Common use of Indemnification of Buyer Clause in Contracts

Indemnification of Buyer. Subject to the limitations set forth below, Seller and Members, jointly and severally, shall indemnify and hold harmless, Buyer against any Buyer’s Damages (as hereinafter defined). “Buyer’s Damages”, as used herein, shall include any claims, actions, demands, losses (which shall include any diminution in value), costs, expenses, liabilities, penalties, and damages, including reasonable counsel fees incurred in attempting to avoid the same or oppose the imposition thereof, resulting to Buyer from: (i) any inaccurate representation made by Seller or Members in this Agreement or in any certificate or document delivered in connection herewith; (ii) the breach of any warranty made by Seller or Members in this Agreement or in any certificate or document delivered in connection herewith; (iii) a breach or default in the performance by Seller of any of the covenants to be performed by it hereunder; (iv) any debts, liabilities, or obligations of Seller, whether accrued, absolute, contingent, or otherwise, due or to become due, other than Assumed Liabilities; (v) the nonperformance or defective performance prior to the Closing Date by Seller under any of the Assumed Contracts to the extent such nonperformance is not cured by Seller within the permitted cure period in the Assumed Contract; (vi) the imposition of any and all federal, state, or local taxes arising out of, resulting from, or relating to Seller’s sale of the Assets hereunder or operation of the Business prior to the Closing Date; or (vii) claims relating to Seller’s or its predecessors’ pre-Closing release, generation, treatment, transport, recycling, or storage of any hazardous substance or arising out of or attributable to Seller’s or its predecessors’ arrangements for any of the foregoing. The amount of the Buyer’s Damages shall be reduced by the amount of insurance proceeds received by Buyer.

Indemnification of Buyer. Subject to the limitations set forth below, Seller and Members, jointly and severally, shall indemnify and hold harmless, Buyer against any Buyer’s Damages (as hereinafter defined). “Buyer’s Damages”, as used herein, shall include any claims, actions, demands, losses (which shall include any diminution in value), costs, expenses, liabilities, penalties, and damages, including reasonable counsel fees incurred in attempting to avoid the same or oppose the imposition thereof, resulting to Buyer from: (i) any inaccurate representation made by Seller or Members in this Agreement or in any certificate or document delivered in connection herewith; (ii) the breach of any warranty made by Seller or Members in this Agreement or in any certificate or document delivered in connection herewith; (iii) a breach or default in the performance by Seller of any of the covenants to be performed by it hereunder; (iv) any debts, liabilities, or obligations of Seller, whether accrued, absolute, contingent, or otherwise, due or to become due, other than Assumed Liabilities; (v) the nonperformance or defective performance prior to the Closing Date by Seller under any of the Assumed Contracts to the extent such nonperformance is not cured by Seller within the permitted cure period in the Assumed Contract; (vi) the imposition of any and all federal, state, or local taxes arising out of, resulting from, or relating to Seller’s sale of the Assets hereunder or operation of the Business prior to the Closing Date; or (vii) claims relating to Seller’s or its predecessors’ pre-Closing release, generation, treatment, transport, recycling, or storage of any hazardous substance or arising out of or attributable to Seller’s or its predecessors’ arrangements for any of the foregoing. The amount of the Buyer’s Damages shall be reduced by the amount of insurance proceeds received by Buyer. The aggregate liability of Seller and Members pursuant to this indemnity provision shall not exceed $2,000,000 plus the value of a forty percent (40%) ownership interest in Legion SDC.

Indemnification of Buyer. Subject The Sellers covenant and agree to the limitations set forth belowindemnify, Seller and Members, jointly and severally, shall indemnify defend and hold harmlessharmless Buyer and its directors, officers, employees, affiliates, agents, representatives, successors and assigns (collectively, the "Buyer Indemnified Persons"), from and against any Buyer’s Damages (as hereinafter defined). “Buyer’s Damages”and all Losses of Buyer or the Buyer Indemnified Persons, directly or indirectly, as used hereina result of, shall include any claims, actions, demands, losses (which shall include any diminution in value), costs, expenses, liabilities, penalties, and damages, including reasonable counsel fees incurred in attempting to avoid the same or oppose the imposition thereof, resulting to Buyer based upon or arising from: any inaccuracy in or breach or nonperformance of any of the representations, warranties, covenants or agreements made by the Sellers in or pursuant to this Agreement and any related agreements; the failure of the Sellers to perform or observe fully any covenant, provision or agreement to be performed or observed by them pursuant to this Agreement and any related agreements; any actual or threatened claim, suit, action or proceeding arising out of or resulting from the ownership by Sellers of the Purchased Assets or the conduct by the Sellers of their respective businesses or operations on or before the Closing Date, provided that such Loss is not a result of or based upon or does not arise in connection with any neglect, disregard or intentional misconduct on the part of Buyer or any Buyer Indemnified Persons; the (i) generation, use, transportation, treatment, storage, release, disposal or presence of any inaccurate representation made by Seller or Members in this Agreement or in any certificate or document delivered Hazardous Substance in connection herewithwith the Business or at any facility used in connection with the operation of the Business, on or prior to the Closing; and (ii) the breach violation by Sellers, prior to the Closing, of any warranty made by Seller Law relating to the generation, use, transportation, treatment, storage, release, disposal or Members in this Agreement presence of Hazardous Substances or in any certificate the protection of the environment; or document delivered in connection herewith; (iii) a breach or default in the performance by Seller of any of the covenants Excluded Liabilities and any other liability or obligation of Sellers or any of their respective Affiliates not expressly assumed by Buyer pursuant to be performed by it hereunder; (ivSection 2.2(b) any debts, liabilitieshereof. The Sellers agree to reimburse Buyer, or obligations of Sellerany other Buyer Indemnified Person, whether accruedas the case may be, absolutepromptly upon demand for any unreimbursed payment made or Loss suffered by Buyer or the Buyer Indemnified Person, contingentas the case may be, or otherwise, due or to become due, other than Assumed Liabilities; (v) the nonperformance or defective performance prior to at any time after the Closing Date by Seller under any of the Assumed Contracts to the extent such nonperformance is not cured by Seller within the permitted cure period in the Assumed Contract; (vi) the imposition respect of any and all federal, state, or local taxes arising out of, resulting from, or relating Loss to Seller’s sale of which the Assets hereunder or operation of the Business prior to the Closing Date; or (vii) claims relating to Seller’s or its predecessors’ pre-Closing release, generation, treatment, transport, recycling, or storage of any hazardous substance or arising out of or attributable to Seller’s or its predecessors’ arrangements for any of the foregoing. The amount of the Buyer’s Damages shall be reduced by the amount of insurance proceeds received by Buyerforegoing indemnity relates.

