of such date)violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation in Article VII, it being understood that the certificates delivered sole remedy for any such breach, violation or failure shall be pursuant to Section 2.10(a) (with respect to such representations and warranties) or Section 2.10(g) (each such breach of a representation or warranty, a “Group Warranty Breach”Article VII); (iic) any breach of a covenant or agreement pursuant claim made by any Member relating to this Agreementsuch Person’s rights with respect to the Merger Consideration, the Restructuring Agreement or the Escrow Agreement made calculations and determinations set forth on the Estimated Closing Statement; (d) any Indebtedness of the Company that has not been paid off, fully discharged and satisfied on or to be performed by (x) an Acquired Entity prior to the consummation of the Closing Closing, or (y) the Member Representative, if paid by Parent or Merger Sub at any time (each such breach of a covenant or agreement, together with any Group Warranty Breach, a “Group Breach”); (iii) (w) Pre-Closing Taxes of any Acquired Entity or any Subsidiary thereof, (x) obligations of any Acquired Entity or any Subsidiary thereof under unclaimed property and escheat Laws, to the extent actually paid to a Governmental Authority, arising out of gift cards issued prior to the Closing Date, (y) Transaction ExpensesClosing, to the extent not paid in connection with the Closing or pursuant to Section 2.12, including the matters set forth on Schedule 12.02(a)(iii) of the Disclosure Schedule, and (z) the portion of any Post-Closing New Venue Opening Expenses indirectly borne by Parent after the Closing (based on Parent’s Percentage Share (as defined deducted in the A&R Holdings LLC Agreement)determination of Closing Merger Consideration; and (e) any Transaction Expenses (other than Reimbursable Expenses) that would have not have been borne by Parent in accordance with the definition of New Venue Opening Amount had such Post-Closing New Venue Opening Expenses been paid off, fully discharged and satisfied on or prior to the Closing and incorporated in the calculation of the New Venue Opening Amount (i.e.Closing, because, based on the definition of New Venue Opening Amount, or if paid by Parent (A) bears only fifty percent (50%) of any New Venue Opening Expenses and (B) is not obligated to bear any portion of New Venue Opening Expenses in excess of the New Venue Opening Amount Cap); or (iv) (x) any error or inaccuracy in the Member Allocation Schedule attached as Annex D (including with respect Merger Sub at or prior to the Holdings Pre-Closing PercentagesClosing, Holdings Allocation Percentage, Rollover Class A Allocated Investment Percentages, or Rollover Class A Investment Percentage), in any allocation or apportionment of consideration or Liability by the Member Representative or any Liability under the Restructuring Agreement except to the extent resulting from any action taken by Parent not deducted in breach the determination of the Transaction Documents, or in account wiring instructions delivered by the Member Representative or any Member; (y) any Liability (including any Proceeding with respect thereto) with respect to any Member or other holder of Equity Interests in an Acquired Entity or any Subsidiary thereof, with respect to such Member or holder’s capacity as a Member or holder of Equity Interests or otherwise relating to his, her or its relationship and rights as a Member or holder of Equity Interests (whether pursuant to an LLC Agreement, Side Letter or other Contract in respect of any Acquired Entity, such Member’s Letter of Transmittal, or any Liability with respect to Rollover Holdco in connection with the transaction contemplated by this Agreement, the Restructuring Agreement or the other Transaction Documents to the extent such claim is brought by a Member except to the extent resulting from any action taken by Parent in breach of the Transaction Documents) in an Acquired Entity or any Subsidiary thereof, whether such Liability (or Proceeding) involves Parent or an Affiliate of Parent, Rollover Holdco or an Acquired Entity or any Subsidiary thereof (or any manager, director, officer or employee of an Acquired Entity or any Subsidiary thereof) including, without limitation, any Proceeding brought by or against such Person or his, her or its heirs, successors or assigns, or other Persons on behalf of such Persons with respect to the consummation of the Closing or the other Transactions (including the Restructuring or Deal Approval, and including the adequacy or allocation of any consideration hereunder with respect to the Transactions or the obligations on any Member or holder of Equity Interests in an Acquired Entity or any Subsidiary thereof under the Letter of Transmittal, including any release thereunder or appointment of Member Representative as a representative), or this Agreement or the other Transaction Documents (excluding, for the avoidance of doubt, any indemnification claim against Parent to the extent duly made pursuant to Section 12.02(c)); or (z) any Member Released ClaimMerger Consideration.

Indemnification by the Members. Effective at From and after the consummation of the Closing and subject each Member agrees, on a Pro Rata Basis, to Section 12.03, the Members shall, severally (pro rata based on such Member’s Holdings Allocation Percentage, or otherwise as determined by the Member Representative upon written notice to Parent), but not jointly (subject to the last sentence of jointly, as more specifically described in Section 12.03(e))12.6(a) hereof) indemnify, indemnify Parent defend and save NovaMed and its Affiliates and Representatives (excluding Holdings and its Subsidiariesincluding, provided that for purposes of determining a De Minimis Breach pursuant to Section 12.03(b)without limitation, the Damages Company) and each of Holdings their respective officers, directors, managers, employees, agents and its Subsidiaries shall be taken into account) fiduciaries (each, a “Parent IndemniteeNovaMed Indemnified Party”) against and hold each of them ), forever harmless from and against, and to pay to a NovaMed Indemnified Party or reimburse a NovaMed Indemnified Party for (in either case within ten (10) business days of its receipt of notice in accordance with the terms of this Article from any NovaMed Indemnified Party) any and all Damages liabilities (whether contingent, fixed or unfixed, liquidated or unliquidated, or otherwise), obligations, deficiencies, demands, claims, suits, actions, or causes of action, assessments, losses, costs, expenses, interest, fines, penalties, actual or punitive damages or costs or expenses of any and all investigations, proceedings, judgments, environmental analyses, remediations, settlements and compromises (including reasonable fees and expenses of attorneys, accountants and other experts) (individually and collectively, the “Losses”) actually sustained or incurred by a Parent Indemnitee arising out of, any NovaMed Indemnified Party relating to, resulting from, in connection with arising out of or otherwise in respect ofby virtue of any of the following: (ia) any inaccuracy misrepresentation or breach of any representation or warranty set forth in Article 4 or Article 5 as of the Closing (other than any representation or warranty made as of a certain date, in which case, as of such date), or in the certificates delivered pursuant to Section 2.10(a) (with respect to such representations and warranties) or Section 2.10(g) (each such breach of a representation or warrantywarranty contained in this Agreement or in the Transaction Documents by any Member, a “Group Warranty Breach”); (ii) or non-compliance with or breach by any breach Member of a covenant any of the covenants or agreement pursuant to agreements contained in this Agreement, the Restructuring Agreement or the Escrow Agreement made or Transaction Documents to be performed by (x) an Acquired Entity prior to the consummation Members or any of the Closing or (y) the Member Representativetheir respective Affiliates; provided, at however, that any time (each such misrepresentation, breach of a warranty or non-fulfillment of any covenant or agreementagreement that specifically relates only to a particular Member under this Agreement shall not create liability or responsibility for any other Member with respect thereto, together with notwithstanding any Group Warranty Breach, a “Group Breach”)joint representations contained herein; (iiib) (w) Pre-Closing Taxes the operation of any Acquired Entity the Business, including the use of the Assets and the Excluded Assets, on or any Subsidiary thereof, (x) obligations of any Acquired Entity or any Subsidiary thereof under unclaimed property and escheat Laws, to the extent actually paid to a Governmental Authority, arising out of gift cards issued prior to the Closing Date, (y) Transaction Expenses, provided that there shall be no indemnification obligation under this Section 12.1 relating to the extent not paid in connection with the Closing or pursuant to Section 2.12, including the matters set forth on Schedule 12.02(a)(iiiPermitted Liabilities; (c) any tax liability of any of the Disclosure ScheduleMembers, and (z) the portion of any Post-Closing New Venue Opening Expenses indirectly borne by Parent after the Closing (based on Parent’s Percentage Share (as defined in the A&R Holdings LLC Agreement)) that would not have been borne by Parent in accordance with the definition of New Venue Opening Amount had such Post-Closing New Venue Opening Expenses been paid prior to the Closing and incorporated in the calculation of the New Venue Opening Amount (i.e., because, based on the definition of New Venue Opening Amount, Parent (A) bears only fifty percent (50%) of any New Venue Opening Expenses and (B) is not obligated to bear any portion of New Venue Opening Expenses in excess of the New Venue Opening Amount Cap); or (iv) (x) any error or inaccuracy in the Member Allocation Schedule attached as Annex D (including with respect to the Holdings Pre-Closing Percentages, Holdings Allocation Percentage, Rollover Class A Allocated Investment Percentages, or Rollover Class A Investment Percentage), in any allocation or apportionment of consideration or Liability by the Member Representative or any Liability under the Restructuring Agreement except to the extent resulting from any action taken by Parent in breach of the Transaction Documents, or in account wiring instructions delivered by the Member Representative or any Member; (y) any Liability (including any Proceeding with respect thereto) with respect to any Member or other holder of Equity Interests in an Acquired Entity or any Subsidiary thereof, with respect to such Member or holder’s capacity as a Member or holder of Equity Interests or otherwise relating to his, her or its relationship and rights as a Member or holder of Equity Interests (whether pursuant to an LLC Agreement, Side Letter or other Contract in respect of any Acquired Entity, such Member’s Letter of Transmittal, or any Liability with respect to Rollover Holdco in connection with the transaction contemplated by this Agreement, the Restructuring Agreement or the other Transaction Documents to the extent such claim is brought by a Member except to the extent resulting from any action taken by Parent in breach of the Transaction Documents) in an Acquired Entity or any Subsidiary thereof, whether such Liability (or Proceeding) involves Parent or an Affiliate of Parent, Rollover Holdco or an Acquired Entity or any Subsidiary thereof (or any manager, director, officer or employee of an Acquired Entity or any Subsidiary thereof) including, without limitation, any Proceeding brought by or against such Person or his, her or its heirs, successors or assigns, or other Persons on behalf tax liability arising as a result of such Persons with respect to the consummation of any the transactions herein; (d) any tax liability of the Company relating to acts, circumstances or conditions arising on or prior to the Closing or the other Transactions (including the Restructuring or Deal ApprovalDate, and including the adequacy or allocation including, without limitation, any items of responsibility of any consideration hereunder with respect of the Members which are enumerated in Section 6.7 hereof, which items of responsibility of any of the Members include, without limitation, any tax liability arising as a result of the consummation of any of the transactions contemplated herein; (e) any violations of or obligations under Environmental and Safety Requirements relating to acts, omissions, circumstances or conditions to the Transactions extent existing or arising on or prior to the obligations on Closing Date, if such acts, omissions, circumstances or conditions constituted a violation of Environmental and Safety Requirements as then in effect; (f) any Member liabilities relating to or holder arising from the provision of Equity Interests in an Acquired Entity (or any Subsidiary thereof under the Letter of Transmittalfailure to provide) professional medical services, including any release thereunder liabilities relating to the failure, prior to the Closing Date, to adhere to or appointment comply with any Medicare and Medicaid requirements or Fraud and Abuse Laws; (g) any action, demand, proceeding, investigation or claim (whenever made) by any third party (including Governmental Authorities) against or affecting NovaMed or its Affiliates which evidences the existence of Member Representative as a representative)misrepresentation or breach of any of the representations, warranties or covenants contained in this Agreement or the other Transaction Documents of the Members; (excluding, for h) the avoidance of doubt, any indemnification claim against Parent to the extent duly made pursuant to Section 12.02(c))Excluded Assets or Excluded Liabilities; or or (zi) any Member Released Claimclaim for payment of fees and/or expenses as a broker or finder in connection with the origin, negotiation, execution or consummation of this Agreement based upon any alleged agreement between the claimant and the Company or any Member.

