Common use of Indemnification by the Shareholders Clause in Contracts

Indemnification by the Shareholders. From and after the Closing Date, the Shareholders shall, jointly and severally, indemnify and hold harmless Parent, the Surviving Corporation and its Subsidiaries, each of their respective directors, officers, employees and agents (other than the Shareholders), and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Parent Indemnified Parties”) from and against any and all Losses incurred by, suffered by or asserted against any of the Parent Indemnified Parties in connection with or arising from (i) any breach by the Company or the Shareholders of their respective covenants and agreements contained herein, (ii) any breach by the Company or the Shareholders of their respective representations and warranties contained herein (provided, that for purposes of this clause (ii), if any such representation or warranty is qualified by knowledge, materiality, the word “knowledge”, “material” or by words of similar impact, such qualification or exception will in all respects be ignored and deemed not included in such representation or warranty) and (iii) notwithstanding any disclosure set forth in the Schedules hereto, the ownership, maintenance, operation or existence of the Company, its assets and business prior to the Effective Time. To the extent that any of the Shareholders undertakings set forth in this Section 8.2 may be unenforceable, each of the Shareholders shall, jointly and severally, contribute the maximum amount that it is permitted under applicable law to the payment and satisfaction of all indemnifiable liabilities incurred by the Parent Indemnified Parties. In addition to, and without limitation of, the foregoing, in the event of any payment to Parent or any other SBR Parent Indemnified Party pursuant to the terms of the SBR Merger Agreement, an aggregate amount equal to the product of (i) the SBR Ownership Percentage times (ii) the aggregate amount of such payment shall be disbursed to Parent pursuant to the terms of the Escrow Agreement.

Indemnification by the Shareholders. From and after the Closing DateSubject to Section 9.6 below, the Shareholders shallPrincipal Shareholders, jointly and severallyseverally but not jointly, indemnify shall indemnify, defend, save and hold harmless Parent, the Surviving Corporation ADLT and its Subsidiaries, each of Acquisition and their respective officers, directors, officersemployees, employees Affiliates and agents (other than the Shareholders)including, after Closing, DSI) (collectively, "ADLT Indemnitees") harmless from and against all demands, claims, actions or causes of action, assessments, losses, damages, deficiencies, Liabilities, costs and expenses, including reasonable attorneys' fees, interest, penalties, and each of the heirsall reasonable amounts paid in investigation, executors, successors and assigns defense or settlement of any of the foregoing (collectively, the “Parent Indemnified Parties”"ADLT Damages") from and against any and all Losses asserted against, imposed upon, resulting to or incurred by, suffered by or asserted against any of the Parent Indemnified Parties ADLT Indemnitees, directly or indirectly, in connection with with, or arising out of, or resulting from (i) a breach of any breach of the representations and warranties made by the Company Principal Shareholders or the Shareholders DSI in Article 2 of their respective covenants and agreements contained hereinthis Agreement, except as set forth above in Section 9.1, (ii) a breach of any of the representations and warranties of the Principal Shareholders in Article 3 except that, with respect to Article 3, each Principal Shareholder will be severally responsible only for his own representations and warranties or (iii) a breach of any of the covenants or agreements made by the Company Principal Shareholders, or a breach of any of the Shareholders covenants or agreements of their respective DSI, to be completed before the Closing, in or pursuant to this Agreement and in any Other Agreement to which any Principal Shareholder or DSI is a party; PROVIDED, HOWEVER, that (a) none of the ADLT Indemnitees shall have any claim for indemnification pursuant to subsection (i) of this Section (except representations and warranties contained herein (providedin Section 2.10, that for purposes of this clause (ii)2.18, if any such representation or warranty is qualified by knowledge2.23, materiality2.25, the word “knowledge”, “material” or by words of similar impact, such qualification or exception will in all respects be ignored and deemed not included in such representation or warrantyrelating to title) and (iii) notwithstanding any disclosure set forth in the Schedules hereto, the ownership, maintenance, operation or existence of the Company, its assets related expenses unless and business prior to the Effective Time. To the extent that any of the Shareholders undertakings set forth in this Section 8.2 may be unenforceable, each of the Shareholders shall, jointly and severally, contribute the maximum amount that it is permitted under applicable law to the payment and satisfaction of all indemnifiable liabilities incurred by the Parent Indemnified Parties. In addition to, and without limitation of, the foregoing, in the event of any payment to Parent or any other SBR Parent Indemnified Party pursuant to the terms of the SBR Merger Agreement, an aggregate amount equal to the product of (i) the SBR Ownership Percentage times (ii) until the aggregate amount of all such payment claims exceeds $500,000, from and after which time the Principal Shareholders shall be disbursed to Parent pursuant responsible for claims only to the terms extent of such excess and (b) in no event shall the Principal Shareholders' liability for ADLT Damages exceed, in the aggregate, $2,000,000. Any claim for such liability of any Principal Shareholder may be satisfied by the delivery to ADLT of that number of ADLT Shares determined by dividing the amount of the Escrow Agreementliability by the greater of (A) $24 or (B) the closing price of the ADLT Shares on NASDAQ on the last trading date prior to such delivery. The Liability of each Principal Shareholder with respect to any claim for indemnity shall be equal to the Principal Shareholder's Pro Rata Share, provided, however, that each Principal Shareholder shall be entirely responsible for any violation of his own representations contained in Article 3. As used herein, Pro Rata Share means, with respect to any Principal Shareholder, the number of DSI Shares held by such Principal Shareholder, as set forth on Schedule 1.10A, divided by 805,000.