Indemnification of Buyer. Subject to the limitations set forth belowprovisions of this Article VIII, Seller shall indemnify, defend, save and Memberskeep Buyer and its respective Affiliates (including each Acquired Company), jointly their respective officers, directors, successors and severallyassigns (collectively, shall indemnify the “Buyer Indemnitees”), harmless against and hold harmless, Buyer against any Buyer’s Damages (as hereinafter defined). “Buyer’s Damages”, as used herein, shall include any claims, actionsfrom all liability, demands, losses (which shall include any diminution in value)claims, actions or causes of action, assessments, losses, fines, penalties, costs, damages and expenses, liabilitiesincluding without limitation, penaltiesreasonable attorneys’ fees, court costs and damagesother fees, including reasonable counsel fees disbursements and expenses, whether payable in cash, property or otherwise (collectively, “Damages”) sustained or incurred in attempting by any of the Buyer Indemnitees to avoid the same extent they are a result of, arise out of or oppose the imposition thereof, resulting to Buyer fromare by virtue of: (i) any inaccurate breach of, or inaccuracy in, any representation or warranty, or non-fulfillment of any agreement or covenant on the part of any Acquired Company or Seller, set forth in this Agreement or any exhibit or schedule hereto, or any written statement or certificate furnished or to be furnished to Buyer pursuant hereto or in any closing document delivered by any Acquired Company or Seller to Buyer in connection herewith, (ii) any claim or cause of action for fraudulent transfers relating to any matter occurring on or prior to the Closing Date under any Law and by or for the benefit of Seller or any Acquired Company; (iii) any claim related to any Bankruptcy or Insolvency Proceeding of Seller; (iv) any claim by any employee of the Acquired Companies for any payments or benefits as a result of the termination of his or her employment with an Acquired Company or its successors under any Contract dated prior to the Closing Date to which any Acquired Company and such participant are parties or under any severance policy, practice or plan of the Acquired Companies, as applied to such participant prior to, on, or on the date following the Closing Date; and (v) any Environmental Actions relating to, arising out of or resulting from the Environmental Conditions of any Seller Facility on or prior to the Closing Date. Such obligations apply regardless of the presence of a Third Party Claim (as defined below). For purposes of determining the amount of Damages for which indemnification is provided hereunder (but not for the purpose of determining whether a breach of a representation, warranty or covenant has occurred), each of the representations, warranties and covenants made by Seller or Members any Party in this Agreement or in any certificate or document other instrument delivered in connection herewith; (ii) the breach of any warranty made by Seller or Members in this Agreement or in any certificate or document delivered in connection herewith; (iii) a breach or default in the performance by Seller of any of the covenants to be performed by it hereunder; (iv) any debtspursuant hereto, liabilities, or obligations of Seller, whether accrued, absolute, contingent, or otherwise, due or to become due, other than Assumed Liabilities; (v) the nonperformance or defective performance prior to the Closing Date by Seller under any of the Assumed Contracts to the extent such nonperformance is not cured by Seller within the permitted cure period in the Assumed Contract; (vi) the imposition of any and all federal, state, or local taxes arising out of, resulting from, or relating to Seller’s sale of the Assets hereunder or operation of the Business prior to the Closing Date; or (vii) claims relating to Seller’s or its predecessors’ pre-Closing release, generation, treatment, transport, recycling, or storage of any hazardous substance or arising out of or attributable to Seller’s or its predecessors’ arrangements for any of the foregoing. The amount of the Buyer’s Damages shall be reduced by deemed to have been made without the amount inclusion of insurance proceeds received by Buyerlimitations or qualifications as to materiality such as the word “material,” if with the inclusion of such limitation or qualification the representation, warranty or covenant was breached.

Indemnification of Buyer. Subject to the limitations set forth below, Seller and MembersDayton by Parent and Seller. Parent and Seller, jointly and severally, shall indemnify indemnify, save and hold harmlessBuyer and Dayton and each of their respective Affiliates and the directors, stockholders, officers, employees, successors, transferees and assigns, and their respective attorneys, accountants and agents of each (each a "Buyer Indemnified Party") harmless from and against any Buyer’s Damages and all damages (as hereinafter definedwhether actual, punitive or consequential). “Buyer’s Damages”, as used hereinClaims, shall include any claimsActions, actionsproceedings, losses, deficiencies, demands, losses (which shall include any diminution in value)Taxes, charges, obligations, liabilities, judgments, costs, settlements and expenses, liabilitiesfee (including attorneys' and accountants' expenses and fees) (whether arising out of third-party claims or otherwise), penaltiesincluding, without limitation, interest, penalties and damagesall amounts paid in the investigation, including reasonable counsel fees incurred defense or settlement of any of the foregoing and costs of enforcing the indemnity (collectively, "Losses") incurred, sustained or suffered in attempting to avoid the same or oppose the imposition thereofconnection with, arising out of, resulting to Buyer fromfrom or relating or incident to: (i) any inaccurate representation made by Seller inaccuracy, misrepresentation or Members in this Agreement or in any certificate or document delivered in connection herewith; (ii) the breach of any warranty made or representation on the part of Seller or Parent pursuant to this Agreement or any Seller Ancillary Agreement, (ii) any Excluded Liability, (iii) any Liability imposed upon any Buyer Indemnified Party by reason of Buyer's or Dayton's alleged status as transferee or successor of the Subject Business (as owned and/or operated by Seller or Members in this Agreement Parent as of the Closing Date or in any certificate the Second Closing Date, as the case may be) or document delivered in connection herewith; the Subject Assets (iii) a breach or default in the performance as owned and/or operated by Seller of any or Parent as of the covenants to be performed by it hereunder; Closing Date or the Second Closing Date, as the case may be), or (iv) any debts, liabilities, breach or obligations non-fulfillment or non-performance of any agreement or covenant pursuant to this Agreement or any Seller Ancillary Agreement on the part of Parent or Seller, whether accruedincluding, absolutewithout imitation, contingent, any failure of Parent or otherwise, due Seller to pay and/or perform any Liability or to become due, obligation of Seller other than Assumed Liabilities; (v) the nonperformance or defective performance prior to the Closing Date by Seller under any of the Assumed Contracts Liabilities subject to and in accordance with the extent such nonperformance is not cured by Seller within terms of Section 2.3 hereof (the permitted cure period matters described in the Assumed Contract; foregoing clauses (vii) the imposition of any and all federal, state, or local taxes arising out of, resulting from, or relating (iv) are collectively referred to Seller’s sale of the Assets hereunder or operation of the Business prior to the Closing Date; or (vii) claims relating to Seller’s or its predecessors’ pre-Closing release, generation, treatment, transport, recycling, or storage of any hazardous substance or arising out of or attributable to Seller’s or its predecessors’ arrangements for any of the foregoing. The amount of the Buyer’s Damages shall be reduced by the amount of insurance proceeds received by Buyerherein as "Buyer Claims").

