Common use of Indemnification Provisions for Benefit of Purchaser Clause in Contracts

Indemnification Provisions for Benefit of Purchaser. (a) In the event that the Seller breaches any of its representations, warranties or covenants contained in this Agreement or in any certificate delivered by the Seller pursuant hereto and provided that, as to any claim for breach of representations or warranties, the Purchaser makes a written claim for indemnification against the Seller within the applicable survival period, if applicable, then the Seller agrees to indemnify the Purchaser and its Affiliates from and against all Damages the Purchaser and its Affiliates suffer resulting from or arising out of such event; provided, however, that the Seller shall not have any obligation to indemnify the Purchaser from and against any Damages resulting from the breach of any representation or warranty of the Seller (as opposed to any covenant of the Seller) contained in Article III of this Agreement until the Purchaser has suffered aggregate Damages, by reason of all such breaches in excess of $25,000; provided further that (i) and Seller shall have no obligation to indemnify the Purchaser for the initial $25,000 in Damages, and (ii) no claim may be made by Purchaser under this Section 10.2(a) unless such claim exceeds $10,000 in value. In any event, the maximum amount that Seller shall be required to pay as to all claims made under this Section 10.2(a) shall be equal to the Cash Escrow Amount as of the date on which each claim is made. (b) Notwithstanding the foregoing, the Seller shall indemnify, defend and hold harmless the Company, the Purchaser and any of their respective Affiliates from and against any and all Damages resulting from or arising out of any of the following (which indemnification, defense and hold harmless shall not be subject to any of the limitations set forth in Section 10.2(a)): (i) The pending threatened claim of a former employee identified in Schedule 3.21, any claim arising from any employment agreement heretofore entered into by the Company, and any claim of any creditor or beneficiary of the Seller or any of its Affiliates (other than the Company), whether arising prior to, on or after the Closing Date;

Indemnification Provisions for Benefit of Purchaser. (a) In the event that the Seller breaches Sellers breach any of its their representations, warranties or covenants contained in this Agreement or in any certificate delivered by the Seller Sellers pursuant hereto to this Agreement and provided that, as to any claim for breach of representations or warranties, the Purchaser makes a written claim for indemnification against the Seller Sellers within the applicable survival period, if applicable, then the Seller agrees Sellers agree jointly and severally to indemnify the Purchaser and its Affiliates from and against all Damages the Purchaser and its Affiliates suffer suffers resulting from or arising out of such event; provided, however, that the Seller Sellers shall not have any obligation to indemnify the Purchaser from and against any Damages resulting from the breach of any representation or warranty of the Seller Sellers (as opposed to any covenant of the SellerSellers) contained in Article III of this Agreement Agreement: (i) (other than Perpetual Representations) until the Purchaser has suffered aggregate Damages, by reason of all such breaches (excluding breaches or series of related breaches resulting in Damages of less than $5,000) in excess of $25,000; provided further that 45,454.50 (ithe "Deductible") and Seller shall have no obligation (after which point Sellers will be obligated only to indemnify the Purchaser for from and against further Damages in excess of the initial $25,000 in DamagesDeductible), and or (ii) no notwithstanding anything to the contrary contained in this Agreement, to the extent the aggregate amount that Sellers have actually indemnified Purchaser for prior breaches of representations and warranties of Sellers contained in Article III of this Agreement exceeds $10 million (the "Cap"). Notwithstanding anything to the contrary contained in this Agreement, to the extent any Damages for which Purchaser may claim may be made by Purchaser under indemnity (or satisfaction of the Deductible) pursuant to this Section 10.2(a10.2 relate to a breach of any of the representations or warranties contained in Article III and are due to Damages suffered by the Company (which are not directly suffered by Purchaser), Sellers shall only be obligated to indemnify Purchaser and its Affiliates for (or reduce the remaining portion of the Deductible by) unless such claim exceeds $10,000 in value. In any event20% of the total Damages suffered by the Company, the maximum amount that Seller which 20% shall be required subject to pay as the Cap. Notwithstanding anything to all claims made under the contrary contained in this Agreement, to the extent any Damages for which Purchaser may claim indemnity (or satisfaction of the Deductible) pursuant to this Section 10.2(a10.2 relate to a breach of any of the representations or warranties contained in Article III and are due to Damages suffered by CMC (which are not directly suffered by Purchaser), Sellers shall only be obligated to indemnify Purchaser and its Affiliates for (or reduce the remaining portion of the Deductible by) 50% of the total Damages suffered by CMC, which 50% shall be equal subject to the Cash Escrow Amount as of the date on which each claim is madeCap. (b) Notwithstanding the foregoing, the Seller shall indemnify, defend and hold harmless the Company, the Purchaser and any of their respective Affiliates from and against any and all Damages resulting from or arising out of any of the following (which indemnification, defense and hold harmless shall not be subject to any of the limitations set forth The indemnification provided for in Section 10.2(a)): (i) The pending threatened claim shall survive any investigation at any time made by or on behalf of a former employee identified in Schedule 3.21, any claim arising from any employment agreement heretofore entered into by the Company, and any claim of any creditor or beneficiary of the Seller Purchaser or any of its Affiliates (other than the Company), whether arising prior to, on knowledge or after the Closing Date;information that Purchaser may have.