Indemnification by the Shareholders. From and after the Closing Date, the (a The Shareholders shall, jointly and severally, will indemnify and hold harmless Parent, the Surviving Corporation QuadraMed and its Subsidiaries, each of Acquisition Co. and their respective officers, directors, officers, employees agents and agents (other than the Shareholders)employees, and each Person, if any, who controls or may control QuadraMed or Acquisition Co. within the meaning of the heirsSecurities Act (each, executors, successors an "Indemnified Person" and assigns of any of the foregoing (collectively, the “Parent "Indemnified Parties”) Persons"), from and against any and all Losses incurred byclaims, suffered by demands, actions, causes of actions, losses, costs, damages, liabilities and expenses including, without limitation, reasonable legal fees and expenses ("Losses"), arising out of or asserted against any of the Parent Indemnified Parties in connection with or arising from relating to (i) any misrepresentation or breach of or default or other action or omission by either the Company or the Shareholders in connection with any of the representations, warranties and covenants given or made by the Company or the Shareholders in this Agreement, or any exhibit or schedule hereto or any certificate, document or instrument delivered by or on behalf of their respective covenants the Company and agreements contained herein, the Shareholders pursuant hereto and (ii) any breach by and all actions, suits, claims or legal, administrative, arbitration, governmental or other proceedings or investigations against any Indemnified Person that relate to the Company or the Shareholders in which the principal event giving rise thereto occurred prior to the Closing or which result from or arise out of their respective representations and warranties contained herein (provided, that for purposes any action or inaction prior to the Closing of this clause (ii), if any such representation or warranty is qualified by knowledge, materialitythe Shareholders, the word “knowledge”Company or any director, “material” officer, employee, agent, representative or by words of similar impact, such qualification or exception will in all respects be ignored and deemed not included in such representation or warranty) and (iii) notwithstanding any disclosure set forth in the Schedules hereto, the ownership, maintenance, operation or existence subcontractor of the Company, its assets and business prior except for those which QuadraMed specifically assumes in writing. (b Notwithstanding the foregoing, the Shareholders shall have no liability with respect to the Effective Timematters described in Section 6.2(a) above unless and until the aggregate amount of Losses equals or exceeds $100,000 (the "Threshold Amount"). To At such time as the aggregate Losses equals or exceeds the Threshold Amount, QuadraMed and Acquisition Co. shall be indemnified to the full extent of all such Losses (including Losses counted in determining whether the aggregate Losses equals or exceeds the Threshold Amount); provided, however, that this section shall not apply to any intentional or fraudulent breach by either of the Shareholders undertakings set forth of any representation, warranty, covenant or obligation. The maximum liability for indemnification by the Shareholders under this Article VI shall in this Section 8.2 may no event exceed the Closing Consideration. (c As security for their obligation to indemnify QuadraMed and Acquisition Co. hereunder, concurrently with payment of the Closing Consideration by QuadraMed, the Shareholders shall place into escrow that number of QuadraMed Shares from the Closing Consideration having an aggregate Fair Market Value equal to $1,100,000 (the "Escrow Fund") pursuant to the terms and conditions of the Escrow Agreement, to be unenforceable, each held in escrow until the expiration of the Survival Period as security for the indemnification obligations of the Shareholders shall, jointly hereunder. It is hereby acknowledged and severally, contribute agreed that the maximum amount that it is permitted Shareholders shall have the option of settling any indemnification claim under this Article VI in cash in lieu of the Escrow Fund. (d Subject to any limitations under applicable law California law, as additional security for their obligation to indemnify QuadraMed and Acquisition Co. hereunder, the Shareholders hereby grant to QuadraMed and Acquisition Co. a right of set-off and agrees that at any time a payment and satisfaction of all indemnifiable liabilities incurred or amount is owing by the Parent Indemnified Parties. In addition to, and without limitation of, the foregoing, in the event of any payment to Parent or any other SBR Parent Indemnified Party Shareholders pursuant to the terms of the SBR Merger Agreementthis Article VI, an aggregate amount equal to the product of (i) the SBR Ownership Percentage times (ii) the aggregate amount of such payment shall be disbursed to Parent or either QuadraMed or Acquisition Co. has made a claim for indemnification pursuant to the terms of this Article VI, QuadraMed and Acquisition Co. may set-off, or direct the Escrow Agreementother party to set-off, amounts owing by either QuadraMed or Acquisition Co. to the Shareholders.