Indemnification of Buyer. Subject to the limitations set forth belowSeller shall defend, Seller and Membersindemnify, jointly and severally, shall indemnify save and hold harmlessharmless each of the Buyer Parties from, against and with respect to any and all Losses for which any Buyer Party may become liable, or which any Buyer Party may incur or may be compelled to pay, in any claim or Legal Proceeding against or otherwise involving any Buyer’s Damages (as hereinafter defined). “Buyer’s Damages”such Buyer Party for or by reason of any acts, as used hereinwhether of omission or commission, shall include any claimswhich may be suffered or committed, actionsdirectly or indirectly, demands, losses (which shall include any diminution in value), costs, expenses, liabilities, penalties, and damages, including reasonable counsel fees incurred in attempting arising out of or related or attributable to avoid the same or oppose the imposition thereof, resulting to Buyer from: (i) any inaccurate representation made by Seller or Members Seller's breach of the representations and warranties set forth in Article 3 of this Agreement or in any certificate or document delivered in connection herewith; Agreement, (ii) any liability, obligation or claim arising out of or relating to a breach or some other action or omission of Seller that occurred prior to the breach of any warranty made by Seller or Members in this Agreement or in any certificate or document delivered in connection herewith; Signing Date, (iii) a breach or default in any and all liabilities arising from the performance by Seller of any use of the covenants to be performed Products produced and/or sold by it hereunder; the Seller, or (iv) any debtsnoncompliance with the fraudulent transfer laws. A Buyer Party shall notify Seller within a reasonable time of the receipt of Notice by such Buyer Party of the making or instituting of a claim or Legal Proceeding under this Section 5.2. Seller shall have the option of contesting or defending any claim or Legal Proceeding by counsel acceptable to the Buyer Party, liabilitieswhich acceptance shall not be unreasonably withheld, and each such Buyer Party shall reasonably cooperate in such contest or obligations defense at the sole expense of Seller. The Seller shall bear all reasonable expenses in connection with the defense and/or settlement of any such claim or Legal Proceeding, except that if a Buyer Party desires to retain its own counsel to participate in the defense of such claim or Legal Proceeding, it may do so at its own expense. Provided that Seller shall within a reasonable time after such Notice diligently contest or defend any claim or Legal Proceeding, the Buyer Party shall not settle or compromise such claim or Legal Proceeding except with the consent of Seller, whether accruedwhich consent shall not be unreasonably withheld, absoluteconditioned or delayed. If Seller shall not within a reasonable time after such Notice diligently contest or defend any claim or Legal Proceeding, contingentany Buyer Party may contest or defend such claim or Legal Proceeding and may, without the consent of Seller, settle or otherwisecompromise such claim or Legal Proceeding, due or to become due, other than Assumed Liabilities; (v) in which case Seller shall bear all reasonable expenses incurred by any Buyer Party in connection with the nonperformance or defective performance prior to the Closing Date by Seller under any of the Assumed Contracts to the extent such nonperformance is not cured by Seller within the permitted cure period in the Assumed Contract; (vi) the imposition defense and/or settlement of any and all federal, state, such claim or local taxes arising out of, resulting from, or relating to Seller’s sale of the Assets hereunder or operation of the Business prior to the Closing Date; or (vii) claims relating to Seller’s or its predecessors’ pre-Closing release, generation, treatment, transport, recycling, or storage of any hazardous substance or arising out of or attributable to Seller’s or its predecessors’ arrangements for any of the foregoing. The amount of the Buyer’s Damages shall be reduced by the amount of insurance proceeds received by BuyerLegal Proceeding.

Indemnification of Buyer. Subject From and after the Closing and subject to the limitations set forth belowSections 9.2, 9.5 and 9.6, each Seller and MembersBeneficial Seller shall, jointly severally and severallynot jointly, shall indemnify and indemnify, defend, hold harmless, pay and reimburse Buyer against any Buyer’s Damages and its Subsidiaries and their respective officers, directors, employees, stockholders, Affiliates, control persons, successors, assigns, consultants, accountants, counsel and other advisors (as hereinafter defined). collectively, the “Buyer’s DamagesBuyer Indemnitees”, as used herein, shall include any claims, actions, demands, losses (which shall include any diminution in value), costs, expenses, liabilities, penalties, from and damages, including reasonable counsel fees incurred in attempting to avoid the same or oppose the imposition thereof, resulting to Buyer from: against (ia) any inaccurate representation Losses or Taxes based upon, arising out of or caused by any inaccuracy in, or breach of, any of the representations and warranties made by such Seller or Members Beneficial Seller in this Agreement Article 3 or by Sellers or Beneficial Sellers in Article 4 or in any certificate or document instrument delivered in connection herewith; (ii) the breach of any warranty made by Seller Sellers, Beneficial Sellers or Members in Seller’s Representative pursuant to this Agreement or in any certificate or document delivered in connection herewith; (iii) a breach or default in the performance by Seller of any Agreement, as of the covenants to be performed by it hereunder; (iv) any debts, liabilities, date such representation or obligations warranty was made or as if such representation or warranty were made on and as of Seller, whether accrued, absolute, contingent, or otherwise, due or to become due, other than Assumed Liabilities; (v) the nonperformance or defective performance prior to the Closing Date by Seller under any of the Assumed Contracts to the extent such nonperformance is not cured by Seller within the permitted cure period in the Assumed Contract; (vi) the imposition of any and all federal, state, or local taxes arising out of, resulting from, or relating to Seller’s sale of the Assets hereunder or operation of the Business prior to the Closing Date; (b) any Losses or (vii) claims relating to Seller’s or its predecessors’ pre-Closing releaseTaxes based upon, generation, treatment, transport, recycling, or storage of any hazardous substance or arising out of or caused by any breach or nonperformance of any covenant or obligation made or incurred by Sellers, Beneficial Sellers or Sellers’ Representative herein; and (c) any Taxes that Seller and Beneficial Sellers covenant and agree that they are responsible for in Section 10.1(a). Notwithstanding the foregoing, with respect to the representations and warranties made in Article 3, each Seller and Beneficial Seller is responsible for only those representations and warranties made by that Seller or Beneficial Seller, and no Seller or Beneficial Seller shall be obligated to indemnify, defend, hold harmless, pay or reimburse Buyer Indemnitees for Losses based upon, arising out of or caused by, any inaccuracy in, or breach of, any representation or warranty made by any other Seller or Beneficial Seller in Article 3. The Escrowed Funds shall be available to satisfy claims for indemnification of Losses by Buyer Indemnitees hereunder, except if any such claim relates to a breach of a representation or warranty in Article 3 hereof the Escrowed Funds shall be available but only to the extent of the applicable portion of the Escrowed Funds attributable to Sellerthe applicable Seller or Beneficial Seller that was found in breach of the representation or warranty in Article 3 and, each Seller and Beneficial Seller agrees that Buyer may proceed directly (without first proceeding against the Escrowed Funds) against the applicable Seller or Beneficial Seller for Losses based upon, arising out of or caused by, any inaccuracy in, or breach of, any representation or warranty made by such Seller or Beneficial Seller in Article 3. The indemnification responsibilities of any Seller or Beneficial Seller hereunder shall be construed as being several and in the percentage set forth in Section 2.6(a) of the Disclosure Letter. Any indemnifiable Loss hereunder created by any act or omission by Sellers’ Representative as provided herein shall be deemed to be a Loss that is the several responsibility of Sellers and Beneficial Sellers for purposes of this Section 9.1. Sellers and Beneficial Sellers do not make and shall not be deemed to have made, nor is Buyer relying upon, any representation, warranty, covenant or obligation other than those representations, warranties, covenants and obligations that are expressly set forth in this Agreement. Notwithstanding Buyer’s right to investigate the affairs of the Acquired Companies or any knowledge of Buyer or its predecessorsAffiliates or representatives obtained through such investigation, Buyer shall have the right to rely fully on the representations, warranties, covenants and obligations of Sellers, Beneficial Sellers and Sellers’ arrangements for any of the foregoing. The amount of the Buyer’s Damages shall be reduced Representatives contained in this Agreement (as qualified by the amount of insurance proceeds received Disclosure Letter) and any certificate or instrument delivered by BuyerSellers, Beneficial Sellers or Sellers’ Representative pursuant to this Agreement (as qualified by the Disclosure Letter).