Indemnification by the Members. Effective at (a) Subject to the applicable provisions of this Article VIII, Catapult shall indemnify and after the consummation of the Closing and subject to Section 12.03hold harmless Parent, Merger Sub, the Members shallSurviving Company and their respective successors, severally equity holders, directors, managers, officers, employees, and Affiliates (pro rata based on such Member’s Holdings Allocation Percentage, or otherwise as determined by other than the Member Representative upon written notice to Parent), but not jointly (subject to the last sentence of Section 12.03(e)), indemnify Parent and its Affiliates and Representatives (excluding Holdings and its Subsidiaries, provided that for purposes of determining a De Minimis Breach pursuant to Section 12.03(b), the Damages of Holdings and its Subsidiaries shall be taken into accountIndemnified Parties) (each, a the “Parent IndemniteeIndemnified Parties”) from and against and hold each of them harmless from any and all Damages Indemnity Losses incurred or suffered by the Parent Indemnified Parties or any of them as a Parent Indemnitee result of, arising out of, or relating to, resulting from, in connection with or otherwise in respect of: (i) any breach of, or inaccuracy in, any of the representations or breach warranties of any representation or warranty set forth the Company contained in Article 4 or Article 5 as of the Closing II (other than any representation or warranty made as the first sentence of a certain date, in which case, as of such dateSection 2.18 (Title)), Escrow Agreement or in the certificates delivered to Parent pursuant to Section 2.10(aSections 1.9(a)(xii) and (with respect to such representations and warranties) or Section 2.10(g) (each such breach of a representation or warranty, a “Group Warranty Breach”xiii); (ii) any breach of a covenant of, or agreement pursuant to this Agreementinaccuracy in, ‎ the Restructuring Agreement or the Escrow Agreement made or to be performed by (x) an Acquired Entity prior to the consummation representations and warranties of the Closing or Company contained in the first sentence of Section 2.18 (y) the Member Representative, at any time (each such breach of a covenant or agreement, together with any Group Warranty Breach, a “Group Breach”Title); (iii) (w) Pre-Closing Taxes of any Acquired Entity or any Subsidiary thereof, (x) obligations of any Acquired Entity or any Subsidiary thereof under unclaimed property and escheat Laws, to the extent actually paid to a Governmental Authority, arising out of gift cards issued prior to the Closing Date, (y) Transaction Expenses, to the extent not paid in connection with the Closing or pursuant to Section 2.12, including the matters set forth on Schedule 12.02(a)(iii) of the Disclosure Schedule, and (z) the portion of any Post-Closing New Venue Opening Expenses indirectly borne by Parent after the Closing (based on Parent’s Percentage Share (as defined in the A&R Holdings LLC Agreement)) that would not have been borne by Parent in accordance with the definition of New Venue Opening Amount had such Post-Closing New Venue Opening Expenses been paid prior to the Closing and incorporated in the calculation of the New Venue Opening Amount (i.e., because, based on the definition of New Venue Opening Amount, Parent (A) bears only fifty percent (50%) of any New Venue Opening Expenses and (B) is not obligated to bear any portion of New Venue Opening Expenses in excess of the New Venue Opening Amount Cap); orIndemnified Taxes; (iv) (xany Closing Debt not paid pursuant to Section 1.7(b)(i) any error or inaccuracy taken into account in the Member Allocation Schedule attached as Annex D determination of the Merger Consideration pursuant to Section 1.9 or Section 1.10; provided, that this Section 8.1(a)(iv) shall not include the payoff of any ‎Indebtedness that (including 1) is not Paid-Off Debt and (2) is taken into account in the determination of the Merger Consideration pursuant to Section 1.9 or Section 1.10; provided further, that this Section 8.1(a)(iv) shall not include the use or operation of any Assets and Properties with respect to the Holdings Pre-Closing PercentagesDebt, Holdings Allocation Percentage, Rollover Class A Allocated Investment Percentages, or Rollover Class A Investment Percentage), in any allocation or apportionment of consideration or Liability by the Member Representative or any Liability under the Restructuring Agreement except to the extent resulting from any action taken by Parent in breach of the Transaction Documents, or in account wiring instructions delivered by the Member Representative or any Member; (y) any Liability (including any Proceeding with respect thereto) with respect to any Member or other holder of Equity Interests in an Acquired Entity or any Subsidiary thereof, with respect to such Member or holder’s capacity as a Member or holder of Equity Interests or otherwise relating to his, her or its relationship and rights as a Member or holder of Equity Interests (whether pursuant to an LLC Agreement, Side Letter or other Contract in respect of any Acquired Entity, such Member’s Letter of Transmittal, or any Liability with respect to Rollover Holdco in connection with the transaction contemplated by this Agreement, the Restructuring Agreement or the other Transaction Documents to the extent such claim is brought by a Member except to the extent resulting from any action taken by Parent in breach of the Transaction Documents) in an Acquired Entity or any Subsidiary thereof, whether such Liability (or Proceeding) involves Parent or an Affiliate of Parent, Rollover Holdco or an Acquired Entity or any Subsidiary thereof (or any manager, director, officer or employee of an Acquired Entity or any Subsidiary thereof) including, without limitation, any Proceeding brought by or against such Person or his, her or its heirs, successors or assigns, or other Persons on behalf of such Persons with respect to the consummation of the Closing or the other Transactions (including the Restructuring or Deal Approval, and including the adequacy or allocation of any consideration hereunder with respect to the Transactions or the obligations on any Member or holder of Equity Interests in an Acquired Entity or any Subsidiary thereof under the Letter of Transmittal, including any release thereunder or appointment of Member Representative as a representative), or this Agreement or the other Transaction Documents (excluding, which,‎ for the avoidance of doubt, is subject to Section 8.1(a)(i); and (v) any indemnification claim against Parent to the extent duly made Transaction Expenses not paid pursuant to Section 12.02(c)); 1.7(b)(ii) or taken into account in the determination of the Merger Consideration pursuant to Section 1.9 or Section 1.10. (zb) Subject to the applicable provisions of this Article VIII, each Member, solely with respect to any breach by such Member, shall severally with respect to itself only and not jointly and severally, indemnify and hold harmless the Parent Indemnified Parties from and against any and all Indemnity Losses incurred or suffered by the Parent Indemnified Parties or any of them as a result of, arising out of, or relating to: ​ 4855-0363-3265.v2 (i) any breach of, or inaccuracy in, any of the representations or warranties of such Member Released Claimcontained in Article III or contained in such Member’s executed Transmittal Letter or of Members’ Representative in ‎the Escrow Agreement; and (ii) any breach or failure by such Member to perform the respective covenants, obligations or agreements contained in this Agreement or such Member’s executed Transmittal Letter or of Members’ Representative in ‎the Escrow Agreement.