Indemnification by the Shareholders. From Subject to the terms and after the Closing Dateconditions of this Article, the Shareholders shallagree to indemnify, jointly and severally, indemnify defend and hold harmless Parent, the Surviving Corporation Parent and its Subsidiaries, each of Sub and their respective directors, officers, employees agents, attorneys and agents (other than the Shareholders), and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Parent Indemnified Parties”) affiliates harmless from and against all losses, claims, obligations, demands, assessments, penalties, liabilities, costs, damages, attorneys' fees and expenses (collectively "Damages"), asserted against or incurred by any of such indemnitees by reason of or resulting from: (a) a breach of any representation, warranty or covenant of Target or the Shareholders contained herein, in any exhibit, schedule, certificate or financial statement delivered hereunder, or in any agreement executed in connection with the transactions contemplated hereby; or (b) the violation or alleged violation, on or before the Closing Date, of any Environmental Law, and any and all Losses incurred bymatters arising out of any act, suffered by omission, event or asserted against any of the Parent Indemnified Parties in connection with circumstance existing or arising from (i) any breach by the Company occurring on or the Shareholders of their respective covenants and agreements contained herein, (ii) any breach by the Company or the Shareholders of their respective representations and warranties contained herein (provided, that for purposes of this clause (ii), if any such representation or warranty is qualified by knowledge, materiality, the word “knowledge”, “material” or by words of similar impact, such qualification or exception will in all respects be ignored and deemed not included in such representation or warranty) and (iii) notwithstanding any disclosure set forth in the Schedules hereto, the ownership, maintenance, operation or existence of the Company, its assets and business prior to the Effective TimeClosing Date (including without limitation the presence on the Real Property or release from the Real Property, or the generation by Target or any Shareholder of hazardous substances or solid waste disposed or otherwise released prior to the Closing Date), regardless of whether the act, omission, event or circumstance constituted a violation of any Environmental Law at the time of its existence or occurrence. To The terms "hazardous substance" and "release" shall have the meanings specified in CERCLA, and the terms "solid waste" and "disposed" shall have the meanings specified in RCRA; provided that to the extent that any of the Shareholders undertakings set forth in this Section 8.2 may be unenforceable, each of the Shareholders shall, jointly and severally, contribute the maximum amount that it is permitted under applicable law to the payment and satisfaction of all indemnifiable liabilities incurred by the Parent Indemnified Parties. In addition to, and without limitation of, the foregoing, in the event statute of any payment to Parent state, any subdivision thereof or any other SBR Parent Indemnified Party pursuant to governmental body or agency of competent jurisdiction over the terms of the SBR Merger Agreementmatter, an aggregate amount equal to the product of (i) the SBR Ownership Percentage times (ii) the aggregate amount of establish a meaning for "hazardous substance," "release," "solid waste" or "disposed" that is broader than that specified in either CERCLA or RCRA, such payment broader meaning, shall be disbursed to Parent pursuant to the terms of the Escrow Agreementapply.

Indemnification by the Shareholders. From The Company prior to the Closing, and the Shareholders (individually) severally (but not jointly) in accordance with their pro-rata ownership interests in the Company upon and after the Closing Date, the Shareholders shall, jointly hereby covenant and severally, agree to indemnify and hold harmless ParentIRET, the Surviving Corporation its officers, directors, employees, Affiliates, stockholders and its Subsidiariesagents, and each of their respective directorsheirs, officerspersonal representatives, employees successors and agents assigns, harmless from, against and in respect of any and all losses, costs, expenses (other than the Shareholdersincluding without limitation, reasonable attorneys' fees and disbursements of counsel), Liabilities, damages, fines, penalties, charges, assessments, judgments, settlements, claims, causes of action and other obligations of any nature whatsoever (individually, a "Loss" and collectively "Losses ") that any of them may at any time, directly or indirectly, suffer, sustain, incur or become subject to, arising out of, based upon or resulting from or on account of each of the heirs, executors, successors and assigns following: (a) the breach or falsity of any representation or warranty made by the Company in this Agreement and the Ancillary Documents to be executed and delivered by the Company pursuant hereto and thereto; provided , however, that the Shareholders shall not be required to provide such indemnification for the breach or falsity of any such representation or warranty unless and until IRET, its officers, directors, employees, Affiliates and other representatives shall have sustained cumulative Losses as a result of one or more such breaches or falsities of more than One Hundred Thousand Dollars ($100,000) (the "Basket Amount"). Once the aggregate of Losses exceeds the Basket Amount, the Shareholders shall provide indemnification for all Losses sustained as a result of such breach(es) or falsity(ies) of the foregoing (collectivelyapplicable representations and warranties in excess, and only in the “Parent Indemnified Parties”) from and against any and all Losses incurred by, suffered by or asserted against any amount of the Parent Indemnified Parties excess, of the Basket Amount; and (b) the breach of any covenant or agreement made by the Company in connection with or arising from (i) any