Indemnification of Buyer. Subject to the terms, conditions and limitations set forth belowhereinafter in this Article 6, Seller and Members, jointly and severally, shall indemnify and hold harmless, harmless the Buyer against any Buyer’s Damages (as hereinafter defined). “Buyer’s Damages”, as used herein, shall include any claims, actions, demands, losses (which shall include any diminution in value), costs, expenses, liabilities, penalties, and damagesIndemnifiable Losses, including reasonable counsel fees incurred in attempting to avoid the same or oppose the imposition thereof, resulting to Buyer fromIndemnifiable Losses asserted by any third party: (ia) any inaccurate representation made by Seller or Members in this Agreement or in any certificate or document delivered in connection herewith; (ii) the breach arising out of any warranty made by Seller or Members in this Agreement or in any certificate or document delivered in connection herewith; (iii) a breach or default in the performance nonfulfillment by Seller of any of the covenants to be performed its covenants, obligations or agreements under this Agreement or any inaccuracy in any representation or breach of any warranty by it hereunderSeller in this Agreement; (ivb) any debts, liabilities, or obligations of Seller, whether accrued, absolute, contingent, or otherwise, due or to become due, other than Assumed Liabilities; (v) the nonperformance or defective performance prior to the Closing Date by Seller under any of the Assumed Contracts to the extent such nonperformance is not cured by Seller within the permitted cure period in the Assumed Contract; (vi) the imposition of any and all federal, state, or local taxes arising out of, resulting from, of or relating related to Seller’s sale of the Assets hereunder or Seller’s predecessors’ ownership or operation of the Mint Business or any other business conducted at the Silver Towne Mint prior to the Closing Date; or Closing, (viic) claims relating to Seller’s or its predecessors’ pre-Closing release, generation, treatment, transport, recycling, or storage of any hazardous substance or arising out of or attributable related to any acts or omissions by Seller’s , (d) arising from or its predecessors’ arrangements related to (i) the actual or alleged presence, Release, threatened Release, discharge or emission of any Hazardous Material into the environment at or from the Mint Business or any other business conducted at the Silver Towne Mint, including any and all Indemnifiable Losses arising from or related to the study, testing, investigation, cleanup, removal, remediation, Remedial Action, abatement, response, containment, restoration or corrective action of any such Hazardous Material (A) on, beneath or above the Mint Business, or (B) emanating or migrating, or threatening to emanate or migrate, from the Mint Business or any off-site properties; and (ii) the on or off-site treatment, storage or disposal of Hazardous Material generated in connection with the Mint Business or any other business conducted at the Silver Towne Mint, and (e) arising from or related to the failure to obtain and maintain Permits necessary for any operation of the foregoing. The amount Mint Business or any other business conducted at the Silver Towne Mint, (f) arising from or related to violations of any applicable Environmental Law or Permits relating to the Buyer’s Damages shall be reduced by Mint Business or any other business conducted at the amount Silver Towne Mint and (g) arising from or related to any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to either the violation of insurance proceeds received by Buyerany applicable Environmental Law or the presence or migration of any Hazardous Material relating to the Mint Business or any other business conducted at the Silver Towne Mint.

Indemnification of Buyer. Subject to the limitations set forth belowprovisions of this Article VIII, Seller shall indemnify, defend, save and Memberskeep Buyer and its respective Affiliates (including each Acquired Company), jointly their respective members, managers, officers, directors, successors and severallyassigns (collectively, shall indemnify the “Buyer Indemnitees”), harmless against and hold harmless, Buyer against any Buyer’s Damages (as hereinafter defined). “Buyer’s Damages”, as used herein, shall include any claims, actionsfrom all liability, demands, losses (which shall include any diminution in value)claims, actions or causes of action, assessments, losses, fines, penalties, costs, damages and expenses, liabilitiesincluding without limitation, penaltiesreasonable attorneys’ fees, court costs and damagesother fees, including reasonable counsel fees disbursements and expenses, whether payable in cash, property or otherwise (collectively, “Damages”) sustained or incurred in attempting by any of the Buyer Indemnitees to avoid the same extent they are a result of, arise out of or oppose the imposition thereof, resulting to Buyer fromare by virtue of: (i) any inaccurate breach of, or inaccuracy in, any representation made by Seller or Members warranty, of any Acquired Company or Seller, set forth in this Agreement or any exhibit or schedule hereto, or any written statement or certificate furnished or to be furnished to Buyer pursuant hereto or in any certificate or closing document delivered by any Acquired Company or Seller to Buyer in connection herewith; , (ii) the any breach or non-fulfillment of any warranty made by Seller agreement or Members covenant on the part of any Acquired Company or Seller, set forth in this Agreement or any exhibit or schedule hereto, or any written statement or certificate furnished or to be furnished to Buyer pursuant hereto or in any certificate or closing document delivered by any Acquired Company or Seller to Buyer in connection herewith; , (iii) a breach any claim or default in cause of action for fraudulent transfers relating to any matter occurring on or prior to the performance Closing Date under any Law and by or for the benefit of Seller of or any of the covenants to be performed by it hereunderAcquired Company; (iv) any debts, liabilities, claim related to any Bankruptcy or obligations Insolvency Proceeding of Seller, whether accrued, absolute, contingent, or otherwise, due or to become due, other than Assumed Liabilities; (v) any claim by any employee of the nonperformance Acquired Companies for any payments or defective performance benefits as a result of the termination, during a period commencing ninety (90) days prior to the date hereof and ending on the Closing Date, of his or her employment with an Acquired Company or its successors under any Contract dated prior to the Closing Date by Seller to which any Acquired Company and such participant are parties or under any severance policy, practice or plan of the Assumed Contracts Acquired Companies, as applied to such participant prior to, on, or on the extent such nonperformance is not cured by Seller within date following the permitted cure period in the Assumed ContractClosing Date; (vi) any Environmental Actions relating to, arising out of or resulting from the imposition Environmental Conditions of any and all federal, state, Seller Facility or local taxes arising out of, resulting from, any act or relating to Seller’s sale omission of the Assets hereunder any Acquired Company on or operation of the Business prior to the Closing Date; or (vii) claims relating any claim related to breach of any fiduciary duty by Xxxxxx X. Xxxxxxxxx in connection with this Agreement or the transactions contemplated hereby, (viii) any claim that the Purchase Price was not reasonably equivalent value for the Interest, and (ix) any claim brought by, or on behalf of Seller’s or its predecessors’ pre-Closing release, generation, treatment, transport, recycling, or storage of any hazardous substance or arising out of or attributable stockholders other than pursuant to Seller’s or its predecessors’ arrangements for any Section 8.4 below. Such obligations apply regardless of the foregoingpresence of a Third Party Claim (as defined below). The amount For purposes of the Buyer’s Damages shall be reduced by determining the amount of insurance proceeds received Damages for which indemnification is provided hereunder (but not for the purpose of determining whether a breach of a representation, warranty or covenant has occurred), each of the representations, warranties and covenants made by Buyerany Party in this Agreement, or in any certificate or other instrument delivered pursuant hereto, shall be deemed to have been made without the inclusion of limitations or qualifications as to materiality such as the word “material,” if with the inclusion of such limitation or qualification the representation, warranty or covenant was breached.