Indemnification by the Members. Effective at (a) All representations, warranties and after covenants of the consummation of Company and the Members shall survive the Closing and subject to Section 12.03the Merger. From and after Closing, the Members shall, severally (pro rata based on such Member’s Holdings Allocation Percentagejointly and severally, or otherwise as determined by the Member Representative upon written notice to Parent), but not jointly (subject to the last sentence of Section 12.03(e))defend, indemnify Parent and hold Buyer (and its Affiliates Affiliates, their respective successors and Representatives permitted assigns and their respective directors, shareholders, members, officers and managers) and Surviving Company (excluding Holdings and its Subsidiariescollectively, provided that for purposes of determining a De Minimis Breach pursuant to Section 12.03(b), the Damages of Holdings and its Subsidiaries shall be taken into account) (each, a “Parent IndemniteeBuyer Indemnified Parties”) against and hold each of them harmless from and against any and all Damages incurred (along with any claim by Buyer under Section 12.2(b) individually a Parent Indemnitee “Buyer’s Indemnified Claim” and collectively “Buyer’s Indemnified Claims”) to the extent arising out of, relating to, resulting from, in connection with of or otherwise in respect of: related to (i) any inaccuracy misrepresentation or breach of any representation warranty of the Company, or warranty set forth of any of the Members relating to the Company (in Article 4 or Article 5 as of the Closing (other than any representation or warranty made as of a certain date, in which case, as of such dateIV), or contained in the certificates delivered pursuant to Section 2.10(a) (with respect to such representations and warranties) or Section 2.10(g) (each such breach of a representation or warrantythis Agreement, a “Group Warranty Breach”); (ii) any breach of a any covenant or agreement pursuant to of Company contained in this Agreement, the Restructuring Agreement or the Escrow Agreement made or to be performed by (x) an Acquired Entity prior to the consummation of the Closing or (y) the Member Representative, at any time (each such breach of a covenant or agreement, together with any Group Warranty Breach, a “Group Breach”); (iii) the Retained Liabilities, or (wiv) Pre-Closing Taxes of any Acquired Entity or and all Member Taxes. (b) From and after Closing, each Member shall severally defend, indemnify and hold Buyer and Buyer Indemnified Parties harmless from and against any Subsidiary thereof, (x) obligations of any Acquired Entity or any Subsidiary thereof under unclaimed property and escheat Laws, all Damages to the extent actually paid to a Governmental Authority, arising out of gift cards issued prior or related to (i) any misrepresentation or breach of any warranty of such Member contained in Article VI of this Agreement and (ii) any breach of any covenant or agreement of such Member contained in this Agreement. (c) THE FOREGOING INDEMNIFICATIONS BY THE MEMBERS SHALL APPLY WHETHER OR NOT SUCH DUTIES, OBLIGATIONS OR LIABILITIES, OR SUCH CLAIMS, ACTIONS, CAUSES OF ACTION, LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES ARISE OUT OF (i) NEGLIGENCE (INCLUDING SOLE NEGLIGENCE, SIMPLE NEGLIGENCE, CONCURRENT NEGLIGENCE, ACTIVE OR PASSIVE NEGLIGENCE, BUT EXPRESSLY NOT TO THE EXTENT ARISING SOLELY FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OF ANY INDEMNITEE, (ii) STRICT LIABILITY, OR (iii) ANY VIOLATION OF ANY LAW, RULE, REGULATION OR ORDER RELATED TO THE OWNERSHIP OR OPERATION OF THE PROPERTIES, INCLUDING APPLICABLE ENVIRONMENTAL LAWS. (d) For purposes of this Section 12.2, in determining whether the Members or Company have breached any representations or warranties contained in this Agreement and for the determination of the existence of a breach, liability and Damages under this Article XII, all qualifications of such representations and warranties by materiality (whether by reference to the Closing Dateterms “material”, (y“Material Adverse Effect” or otherwise) Transaction Expenses, to the extent not paid in connection with the Closing or pursuant to Section 2.12, including the matters set forth on Schedule 12.02(a)(iii) of the Disclosure Schedule, and (z) the portion of any Post-Closing New Venue Opening Expenses indirectly borne by Parent after the Closing (based on Parent’s Percentage Share (as defined in the A&R Holdings LLC Agreement)) that would not have been borne by Parent in accordance with the definition of New Venue Opening Amount had such Post-Closing New Venue Opening Expenses been paid prior to the Closing and incorporated in the calculation of the New Venue Opening Amount (i.e., because, based on the definition of New Venue Opening Amount, Parent (A) bears only fifty percent (50%) of any New Venue Opening Expenses and (B) is not obligated to bear any portion of New Venue Opening Expenses in excess of the New Venue Opening Amount Cap); or (iv) (x) any error or inaccuracy in the Member Allocation Schedule attached as Annex D (including with respect to the Holdings Pre-Closing Percentages, Holdings Allocation Percentage, Rollover Class A Allocated Investment Percentages, or Rollover Class A Investment Percentage), in any allocation or apportionment of consideration or Liability by the Member Representative or any Liability under the Restructuring Agreement except to the extent resulting from any action taken by Parent in breach of the Transaction Documents, or in account wiring instructions delivered by the Member Representative or any Member; (y) any Liability (including any Proceeding with respect thereto) with respect to any Member or other holder of Equity Interests in an Acquired Entity or any Subsidiary thereof, with respect to such Member or holder’s capacity as a Member or holder of Equity Interests or otherwise relating to his, her or its relationship and rights as a Member or holder of Equity Interests (whether pursuant to an LLC Agreement, Side Letter or other Contract in respect of any Acquired Entity, such Member’s Letter of Transmittal, or any Liability with respect to Rollover Holdco in connection with the transaction contemplated by this Agreement, the Restructuring Agreement or the other Transaction Documents to the extent such claim is brought by a Member except to the extent resulting from any action taken by Parent in breach of the Transaction Documents) in an Acquired Entity or any Subsidiary thereof, whether such Liability (or Proceeding) involves Parent or an Affiliate of Parent, Rollover Holdco or an Acquired Entity or any Subsidiary thereof (or any manager, director, officer or employee of an Acquired Entity or any Subsidiary thereof) including, without limitation, any Proceeding brought by or against such Person or his, her or its heirs, successors or assigns, or other Persons on behalf of such Persons with respect to the consummation of the Closing or the other Transactions (including the Restructuring or Deal Approval, and including the adequacy or allocation of any consideration hereunder with respect to the Transactions or the obligations on any Member or holder of Equity Interests in an Acquired Entity or any Subsidiary thereof under the Letter of Transmittal, including any release thereunder or appointment of Member Representative as a representative), or this Agreement or the other Transaction Documents (excluding, for the avoidance of doubt, any indemnification claim against Parent to the extent duly made pursuant to Section 12.02(c)); or (z) any Member Released Claimshall be disregarded.

Indemnification by the Members. Effective at Subject to Sections 9.7 and after the consummation of the Closing and subject to Section 12.039.8, the ------------------------------ ------------ --- Members shalljointly and severally agree to indemnify, severally defend and save the CenterPoint Indemnified Parties (pro rata based on such Member’s Holdings Allocation Percentage, or otherwise as determined by the Member Representative upon written notice to Parenthereinafter defined), but not jointly (subject to the last sentence of Section 12.03(e)), indemnify Parent and its Affiliates and Representatives (excluding Holdings and its Subsidiaries, provided that for purposes of determining a De Minimis Breach pursuant to Section 12.03(b), the Damages of Holdings and its Subsidiaries shall be taken into account) (each, a “Parent Indemnitee”) against and hold each of them forever harmless from and against, and to promptly pay to a CenterPoint Indemnified Party or reimburse a CenterPoint Indemnified Party for, any and all Damages Losses (hereinafter defined) sustained or incurred by a Parent Indemnitee any CenterPoint Indemnified Party, resulting from, arising out of, in connection with or otherwise by virtue of: (a) any misrepresentation or breach of a representation or warranty made in Article V herein or in any certificate, schedule, document, exhibit --------- or other instrument delivered hereunder by any Member or any action, demand or claim by any third party against or affecting any CenterPoint Indemnified Party which, if successful, would give rise to a breach of any such representation or warranty, except that the obligation of the Members to indemnify, defend and save harmless for any misrepresentation or breach of representation or warranty made in Section 5.1 hereof or in any ----------- certificate, schedule, document, exhibit or other instrument delivered in respect thereof shall not be joint and several, but such obligation shall be several only and limited to the several Member(s) making such misrepresentation or breach; (b) any failure by Management, the Company or any Member to observe or perform any of their covenants and agreements set forth herein related to the period prior to the Closing, except that the obligation of the Members to indemnify, defend and save harmless for any misrepresentation or breach of representation or warranty made in Section 5.1 hereof shall not ----------- be joint and several, but such obligation shall be several only and limited to the several Member(s) making such misrepresentation or breach; (c) any liability under the 1933 Act, the 1934 Act or other federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a material fact relating to Management or the Company, contained in any preliminary prospectus relating to the IPO, the Registration Statements or any proxy statement or prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission to state therein a material fact relating to Management or the Company required to be stated therein or necessary to make the statements therein not misleading, and not provided to CenterPoint or its counsel by Management or the Company; provided, however, that such indemnity shall not inure to the -------- ------- benefit of any CenterPoint Indemnified Party to the extent that such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and (i) Management or the Company provided, in writing, corrected information to CenterPoint or its counsel for inclusion in the final prospectus prior to distributing such prospectus, and such information was not so included, or (ii) CenterPoint did not provide Management, the Company and their counsel with the information required to be provided pursuant to Section 8.2.2, and ------------- such information is the basis for the untrue statement or omission (or alleged untrue statement or omission) giving rise to the liability under this Section 9.1(c); or -------------- (d) notwithstanding anything contained in this Agreement to the contrary, (i) any arrangements made by or on behalf of the Members, Management or the Company in connection with the Merger or the transactions contemplated by this Agreement with respect to brokerage, finders and other fees or commissions, (ii) disallowance of any tax deduction to CenterPoint or the Company with respect to any item listed on Schedule 2.5 and ------------ considered in determining Net Working Capital, (iii) any Losses relating to, resulting from, in connection with arising out of or otherwise in respect of: by virtue of any matter which is or should be listed on Schedules 4.10 or 7.1.4(i) hereto, (iiv) the -------------- -------- Excluded Assets, the Excluded Liabilities and the transactions contemplated under Section 7.1.4, and (v) any inaccuracy payment with respect to Dissenting Shares. ------------- As used herein, the "CENTERPOINT INDEMNIFIED PARTIES" shall mean CenterPoint, its Subsidiaries and Affiliates, the Founding Companies other than the Company (the "OTHER FOUNDING COMPANIES"), and their respective officers, directors, employees, agents, employee plans and plan fiduciaries, plan administrators or breach other Person dealing with any such plans; provided, however, -------- ------- that the Other Founding Companies, and each of their respective officers, directors, employees, agents, employee plans and plan fiduciaries, plan administrators or other Persons dealing with any representation or warranty set forth in Article 4 or Article 5 such plans, shall cease to be a "CENTERPOINT INDEMNIFIED PARTY" for all purposes hereunder as of the Closing Closing, and thereafter such Persons shall have no further rights and remedies under this Article IX (other than any representation except to the extent a Person is an officer, director, employee or warranty made ---------- agent of CenterPoint as a result of a certain date, in which case, as of such date), or in the certificates delivered pursuant to Section 2.10(a) (with respect to such representations and warranties) or Section 2.10(g) (each such breach of a representation or warranty, a “Group Warranty Breach”); (ii) any breach of a covenant or agreement pursuant to this Agreement, the Restructuring Agreement or the Escrow Agreement made or to be performed by (x) an Acquired Entity prior to the consummation of the Closing or (y) transactions contemplated under the Member RepresentativeOther Agreements); provided, at any time (each such breach further, that the -------- ------- Subsidiaries of a covenant or agreementCenterPoint shall include the Company, together with any Group Warranty Breachthe Company Subsidiaries and the other Founding Companies from and after the Closing. Accordingly, a “Group Breach”); (iii) (w) Pre-Closing Taxes for purposes of any Acquired Entity or any Subsidiary thereof, (x) obligations of any Acquired Entity or any Subsidiary thereof under unclaimed property this Article IX and escheat Laws, subject to the extent actually paid to a Governmental Authority, arising out of gift cards issued prior to the Closing Date, (y) Transaction Expenses, to the extent not paid in connection with the Closing or pursuant to Section 2.12, including the matters limitations set forth on Schedule 12.02(a)(iii) of in this ---------- Article IX, the Disclosure ScheduleOther Founding Companies, and (z) the portion each of any Post-Closing New Venue Opening Expenses indirectly borne by Parent after the Closing (based on Parent’s Percentage Share (as defined in the A&R Holdings LLC Agreement)) that would not have been borne by Parent in accordance with the definition of New Venue Opening Amount had such Post-Closing New Venue Opening Expenses been paid prior to the Closing their respective officers, ---------- directors, employees, agents, employee plans and incorporated in the calculation of the New Venue Opening Amount (i.e.plan fiduciaries, because, based on the definition of New Venue Opening Amount, Parent (A) bears only fifty percent (50%) of any New Venue Opening Expenses and (B) is not obligated to bear any portion of New Venue Opening Expenses in excess of the New Venue Opening Amount Cap); or (iv) (x) any error or inaccuracy in the Member Allocation Schedule attached as Annex D (including with respect to the Holdings Pre-Closing Percentages, Holdings Allocation Percentage, Rollover Class A Allocated Investment Percentages, or Rollover Class A Investment Percentage), in any allocation or apportionment of consideration or Liability by the Member Representative or any Liability under the Restructuring Agreement except to the extent resulting from any action taken by Parent in breach of the Transaction Documents, or in account wiring instructions delivered by the Member Representative or any Member; (y) any Liability (including any Proceeding with respect thereto) with respect to any Member or other holder of Equity Interests in an Acquired Entity or any Subsidiary thereof, with respect to such Member or holder’s capacity as a Member or holder of Equity Interests or otherwise relating to his, her or its relationship and rights as a Member or holder of Equity Interests (whether pursuant to an LLC Agreement, Side Letter or other Contract in respect of any Acquired Entity, such Member’s Letter of Transmittal, or any Liability with respect to Rollover Holdco in connection with the transaction contemplated by this Agreement, the Restructuring Agreement or the other Transaction Documents to the extent such claim is brought by a Member except to the extent resulting from any action taken by Parent in breach of the Transaction Documents) in an Acquired Entity or any Subsidiary thereof, whether such Liability (or Proceeding) involves Parent or an Affiliate of Parent, Rollover Holdco or an Acquired Entity or any Subsidiary thereof (or any manager, director, officer or employee of an Acquired Entity or any Subsidiary thereof) including, without limitation, any Proceeding brought by or against such Person or his, her or its heirs, successors or assigns, plan administrators or other Persons on behalf dealing with any such plans, shall be deemed to be third party beneficiaries of such Persons with respect to the consummation of the Closing or the other Transactions (including the Restructuring or Deal Approval, and including the adequacy or allocation of any consideration hereunder with respect to the Transactions or the obligations on any Member or holder of Equity Interests in an Acquired Entity or any Subsidiary thereof under the Letter of Transmittal, including any release thereunder or appointment of Member Representative as a representative), or this Agreement or the other Transaction Documents (excluding, for the avoidance of doubt, any indemnification claim against Parent to the extent duly made pursuant to Section 12.02(c)); or (z) any Member Released ClaimAgreement.