breach this Agreement, including the documents, instruments and agreements to be executed and delivered by the Company or the Shareholders or their representatives pursuant hereto or thereto; and (c) any claim (i) for severance pay, bonus, unpaid wages or salaries accruing, incurred or triggered by a termination (voluntary or involuntary) of their respective covenants and agreements contained hereinany employee, agent or other representative of the Company at any time prior to the Closing or which arises as a result of the occurrence of the Closing, or (ii) relating to any breach by claim or Proceeding of any employee of the Company arising from any act, occurrence, or event, the Shareholders basis of their respective representations which is dated at any time prior to, or attributable to, the Closing; and (d) any claim relating to any guarantee described in Section 5.22; and (e) any and warranties contained herein (provided, that for purposes all Losses arising from Section 10.2(e) of this clause (ii), if any such representation or warranty is qualified by knowledge, materiality, the word “knowledge”, “material” or by words of similar impact, such qualification or exception will in all respects be ignored and deemed not included in such representation or warranty) and (iii) notwithstanding any disclosure set forth in the Schedules hereto, the ownership, maintenance, operation or existence of the Company, its assets and business prior to the Effective TimeAgreement. To the extent that any of the Shareholders undertakings set forth in this Section 8.2 may be unenforceable, each of the Shareholders shall, jointly and severally, contribute the maximum amount that it is permitted under applicable law to the payment and satisfaction of all indemnifiable liabilities incurred by the Parent Indemnified Parties. In addition to, and without limitation of, Notwithstanding the foregoing, in any Loss or aggregate Losses to be indemnified by the Shareholders to IRET (or any Person identified above as an Indemnified Party, including the Merger Subsidiary) under this Agreement shall not exceed twenty percent (20%) of the value of the Merger Consideration. In the event of any payment to Parent claim of a Loss or Losses by IRET, each Shareholder shall have the irrevocable right and option of transferring IRET Shares received in satisfaction of any other SBR Parent Indemnified Party pursuant to the terms of the SBR Merger Agreement, an aggregate amount equal to the product of (i) the SBR Ownership Percentage times (ii) the aggregate amount of such payment Loss or Losses and such IRET Shares shall be disbursed to Parent pursuant to the terms of the Escrow Agreementvalued at $9.75 per share.

Indemnification by the Shareholders. From (a) Subject to the limitations provided herein and, with respect to the representations and after warranties, for so long as the representations and warranties contained in Articles III and IV hereof survive pursuant to Section 8.5, the Purchaser and its directors, officers, employees, agents, representatives and affiliates (collectively, the "Purchaser Indemnitees") shall --------------------- be indemnified and held harmless to the extent set forth in this Article VIII by each of the Shareholders, severally with respect to the representations and warranties contained in Article III hereof and jointly and severally with respect to the representations and warranties contained in Article IV hereof, in respect of any demands, claims, losses, liabilities, damages, costs and expenses whatsoever (including, without limitation, any fines, penalties and reasonable fees and disbursements of counsel in investigating or defending any of the foregoing) (collectively, the "Losses") incurred by the Purchaser Indemnitees as ------ a result of any inaccuracy or misrepresentation in or breach of any representation or warranty of the Company or the Shareholders in this Agreement or the Other Agreements; provided, however, that any claim for indemnification -------- ------- that would otherwise terminate pursuant to this paragraph (a) shall continue to survive if a notice of claim is filed in good faith by the Purchaser on or before such termination date based on facts reasonably expected to establish a valid claim under this Article VIII. (b) Subject to the limitations provided herein and, with respect to the covenants, agreements or obligations of the Company or the Shareholders in this Agreement, until the second anniversary of the Closing Date, the Shareholders shallPurchaser Indemnitees shall be indemnified and held harmless to the extent set forth in this Article VIII by each of the Principal Shareholders, jointly and severally, indemnify and hold harmless Parent, the Surviving Corporation and its Subsidiaries, each of their respective directors, officers, employees and agents (other than the Shareholders), and each of the heirs, executors, successors and assigns in respect of any of the foregoing (collectively, the “Parent Indemnified Parties”) from and against any and all Losses incurred by, suffered by or asserted against any the Purchaser Indemnitees as a result of the Parent Indemnified Parties in connection with or arising from (i) any breach by of or failure to perform any covenant, agreement or obligation of the Company or the Shareholders in this Agreement or the Other Agreements; provided, however, that any claim for indemnification that -------- ------- would otherwise terminate pursuant to this paragraph (a) shall continue to survive if a notice of their respective covenants and agreements contained claim is filed in good faith by the Purchaser on or before such termination date based on facts reasonably expected to establish a valid claim under this Article VIII. (c) Subject to the limitations provided herein, the Purchaser Indemnitees shall be indemnified and held harmless to the extent set forth in this Article VIII by each of the Shareholders, jointly and severally, in respect of any Losses incurred by the Purchaser Indemnitees as a result of any liability resulting from any pending audit of the ESOP