Indemnification of Buyer. Subject to the limitations set forth belowprovisions of this Article 8, Seller Sellers shall, severally in accordance with Section 8.14, indemnify, defend, save and Memberskeep Buyer and its respective Affiliates (including each Acquired Company), jointly their respective members, managers, officers, directors, successors and severallyassigns (collectively, shall indemnify the “Buyer Indemnitees”), harmless against and hold harmless, Buyer against any Buyer’s Damages (as hereinafter defined). “Buyer’s Damages”, as used herein, shall include any claims, actionsfrom all liability, demands, losses (which shall include any diminution in value)claims, actions or causes of action, assessments, losses, fines, penalties, costs, damages, deficiencies, and expenses, liabilitiesincluding without limitation, penaltiesreasonable attorneys’ fees, court costs and damagesother fees, including reasonable counsel fees disbursements and expenses, whether payable in cash, property or otherwise (collectively, “Damages”) sustained or incurred in attempting by any of the Buyer Indemnitees to avoid the same extent they are a result of, arise out of or oppose the imposition thereof, resulting to Buyer fromare by virtue of: (i) any inaccurate breach of, or inaccuracy in, any representation made by Seller or Members warranty, of the Acquired Companies or Sellers, set forth in this Agreement or any exhibit or schedule hereto, or any written statement or certificate furnished or to be furnished to Buyer pursuant hereto or in any certificate or closing document delivered by the Acquired Companies or Sellers to Buyer in connection herewith; herewith other than the Ancillary Agreements which shall stand on their own, (ii) the any breach or non-fulfillment of any warranty made by Seller covenant on the part of the Acquired Companies or Members Sellers, set forth in this Agreement or any exhibit or schedule hereto, or any written statement or certificate furnished or to be furnished to Buyer pursuant hereto or in any certificate or closing document delivered by the Acquired Companies or Seller to Buyer in connection herewith; herewith other than the Ancillary Agreements which shall stand on their own;, (iii) a breach any Environmental Actions relating to, arising out of or default resulting from (a) the Environmental Conditions of any Acquired Company Facility owned currently or in the performance past in whole or in part by Seller any Sellers or Acquired Company arising out of or resulting from conditions that were in existence as of, or operations or activities that occurred prior to, the Closing Date, (b) any Environmental Conditions known to Sellers or Acquired Companies at the time of the Closing for any Acquired Company Facility which is or was leased by an Acquired Company from an independent third party, or (c) any act or omission of any of the covenants to be performed by it hereunder; (iv) any debts, liabilities, Acquired Company on or obligations of Seller, whether accrued, absolute, contingent, or otherwise, due or to become due, other than Assumed Liabilities; (v) the nonperformance or defective performance prior to the Closing Date by Seller under any of the Assumed Contracts to the extent such nonperformance is not cured by Seller within the permitted cure period in the Assumed Contract; (vi) the imposition of any and all federal, state, or local taxes arising out of, resulting from, or relating to Seller’s sale of the Assets hereunder or operation of the Business prior to the Closing Date; or (viiiv) claims relating to Seller’s or its predecessors’ pre-Closing release, generation, treatment, transport, recycling, or storage of any hazardous substance or arising out of or attributable to Seller’s or its predecessors’ arrangements for any matter set forth on Schedule 8.2. Such obligations apply regardless of the foregoingpresence of a Third-Party Claim. The amount For purposes of the Buyer’s Damages shall be reduced by determining the amount of insurance proceeds received Damages for which indemnification is provided hereunder (but not for the purpose of determining whether a breach of a representation, warranty or covenant has occurred), each of the representations, warranties and covenants made by Buyerany Party in this Agreement, or in any certificate or other instrument delivered pursuant hereto, shall be deemed to have been made without the inclusion of limitations or qualifications as to materiality such as the word “material,” if with the inclusion of such limitation or qualification the representation, warranty or covenant was breached.

Indemnification of Buyer. Subject Sellers hereby agree to the limitations set forth below, Seller and Members, jointly and severally, shall indemnify and hold harmless, Buyer harmless from and against any and all Buyer’s 's Damages (as hereinafter defined). “Buyer’s Damages”defined in Section 6.06 below) arising out of, as used herein, shall include any claims, actions, demands, losses (which shall include any diminution in value), costs, expenses, liabilities, penalties, and damages, including reasonable counsel fees incurred in attempting to avoid the same or oppose the imposition thereofattributable to, resulting from, or incurred with respect to Buyer from: (i) any inaccurate representation made breach of warranty or misrepresentation by Seller or Members in on behalf of Sellers under this Agreement Agreement, or in the breach or non-performance of any certificate covenant, agreement, or document delivered in connection herewithobligation to be performed by Sellers; (ii) the breach of any warranty made by Seller misrepresentation in, or Members in this Agreement or in omission from, any certificate or document instrument executed and delivered or to be executed and delivered by or on behalf of Sellers in connection herewithwith this Agreement; (iii) a breach any error or default omission of Sellers in the performance by Seller of any operation of the covenants Purchased Business or relating to be work performed by it hereunderor services rendered on the Purchased Projects on or prior to the Effective Date or on the Excluded Projects at any time for which professional liability accrues under Sellers' Professional Indemnity insurance policy; (iv) any debts, liabilities, act or obligations omission of Seller, whether accrued, absolute, contingent, Sellers in the operation of the Purchased Business or otherwise, due relating to work performed or services rendered on the Purchased Projects on or prior to become due, other than Assumed Liabilitiesthe Effective Date or on the Excluded Projects at any time for which liability accrues for personal injury or property damage; (v) any liability or obligation related to the nonperformance Purchased Assets or defective performance the Excluded Assets which arose on or prior to the Closing Date by Seller under any of the Assumed Contracts to the extent such nonperformance is not cured by Seller within the permitted cure period in the Assumed ContractEffective Date; (vi) the imposition any liability or obligation of Sellers not expressly assumed under this Agreement by Buyer, including without limitation any and all federal, state, liability or local taxes obligation of Sellers arising out ofof the Employee Retirement Income Security Act of 1974, resulting fromas amended ("ERISA"), with respect to any employee welfare benefit plan or employee pension benefit plan (as such terms are defined in ERISA), maintained by Sellers or any of their affiliates; (vii) any failure of Buyer or Sellers to comply with any bulk sales act or similar statute in connection with this Agreement; (viii) client audits relating to Seller’s sale of work performed or services rendered on the Assets hereunder Purchased Projects or operation of the Business Excluded Projects on or prior to the Closing Effective Date; or (viiix) claims relating to Seller’s any claim made against Buyer by any creditor or its predecessors’ pre-Closing release, generation, treatment, transport, recycling, or storage past creditor of any hazardous substance or arising out of or attributable to Seller’s or its predecessors’ arrangements for any of the foregoing. The amount of the Buyer’s Damages shall be reduced by the amount of insurance proceeds received by BuyerSellers.