Indemnification by the Members. Effective at Subject to the limitations set forth in Section 9.5, the Members hereby agree, from and after the consummation of the Closing Closing, to jointly and subject severally indemnify (other than with respect to Section 12.039.2(a)(i) or Section 9.2(c) in which case each Member will severally indemnify solely as to himself, the Members shall, severally (pro rata based on such Member’s Holdings Allocation Percentage, herself or otherwise as determined by the Member Representative upon written notice to Parentitself), but not jointly (subject to defend and hold harmless Purchaser and the last sentence of Section 12.03(e))Company, indemnify Parent and its Affiliates their respective Affiliates, officers, directors, shareholders, members, managers, subsidiaries, employees, agents, permitted assigns and Representatives (excluding Holdings and its Subsidiaries, provided that for purposes of determining a De Minimis Breach pursuant to Section 12.03(b), the Damages of Holdings and its Subsidiaries shall be taken into account) representatives (each, a “Parent IndemniteePurchaser Indemnified Party” and, together, the “Purchaser Indemnified Parties”) against from and hold each of them harmless from with respect to any and all Damages losses, damages, Liabilities, deficiencies, Legal Actions, Legal Orders, Taxes, judgments, interest, awards, penalties, fines, dues, costs, fees and expenses of whatever kind, including any diminution in the value of the Company, interest, reasonable attorneys’ fees, the cost of enforcing any right to indemnification hereunder, the cost of pursuing any insurance providers, and all amounts paid in investigation, defense, or settlement of any of the foregoing, whether asserted by third parties or incurred by or sustained in the absence of third-party claims (each a Parent Indemnitee “Loss” and, collectively, “Losses” except that “Losses” shall not include punitive damages, except to the extent actually awarded to a Governmental Body or other third party) related to, as a result of or arising out of, relating todirectly or indirectly, resulting from, in connection with or otherwise in respect ofany of the following: (ia) any inaccuracy or the breach of any representation or warranty set forth in Article 4 of (i) the Members or Article 5 as of (ii) the Closing (other than any representation or warranty made as of a certain dateCompany contained herein, in which case, as of such date)each case including the Schedules and Exhibits hereto, or in any certificate furnished by the certificates delivered pursuant to Section 2.10(aCompany or any Member, as applicable, in connection with the transactions contemplated hereby; (b) (with respect to such representations and warranties) or Section 2.10(g) (each such the breach of a representation any covenant or warrantyagreement of the Company contained herein, a “Group Warranty Breach”including the Schedules and Exhibits hereto, which is to be performed on or before the Closing Date; (c) the breach of any covenant or agreement of any Member contained herein or in any certificate furnished by such Member in connection with the transactions contemplated hereby (whether to be performed before or after the Closing Date); (iid) any breach of a covenant or agreement pursuant to this Agreement, the Restructuring Agreement or the Escrow Agreement made or to be performed by (x) an Acquired Entity prior to the consummation Taxes of the Closing Company Entities for or relating to periods (yor portions thereof) the Member Representative, at any time (each such breach of a covenant ending on or agreement, together with any Group Warranty Breach, a “Group Breach”); (iii) (w) Pre-Closing Taxes of any Acquired Entity or any Subsidiary thereof, (x) obligations of any Acquired Entity or any Subsidiary thereof under unclaimed property and escheat Laws, to the extent actually paid to a Governmental Authority, arising out of gift cards issued prior to before the Closing Date, (y) Transaction Expenses, Date to the extent not paid in connection with the Closing accrued or pursuant to Section 2.12, including the matters set forth on Schedule 12.02(a)(iii) of the Disclosure Schedule, and (z) the portion of any Post-Closing New Venue Opening Expenses indirectly borne by Parent after the Closing (based on Parent’s Percentage Share (reserved as defined in the A&R Holdings LLC Agreement)) that would not have been borne by Parent in accordance with the definition of New Venue Opening Amount had such Post-Closing New Venue Opening Expenses been paid prior to the Closing and incorporated in the calculation of the New Venue Opening Amount (i.e., because, based a current liability on the definition of New Venue Opening Amount, Parent (A) bears only fifty percent (50%) of any New Venue Opening Expenses and (B) is not obligated to bear any portion of New Venue Opening Expenses in excess of the New Venue Opening Amount Cap)Final Closing Payment Calculation Statement; or (ive) (x) any error or inaccuracy in the Member Allocation Any matter identified on Schedule attached as Annex D (including with respect to the Holdings Pre-Closing Percentages, Holdings Allocation Percentage, Rollover Class A Allocated Investment Percentages, or Rollover Class A Investment Percentage9.2(e), in any allocation or apportionment of consideration or Liability by the Member Representative or any Liability under the Restructuring Agreement except to the extent resulting from any action taken by Parent in breach of the Transaction Documents, or in account wiring instructions delivered by the Member Representative or any Member; (y) any Liability (including any Proceeding with respect thereto) with respect to any Member or other holder of Equity Interests in an Acquired Entity or any Subsidiary thereof, with respect to such Member or holder’s capacity as a Member or holder of Equity Interests or otherwise relating to his, her or its relationship and rights as a Member or holder of Equity Interests (whether pursuant to an LLC Agreement, Side Letter or other Contract in respect of any Acquired Entity, such Member’s Letter of Transmittal, or any Liability with respect to Rollover Holdco in connection with the transaction contemplated by this Agreement, the Restructuring Agreement or the other Transaction Documents to the extent such claim is brought by a Member except to the extent resulting from any action taken by Parent in breach of the Transaction Documents) in an Acquired Entity or any Subsidiary thereof, whether such Liability (or Proceeding) involves Parent or an Affiliate of Parent, Rollover Holdco or an Acquired Entity or any Subsidiary thereof (or any manager, director, officer or employee of an Acquired Entity or any Subsidiary thereof) including, without limitation, any Proceeding brought by or against such Person or his, her or its heirs, successors or assigns, or other Persons on behalf of such Persons with respect to the consummation of the Closing or the other Transactions (including the Restructuring or Deal Approval, and including the adequacy or allocation of any consideration hereunder with respect to the Transactions or the obligations on any Member or holder of Equity Interests in an Acquired Entity or any Subsidiary thereof under the Letter of Transmittal, including any release thereunder or appointment of Member Representative as a representative), or this Agreement or the other Transaction Documents (excluding, for the avoidance of doubt, any indemnification claim against Parent to the extent duly made pursuant to Section 12.02(c)); or (z) any Member Released Claim.