Indemnification Provisions for Benefit of Purchaser. (a) In the event that the Seller breaches any of its representations, warranties or covenants contained in this Agreement or in any certificate delivered by the Seller pursuant hereto and provided that, as to any claim for breach of representations or warranties, the Purchaser makes a written claim for indemnification against the Seller within the applicable survival period, if applicable, then the Seller agrees to indemnify the Purchaser and its Affiliates from and against all Damages the Purchaser and its Affiliates suffer resulting from or arising out of such event; provided, however, that the Seller shall not have any obligation to indemnify the Purchaser from and against any Damages resulting from the breach of any representation or warranty of the Seller (as opposed to any covenant of the Seller) contained in Article III of this Agreement until the Purchaser has suffered aggregate Damages, by reason of all such breaches in excess of $25,000; provided further that (i) and Seller shall have no obligation to indemnify the Purchaser for the initial $25,000 in Damages, and (ii) no claim may be made by Purchaser under this Section 10.2(a) unless such claim exceeds $10,000 in value. In any event, the maximum amount that Seller shall be required to pay as to all claims made under this Section 10.2(a) shall be equal to the Cash Escrow Amount amount of unpaid Earn-Out Payments as of the date on which each claim is made. (b) Notwithstanding Without limiting the generality or effect of the foregoing, the Seller shall indemnify, defend and hold harmless the Company, the Purchaser and any of their respective Affiliates from and against any and all Damages resulting from or arising out of any of the following (which indemnification, defense and hold harmless shall not be subject to any of the limitations set forth in Section 10.2(a)): (i) The pending threatened claim of a former employee identified in Schedule 3.21, any claim arising from any employment agreement heretofore entered into by the Company, and any Any claim of any creditor or beneficiary of the Seller or any of its Affiliates (other than the Company), whether arising prior to, on or after the Closing Date;. (ii) Pre-Closing Taxes. For purposes of this Agreement, "PRE-CLOSING TAXES" shall mean, except to the extent included in the determination of Adjusted Net Assets, (a) all liability for Taxes of the Company for tax periods ending prior to the Closing Date; (b) all liability for Taxes described in Section 6.1; (c) all liability attributable to any misrepresentation or breach of warranty made by the Seller in Section 3.23 of this Agreement; (d) all liability for Taxes attributable to any failure to comply with any of the covenants or agreements of the Seller or the Company under this Agreement; and (e) all liability for Taxes of any other person pursuant to any contractual agreement entered into on or before the Closing Date.

Indemnification Provisions for Benefit of Purchaser. (a) In the event that the Seller breaches any of its representations, warranties or covenants contained in this Agreement Agreement, any other Transaction Document or in any certificate delivered by the Seller pursuant hereto or thereto and provided that, as to any claim for breach of representations or warranties, the Purchaser makes a written claim for indemnification against the Seller within the applicable survival period, if applicable, then the Seller agrees to indemnify the Purchaser and its Affiliates from and against all Damages the Purchaser and its Affiliates suffer resulting from or arising out of such event; provided, however, that the Seller shall not have any obligation to indemnify the Purchaser from and against any Damages resulting from the breach of any representation or warranty of the Seller (as opposed to any covenant of the Seller) contained in Article III of this Agreement until the Purchaser has suffered aggregate Damages, by reason of all such breaches in excess of $25,000; provided further that 87,500 (i) and after which point the Seller shall have no obligation will be obligated to indemnify the Purchaser for from the initial $25,000 in first dollar of Damages, and (ii) no claim may be made by Purchaser under this Section 10.2(a) unless such claim exceeds $10,000 in value). In any event, Without limiting the maximum amount that Seller shall be required to pay as to all claims made under this Section 10.2(a) shall be equal to the Cash Escrow Amount as generality or effect of the date on which each claim is made. (b) Notwithstanding the foregoing, the Seller shall indemnify, defend and hold harmless the Company, the Purchaser and any of their respective Affiliates from and against any and all Damages resulting from or arising out of any of the following (which indemnification, defense and hold harmless shall not be subject to any of the limitations set forth in Section 10.2(a)): (i) The pending threatened claim of a former employee identified in Schedule 3.21, any claim arising from any employment agreement heretofore entered into ): Any business or property formerly owned or operated by the CompanyCompany or any of its predecessors but not owned or operated by the Company immediately after the Closing; Any product shipped or manufactured by, or any services provided by, the Company prior to the Closing Date to the extent that the total Damages resulting therefrom exceed the amount of the reserve for returns and any allowances that is specifically allocated to products shipped and/or manufactured by the Company as set forth in the Balance Sheet; Any claim of any creditor or beneficiary of the Seller or any of its Affiliates (other than the Company), whether arising prior to, on or after the Closing Date; Except as set forth on the Closing Date Balance Sheet as a current liability: (x) any liability to any Employee or Former Employee of the Company or any of its predecessors as of the Closing Date arising under any Plan or otherwise in connection with their employment by the Company, including, without limitation, post-retirement health benefits, to the extent not fully funded immediately prior to the Closing, and (y) any severance or other benefit payable to any Employee or Former Employee by reason of this Agreement or the transactions contemplated hereby, including, without limitation, any stay bonus, golden parachute or other change-in-control payment or benefit;