conducted by the United States Department of Labor. (iid) No Shareholder shall be required to pay any indemnification to the Purchaser Indemnitees in accordance with paragraphs (a), (b) and (c) above exceeding such portion of the Purchase Price as to which each such Shareholder is entitled under Section 1.2 hereof. (e) The Shareholders shall not be required to pay any indemnification to the Purchaser Indemnitees on account of Losses as a result of any inaccuracy or misrepresentation in or breach by of or failure to perform any representation or warranty contained in Article IV hereof or any covenant, agreement or obligation of the Company or the Shareholders in this Agreement or the Other Agreements until, and then only to the extent, the total of their respective representations and warranties contained herein all such Losses exceeds One Hundred Thousand Dollars ($100,000) in the aggregate (the "Deductible"); ---------- provided, however, that in no event shall the maximum aggregate liability of the -------- ------- Shareholders with respect to obligations to indemnify the Purchaser Indemnitees for purposes Losses exceed Ten Million Dollars ($10,000,000). (f) In lieu of this clause payment to the Purchaser Indemnitees by the Shareholders under paragraph (iia), if (b) or (c) above, on the date on which the First Anniversary Payment or the Second Anniversary Payment is paid to the Shareholders, the Purchaser shall offset, to the extent possible, all outstanding amounts of any indemnification which the Shareholders are required to pay under paragraph (a), (b) or (c) above against the First Anniversary Payment or the Second Anniversary Payment, as the case may be (any such representation or warranty is qualified by knowledgeamounts, materialityan "Indemnification Offset"), the word “knowledge”, “material” or by words of similar impact, such qualification or exception will in all respects be ignored and deemed not included in such representation or warranty) and (iii) notwithstanding any disclosure set forth in the Schedules hereto, the ownership, maintenance, operation or existence of the Company, its assets and business prior upon written notice to the Effective Time. To Shareholders at least ---------------------- thirty (30) days in advance of such Indemnification Offset describing with specificity the extent basis and calculations for the Indemnification Offset; provided, -------- that any of the Shareholders undertakings set forth in this Section 8.2 may be unenforceable, each shall remain responsible for paying to the Purchaser Indemnitees any amounts of indemnification which the Shareholders shallare required to pay under paragraph (a), jointly (b) or (c) above and severally, contribute the maximum amount that it is permitted under applicable law to the payment and satisfaction of all indemnifiable liabilities incurred by the Parent Indemnified Parties. In addition to, and without limitation of, the foregoing, in the event of any payment to Parent or any other SBR Parent Indemnified Party pursuant to the terms of the SBR Merger Agreement, an aggregate amount equal to the product of (i) the SBR Ownership Percentage times (ii) the aggregate amount of which remain unpaid after such payment shall be disbursed to Parent pursuant to the terms of the Escrow AgreementIndemnification Offset.

Indemnification by the Shareholders. From and after the Closing DateIn addition to any other remedies available to Key under this Agreement, or at law or in equity, each of the Shareholders shall, shall jointly and severallyseverally indemnify, indemnify defend and hold harmless ParentKey, the Surviving Corporation and its Subsidiariesofficers, each of their respective directors, officersemployees, employees agents and agents (other than the Shareholders)stockholders, against and each with respect to any and all claims, costs, damages, losses, expenses, obligations, liabilities, recoveries, suits, causes of the heirsaction and deficiencies, executorsincluding interest, successors penalties and assigns of any of the foregoing reasonable attorneys' fees and expenses (collectively, the “Parent Indemnified Parties”"Damages") in excess of $150,000.00 in the aggregate that such indemnitees shall incur or suffer, which arise, result from and against or relate to any and all Losses incurred breach of, or failure by, suffered the Shareholders to perform, their respective representations, warranties, covenants or agreements in this Agreement or in any schedule, certificate, exhibit or other instrument furnished or delivered to Key by or asserted against any of the Parent Indemnified Parties in connection with or arising from Shareholders under this Agreement; provided, however, that (i) any breach by the Company or Shareholders' aggregate obligations to indemnify Key and the Shareholders other parties identified above shall never exceed the aggregate sum of their respective covenants and agreements contained herein, $8,500,000.00; (ii) the Shareholders shall not be required to so indemnify, defend and hold harmless Key and its officers, directors, employees, agents and stockholders, against and with respect to any Damages incurred as a result of a breach by the Company or either of the Shareholders of their respective representations and warranties contained herein (providedin this Agreement or in any schedule, that for purposes of this clause (ii)certificate, if any such representation exhibit or warranty is qualified other instrument furnished or delivered to Key by knowledge, materiality, the word “knowledge”, “material” or by words of similar impact, such qualification or exception will in all respects be ignored and deemed not included in such representation or warranty) and (iii) notwithstanding any disclosure set forth in the Schedules hereto, the ownership, maintenance, operation or existence of the Company, its assets and business prior to the Effective Time. To the extent that any of the Shareholders undertakings set forth in under this Section 8.2 may be unenforceable, each Agreement for which Key fails to provide written notice of a