Indemnification by the Members. Effective at Each Member will severally indemnify and after the consummation of the Closing hold harmless Advance America and subject to Section 12.03its employees, Members, controlling persons, and Affiliates (collectively, the Members shall“Indemnified Advance America Persons”) for, severally and will pay to the Indemnified Advance America Persons the amount of, any loss, liability, claim, damage (pro rata based on such Member’s Holdings Allocation Percentageexcluding incidental and consequential damages), or otherwise as determined by the Member Representative upon written notice to Parentexpense (including costs of investigation and defense and reasonable attorneys’ fees), but whether or not jointly involving a third-party claim (subject to the last sentence of Section 12.03(e)collectively, “Advance America Damages”), indemnify Parent and its Affiliates and Representatives (excluding Holdings and its Subsidiaries, provided that for purposes of determining a De Minimis Breach pursuant to Section 12.03(b), the Damages of Holdings and its Subsidiaries shall be taken into account) (each, a “Parent Indemnitee”) against and hold each of them harmless arising directly or indirectly from any and all Damages incurred by a Parent Indemnitee arising out of, relating to, resulting from, or in connection with or otherwise in respect of: with: (i) any inaccuracy or breach of any representation or warranty set forth made by such Member in Article 4 this Agreement, or Article 5 as any certificate or other document delivered pursuant to or in connection with this Agreement; (ii) any breach by such Member of any covenant or obligation of such Member in this Agreement; or (iii) any claim by any Person for brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person, with any of the Closing Members (other than or any Person acting on their behalf) in connection with any of the transactions contemplated by this Agreement. Advance America will severally indemnify and hold harmless the Members (collectively, the “Indemnified Members”) for, and will pay to the Indemnified Members the amount of, any loss, liability, claim, damage (excluding incidental and consequential damages), or expense (including costs of investigation and defense and reasonable attorneys’ fees), whether or not involving a third-party claim (collectively, “Members’ Damages”), arising directly or indirectly from or in connection with: (i) any breach of any representation or warranty made as of a certain date, by Advance America in which case, as of such date)this Agreement, or in the certificates any certificate or other document delivered pursuant to Section 2.10(a) (or in connection with respect to such representations and warranties) or Section 2.10(g) (each such breach of a representation or warranty, a “Group Warranty Breach”); this Agreement; (ii) any breach by Advance America of a any covenant or agreement pursuant to obligation of Advance America in this Agreement, the Restructuring Agreement ; or the Escrow Agreement made or to be performed by (x) an Acquired Entity prior to the consummation of the Closing or (y) the Member Representative, at any time (each such breach of a covenant or agreement, together with any Group Warranty Breach, a “Group Breach”); (iii) any claim by any Person for brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person, with Advance America (w) Pre-Closing Taxes of any Acquired Entity or any Subsidiary thereof, (xPerson acting on their behalf) obligations of any Acquired Entity or any Subsidiary thereof under unclaimed property and escheat Laws, to the extent actually paid to a Governmental Authority, arising out of gift cards issued prior to the Closing Date, (y) Transaction Expenses, to the extent not paid in connection with the Closing or pursuant to Section 2.12, including the matters set forth on Schedule 12.02(a)(iii) any of the Disclosure Schedule, and (z) the portion of any Post-Closing New Venue Opening Expenses indirectly borne by Parent after the Closing (based on Parent’s Percentage Share (as defined in the A&R Holdings LLC Agreement)) that would not have been borne by Parent in accordance with the definition of New Venue Opening Amount had such Post-Closing New Venue Opening Expenses been paid prior to the Closing and incorporated in the calculation of the New Venue Opening Amount (i.e., because, based on the definition of New Venue Opening Amount, Parent (A) bears only fifty percent (50%) of any New Venue Opening Expenses and (B) is not obligated to bear any portion of New Venue Opening Expenses in excess of the New Venue Opening Amount Cap); or (iv) (x) any error or inaccuracy in the Member Allocation Schedule attached as Annex D (including with respect to the Holdings Pre-Closing Percentages, Holdings Allocation Percentage, Rollover Class A Allocated Investment Percentages, or Rollover Class A Investment Percentage), in any allocation or apportionment of consideration or Liability by the Member Representative or any Liability under the Restructuring Agreement except to the extent resulting from any action taken by Parent in breach of the Transaction Documents, or in account wiring instructions delivered by the Member Representative or any Member; (y) any Liability (including any Proceeding with respect thereto) with respect to any Member or other holder of Equity Interests in an Acquired Entity or any Subsidiary thereof, with respect to such Member or holder’s capacity as a Member or holder of Equity Interests or otherwise relating to his, her or its relationship and rights as a Member or holder of Equity Interests (whether pursuant to an LLC Agreement, Side Letter or other Contract in respect of any Acquired Entity, such Member’s Letter of Transmittal, or any Liability with respect to Rollover Holdco in connection with the transaction transactions contemplated by this Agreement, the Restructuring Agreement or the other Transaction Documents to the extent such claim is brought by a Member except to the extent resulting from any action taken by Parent in breach of the Transaction Documents) in an Acquired Entity or any Subsidiary thereof, whether such Liability (or Proceeding) involves Parent or an Affiliate of Parent, Rollover Holdco or an Acquired Entity or any Subsidiary thereof (or any manager, director, officer or employee of an Acquired Entity or any Subsidiary thereof) including, without limitation, any Proceeding brought by or against such Person or his, her or its heirs, successors or assigns, or other Persons on behalf of such Persons with respect to the consummation of the Closing or the other Transactions (including the Restructuring or Deal Approval, and including the adequacy or allocation of any consideration hereunder with respect to the Transactions or the obligations on any Member or holder of Equity Interests in an Acquired Entity or any Subsidiary thereof under the Letter of Transmittal, including any release thereunder or appointment of Member Representative as a representative), or this Agreement or the other Transaction Documents (excluding, for the avoidance of doubt, any indemnification claim against Parent to the extent duly made pursuant to Section 12.02(c)); or (z) any Member Released Claim.

Indemnification by the Members. Effective at and after (a) Following the consummation of the Closing and subject to Section 12.03Closing, the Members shall, severally and not jointly in accordance with their respective Membership Interests, indemnify, defend, hold harmless and reimburse Parent, its Affiliates and their respective officers, directors, employees, agents, partners, shareholders, members, attorneys, accountants, representatives, successors and permitted assigns, each in their capacity as such (pro rata based on such Member’s Holdings Allocation Percentagecollectively, or otherwise as determined by the Member Representative upon written notice to Parent“Indemnified Parties”), but not jointly (subject to only in the last sentence of manner specified in Section 12.03(e))8.2(b) and in no other manner, indemnify Parent and its Affiliates and Representatives (excluding Holdings and its Subsidiariesfor, provided that for purposes of determining a De Minimis Breach pursuant to Section 12.03(b), the Damages of Holdings and its Subsidiaries shall be taken into account) (each, a “Parent Indemnitee”) against and hold each of them harmless from any and all Damages incurred by a Parent Indemnitee arising out of, relating to, resulting from, in connection with or otherwise in respect of: and against all (i) any inaccuracy amounts consisting of fines, penalties or breach of any representation or warranty set forth in Article 4 or Article 5 as of the Closing (other than any representation or warranty made as of a certain date, in which case, as of such date), or in the certificates delivered pursuant to Section 2.10(a) (with respect to such representations and warranties) or Section 2.10(g) (each such breach of a representation or warranty, a “Group Warranty Breach”); (ii) any breach of a covenant or agreement pursuant to this Agreement, the Restructuring Agreement or the Escrow Agreement made or to be performed by (x) an Acquired Entity prior to the consummation of the Closing or (y) the Member Representative, at any time (each such breach of a covenant or agreement, together with any Group Warranty Breach, a “Group Breach”); (iii) (w) Pre-Closing Taxes of any Acquired Entity or any Subsidiary thereof, (x) obligations of any Acquired Entity or any Subsidiary thereof under unclaimed property and escheat Laws, to the extent actually paid to a Governmental Authority, arising out of gift cards issued prior to the Closing Date, (y) Transaction Expenses, to the extent not customer restitution paid in connection with the Closing or pursuant to Section 2.12, including the matters set forth on Schedule 12.02(a)(iii) resolution of the Disclosure ScheduleCovered Matter, (ii) amounts that constitute Specified Taxes and (iii) any amounts due but not paid to a Person in respect of their Membership Interests as a result of an inaccuracy or omission in the Payment Schedule (collectively, such amounts referred to in clauses (i) through (iii), “Losses”). (b) Notwithstanding anything to the contrary herein, no Indemnified Party may assert a claim for indemnification under Section 8.2(a)(i) or Section 8.2(a)(iii) from and after the Covered Matter Expiration Date, and (zno Indemnified Party may assert a claim for indemnification under Section 8.2(a)(ii) the portion of any Post-Closing New Venue Opening Expenses indirectly borne by Parent from and after the Closing (based on Tax Indemnity Expiration Date. Following the Closing, Parent’s Percentage Share (as defined right to assert claims against the Indemnity Holdback Amount and under the R&W Insurance Policy shall be Parent’s sole and exclusive source of recovery and remedy for money damages for any Losses arising in connection with this Agreement and the transactions contemplated hereby, other than in the A&R Holdings LLC Agreement)case of Fraud (which claims based upon Fraud may only be made against the Person committing such Fraud and not against any other Person) that would not have been borne by Parent or matters for which the remedy of specific performance, injunctive relief or other non-monetary equitable remedies are available in accordance with Section 9.8. Subject to Section 2.3(k), any Losses for which an Indemnified Party is entitled to indemnification pursuant to this Section 8.2 shall be satisfied first from the definition balance of New Venue Opening Amount had such Post-Closing New Venue Opening Expenses been paid prior to the Closing and incorporated funds remaining in the calculation Escrow Account in respect of the New Venue Opening Indemnity Holdback Amount (i.e.and, becausethereafter, based on the definition of New Venue Opening Amount, Parent (A) bears only fifty percent (50%) of any New Venue Opening Expenses and (B) is not obligated to bear any portion of New Venue Opening Expenses in excess of the New Venue Opening Amount Cap); or (iv) (x) any error or inaccuracy in the Member Allocation Schedule attached as Annex D (including with respect to the Holdings Pre-Closing Percentages, Holdings Allocation Percentage, Rollover Class A Allocated Investment Percentages, or Rollover Class A Investment Percentage), in any allocation or apportionment of consideration or Liability by the Member Representative or any Liability under the Restructuring Agreement except to the extent resulting the balance of funds remaining is insufficient, solely from any action taken by Parent in breach of the Transaction DocumentsR&W Insurance Policy, or in account wiring instructions delivered by the Member Representative or any Member; (y) any Liability (including any Proceeding with respect thereto) with respect to any Member or other holder of Equity Interests in an Acquired Entity or any Subsidiary thereof, with respect to such Member or holder’s capacity as a Member or holder of Equity Interests or otherwise relating to his, her or its relationship if and rights as a Member or holder of Equity Interests (whether pursuant to an LLC Agreement, Side Letter or other Contract in respect of any Acquired Entity, such Member’s Letter of Transmittal, or any Liability with respect to Rollover Holdco in connection with the transaction contemplated by this Agreement, the Restructuring Agreement or the other Transaction Documents only to the extent such claim is brought by a Member except to the extent resulting from claims therefor may be made thereunder. Nothing contained in this Section 8.2 shall limit any action taken by Parent in breach of the Transaction Documents) in an Acquired Entity or any Subsidiary thereof, whether such Liability (or Proceeding) involves Parent or an Affiliate of Parent, Rollover Holdco or an Acquired Entity or any Subsidiary thereof (or any manager, director, officer or employee of an Acquired Entity or any Subsidiary thereof) including, without limitation, any Proceeding brought by or against such Person or his, her or its heirs, successors or assigns, or other Persons on behalf of such Persons with respect to the consummation of the Closing or the other Transactions (including the Restructuring or Deal Approval, and including the adequacy or allocation rights of any consideration hereunder with respect to the Transactions or the obligations on Indemnified Party as against any Member or holder of Equity Interests in an Acquired Entity or any Subsidiary thereof insurer under the Letter of Transmittal, including any release thereunder or appointment of Member Representative as a representative), or this Agreement or the other Transaction Documents (excluding, for the avoidance of doubt, any indemnification claim against Parent to the extent duly made pursuant to Section 12.02(c)); or (z) any Member Released ClaimR&W Insurance Policy.