Indemnification Provisions for Benefit of Purchaser. (a) In Subject to Section 10.5, in the event that the any Seller breaches any of its representations, warranties or covenants contained in this Agreement or Ancillary Agreements or in any certificate delivered by the any Seller pursuant hereto to this Agreement or Ancillary Agreements and provided that, as to any claim for breach of representations representation or warrantieswarranty or of Limited Survival Covenants, the Purchaser makes a written claim for indemnification against the Seller Sellers within the applicable survival period, if applicable, then the Seller agrees to Sellers shall jointly and severally indemnify the Purchaser and its Affiliates from and against all Damages the Purchaser and its Affiliates suffer resulting from or arising out of of, relating to or caused by such event; provided, however, that the Seller that: (i) Sellers shall not have any obligation to indemnify Purchaser for the first $2.5 million of Damages resulting from the breach of any representation or warranty of Sellers contained in Article III of this Agreement or in any certificate delivered by any Seller pursuant to this Agreement, and no such indemnity shall be payable until Purchaser has suffered aggregate Damages, by reason of all such breaches in excess of $5 million, and (ii) Sellers shall not have any obligation to indemnify Purchaser from and against any Damages resulting from the breach of any representation or warranty of the Seller (as opposed to any covenant of the Seller) Sellers contained in Article III of this Agreement until the Purchaser has suffered aggregate Damages, by reason or of all such breaches any covenant contained in Section 5.1 in excess of $25,000; provided further that the Escrowed Funds (i) and Seller shall have no obligation to indemnify the Purchaser for the initial $25,000 in Damages, and (ii) no claim may be made by Purchaser under this Section 10.2(a) unless such claim exceeds $10,000 in value. In any event, the maximum amount that Seller shall be required to pay as to all claims made under this Section 10.2(a) shall be equal to the Cash Escrow Amount as of the date on which each claim is made"Cap"). (b) Notwithstanding Without limiting the generality or effect of the foregoing, the Seller Sellers shall indemnify, defend and hold harmless the Company, the Purchaser and any of their respective its Affiliates from and against any and all Damages resulting from or arising out of any Excluded Liability or any claim by a Third Party for payment of the following an Excluded Liability. (which indemnification, defense and hold harmless c) The Indemnification provided for in this Section 10.2 shall not be subject to limited by any investigation at any time made by or on behalf of the limitations set forth in Section 10.2(a)): (i) The pending threatened claim of a former employee identified in Schedule 3.21, any claim arising from any employment agreement heretofore entered into by the Company, and any claim of any creditor Purchaser or beneficiary of the Seller Parent or any of its Affiliates (other than the Company), whether arising prior to, on knowledge or after the Closing Date;information that Purchaser or Parent may have.

Indemnification Provisions for Benefit of Purchaser. (a) In the event that the Seller breaches any of its representations, warranties or covenants contained in this Agreement Agreement, any other Transaction Document or in any certificate delivered by the Seller pursuant hereto or thereto and provided that, as to any claim for breach of representations or warranties, the Purchaser makes a written claim for indemnification against -50- the Seller within the applicable survival period, if applicable, then the Seller agrees to indemnify the Purchaser and its Affiliates from and against all Damages the Purchaser and its Affiliates suffer resulting from or arising out of such event; provided, however, that the Seller shall not have any obligation to indemnify the Purchaser from and against any Damages resulting from the breach of any representation or warranty of the Seller (as opposed to any covenant of the Seller) contained in Article III of this Agreement until the Purchaser has suffered aggregate Damages, by reason of all such breaches in excess of $25,000; provided further that 87,500 (i) and after which point the Seller shall have no obligation will be obligated to indemnify the Purchaser for from the initial $25,000 in first dollar of Damages, and (ii) no claim may be made by Purchaser under this Section 10.2(a) unless such claim exceeds $10,000 in value. In any event, the maximum amount that Seller shall be required to pay as to all claims made under this Section 10.2(a) shall be equal to the Cash Escrow Amount as of the date on which each claim is made). (b) Notwithstanding Without limiting the generality or effect of the foregoing, the Seller shall indemnify, defend and hold harmless the Company, the Purchaser and any of their respective Affiliates from and against any and all Damages resulting from or arising out of any of the following (which indemnification, defense and hold harmless shall not be subject to any of the limitations set forth in Section 10.2(a)): (i) The pending threatened claim of a former employee identified in Schedule 3.21, any claim arising from any