claim for such Damages to the Shareholders on or before the expiration of the Shareholders shall, jointly and severally, contribute survival period (as specified in Section 9.2 hereof) of the maximum amount that it is permitted under applicable law specific representation or warranty alleged to the payment and satisfaction of all indemnifiable liabilities incurred by the Parent Indemnified Parties. In addition to, and without limitation of, the foregoing, have been breached; (iii) in the event of any payment to Parent or any other SBR Parent Indemnified Party that Key can recover Damages for which it is indemnified by the Shareholders pursuant to the terms this Section 8.1 from a collateral source including, but not limited to, a third party or insurance coverage, and does in fact collect all or a portion of the SBR Merger Agreementsuch Damages from such collateral source, an aggregate amount equal then Key agrees not to enforce its right to indemnification under this Section 8.1 to the product of (i) the SBR Ownership Percentage times (ii) the aggregate amount extent of such payment shall be disbursed third party collections; and (iv) Key agrees that it will not seek indemnification under this Section 8.1 for any environmental remedial work on TST's properties unless TST (or Key) is required to Parent pursuant to the terms of the Escrow Agreementperform such work by a third party or by a governmental entity or agency.

Indemnification by the Shareholders. From Subject to the limitations and provisions set forth in this Article VI, from and after the Closing DateClosing, the Shareholders shallshall severally (and not jointly), jointly and severallyin proportion to their respective Shareholder Percentage, indemnify indemnify, defend and hold harmless Parent, Buyer and its Affiliates (including the Surviving Corporation Company and its Subsidiaries) (all such foregoing Persons, each of their respective directors, officers, employees and agents (other than the Shareholders), and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Parent Indemnified PartiesBuyer Indemnitees”) from and against any and all Losses incurred bythe Buyer Indemnitees may suffer, suffered by sustain or asserted against any of the Parent Indemnified Parties become subject to (“Buyer Indemnifiable Losses”) arising out of, in connection with or arising from resulting from: (i) any breach or inaccuracy of any representation or warranty made by the Company or the Shareholders of their respective covenants and agreements contained herein, in this Agreement; (ii) any nonfulfillment or breach of any covenant, agreement or obligation to be performed by the Shareholders or Fulcrum pursuant to this Agreement; (iii) any Pre-Closing Liabilities of the Company and its Subsidiaries; (iv) (A) any Liability for Taxes of the Company or its Subsidiaries (not otherwise accounted for in the Shareholders calculation of their respective representations the Closing Date Net Working Capital) with respect to taxable periods ending on or before the Closing Date and warranties contained herein the portion of any Straddle Period ending on the Closing Date, (providedB) the lost benefit of any credit, that deduction or loss for Tax purposes which would have been available to reduce or otherwise offset Taxes of this clause Buyer or any Affiliate thereof (iiincluding, following the Closing, the Company and its Subsidiaries) but for a breach of any representation or warranty made in Section 2.21, (C) any Taxes arising by reason of the Company being a member of any “affiliated group” (within the meaning of Section 1504(a) of the Code or any similar provision of any state, local or non-U.S. law) on or prior to the Closing Date, including pursuant to Treasury Regulations § 1.1502-6(a) (or any predecessor or successor thereof or any analogous or similar Law), or (D) any Taxes of any person (other than the Company and its Subsidiaries) imposed on the Company or any of its Subsidiaries as a transferee or successor, by contract or pursuant to any Law, rule or regulation, which Taxes relate to an event or transaction occurring before the Closing; and (v) any Covered Matters. For avoidance of doubt, if any such representation claim for indemnification made pursuant to Section 6.2(a)(ii) through Section 6.2(a)(v) (each a “Special Indemnity Claim”) could also be brought under or warranty is qualified by knowledge, materialitypursuant to Section 6.2(a)(i) above, the word “knowledge”Buyer Indemnitees need not bring such claim under, “material” and the Shareholders (and the Shareholders’ Representative) shall not assert as a defense thereto or by words of similar impactotherwise that such claim for indemnification should instead be brought under or pursuant to, such qualification or exception will in all respects be ignored and deemed not included in such representation or warrantySection 6.2(a)(i). With respect to any Special Indemnity Claim, (A) and (iii) notwithstanding any disclosure set forth included in the Schedules heretorelating thereto shall not reduce or mitigate any Losses relating thereto and (B) such claim for indemnification may include any Losses arising from, the ownership, maintenance, operation relating to or existence of the Company, its assets and business prior to the Effective Time. To the extent that incurred in connection with any of the Shareholders undertakings set forth in this Section 8.2 may be unenforceable, each of the Shareholders shall, jointly and severally, contribute the maximum amount that it is permitted under applicable law to the payment and satisfaction of all indemnifiable liabilities incurred by the Parent Indemnified Parties. In addition to, and without limitation of, the foregoing, matter disclosed in the event of any payment to Parent or any other SBR Parent Indemnified Party pursuant to the terms of the SBR Merger Agreement, an aggregate amount equal to the product of (i) the SBR Ownership Percentage times (ii) the aggregate amount of such payment shall be disbursed to Parent pursuant to the terms of the Escrow AgreementSchedules relating thereto.