Indemnification of Buyer. Subject Seller hereby agrees to indemnify, defend and hold harmless Buyer and any other holder of record title to the limitations set forth belowProperty pursuant to this Agreement, Seller their officers, directors, general partners, agents and Membersemployees and their respective heirs, jointly executors, administrators, successors and severallyassigns, shall indemnify from and hold harmless, Buyer against any Buyer’s Damages (as hereinafter defined). “Buyer’s Damages”, as used herein, shall include any claims, actions, demands, losses (which shall include any diminution in value), costs, expenses, liabilities, penalties, and damages, including reasonable counsel fees incurred in attempting to avoid the same or oppose the imposition thereof, resulting to Buyer from: (i) any inaccurate representation made by Seller or Members in this Agreement or in any certificate or document delivered in connection herewith; (ii) the breach of any warranty made by Seller or Members in this Agreement or in any certificate or document delivered in connection herewith; (iii) a breach or default in the performance by Seller of any of the covenants to be performed by it hereunder; (iv) any debts, liabilities, or obligations of Seller, whether accrued, absolute, contingent, or otherwise, due or to become due, other than Assumed Liabilities; (v) the nonperformance or defective performance prior to the Closing Date by Seller under any of the Assumed Contracts to the extent such nonperformance is not cured by Seller within the permitted cure period in the Assumed Contract; (vi) the imposition of any and all federal, state, indebtedness or local taxes other liability arising out of, resulting from, or relating to Seller’s sale of the Assets hereunder ownership or operation of the Business Property prior to the Closing Date; Close of Escrow, including, but not limited to, any and all claims, liabilities, damages, penalties and losses, costs or expenses (viiincluding court costs and reasonable attorney's fees) claims relating to Seller’s incurred, resulting from or its predecessors’ pre-Closing release, generation, treatment, transport, recycling, or storage of in any hazardous substance or way arising out of any act or omission of Seller, its agents and employees, in respect of the operation of the Property prior to Close of Escrow, and any injury to persons or damage to property happening or occurring in, or on about the Property. Seller further agrees, upon notice and request from Buyer, to contest any such demand, claim, suit or action against which Seller has hereinabove agreed to indemnify and hold Buyer harmless, and to defend any action that may be brought in connection with any such demand, claim, suit or action or with respect to which Seller has hereinabove agreed to indemnify and hold Buyer harmless and to bear all costs and expenses of such contest and defense, provided, however, that Seller shall have no obligation hereunder to indemnify or hold Buyer harmless from and against any claim, liability, damage, penalty or loss, cost or expense incurred by Buyer incident to, resulting from or in any way arising out of any act or omission of Buyer, its agent or employees, it being understood and agreed, however, that the employees engaged in the operation of the Property prior to Close of Escrow are and shall be construed to be, for purposes of this provision, the employees of Seller and the acts and omissions of said employees shall in no way be attributable to Seller’s or its predecessors’ arrangements Buyer for any the purposes of the foregoing. The amount of the Buyer’s Damages shall be reduced by the amount of insurance proceeds received by Buyerthis provision.

Indemnification of Buyer. Subject Each Seller agrees that notwithstanding the Closing and regardless of any investigation made at any time by or on behalf of Buyer or of any information Buyer may have in respect of such investigation, Sellers, severally on a pro rata basis based upon the percentage of the Purchase Price payable to the limitations such Seller as set forth belowon Exhibit A hereto, Seller and Members, jointly and severally, shall will indemnify and hold harmlessharmless Buyer and each officer, director and affiliate of Buyer (collectively, the “Buyer Indemnified Parties”) from and against any Buyer’s Damages (as hereinafter defined). “Buyer’s Damages”and all damages, as used hereinlosses, shall include any claims, actionsliabilities, demands, losses (which shall include any diminution in value)charges, costs, expenses, liabilitiessuits, penalties, costs and damages, expenses (including court costs and reasonable counsel attorneys’ fees and expenses incurred in attempting investigating and preparing for any litigation or proceeding) (collectively, the “Buyer Indemnifiable Costs”), which any of the Buyer Indemnified Parties may sustain, or to avoid which any of the same or oppose the imposition thereofBuyer Indemnified Parties may be subjected, resulting to Buyer from: arising out of (iA) any inaccurate representation misrepresentation or breach of any of the representations and warranties made by the Company, any LLC or any Seller or Members contained in this Agreement or in any certificate or document delivered in connection herewithRelated Agreement, including without limitation the Aircraft Purchase Agreement; (iiB) any failure by the breach of Company, any warranty made by LLC or any Seller to duly perform or Members observe any term, provision, covenant, agreement or condition in this Agreement or in any certificate or document delivered in connection herewith; (iii) a breach or default in Related Agreement on the performance by Seller of any part of the covenants Company, any LLC or any Seller to be performed by it hereunderor observed; (ivC) Taxes for which the Sellers are responsible pursuant to Article VII, including any Arizona Tax Losses for which the Sellers are responsible pursuant to Section 7.2(f) and any liability for Taxes in connection with the matter listed on Schedule 8.2(a); (D) any debts, Use Tax Obligations or related liabilities or any Excise Tax Obligations or related liabilities, or obligations in either case for any Pre-Closing Tax Period and for the portion of Seller, whether accrued, absolute, contingent, or otherwise, due or to become due, other than Assumed Liabilities; (v) the nonperformance or defective performance prior to any period ending on and including the Closing Date by Seller under any of (the Assumed Contracts to the extent such nonperformance is not cured by Seller within the permitted cure period in the Assumed Contract“Specified Tax Costs”); (viE) the imposition of Form 5500 Expenses; and (F) any and all federal, state, matter listed or local taxes arising out of, resulting from, or relating required to Seller’s sale of the Assets hereunder or operation of the Business prior to the Closing Date; or (vii) claims relating to Seller’s or its predecessors’ pre-Closing release, generation, treatment, transport, recycling, or storage of any hazardous substance or arising out of or attributable to Seller’s or its predecessors’ arrangements for any of the foregoing. The amount of the Buyer’s Damages shall be reduced by the amount of insurance proceeds received by Buyerlisted on Schedule 2.14.

Indemnification of Buyer. Subject Seller hereby agrees to the limitations set forth belowindemnify Buyer against, Seller and Membersto hold Buyer harmless from, jointly and severally, shall indemnify and hold harmless, Buyer against any Buyer’s Damages (as hereinafter defined). “Buyer’s Damages”, as used herein, shall include any all claims, actionslosses, demands, losses (which shall include any diminution in value), costs, expensesdamages, liabilities, penaltiescosts and expenses, including, but not limited to, reasonable legal fees and damagesdisbursements ("Claims") incurred or suffered by Buyer relating to the Property which arise, including reasonable counsel fees incurred in attempting result from, or relate to avoid the same or oppose the imposition thereof, resulting to Buyer from: (i) acts, occurrences, or matters that took place prior to the Closing, to the extent that any inaccurate representation made by Seller or Members such Claim described in this Agreement clause (i) is covered by the commercial general liability insurance policy or other applicable insurance coverage maintained by Seller, and, in any certificate this connection, Seller represents and warrants that Seller has, during the period of its ownership, maintained and continues to maintain commercial general liability insurance coverage with respect to its ownership of the Real Property with a coverage limit not less than One Million Dollars ($1,000,000) per occurrence; or document delivered in connection herewith; (ii) the any breach of any warranty made by Seller or Members in this Agreement or in any certificate or document delivered in connection herewith; (iii) a breach or default in the performance by Seller of any of the covenants to be performed by it hereunder; (iv) any debtsrepresentations or warranties of Seller set forth in Section 12.2 of this Agreement subject, liabilitieshowever, or obligations of Seller, whether accrued, absolute, contingent, or otherwise, due or to become due, other than Assumed Liabilities; (v) the nonperformance or defective performance prior to the Closing Date limitations of Section 17.4. Without limiting the foregoing and without regard to whether or not any such matter is covered by Seller's liability insurance as provided above, Seller under hereby represents and warrants to Buyer that no other party holds any right or option to purchase or otherwise acquire the Property, any portion thereof or any interest therein, and Seller shall indemnify, defend and hold Buyer harmless from and against any Claims suffered or incurred by Buyer by reason of any party asserting any such right or option against Seller or Buyer. Notwithstanding the above sentence, it is acknowledged that the Tenants hold possessory rights pursuant to their respective Leases in connection with portions of the Assumed Contracts Real Property. In addition, without limiting the foregoing and without regard to whether or not any such matter is covered by Seller's liability insurance as provided above, Seller shall be solely responsible for causing the applicable governmental authorities to issue final certificates of occupancy with respect to the extent such nonperformance is not cured by Seller within the permitted cure period in the Assumed Contract; (vi) the imposition of Improvements as promptly as reasonably possible, and shall indemnify, defend, and hold Buyer harmless from and against any and all federal, state, or local taxes arising out of, resulting from, or relating to Seller’s sale of the Assets hereunder or operation of the Business prior to the Closing Date; or (vii) claims relating to Seller’s or its predecessors’ pre-Closing release, generation, treatment, transport, recycling, or storage of any hazardous substance or Claims arising out of or attributable in any way connected with any failure by Seller to Seller’s or its predecessors’ arrangements for any cause the applicable governmental authorities to issue final certificates of occupancy with respect to the Improvements as promptly as is reasonably possible. Following the Closing, Buyer shall reasonably cooperate with Seller in connection with the securing by Seller of the foregoing. The amount above-described certificates of the Buyer’s Damages shall be reduced by the amount of insurance proceeds received by Buyeroccupancy.