employment agreement heretofore entered into Any business or property formerly owned or operated by the CompanyCompany or any of its predecessors but not owned or operated by the Company immediately after the Closing; (ii) Any product shipped or manufactured by, or any services provided by, the Company prior to the Closing Date to the extent that the total Damages resulting therefrom exceed the amount of the reserve for returns and any allowances that is specifically allocated to products shipped and/or manufactured by the Company as set forth in the Balance Sheet; (iii) Any claim of any creditor or beneficiary of the Seller or any of its Affiliates (other than the Company), whether arising prior to, on or after the Closing Date; (iv) Except as set forth on the Closing Date Balance Sheet as a current liability: (x) any liability to any Employee or Former Employee of the Company or any of its predecessors as of the Closing Date arising under any Plan or otherwise in connection with their employment by the Company, including, without limitation, post-retirement health benefits, to the extent not fully funded immediately prior to the Closing, and (y) any severance or other benefit payable to any Employee or Former Employee by reason of this Agreement or the transactions contemplated hereby, including, without limitation, any stay bonus, golden parachute or other change-in-control payment or benefit;

Indemnification Provisions for Benefit of Purchaser. (a) In If either of the event that the Seller Shareholders breaches any of its representations, representations and warranties or covenants contained in this Agreement or in any certificate or other instrument delivered by the Seller pursuant hereto and provided that, as to any claim for breach of representations if Purchaser or warranties, the Purchaser SCC makes a written claim for indemnification against the Seller breaching Party or Parties within the applicable survival periodSurvival Period for such representations and warranties, if applicablethen, then subject to the Seller agrees to limitations of subsection (c), Erwin shall indemnify Purchaser, SCC and the shareholders, directors, ofxxxxxs, employees, successors and assigns of each of Purchaser and its Affiliates SCC from and against all Damages any Adverse Consequences that any such Person may suffer through and after the date of the claim for indemnification resulting from, arising out of, relating to or caused by the breach. (b) Subject to the limitations of subsection (c), Erwin shall indemnify Purchaser, SCC and the shareholders, directors, ofxxxxxs, employees, agents, successors and assigns of each of Purchaser and its Affiliates SCC from and against any Adverse Consequences that any such Person may suffer resulting from or from, arising out of, relating to, in the nature of, or caused by any of such eventthe following (i) any breach of any covenant, agreement or obligation of the Shareholders contained in this Agreement or in any certificate or other instrument delivered hereto; (ii) any Liability for Taxes attributable to the use, ownership or operation of the Assets by any Company or the Business or otherwise imposed on any Company relating to a Pre-Closing Period and any Section 338 Tax; and (iii) the matters described on Schedule 11.2(b). Such Persons' rights to indemnity under this Section 11.2 shall expire after the applicable Survival Period; provided, however, that the Seller shall such expiration will not have any obligation include, extend or apply to indemnify the Purchaser from and against any Damages resulting from the breach of any representation or warranty of the Seller (as opposed rights for indemnity with respect to any covenant of claim asserted in good faith in a written notice to Erwin before such expiration. (c) Notwithstanding any provixxxx herein to the Sellercontrary, (i) contained in Article III of no Person otherwise entitled to indemnification under this Agreement Section 11.2 shall be so entitled until the Purchaser has suffered aggregate Damagesamount otherwise payable under this Section 11.2 exceeds $250,000, by reason of all in which event such breaches Person shall be entitled to indemnification for the amount in excess of $25,000250,000; provided further that (i) and Seller shall have no obligation to indemnify the Purchaser for the initial $25,000 in Damages, and (ii) in no claim may be made by Purchaser event shall the liability of Erwin under this Section 10.2(a) unless such claim exceeds $10,000 in value. In any event, the maximum amount that Seller shall be required to pay as paragraph to all claims made under this Section 10.2(a) shall be equal to Persons in the Cash Escrow Amount as of the date on which each claim is made. (b) Notwithstanding the foregoingaggregate exceed $3,000,000.00, the Seller shall indemnify, defend and hold harmless the Company, the Purchaser and any of their respective Affiliates from and against any and all Damages resulting from or arising out of any of the following (which indemnification, defense and hold harmless shall not be subject to any of except that the limitations set forth in Section 10.2(a)): (i) The pending threatened claim and (ii) of this Section 11.2(c) shall not apply to any indemnification relating to breach of the representations and warranties under Section 3.12, Section 3.18 or Section 3.2 (relating to stock ownership) or relating to a former employee identified breach of the covenants set forth in Schedule 3.21Section 5.7, Section 5.10, Section 5.11 or Section 9.2, or any claim arising from any employment agreement heretofore entered into by the Company, indemnification obligation described in Sections 11.2(b)(ii) and any claim (iii) or a breach of any creditor or beneficiary of the Seller or any of its Affiliates (other than the Company), whether arising prior to, on or after the Closing Date;obligation set forth in Article 12.