Indemnification by the Shareholders. From Subject to the terms and after the Closing Dateconditions of this Article, the Shareholders shallagree to indemnify, jointly and severally, indemnify defend and hold harmless Parent, the Surviving Corporation Parent and its Subsidiaries, each of Sub and their respective directors, officers, employees agents, attorneys and agents (other than the Shareholders), and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “Parent Indemnified Parties”) affiliates harmless from and against all losses, claims, obligations, demands, assessments, penalties, liabilities, costs, damages, attorneys' fees and expenses (collectively "Damages"), asserted against or incurred by any of such indemnitees by reason of or resulting from: (a) a breach of any representation, warranty or covenant of Target or the Shareholders contained herein, in any exhibit, schedule, certificate or financial statement delivered hereunder, or in any agreement executed in connection with the transactions contemplated hereby; or (b) the violation or alleged violation, on or before the Closing Date, of any Environmental Law, and any and all Losses incurred bymatters arising out of any act, suffered by omission, event or asserted against any of the Parent Indemnified Parties in connection with circumstance existing, or arising from (i) any breach by the Company occurring on or the Shareholders of their respective covenants and agreements contained herein, (ii) any breach by the Company or the Shareholders of their respective representations and warranties contained herein (provided, that for purposes of this clause (ii), if any such representation or warranty is qualified by knowledge, materiality, the word “knowledge”, “material” or by words of similar impact, such qualification or exception will in all respects be ignored and deemed not included in such representation or warranty) and (iii) notwithstanding any disclosure set forth in the Schedules hereto, the ownership, maintenance, operation or existence of the Company, its assets and business prior to the Effective TimeClosing Date (including without limitation the presence on the Real Property or release from the Real Property, or the generation by Target or any Shareholder of hazardous substances or solid waste disposed or otherwise released prior to the Closing Date), regardless of whether the act, omission, event or circumstance constituted a violation of any Environmental Law at the time of its existence or occurrence. To The terms "hazardous substance" and "release" shall have the meanings specified in CERCLA, and the terms "solid waste" and "disposed" shall have the meanings specified in RCRA; provided that to the extent that any of the Shareholders undertakings set forth in this Section 8.2 may be unenforceable, each of the Shareholders shall, jointly and severally, contribute the maximum amount that it is permitted under applicable law to the payment and satisfaction of all indemnifiable liabilities incurred by the Parent Indemnified Parties. In addition to, and without limitation of, the foregoing, in the event statute of any payment to Parent state, any subdivision thereof or any other SBR Parent Indemnified Party pursuant to governmental body or agency of competent jurisdiction over the terms of the SBR Merger Agreementmatter, an aggregate amount equal to the product of (i) the SBR Ownership Percentage times (ii) the aggregate amount of establish a meaning for "hazardous substance," "release," "solid waste" or "disposed" that is broader than that specified in either CERCLA or RCRA, such payment broader meaning, shall be disbursed to Parent pursuant to the terms of the Escrow Agreementapply.