Indemnification of Buyer. Subject From and after the Closing and subject to the limitations set forth belowSections 9.2, 9.5 and 9.6, each Seller shall, severally and Membersnot jointly, jointly and severallyindemnify, shall indemnify and defend, hold harmless, pay and {P02534_X101.HTM;8} reimburse Buyer against any Buyer’s Damages and its officers, directors, employees, stockholders, Affiliates, successors and assigns (as hereinafter defined). collectively, the “Buyer’s DamagesBuyer Indemnitees”, as used herein, shall include any claims, actions, demands, losses (which shall include any diminution in value), costs, expenses, liabilities, penalties, from and damages, including reasonable counsel fees incurred in attempting to avoid the same or oppose the imposition thereof, resulting to Buyer fromagainst: (ia) any inaccurate representation made Losses based upon, arising out of or caused by Seller any inaccuracy in, or Members in this Agreement or in any certificate or document delivered in connection herewith; (ii) the breach of any warranty made by Seller or Members in this Agreement or in any certificate or document delivered in connection herewith; (iii) a breach or default in the performance by Seller of of, any of the covenants to be performed representations and warranties made by it hereundersuch Seller in Article 3 or by the Company in Article 4; (ivb) any debtsLosses based upon, liabilitiesarising out of or caused by any breach or nonperformance of any covenant or obligation made or incurred by Sellers, the Company or obligations of Seller, whether accrued, absolute, contingent, or otherwise, due or to become due, other than Assumed LiabilitiesSellers’ Representative herein; and (vc) any Losses resulting from the nonperformance or defective performance prior to the Closing Date by Seller under any failure of the Assumed Contracts Acquired Companies to comply with the extent such nonperformance is not cured emissions limits imposed by Seller within the permitted cure period Clean Air Act Title V Permit Number 000-00000-00000 issued by the Indiana Department of Environmental Management as in the Assumed Contract; (vi) the imposition of any and all federal, state, effect on or local taxes arising out of, resulting from, or relating to Seller’s sale of the Assets hereunder or operation of the Business prior to the Closing Date; . Notwithstanding the foregoing, with respect to the representations and warranties made in Article 3 or (vii) claims relating any covenants made herein, each Seller is responsible for only those representations, warranties and covenants made by that Seller, and no Seller shall be obligated to Seller’s indemnify, defend, hold harmless, pay or its predecessors’ pre-Closing releasereimburse Buyer Indemnitees for Losses based upon, generation, treatment, transport, recycling, or storage of any hazardous substance or arising out of or attributable caused by, any inaccuracy in, or breach of, any representation, warranty or covenant made by any other Seller in Article 3 or otherwise herein; provided, however, that any indemnifiable Loss hereunder based upon, arising out of or caused by any act or omission by Sellers’ Representative shall be deemed to be a Loss that is the several responsibility of Sellers for purposes of this Section 9.1. The indemnification responsibilities of any Seller hereunder shall be several and in accordance with such Seller’s or its predecessors’ arrangements for any of the foregoing. The amount of the Buyer’s Damages shall be reduced by the amount of insurance proceeds received by BuyerPercentage Interest.

Indemnification of Buyer. Subject to the limitations set forth belowSeller will indemnify, Seller and Members, jointly and severally, shall indemnify defend and hold harmlessBuyer, its Affiliates and their respective directors, managers, officers, employees and agents (collectively, the “Buyer against Indemnitees”) harmless from any Buyer’s Damages (as hereinafter defined). “Buyer’s Damages”and all Liabilities, as used hereinobligations, shall include any claims, actionscontingencies, demandsdamages, losses (which shall include any diminution in value), costs, costs and expenses, liabilitiesincluding all Proceeding costs and expenses and reasonable attorneys’ fees and 30 expenses (collectively, penalties, and damages, including reasonable counsel fees incurred in attempting to avoid the same “Losses”) that any Buyer Indemnitee may suffer or oppose the imposition thereof, resulting to Buyer fromincur as a result of or relating to: (i) any inaccurate representation made by Seller or Members in this Agreement or in any certificate or document delivered in connection herewith; (iia) the breach of any representation or warranty made by Seller or Members in this Agreement or in pursuant hereto or any certificate or document delivered in connection herewithallegation by a third Person that, if true, would constitute such a breach; (iiib) a the breach or default in the performance of any agreement made by Seller in this Agreement or pursuant hereto or any allegation by a third Person that, if true, would constitute such a breach; (c) the breach of any fiduciary duty or other claim arising as a result of the covenants to be performed by it hereunder; (iv) any debts, liabilities, or obligations of Seller, whether accrued, absolute, contingent, or otherwise, due or to become due, other than Assumed Liabilities; (v) the nonperformance or defective performance prior to the Closing Date by Seller under or with respect to any Employee Benefit Plans of Seller; (d) any Liability of Seller, other than the Assumed Contracts to the extent such nonperformance is not cured by Seller within the permitted cure period in the Assumed Contract; (vi) the imposition of Liabilities, including any and all federalProceeding or other third Person claim, state, or local taxes arising out of, resulting from, or relating to Seller’s sale of or arising from the Assets hereunder activities or operation of the Business with respect to any period of time (or portion thereof) occurring as a result of or prior to the Closing, including any Liability of Seller relating to or arising from the classification of persons used in the Business as “employees” or “independent contractors”; or (e) any Taxes of Seller or the Selling Person for any taxable period, whether before or after the Closing Date, Taxes of Seller or the Selling Person arising out of or resulting from the Assets and Business prior to the Closing Date; , any Liability of Seller or the Selling Person for unpaid Taxes of any Person under Treasury Regulation Section 1.1502-6 (vii) claims relating to Seller’s or its predecessors’ pre-Closing release, generation, treatment, transport, recyclingsimilar provision of state or local law), or storage of as a successor or transferee by contract or otherwise, or payments pursuant to a Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or similar agreement regarding Taxes or any hazardous substance other Taxes for which Seller or arising out of the Selling Person are responsible under Section 4.4 or attributable to Seller’s or its predecessors’ arrangements for any of the foregoingSection 4.5. The amount of the Buyer’s Damages shall be reduced by the amount of insurance proceeds received by Buyer.5.2