Indemnification Provisions for Benefit of Purchaser. (a) In the event that the Seller Company breaches any of its representations, warranties the Company Representations or either the Company or a Seller Party breaches any of the covenants contained in this Agreement or in any certificate delivered by the Seller pursuant hereto other Transaction Document (a “Company Indemnifiable Event”), and provided that, as to any claim for breach of representations such representations, warranties or warrantiescovenants, the Purchaser or Parent makes a written claim for indemnification against the Responsible Seller within the applicable survival period, if applicableParty or Parties from whom indemnification is sought, then the Responsible Seller agrees Parties agree to indemnify indemnify, jointly and severally, the Purchaser, Parent and any of their Affiliates, officers, directors, employees, agents or representatives (collectively, the “Purchaser and its Affiliates Indemnified Parties”) from and against any and all Damages the Purchaser and its Affiliates suffer suffered by any of them resulting from or arising out of such event; provided, however, that (i) the Responsible Seller Parties shall not have any obligation to indemnify the a Purchaser Indemnified Party from and against any Damages resulting from the breach of any representation or warranty of the Seller Company Representations (other than Perpetual Representations and Excluded Representations and as opposed to any breach of a covenant of the SellerCompany or a Seller Party, as to which none of the following limitations shall apply): (A) contained until the Purchaser Indemnified Parties have suffered aggregate Damages, by reason of all such breaches, in Article III excess of $200,000 (after which point the Responsible Seller Parties shall be obligated to indemnify the Purchaser Indemnified Parties for all Damages incurred by them in excess of a one-time, non-renewing deductible of $200,000), (B) if and to the extent that such Damages, when aggregated with all prior payments for Damages pursuant to this Agreement Section 11.2(a), exceed $6,700,000, and (C) if notice of such breach occurs after the expiration of the applicable survival period of such Company Representation as set forth in Section 11.1(a), and (ii) the Responsible Seller Parties shall not have any obligation to indemnify a Purchaser Indemnified Party from and against any Damages resulting from the breach of any Perpetual Representations or Excluded Representations or any breach of a covenant of the Company or a Seller Party if and to the extent that such Damages, when aggregated with all prior payments for Damages pursuant to this Section 11.2(a), exceed the Purchase Price. (b) In the event that a Seller Party breaches any of the Seller Party Representations other than the MCG IH Representations (a “Seller Party Indemnifiable Event”), and provided that, as to any claim for such breach, the Purchaser or Parent makes a written claim for indemnification against such Seller Party, then such Seller Party agrees to indemnify, severally but not jointly, the Purchaser Indemnified Parties from and against all Damages the Purchaser Indemnified Parties suffer resulting from or arising out of such breach; provided, however, that such Seller Party shall not have any obligation to indemnify the Purchaser Indemnified Parties from and against any Damages resulting from any breach of a Seller Party Representation other than an MCG IH Representation (i) until the Purchaser has suffered aggregate Damages, by reason of all such breaches by such Seller Party, in excess of $25,000; provided further that 200,000 (i) and after which point such Seller Party shall have no obligation be obligated to indemnify the Purchaser Indemnified Parties for the initial all Damages incurred by them in excess of a one-time, non-renewing deductible of $25,000 in Damages200,000), and (ii) no claim may be made by Purchaser under this Section 10.2(a) unless such claim exceeds $10,000 in value. In any event, the maximum amount that Seller shall be required to pay as to all claims made under this Section 10.2(a) shall be equal if (but only to the Cash Escrow Amount as extent that) the aggregate of all such Damages exceeds such Seller Party’s Deemed Pro Rata Share of the date on which each claim is madePurchase Price and (iii) if notice of such breach occurs after the expiration of the applicable survival period of such Seller Party Representation as set forth in Section 11.1(b). (bc) Notwithstanding In the foregoingevent (an “MCG IH Indemnifiable Event”) that MCG breaches any of the representations and warranties contained in Section 4.9 or in any certificate delivered by MCG with respect to such representations (the “MCG IH Representations”) and provided that, the Seller shall indemnify, defend and hold harmless the Companyas to any claim for such breach, the Purchaser and any of their respective Affiliates or Parent makes a written claim for indemnification against MCG, then MCG agrees to indemnify the Purchaser Indemnified Parties from and against any and all Damages (i.e., uncapped and not subject to any deductible, basket or threshold) the Purchaser Indemnified Parties suffer resulting from or arising out of any of the following (which indemnification, defense and hold harmless shall not be subject to any of the limitations set forth in Section 10.2(a)): (i) The pending threatened claim of a former employee identified in Schedule 3.21, any claim arising from any employment agreement heretofore entered into by the Company, and any claim of any creditor or beneficiary of the Seller or any of its Affiliates (other than the Company), whether arising prior to, on or after the Closing Date;such MCG IH Indemnifiable Event.