Indemnification by the Members. Effective at (a) From and after the consummation of the Closing and subject to Section 12.03Closing, the Members (whose liability shall be several in accordance with their respective Indemnifiable Portions and not joint among them) shall, severally (pro rata based on such Member’s Holdings Allocation Percentage, or otherwise as determined by the Member Representative upon written notice to Parent), but not jointly (subject to the last sentence of Section 12.03(e))limitations and qualifications set forth below, indemnify Parent and hold harmless Buyer and its Affiliates Affiliates, and Representatives each of the partners, members, managers, directors, officers, employees, Representatives, heirs, successors and assigns of any of the foregoing (excluding Holdings and its Subsidiaries, provided that for purposes of determining a De Minimis Breach pursuant to Section 12.03(b)collectively, the Damages of Holdings and its Subsidiaries shall be taken into account) (each, a “Parent IndemniteeBuyer Indemnified Parties”) from and against and hold each of them harmless from any and all Damages Losses incurred by a Parent Indemnitee arising out ofor suffered by, relating toor asserted against, resulting from, any of the Buyer Indemnified Parties in connection with or otherwise in respect ofarising from: (i) any inaccuracy breach or breach of failure to perform or observe any representation covenant or warranty set forth agreement contained in Article 4 this Agreement to be performed by a Member, Equityholder Representative or Article 5 as of any Company Entity (whether prior to, on or after the Closing (other than any representation or warranty made as of a certain date, in which caseDate), as of such date), or in the certificates delivered pursuant to Section 2.10(a) (with respect to such representations and warranties) or Section 2.10(g) (each such breach of a representation or warranty, a “Group Warranty Breach”)applicable; (ii) any inaccuracy in, or breach of, any of a covenant the representations or agreement pursuant warranties made by the Company Entities or the Members contained in Section 3.1 (Member Representations and Warranties), Section 4.1 (Company Organization; Authorization), Section 4.3 (Capitalization), Section 4.8 (Title to this AgreementAssets; Tangible Assets) solely with respect to matters of title, Section 4.9 (Subsidiaries) or Section 4.22 (Brokers, Finders, Etc.) (collectively, the Restructuring Agreement or the Escrow Agreement made or to be performed by (x) an Acquired Entity prior to the consummation of the Closing or (y) the Member Representative, at any time (each such breach of a covenant or agreement, together with any Group Warranty Breach, a “Group BreachFundamental Representations”); (iii) any inaccuracy in, or breach of, any of the representations or warranties contained in this Agreement other than the Fundamental Representations; (wiv) Pre-Closing Taxes Indebtedness not taken into account in calculating the Final Purchase Price; and (v) Closing Transaction Expenses not accurately and completely set forth on the Consideration Spreadsheet. (b) The parties agree that (i) there shall be no liability under this Article VIII for any Loss for claims pursuant to Section 8.2(a)(iii), unless the amount of such claims exceeds 50% of the Retention (the “Deductible”), following which the Buyer Indemnified Parties shall be entitled to indemnification with respect to all such Losses in excess of the Deductible; (ii) the aggregate liability under this Article VIII for all Losses for claims pursuant to Section 8.2(a)(iii) shall not exceed the Retention (the “General Cap”); (iii) the aggregate liability of a Member under Article VII and this Article VIII for Losses for claims pursuant to Section 8.2(a) shall not exceed the Indemnifiable Portion of the Closing Purchase Price allocated to such Member; and (iv) the liability of each Member with respect to any Acquired Entity Losses shall be limited to such Person’s Indemnifiable Portion of the Loss; provided, however, the Members shall not be entitled to the benefit of the Deductible, the General Cap, or any Subsidiary thereof, of the other limitations set forth in clauses (xi) obligations of through (iv) above with respect to any Acquired Entity claims for indemnification for Losses or any Subsidiary thereof under unclaimed property and escheat Laws, to the extent actually paid to a Governmental Authoritybreaches involving, arising out of gift cards issued prior to the Closing Date, (y) Transaction Expenses, to the extent not paid in connection with the Closing or pursuant to Section 2.12, including the matters set forth on Schedule 12.02(a)(iii) of the Disclosure Schedule, and (z) the portion of any Post-Closing New Venue Opening Expenses indirectly borne by Parent after the Closing (based on Parent’s Percentage Share (as defined in the A&R Holdings LLC Agreement)) that would not have been borne by Parent in accordance with the definition of New Venue Opening Amount had such Post-Closing New Venue Opening Expenses been paid prior to the Closing and incorporated in the calculation of the New Venue Opening Amount (i.e., because, based on the definition of New Venue Opening Amount, Parent (A) bears only fifty percent (50%) of any New Venue Opening Expenses and (B) is not obligated to bear any portion of New Venue Opening Expenses in excess of the New Venue Opening Amount Cap); or (iv) (x) any error or inaccuracy in the Member Allocation Schedule attached as Annex D (including with respect to the Holdings Pre-Closing Percentages, Holdings Allocation Percentage, Rollover Class A Allocated Investment Percentages, or Rollover Class A Investment Percentage), in any allocation or apportionment of consideration or Liability by the Member Representative or any Liability under the Restructuring Agreement except to the extent resulting from Fraud or willful misconduct and no Member shall be responsible for any action taken by Parent in breach of the Transaction Documents, or in account wiring instructions delivered by the Member Representative or any Member; (y) any Liability (including any Proceeding with respect thereto) with respect to any Member or other holder of Equity Interests in an Acquired Entity or any Subsidiary thereof, with respect to such Member or holder’s capacity as a Member or holder of Equity Interests or otherwise relating to his, her or its relationship and rights as a Member or holder of Equity Interests (whether pursuant to an LLC Agreement, Side Letter or other Contract in respect of any Acquired Entity, such Member’s Letter Fraud or willful misconduct or, except as otherwise provided in Section 8.9 of Transmittal, or any Liability with respect to Rollover Holdco in connection with the transaction contemplated by this Agreement, the Restructuring Agreement or the other Transaction Documents to the extent such claim is brought by a Member except to the extent resulting from any action taken by Parent in breach of the Transaction Documents) in an Acquired Entity or any Subsidiary thereof, whether such Liability Fundamental Representations (or Proceeding) involves Parent or an Affiliate of Parent, Rollover Holdco or an Acquired Entity or any Subsidiary thereof (or any manager, director, officer or employee of an Acquired Entity or any Subsidiary thereof) including, without limitation, any Proceeding brought by or against such Person or his, her or its heirs, successors or assigns, or other Persons on behalf of such Persons with respect to the consummation of the Closing or the other Transactions (including the Restructuring or Deal Approval, and including the adequacy or allocation of any consideration hereunder with respect to the Transactions or the obligations on any Member or holder of Equity Interests in an Acquired Entity or any Subsidiary thereof under the Letter of Transmittal, including any release thereunder or appointment of Member Representative as a representative), or this Agreement or the other Transaction Documents (excludingor, for the avoidance of doubt, that arise under Section 7.6). For purposes of this Agreement, “Indemnifiable Portion” shall mean, with respect to any indemnification claim against Parent Member, a percentage equal to (a) the aggregate number of Membership Units owned by such Member as of immediately prior to the Closing, divided by (b) the aggregate number of Membership Units outstanding immediately prior to the Closing. To the extent permitted by applicable Law, any payment made pursuant to this Section 8.2 shall be treated by the parties as an adjustment to the Purchase Price (or Final Purchase Price, if applicable), and, to the extent duly made pursuant permitted by applicable Law, the Equityholder Representative and Buyer agree not to Section 12.02(c)); or (z) take any Member Released Claimposition inconsistent therewith for any purpose.

Indemnification by the Members. Effective at From and after the consummation of the Closing Effective Time and subject to Section 12.03the limitations set forth in this ARTICLE 9, each Member will, on a pro-rata basis according to the Members shall, severally (pro rata based on aggregate consideration received by each such Member’s Holdings Allocation Percentage, or otherwise as determined by indemnify and hold harmless the Member Representative upon written notice to ParentBuyer and Merger LLC and each of their Affiliates (including the Surviving Company), but not jointly (subject to and the last sentence Representatives and Affiliates of Section 12.03(e)), indemnify Parent and its Affiliates and Representatives (excluding Holdings and its Subsidiaries, provided that for purposes each of determining a De Minimis Breach pursuant to Section 12.03(b), the Damages of Holdings and its Subsidiaries shall be taken into account) foregoing Persons (each, a “Parent IndemniteeBuyer Indemnified Person”) ), from, against and hold each in respect of them harmless from any and all Damages Losses, whether or not involving a Third Party Claim, incurred or suffered by the Buyer Indemnified Persons or any of them as a Parent Indemnitee result of, arising out of, of or directly or indirectly relating to, resulting from, in connection with or otherwise in respect of: (ia) any breach of, or inaccuracy or breach of any representation or warranty set forth in Article 4 or Article 5 as of the Closing (other than in, any representation or warranty made as of a certain dateby the Company in this Agreement, any Ancillary Agreement or in which any document, Schedule, instrument or certificate delivered pursuant to this Agreement (in each case, as of such date), or in the certificates delivered pursuant to Section 2.10(a) (with respect to such representations and warranties) or Section 2.10(g) (each such breach of a representation or warrantywarranty would read if all qualifications as to materiality, a including each reference to the defined term “Group Warranty Breach”Material Adverse Effect,” and the Company’s Knowledge were deleted therefrom); (iib) any breach of, or inaccuracy in, any representation or warranty made by the Members in or pursuant to this Agreement or any Ancillary Agreement; (c) any breach or violation of a any covenant or agreement of the Company to the extent required to be performed or complied with by the Company prior to the Closing in or pursuant to this Agreement or any Ancillary Agreement; (d) any fraud of the Company; (e) any claim by any Member, employee, option holder or Member Interest Xxxxx xxxxxx of the Company for consideration arising out of the Contemplated Transactions in excess of the Per Member Interest Merger Consideration paid to Dissenting Members; provided, however, that to the extent any amounts paid to Dissenting Members are less than the Merger Consideration to which such Members would have been entitled under this Agreement, the Restructuring Agreement or difference will be allocated to the Escrow Agreement made or Members who did not seek appraisal pursuant to be performed by (x) an Acquired Entity the CLLA in accordance with their pro rata ownership of the Company prior to the consummation of the Closing or (y) the Member Representative, at any time (each such breach of a covenant or agreement, together with any Group Warranty Breach, a “Group Breach”)Effective Time; (iiif) (w) Pre-Closing Taxes of any Acquired Entity claims arising from or any Subsidiary thereofrelated to products, (x) obligations of any Acquired Entity materials or any Subsidiary thereof under unclaimed property and escheat Lawsacts accused in the letter dated June 25, 2013, from Musculoskeletal Transplant Foundation to the extent actually paid Company; and (g) any payment relating to a Governmental Authority, arising out an agreement listed on Schedule 1 in excess of gift cards issued prior to the Closing Date, (y) Transaction Expenses, to estimated amount payable in respect of such agreement on such schedule unless the extent not paid amount of such payment has reduced Cash Consideration or been taken into account in connection with the Closing or Working Capital Adjustment pursuant to Section 2.12, including the matters set forth on Schedule 12.02(a)(iii) of the Disclosure Schedule, and (z) the portion of any Post-Closing New Venue Opening Expenses indirectly borne by Parent after the Closing (based on Parent’s Percentage Share (as defined in the A&R Holdings LLC Agreement)) that would not have been borne by Parent in accordance with the definition of New Venue Opening Amount had such Post-Closing New Venue Opening Expenses been paid prior to the Closing and incorporated in the calculation of the New Venue Opening Amount (i.e., because, based on the definition of New Venue Opening Amount, Parent (A) bears only fifty percent (50%) of any New Venue Opening Expenses and (B) is not obligated to bear any portion of New Venue Opening Expenses in excess of the New Venue Opening Amount Cap); or (iv) (x) any error or inaccuracy in the Member Allocation Schedule attached as Annex D (including with respect to the Holdings Pre-Closing Percentages, Holdings Allocation Percentage, Rollover Class A Allocated Investment Percentages, or Rollover Class A Investment Percentage), in any allocation or apportionment of consideration or Liability by the Member Representative or any Liability under the Restructuring Agreement except to the extent resulting from any action taken by Parent in breach of the Transaction Documents, or in account wiring instructions delivered by the Member Representative or any Member; (y) any Liability (including any Proceeding with respect thereto) with respect to any Member or other holder of Equity Interests in an Acquired Entity or any Subsidiary thereof, with respect to such Member or holder’s capacity as a Member or holder of Equity Interests or otherwise relating to his, her or its relationship and rights as a Member or holder of Equity Interests (whether pursuant to an LLC Agreement, Side Letter or other Contract in respect of any Acquired Entity, such Member’s Letter of Transmittal, or any Liability with respect to Rollover Holdco in connection with the transaction contemplated by this Agreement, the Restructuring Agreement or the other Transaction Documents to the extent such claim is brought by a Member except to the extent resulting from any action taken by Parent in breach of the Transaction Documents) in an Acquired Entity or any Subsidiary thereof, whether such Liability (or Proceeding) involves Parent or an Affiliate of Parent, Rollover Holdco or an Acquired Entity or any Subsidiary thereof (or any manager, director, officer or employee of an Acquired Entity or any Subsidiary thereof) including, without limitation, any Proceeding brought by or against such Person or his, her or its heirs, successors or assigns, or other Persons on behalf of such Persons with respect to the consummation of the Closing or the other Transactions (including the Restructuring or Deal Approval, and including the adequacy or allocation of any consideration hereunder with respect to the Transactions or the obligations on any Member or holder of Equity Interests in an Acquired Entity or any Subsidiary thereof under the Letter of Transmittal, including any release thereunder or appointment of Member Representative as a representative), or this Agreement or the other Transaction Documents (excluding, for the avoidance of doubt, any indemnification claim against Parent to the extent duly made pursuant to Section 12.02(c)); or (z) any Member Released Claim.