Indemnification by the Shareholders. (a) From and after the Closing, the Shareholders, jointly and severally, agree to indemnify BAB and Survivor and hold BAB and Survivor harmless from and against court awarded and/or confirmed damages, fines, penalties, charges, assessments, judgments or the like (collectively, "Awards") incurred or sustained by BAB or the Survivor as a result of or arising out of: (i) the non-fulfillment or breach of any covenant or agreement or the breach of any representation or warranty of MFM or any Shareholder set forth in this Agreement or in any instrument, certificate or other document delivered pursuant thereto, which indemnity, as to this subsection 12.1(a)(i) only, shall include the costs, expenses and fees, legal and otherwise, incurred by BAB or the Survivor with respect to such non-fulfillment or breach; (ii) except as disclosed in Section 6.6 regarding New Jersey Sales Tax, all tax liabilities (federal, state and local, including without limitation, income, franchise, unemployment, withholding, sales, real and personal property), and all other taxes required to be paid by the Company or any of its affiliates (including tax liabilities resulting from any distributions by MFM or its Shareholders), in each case, for any fiscal tax period ending on or before the Closing, as may be assessed and found due after audit and review. Should additional taxes be finally assessed for any period ending on or prior to the Closing Date, the Shareholders shall, will be jointly and severallyseverally responsible for the payment of such taxes, indemnify together with any interest and hold harmless Parent, the Surviving Corporation and its Subsidiaries, each of their respective directors, officers, employees and agents (other than the Shareholders), and each penalties due. BAB will keep all of the heirs, executors, successors books and assigns records of MFM until the statute of limitations with respect to the applicable audit periods shall have expired and any of the foregoing (collectively, the “Parent Indemnified Parties”) from audits and against any and all Losses incurred by, suffered by or asserted against any of the Parent Indemnified Parties in connection with or arising from (i) any breach by the Company or the Shareholders of their respective covenants and agreements contained herein, (ii) any breach by the Company or the Shareholders of their respective representations and warranties contained herein (provided, that for purposes of this clause (ii), if any such representation or warranty is qualified by knowledge, materiality, the word “knowledge”, “material” or by words of similar impact, such qualification or exception will in all respects be ignored and deemed not included in such representation or warranty) and tax proceedings shall have completed; (iii) notwithstanding any disclosure set forth investigation, claim, lawsuit, injunction, arbitration, or regulatory or administrative suit, proceeding, order or action with respect to Environmental Matters arising out of or relating to the activities or omissions of the MFM through and including the Closing Date, whether or not disclosed herein or in the Schedules hereto; and (iv) any and all debts, the ownershipclaims, maintenanceliabilities and obligations of MFM arising out of or relating in any way to any transactions, operation occurrences, events, facts, or existence of the Company, its assets and business actions or omissions that shall have taken place prior to the Effective Time. To Date, regardless of when the action is instituted, to the extent not (a) disclosed and adequately provided for in the Financial Statements, or (b) disclosed in any Schedule hereto. (b) Notwithstanding the foregoing Paragraph 12.1 (a) and the subsections thereto or anything contained herein deemed to be to the contrary, MFM and the Shareholders shall have no indemnification obligation with respect (i) to any claim asserted by any party to MFM's existing Contracts or related guarantees, which claims are a result of or arise out of the execution or delivery of this Agreement or the consummation of the transactions contemplated hereby or the action(s) of BAB or BAB Subs related to the operation of the Business occurring after the Effective Time, including but not limited to any changes mandated by BAB to the MFM franchisees; (ii) Any and all claims brought against the Shareholders by the Escrow Agent arising out of and having to do with the Escrow Agreement; (iii) Any liability, loss, expense, payment, judgment, award or attorneys fees incurred by Shareholders as a result of the lease at 4 Market Hall, Prixxxxxx Xxxxxxxxx Xxxxxxx, Xxxxxxxxx, NJ 08540 for liabilities arising under said lease after the Effective Time; and (iv) Any liability or expense, including legal fees and other costs that the Shareholders may incur, arising out of or having to do with any enforcement action taken by PNC Bank, N.A. with respect to the credit facility and/or loan agreement(s) between PNC Bank, N.A. and MFM, guaranteed by the Shareholders, as a result of the failure of the new BAB/PNC credit facility to close within fifteen (15) days of the merger of MFM in and to the BAB Sub. (c) The maximum liability of the Shareholders undertakings set forth in this Section 8.2 may be unenforceable, each of the Shareholders shall, jointly and severally, contribute the maximum amount that it is permitted under applicable law to the payment and satisfaction of all indemnifiable liabilities incurred by the Parent Indemnified Parties. In addition to, and without limitation of, the foregoing, in the event aggregate under the provisions of any payment to Parent or any other SBR Parent Indemnified Party pursuant to the terms of the SBR Merger Agreement, this Article 12 shall not exceed an aggregate amount equal to the product of (i) the SBR Ownership Percentage times (ii) the aggregate amount of such payment shall be disbursed to Parent pursuant to the terms value of the Escrow AgreementBAB Shares as of the date of final adjudication or settlement of any claim, if such date is on or before December 31, 1998, or the value of the BAB Shares on the date of settlement or adjudication of any claim plus the gross proceeds of sale of any BAB Shares if such date is on or after January 1, 1999. (d) The indemnification set forth above for all claims, including fraud, claimed by third parties shall exist for a period of two years from the Effective Date, and thereafter, the indemnification for fraud claimed by third parties shall continue for an additional two year period; however, the indemnifications set forth in Section 12.1(a)(i) above shall not be subject to such two or four year limitations and shall continue thereafter.