Indemnification Provisions for Benefit of Purchaser. (a) In the event that the Seller breaches any of its representations, warranties or covenants contained in this Agreement or in any certificate delivered by the Seller pursuant hereto to this Agreement and provided that, as to any claim for breach of representations or warranties, the Purchaser makes a written claim for indemnification against the Seller within the applicable survival period, if applicable, then the Seller agrees to indemnify the Purchaser and its Affiliates from and against all Damages the Purchaser and its Affiliates suffer resulting from or arising out of such event; provided, however, that the Seller shall not have any obligation to indemnify the Purchaser or any of its Affiliates pursuant to this paragraph (a) from and against any Damages resulting from the breach of any representation or warranty of the Seller (as opposed to any covenant of the Seller) contained in Article III of this Agreement (other than Perpetual Representations): (i) until and only to the extent that Purchaser has and its Affiliates have suffered aggregate Damages, by reason of all such breaches in excess of $25,000; provided further 100,000 (the “Deductible Amount”) (in which case Purchaser and its Affiliates shall be entitled to assert claims for only the Damages in excess of the Deductible Amount) or (ii) notwithstanding anything to the contrary contained in this Agreement, to the extent the aggregate amount that Seller has actually indemnified Purchaser and/or its Affiliates for prior breaches of representations and warranties of Seller contained in Article III of this Agreement exceeds $3,000,000 (i) and the “Cap”). Notwithstanding the foregoing, Seller shall have no obligation to indemnify the Purchaser for the initial $25,000 in Damages, and (ii) no claim may be made by Purchaser or its Affiliates under this Section 10.2(a9.2(a) unless such claim exceeds with respect to Damages amounting to less than $10,000 5,000 in valuethe aggregate arising out of the same occurrence or matter or series of related occurrences or matters. In any eventFor the avoidance of doubt, notwithstanding anything to the contrary, the maximum amount that Seller Deductible Amount and Cap shall be required not apply to pay as to all claims made under any purchase price adjustments set forth in Section 2.3 of this Section 10.2(a) shall be equal to the Cash Escrow Amount as of the date on which each claim is madeAgreement. (b) Notwithstanding Without limiting the generality or effect of the foregoing, the Seller shall indemnify, defend and hold harmless the Company, the Purchaser and any of their respective its Affiliates from and against any and all Damages resulting from or arising out of any of the following (which indemnification, defense and hold harmless shall not be subject to any of the limitations set forth in Section 10.2(a)without duplication): (i) The pending threatened claim any Liability in respect of (A) any Indebtedness of the Company or Seller, or (B) any Lien other than Permitted Liens not listed on Schedule 1.1; (ii) any liability arising under any Plan transferred to Seller or one of its other Affiliates; (iii) except as attributable to any transactions engaged in by the Company outside the Ordinary Course of Business on the Closing Date after Purchaser’s acquisition of the Stock, (a) all liability for income Taxes of the Company for Pre-Closing Tax Periods; (b) to the extent made an obligation of Seller pursuant to Section 5.1, all liability for real estate transfer Taxes or real estate gains Taxes arising as a result of the sale of the Stock under this Agreement; (c) all liability for income Taxes resulting by reason of any item of income or gain of a former employee identified in Schedule 3.21partnership reported by the Company as a partner, to the extent such items are properly attributable to a Pre-Closing Tax Period of such partnership; and (d) all liability for income Taxes of any claim arising from other Person for which the Company is liable pursuant to any employment contractual agreement heretofore entered into by the Company, and Company on or before the Closing Date; (iv) any claim matter listed on Schedule 9.2; (v) any Liability of any creditor or beneficiary of the Seller or any of its Affiliates Subsidiaries (other than the Company) that is not also a Liability of the Company. (c) The Indemnification provided for in this Section 9.2 shall survive any investigation at any time made by or on behalf of Purchaser or any knowledge or information that Purchaser may have. (d) Purchaser and its Affiliates shall first recoup all Damages for which they are entitled to indemnification under this Section 9.2 by reducing the accrued interest and outstanding principal amount under the Seller Note. This shall affect the timing and amounts of payment required under the Seller Note in the same manner as if Purchaser had made a permitted prepayment (without penalty or premium) thereunder. (e) Notwithstanding anything to the contrary in this Agreement: (i) Seller shall have no obligation to indemnify Purchaser or any of its Affiliates with respect to any Damages which are caused by or occur as a result of the construction, modification (other than ordinary maintenance) or demolition after the Closing Date of structures or other improvements at the property set forth on Schedule 3.11(a), whether arising prior to, ; (ii) In the event that the property set forth on Schedule 3.11(a) is rezoned or put to a materially different use after the Closing Date;, Seller shall have no obligation to indemnify Purchaser or any of its Affiliates with respect to the incremental amount of Damages that arise from or relate to such rezoning or change in use; and (iii) Seller’s obligation to indemnify Purchaser and/or any of its Affiliates for Damages for which Purchaser and its Affiliates are entitled to indemnification absent this clause (iii) that arise from or relate to a breach of the representations and warranties made by Seller in Section 3.21 shall be limited to 80% of the amount of such Damages if any such breach or the basis therefor is discovered in connection with any environmental investigation (other than a phase I investigation required or requested by a transferee or a lender in connection with a sale or transfer of the property) or cleanup that is not required by Environmental Laws or that likely would not be undertaken by a reasonably prudent business person in the absence of an indemnity.