Indemnification by the Members. Effective at (a) Each Member, jointly and after the consummation severally, agrees to indemnify each of the Closing Public Company Indemnified Parties against, and subject agrees to Section 12.03, the Members shall, severally (pro rata based on such Member’s Holdings Allocation Percentage, or otherwise as determined by the Member Representative upon written notice to Parent), but not jointly (subject to the last sentence of Section 12.03(e)), indemnify Parent and its Affiliates and Representatives (excluding Holdings and its Subsidiaries, provided that for purposes of determining a De Minimis Breach pursuant to Section 12.03(b), the Damages of Holdings and its Subsidiaries shall be taken into account) (each, a “Parent Indemnitee”) against and hold each of them harmless from from, any and all Damages Losses incurred or suffered by a Parent Indemnitee them relating to or arising out of, relating to, resulting from, of or in connection with or otherwise in respect ofany of the following: (i) any inaccuracy or breach of or any representation or warranty set forth inaccuracy in Article 4 or Article 5 as of the Closing (other than any representation or warranty made as by any Member in this Agreement, other than Section 3.28, or the certificate required by Section 10.2(h); provided that (A) except for breaches of or inaccuracies in Tax Warranties, Title and Authorization Warranties, or Environmental Warranties a notice of Public Company Indemnified Party’s claim shall have been given to Member not later than the close of business on the date that is 18 months after the Closing Date, (B) in the case of a certain dateTax Warranty, in which case, as a notice of such date), or Public Company Indemnified Party’s claim shall have been given to Member not later than the Tax Statute of Limitations Date and (C) in the certificates delivered pursuant to Section 2.10(a) (with respect to such representations and warranties) or Section 2.10(g) (each such breach case of a representation or warrantyan Environmental Warranty, a “Group Warranty Breach”);notice of Public Company Indemnified Party’s claim shall have been given to Member not later than the date that is ten years after the Closing Date; or (ii) any breach of a or failure by Member to perform any covenant or agreement pursuant to this Agreement, the Restructuring Agreement or the Escrow Agreement made or to be performed by (x) an Acquired Entity prior to the consummation of the Closing or (y) the Member Representative, at any time (each such breach of a covenant or agreement, together with any Group Warranty Breach, a “Group Breach”); (iii) (w) Pre-Closing Taxes of any Acquired Entity or any Subsidiary thereof, (x) obligations of any Acquired Entity or any Subsidiary thereof under unclaimed property and escheat Laws, to the extent actually paid to a Governmental Authority, arising out of gift cards issued prior to the Closing Date, (y) Transaction Expenses, to the extent not paid in connection with the Closing or pursuant to Section 2.12, including the matters set forth on Schedule 12.02(a)(iii) of the Disclosure Schedule, and (z) the portion of any Post-Closing New Venue Opening Expenses indirectly borne by Parent after the Closing (based on Parent’s Percentage Share (as defined in the A&R Holdings LLC Agreement)) that would not have been borne by Parent in accordance with the definition of New Venue Opening Amount had such Post-Closing New Venue Opening Expenses been paid prior to the Closing and incorporated in the calculation of the New Venue Opening Amount (i.e., because, based on the definition of New Venue Opening Amount, Parent (A) bears only fifty percent (50%) of any New Venue Opening Expenses and (B) is not obligated to bear any portion of New Venue Opening Expenses in excess of the New Venue Opening Amount Cap); or (iv) (x) any error or inaccuracy in the Member Allocation Schedule attached as Annex D (including with respect to the Holdings Pre-Closing Percentages, Holdings Allocation Percentage, Rollover Class A Allocated Investment Percentages, or Rollover Class A Investment Percentage), in any allocation or apportionment of consideration or Liability by the Member Representative or any Liability under the Restructuring Agreement except to the extent resulting from any action taken by Parent in breach of the Transaction Documents, or in account wiring instructions delivered by the Member Representative or any Member; (y) any Liability (including any Proceeding with respect thereto) with respect to any Member or other holder of Equity Interests in an Acquired Entity or any Subsidiary thereof, with respect to such Member or holder’s capacity as a Member or holder of Equity Interests or otherwise relating to his, her or its relationship and rights as a Member or holder of Equity Interests (whether pursuant to an LLC Agreement, Side Letter or other Contract in respect of any Acquired Entity, such Member’s Letter of Transmittal, or any Liability with respect to Rollover Holdco in connection with the transaction contemplated by this Agreement, the Restructuring Agreement or the other Transaction Documents to the extent such claim is brought by a Member except to the extent resulting from any action taken by Parent in breach of the Transaction Documents) in an Acquired Entity or any Subsidiary thereof, whether such Liability (or Proceeding) involves Parent or an Affiliate of Parent, Rollover Holdco or an Acquired Entity or any Subsidiary thereof (or any manager, director, officer or employee of an Acquired Entity or any Subsidiary thereof) including, without limitation, any Proceeding brought by or against such Person or his, her or its heirs, successors or assigns, or other Persons on behalf of such Persons with respect to the consummation of the Closing or the other Transactions (including the Restructuring or Deal Approval, and including the adequacy or allocation of any consideration hereunder with respect to the Transactions or the obligations on any Member or holder of Equity Interests in an Acquired Entity or any Subsidiary thereof under the Letter of Transmittal, including any release thereunder or appointment obligation of Member Representative as a representative), set out or contemplated in this Agreement or the other Transaction Documents Member Release. (excludingb) Each Executive agrees to indemnify each of the Public Company Indemnified Parties against, for the avoidance and agrees to hold each of doubtthem harmless from, any indemnification claim against Parent and all Losses incurred or suffered by them relating to the extent duly or arising out of or in connection with any breach of or any inaccuracy in any representation or warranty made pursuant to by such Executive in Section 12.02(c)); or (z) any Member Released Claim3.28.