Indemnification of Buyer. Subject to From and after the limitations set forth belowClosing, Seller Parent and MembersSellers shall defend, jointly and severally, shall indemnify and hold harmlessthe Buyer and its respective officers, directors, employees, Affiliates, and agents (the “Buyer Indemnified Parties”), harmless from and against any Buyer’s Damages (as hereinafter defined). “Buyer’s Damages”, as used herein, shall include any claims, actions, demands, losses (which shall include any diminution in value)and all losses, costs, expensesexpenses (including, without limitation, reasonable attorneys’ and independent accountants’ fees and disbursements), liabilities, damages (excluding incidental, special, consequential or punitive damages), fines, penalties, charges, assessments, judgments and damagessettlements (individually, including reasonable counsel fees incurred in attempting to avoid a “Loss” and collectively, “Losses”) that the same or oppose the imposition thereof, resulting to Buyer from: Indemnified Parties incur arising out of (i) any inaccurate inaccuracy of any representation made by Seller or Members in this Agreement or in any certificate or document delivered in connection herewith; (ii) the breach of any warranty made by Seller the Parent and Sellers in Article II of this Agreement, (it being agreed and acknowledged by the parties that, for purposes of right to indemnification pursuant to this subclause (i), the representations and warranties of Parent and Sellers contained herein shall not be deemed qualified by any references herein to materiality generally or Members to whether or not any such breach results or may result in a Material Adverse Effect), (ii) any non-fulfillment of any covenant or agreement made by the Parent and Sellers in this Agreement or in any certificate or document delivered in connection herewith; Agreement, (iii) a breach any Excluded Assets or default in the performance by Seller of any of the covenants to be performed by it hereunder; Excluded Liabilities, (iv) any debtsand all Losses suffered or incurred by the Buyer Indemnified Parties to the extent arising out of any action, liabilitiesinaction, event, citation, liability or obligations obligation of SellerParent or any Seller occurring or existing prior to the Closing, whether accrued, absolute, contingent, or otherwise, due or to become due, other than Assumed Liabilities; (v) any and all Losses suffered or incurred by the nonperformance Buyer Indemnified Parties with respect to the replacement costs reasonably incurred as a result of any and all Required Non-Customer Consents, (vi) any and all Losses suffered or defective performance incurred by the Buyer Indemnified Parties arising out of the Transition Services Agreement, or (vii) any and all Losses suffered or incurred by the Buyer Indemnified Parties arising out of (A) any breach of the representations and/or warranties and any indemnification obligations of the “Tenant” (as such term is defined in the Minnesota Lease) contained in Section 22.u of the Minnesota Lease, but solely with respect to Parent’s and/or one or more Sellers’ use of the Property (as such term is defined in the Minnesota Lease) prior to the Closing Date by Seller under any or a condition of the Assumed Contracts to the extent such nonperformance is not cured by Seller within the permitted cure period in the Assumed Contract; (vi) the imposition of any and all federal, state, or local taxes arising out of, resulting from, or relating to Seller’s sale of the Assets hereunder or operation of the Business Property that existed prior to the Closing Date, and (B) any failure by the Parent and/or any Seller to fully and timely perform in conformity with the Minnesota Lease, whether prior or subsequent to the Closing, all of the obligations of the “Tenant” pursuant to, the following sections of the Minnesota Lease: Section 1.c , second sentence; Section 1.n; Section 1.t; Section 7.b(x), second sentence. The representations and warranties contained in this Agreement (and any right to indemnification for breach thereof) shall not be affected by any investigation, verification or (vii) claims relating to Seller’s examination by any party hereto or its predecessors’ pre-Closing release, generation, treatment, transport, recycling, or storage by any representative of any hazardous substance such party or arising out by any such party’s Knowledge of any facts with respect to the accuracy or attributable to Seller’s inaccuracy of any such representation or its predecessors’ arrangements for any of the foregoing. The amount of the Buyer’s Damages shall be reduced by the amount of insurance proceeds received by Buyerwarranty.

Indemnification of Buyer. Subject Seller hereby agrees to indemnify, defend and hold harmless Buyer and any other holder of record title to the limitations set forth belowProperty pursuant to this Agreement, Seller their officers, directors, general partners, agents and Membersemployees and their respective heirs, jointly executors, administrators, successors and severallyassigns, shall indemnify from and hold harmless, Buyer against any Buyer’s Damages (as hereinafter defined). “Buyer’s Damages”, as used herein, shall include any claims, actions, demands, losses (which shall include any diminution in value), costs, expenses, liabilities, penalties, and damages, including reasonable counsel fees incurred in attempting to avoid the same or oppose the imposition thereof, resulting to Buyer from: (i) any inaccurate representation made by Seller or Members in this Agreement or in any certificate or document delivered in connection herewith; (ii) the breach of any warranty made by Seller or Members in this Agreement or in any certificate or document delivered in connection herewith; (iii) a breach or default in the performance by Seller of any of the covenants to be performed by it hereunder; (iv) any debts, liabilities, or obligations of Seller, whether accrued, absolute, contingent, or otherwise, due or to become due, other than Assumed Liabilities; (v) the nonperformance or defective performance prior to the Closing Date by Seller under any of the Assumed Contracts to the extent such nonperformance is not cured by Seller within the permitted cure period in the Assumed Contract; (vi) the imposition of any and all federal, state, indebtedness or local taxes other liability arising out of, resulting from, or relating to Seller’s sale of the Assets hereunder ownership or operation of the Business Property prior to the Closing Date; Close of Escrow, including, but not limited to, any and all claims, liabilities, damages, penalties and losses, costs or expenses (viiincluding court costs and reasonable attorney's fees) claims relating to Seller’s incurred, resulting from or its predecessors’ pre-Closing release, generation, treatment, transport, recycling, or storage of in any hazardous substance or way arising out of any act or omission of Seller, its agents and employees, in respect of the operation of the Property prior to Close of Escrow, and any injury to persons or damage to property happening or occurring in, on or about the Property. Seller further agrees, upon notice and request from Buyer, to contest any such demand, claim, suit or action against which Seller has hereinabove agreed to indemnify and hold Buyer harmless, and to defend any action that may be brought in connection with any such demand, claim, suit or action or with respect to which Seller has hereinabove agreed to indemnify and hold Buyer harmless and to bear all costs and expenses of such contest and defense, provided, however, that Seller shall have no obligation hereunder to indemnify or hold Buyer harmless from and against any claim, liability, damage, penalty or loss, cost or expense incurred by Buyer incident to, resulting from or in any way arising out of any act or omission of Buyer, its agent or employees, it being understood and agreed, however, that the employees engaged in the operation of the Property prior to Close of Escrow are and shall be construed to be, for purposes of this provision, the employees of Seller and the acts and omissions of said employees shall in no way be attributable to Seller’s or its predecessors’ arrangements Buyer for any the purposes of the foregoing. The amount of the Buyer’s Damages shall be reduced by the amount of insurance proceeds received by Buyerthis provision.