Indemnification Provisions for Benefit of Purchaser. (ai) In the event that any of the Seller Sellers breaches any of its their representations, warranties or and covenants contained in this Agreement or in any certificate delivered by the Seller herein, and, if there is an applicable survival period pursuant hereto and to SECTION 9.1(A) above, provided that, as to any claim for breach of representations or warranties, the that Purchaser makes a written claim for indemnification against any of the Seller Sellers within the applicable such survival period, if applicable, then each of the Seller Sellers agrees (subject to SECTION 10.9) to indemnify the Purchaser and its Affiliates from and against all Damages the entirety of any Adverse Consequences Purchaser may suffer through and its Affiliates after the date of the claim for indemnification (including any Adverse Consequences Purchaser may suffer after the end of any applicable period) resulting from or from, arising out of such eventof, relating to, in the nature of, or caused by the breach; providedSUBJECT, howeverHOWEVER, that to the Seller following limitations: (a) the Sellers shall not have any obligation to indemnify the Purchaser from and against any Damages Adverse Consequences resulting from from, arising out of, relating to, in the nature of, or caused by the breach of any representation or warranty of the Seller (as opposed to any covenant of the Seller) contained in Article III of this Agreement Class A Representations until the Purchaser has suffered aggregate Damages, Adverse Consequences by reason of all such breaches in excess of a Twenty-Five Thousand Dollar ($25,000; provided further that ) aggregate deductible (i) and Seller shall have no obligation after which point the Sellers will be obligated only to indemnify the Purchaser for the initial $25,000 in Damages, from and (ii) no claim may be made by Purchaser under this Section 10.2(a) unless against further such claim exceeds $10,000 in value. In any event, the maximum amount that Seller shall be required to pay as to all claims made under this Section 10.2(a) shall be equal to the Cash Escrow Amount as of the date on which each claim is made.Adverse Consequences); (b) Notwithstanding the foregoing, the Seller Sellers shall indemnify, defend and hold harmless the Company, the not have any obligation to indemnify Purchaser and any of their respective Affiliates from and against any Adverse Consequences resulting from, arising out of, relating to, in the nature of, or caused by the breach of any Class B Representations until Purchaser has suffered Adverse Consequences by reason of all such breaches in excess of a Three Hundred Eighty Thousand Dollar ($380,000) aggregate deductible (after which point the Sellers will be obligated only to indemnify Purchaser from and against further such Adverse Consequences) and there will be an aggregate ceiling on the obligation of the Sellers to indemnify Purchaser from and against Adverse Consequences resulting from, arising out of, relating to, in the nature of, or caused by breaches of the Class B Representations, which ceiling shall equal one-half (1/2) of the sum of the amount of the Purchase Price; (1) the Sellers shall not have any obligation to indemnify Purchaser from and against any Adverse Consequences resulting from, arising out of, relating to, in the nature of, or caused by the breach of any Environmental Representations until Purchaser has suffered Adverse Consequences by reason of all Damages such breaches in excess of a Five Hundred Thousand Dollar ($500,000) aggregate deductible, (2) after Purchaser has suffered Adverse Consequences in the amount of such deductible, the Sellers will be obligated to indemnify Purchaser from and against further such Adverse Consequences up to an aggregate amount of Five Hundred Thousand Dollars ($500,000), and (3) thereafter, the Sellers will be obligated to indemnify Purchaser from and against one-half (1/2) of all further such Adverse Consequences, up to an aggregate ceiling on the obligation of the Sellers to indemnify Purchaser from and against Adverse Consequences resulting from, arising out of, relating to, in the nature of, or caused by breaches of the Environmental Representations, which ceiling shall equal one-half (1/2) of the sum of the amount of the Purchase Price; and (d) Notwithstanding any other limitation in this SUBSECTION 9.1(B)(I), the Sellers shall be fully obligated to indemnify Purchaser for any (1) federal income tax liability, together with any penalties and interest thereon, to the extent of (a) any assessments occurring at or prior to Closing, (b) to the extent occurring after Closing, such liability results from any disallowance of any deductions or amortization with respect to goodwill of the Company or any Harley Subsidiaries for any tax year of the Company or such Harley Subsidiaries ended on or prior to December 31, 1996, but only to the extent that such liability and related interest and penalties have not been accrued in the audited financial statements of the Company at October 31, 1996, and (c) any corporate tax liability of the Company for any tax year resulting from or arising out the failure of the IRS to allow any deductions for the Permitted Bonus, and (2) any liability with respect to Environmental, Health & Safety Laws with respect to the specific matters set forth in SUBSECTIONS 6.1(G)(I) and (II) irrespective of any waiver of such conditions at Closing. (ii) In the event any of the following (which