Indemnification by the Members. Effective at Subject to the other terms and after the consummation conditions of the Closing and subject to Section 12.03this Article 10, the Members shall, severally (pro rata based on such Member’s Holdings Allocation Percentage, or otherwise as determined by the Member Representative upon written notice to Parent), but not jointly (subject to the last sentence of Section 12.03(e))and severally, indemnify Parent and defend each of Buyer and its Affiliates (including after the Closing, the Company) and their respective Representatives (excluding Holdings and its Subsidiaries, provided that for purposes of determining a De Minimis Breach pursuant to Section 12.03(b)collectively, the Damages of Holdings and its Subsidiaries shall be taken into account) (each, a “Parent IndemniteeBuyer Indemnitees”) against against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Damages Losses that is or may be incurred by a Parent Indemnitee or sustained by, or imposed upon, the Buyer Indemnitees based upon, arising out of, relating with respect to, resulting from, in connection with relating to or otherwise in respect by reason of: (ia) any A inaccuracy in or breach of any representation or warranty set forth of the Members or the Company contained in this Agreement (other than in respect of Section 5.21, it being understood that the sole remedy for any such inaccuracy in or breach thereof shall be pursuant to Article 4 8), as of the date such representation or Article 5 warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date); (b) a breach or non-fulfillment of any covenant, agreement or obligation to be performed by any Member or the Company pursuant to this Agreement (other than any representation breach or warranty made violation of, or failure to fully perform, any covenant, agreement, undertaking or obligation in Article 8, it being understood that the sole remedy for any such breach, violation or failure shall be pursuant to Article 8); (c) Company Transaction Expenses or any Indebtedness outstanding as of a certain date, in which case, as of such date), or in the certificates delivered pursuant to Section 2.10(a) Closing (with respect to such representations and warranties) or Section 2.10(g) (each such breach of a representation or warranty, a “Group Warranty Breach”other than Permitted Indebtedness); (iid) a claim or right asserted or held by any breach of a covenant person who is or agreement pursuant to this Agreement, the Restructuring Agreement or the Escrow Agreement made or to be performed by (x) an Acquired Entity prior to the consummation of the Closing or (y) the Member Representative, at any time was an officer, director, employee or agent of the Company (each such breach against the Company or Buyer, against any Affiliate of the Company or Buyer or against any other Person) involving a covenant right or agreemententitlement or an alleged right or entitlement to indemnification, together with any Group Warranty Breach, a “Group Breach”); (iii) (w) Pre-Closing Taxes reimbursement of any Acquired Entity expenses or any Subsidiary thereof, other relief or remedy (x) obligations of any Acquired Entity or any Subsidiary thereof under unclaimed property and escheat Laws, to the extent actually paid to a Governmental Authority, arising out of gift cards issued prior to the Closing Date, (y) Transaction Expenses, to the extent not paid in connection with the Closing or pursuant to Section 2.12, including the matters set forth on Schedule 12.02(a)(iii) of the Disclosure Schedule, and (z) the portion of any Post-Closing New Venue Opening Expenses indirectly borne by Parent after the Closing (based on Parent’s Percentage Share (as defined in the A&R Holdings LLC Agreement)) that would not have been borne by Parent in accordance with the definition of New Venue Opening Amount had such Post-Closing New Venue Opening Expenses been paid prior to the Closing and incorporated in the calculation of the New Venue Opening Amount (i.e., because, based on the definition of New Venue Opening Amount, Parent (A) bears only fifty percent (50%) of any New Venue Opening Expenses and (B) is not obligated to bear any portion of New Venue Opening Expenses in excess of the New Venue Opening Amount Cap); or (iv) (x) any error or inaccuracy in the Member Allocation Schedule attached as Annex D (including with respect to the Holdings Pre-Closing Percentages, Holdings Allocation Percentage, Rollover Class A Allocated Investment Percentages, or Rollover Class A Investment Percentage), in any allocation or apportionment of consideration or Liability by the Member Representative or any Liability under the Restructuring Agreement except to the extent resulting from any action taken by Parent in breach of the Transaction Governing Documents, under any indemnification agreement or in account wiring instructions delivered by the Member Representative similar Contract, under any applicable Laws or any Member; (y) any Liability (including any Proceeding with respect theretootherwise) with respect to any Member act or omission on the part of such person or any event or other holder circumstance that arose, occurred or existed at or prior to the Closing that is not otherwise covered by insurance maintained in the Ordinary Course of Equity Interests in an Acquired Entity Business. (e) All matters related to the Cash Balance Pension Plan and the termination thereof, including but not limited to any shortfall or deficit determined to exist by the PBGC; (f) any audit, review, or similar action undertaken by the PPP Lender, SBA or any Subsidiary thereof, other Governmental Authority with respect to such Member or holder’s capacity as a Member or holder of Equity Interests or otherwise relating to his, her or its relationship and rights as a Member or holder of Equity Interests (whether pursuant to an LLC Agreement, Side Letter or other Contract in respect of any Acquired Entity, such Member’s Letter of Transmittal, or any Liability with respect to Rollover Holdco in connection with the transaction contemplated by this Agreement, the Restructuring Agreement or the other Transaction Documents regard to the extent such claim is brought by a Member except to the extent resulting from any action taken by Parent in breach of the Transaction Documents) in an Acquired Entity or any Subsidiary thereof, whether such Liability (or Proceeding) involves Parent or an Affiliate of Parent, Rollover Holdco or an Acquired Entity or any Subsidiary thereof (or any manager, director, officer or employee of an Acquired Entity or any Subsidiary thereof) including, without limitation, any Proceeding brought by or against such Person or his, her or its heirs, successors or assigns, or other Persons on behalf of such Persons with respect to the consummation of the Closing or the other Transactions (including the Restructuring or Deal Approval, and including the adequacy or allocation of any consideration hereunder with respect to the Transactions or the obligations on any Member or holder of Equity Interests in an Acquired Entity or any Subsidiary thereof under the Letter of Transmittal, including any release thereunder or appointment of Member Representative as a representative), or this Agreement or the other Transaction Documents (excluding, for the avoidance of doubt, any indemnification claim against Parent to the extent duly made pursuant to Section 12.02(c)); or (z) any Member Released Claim.PPP Loan;

Indemnification by the Members. (a) After the Effective at and after the consummation of the Closing and subject to Section 12.03Time, the Members shall, severally (pro rata based on such Member’s Holdings Allocation Percentage, or otherwise as determined by the Member Representative upon written notice to Parent), but not jointly (subject to the last sentence of Section 12.03(e)), indemnify Parent and its Affiliates and Representatives (excluding Holdings and its Subsidiariesincluding, provided that for purposes of determining a De Minimis Breach pursuant to Section 12.03(bafter the Effective Time, the Surviving Corporation), officers, directors, employees, agents, successors and assigns (collectively, the Damages of Holdings and its Subsidiaries “Parent Indemnified Parties”) shall be taken into account) (eachindemnified and held harmless by the Members, a “Parent Indemnitee”) against severally, and hold each of them harmless from not jointly and severally, for any and all Damages incurred liabilities, losses, damages of any kind, diminution in value, claims, costs, expenses, fines, fees, deficiencies, interest, awards, judgments, amounts paid in settlement and penalties (including, without limitation, attorneys’, consultants’ and experts’ fees and expenses and other costs of defending, investigating or settling claims) suffered, incurred, accrued (in accordance with GAAP) or paid by a Parent Indemnitee arising out ofthem (including, relating to, resulting fromwithout limitation, in connection with any action brought or otherwise in respect ofinitiated by any of them) (collectively, “Losses”) arising out of or resulting from: (i) any inaccuracy or breach of any representation or warranty set forth in Article 4 (without giving effect to any qualification as to materiality (or Article 5 as of similar qualifications) contained therein) made by the Closing (other than Company or any representation or warranty made as of a certain date, in which case, as of such date), or Member in the certificates delivered pursuant to Section 2.10(a) (with respect to such representations and warranties) or Section 2.10(g) (each such breach of a representation or warranty, a “Group Warranty Breach”)Acquisition Documents; (ii) any the breach of a any covenant or agreement pursuant to this Agreement, made by the Restructuring Agreement Company or any Member in the Escrow Agreement made or to be performed by (x) an Acquired Entity prior to the consummation of the Closing or (y) the Member Representative, at any time (each such breach of a covenant or agreement, together with any Group Warranty Breach, a “Group Breach”);Acquisition Documents; 64 (iii) Losses from breach of contract or other claims made by any party that had a contractual or other right to acquire the Company’s membership interests or assets; (wiv) Pre-Closing Taxes any cost, loss or other expense (including the value of any Acquired Entity Tax deduction lost) as a result of the application of Section 280G of the Code to any of the transactions contemplated by this Agreement plus any necessary gross up amount; or (v) any Member expenses paid by the Surviving Corporation following the Closing. (b) As used herein, “Losses” are not limited to matters asserted by third parties, but include Losses incurred or any Subsidiary thereof, sustained by the Parent Indemnified Parties in the absence of claims by third parties. (xc) obligations of any Acquired Entity or any Subsidiary thereof under unclaimed property and escheat Laws, Notwithstanding anything to the extent actually paid contrary contained in this Agreement, except with respect to a Governmental Authority, arising out of gift cards issued prior to the Closing Date, (y) Transaction Expenses, to the extent not paid in connection with the Closing or pursuant to Section 2.12, including the matters set forth on Schedule 12.02(a)(iii) of the Disclosure Schedule, and (z) the portion of any Post-Closing New Venue Opening Expenses indirectly borne by Parent after the Closing (based on Parent’s Percentage Share (as defined in the A&R Holdings LLC Agreement)) that would not have been borne by Parent in accordance with the definition of New Venue Opening Amount had such Post-Closing New Venue Opening Expenses been paid prior to the Closing and incorporated in the calculation of the New Venue Opening Amount (i.e., because, based on the definition of New Venue Opening Amount, Parent (A) bears only fifty percent (50%) of any New Venue Opening Expenses claims for equitable remedies and (B) is claims based on fraud or willful misrepresentation or misconduct: (i) the maximum aggregate amount of indemnifiable Losses arising out of or resulting from the causes enumerated in Sections 10.02(a) or 10.02(b) that may be recovered from the Members shall not obligated exceed $10,000,000; and (ii) no indemnification payment by the Members with respect to bear any portion indemnifiable Losses otherwise payable under Section 10.02(a) and arising out of New Venue Opening Expenses or resulting from the causes enumerated in Section 10.02(a)(i) shall be payable until such time as all such indemnifiable Losses shall aggregate to more than $500,000, after which time the Members shall be liable in full for all indemnifiable Losses in excess of the New Venue Opening Amount Cap); orfirst $500,000. (ivd) (x) In the event of a claim relating to any error Indemnification Claim any Parent Indemnified Person may have under Article X, Parent shall seek payment first out of the Escrow Fund. Such Indemnification Amounts shall be payable in Escrow Shares; provided, that, the Members’ Representative may elect to have all or inaccuracy a portion of an Indemnification Amount paid from Proceeds or other cash provided by the Members in lieu of Escrow Shares. If the Member Allocation Schedule attached as Annex D (including with respect Escrow Fund has been reduced to zero, Parent shall then be entitled to seek payment for an unsatisfied Indemnification Amount directly from the Members, subject to the Holdings Pre-Closing Percentages, Holdings Allocation Percentage, Rollover Class A Allocated Investment Percentages, or Rollover Class A Investment Percentage), terms and conditions set forth in any allocation or apportionment of consideration or Liability by the Member Representative or any Liability under the Restructuring Agreement except to the extent resulting from any action taken by Parent in breach of the Transaction Documents, or in account wiring instructions delivered by the Member Representative or any Member; (y) any Liability (including any Proceeding with respect thereto) with respect to any Member or other holder of Equity Interests in an Acquired Entity or any Subsidiary thereof, with respect to such Member or holder’s capacity as a Member or holder of Equity Interests or otherwise relating to his, her or its relationship and rights as a Member or holder of Equity Interests (whether pursuant to an LLC Agreement, Side Letter or other Contract in respect of any Acquired Entity, such Member’s Letter of Transmittal, or any Liability with respect to Rollover Holdco in connection with the transaction contemplated by this Agreement, the Restructuring Agreement or the other Transaction Documents to the extent such claim is brought by a Member except to the extent resulting from any action taken by Parent in breach of the Transaction Documents) in an Acquired Entity or any Subsidiary thereof, whether such Liability (or Proceeding) involves Parent or an Affiliate of Parent, Rollover Holdco or an Acquired Entity or any Subsidiary thereof (or any manager, director, officer or employee of an Acquired Entity or any Subsidiary thereof) including, without limitation, any Proceeding brought by or against such Person or his, her or its heirs, successors or assigns, or other Persons on behalf of such Persons with respect to the consummation of the Closing or the other Transactions (including the Restructuring or Deal Approval, and including the adequacy or allocation of any consideration hereunder with respect to the Transactions or the obligations on any Member or holder of Equity Interests in an Acquired Entity or any Subsidiary thereof under the Letter of Transmittal, including any release thereunder or appointment of Member Representative as a representative), or this Agreement or the other Transaction Documents (excluding, for the avoidance of doubt, any indemnification claim against Parent to the extent duly made pursuant to Section 12.02(c)); or (z) any Member Released Claim.Article X.