indemnificationSellers commits any fraud in connection with the transactions contemplated herein, defense or conceals or permits the concealment of any matters from Purchaser or its representative during the due diligence process, and hold harmless Purchaser makes a written claim for indemnification under this Subsection 9.1(B)(ii), then each of the Sellers agrees to indemnify Purchaser from and against the entirety of any Adverse Consequences Purchaser may suffer through and after the date of the claim for indemnification resulting from, arising out of, relating to, in the nature of, or caused by such fraud or concealment; PROVIDED, HOWEVER, that the Sellers shall not be subject have any obligation to indemnify Purchaser from and against any Adverse Consequences resulting from, arising out of, relating to, in the nature of, or caused by such fraud or concealment until Purchaser has suffered Adverse Consequences by reason of the limitations set forth all such fraud or concealment in Section 10.2(a)): (i) The pending threatened claim excess of a former employee identified in Schedule 3.21, any claim arising Twenty-Five Thousand Dollar ($25,000) aggregate deductible (after which point the Sellers will be obligated only to indemnify Purchaser from any employment agreement heretofore entered into by the Company, and any claim of any creditor or beneficiary of the Seller or any of its Affiliates (other than the Companyagainst further such Adverse Consequences), whether arising prior to, on or after the Closing Date;.

Indemnification Provisions for Benefit of Purchaser. (a) In the event that the Seller breaches any of its representations, warranties or covenants contained in this Agreement or in any certificate delivered by the Seller pursuant hereto to this Agreement and provided that, as to any claim for breach of representations or warranties, the Purchaser makes a written claim for indemnification against the Seller within the applicable survival period, if applicable, then the Seller agrees to indemnify the Purchaser and its Affiliates from and against all Damages the Purchaser and its Affiliates suffer resulting from or arising out of such event; provided, however, that the Seller shall not have any obligation to indemnify the Purchaser or any of its Affiliates pursuant to this paragraph (a) from and against any Damages resulting from the breach of any representation or warranty of the Seller (as opposed to any covenant of the Seller) contained in Article III of this Agreement (other than Perpetual Representations): (i) until and only to the extent that Purchaser has and its Affiliates have suffered aggregate Damages, by reason of all such breaches in excess of $25,000; provided further 100,000 (the “Deductible Amount”) (in which case Purchaser and its Affiliates shall be entitled to assert claims for only the Damages in excess of the Deductible Amount) or (ii) notwithstanding anything to the contrary contained in this Agreement, to the extent the aggregate amount that Seller has actually indemnified Purchaser and/or its Affiliates for prior breaches of representations and warranties of Seller contained in Article III of this Agreement exceeds $3,000,000 (i) and the “Cap”). Notwithstanding the foregoing, Seller shall have no obligation to indemnify the Purchaser for the initial $25,000 in Damages, and (ii) no claim may be made by Purchaser or its Affiliates under this Section 10.2(a9.2(a) unless such claim exceeds with respect to Damages amounting to less than $10,000 5,000 in valuethe aggregate arising out of the same occurrence or matter or series of related occurrences or matters. In any eventFor the avoidance of doubt, notwithstanding anything to the contrary, the maximum amount that Seller Deductible Amount and Cap shall be required not apply to pay as to all claims made under any purchase price adjustments set forth in Section 2.3 of this Section 10.2(a) shall be equal to the Cash Escrow Amount as of the date on which each claim is madeAgreement. (b) Notwithstanding Without limiting the generality or effect of the foregoing, the Seller shall indemnify, defend and hold harmless the Company, the Purchaser and any of their respective its Affiliates from and against any and all Damages resulting from or arising out of any of the following (which indemnification, defense and hold harmless shall not be subject to any of the limitations set forth in Section 10.2(a)without duplication): (i) The pending threatened claim any Liability in respect of (A) any Indebtedness of the Company or Seller, or (B) any Lien other than Permitted Liens not listed on Schedule 1.1; (ii) any liability arising under any Plan transferred to Seller or one of its other Affiliates; (iii) except as attributable to any transactions engaged in by the Company outside the Ordinary Course of Business on the Closing Date after Purchaser’s acquisition of the Stock, (a) all liability for income Taxes of the Company for Pre-Closing Tax Periods; (b) to the extent made an obligation of Seller pursuant to Section 5.1, all liability for real estate transfer Taxes or real estate gains Taxes arising as a result of the sale of the Stock under this Agreement; (c) all liability for income Taxes resulting by reason of any item of income or gain of a former employee identified in Schedule 3.21partnership reported by the Company as a partner, to the extent such items are properly attributable to a Pre-Closing Tax Period of such partnership; and (d) all liability for income Taxes of any claim arising from other Person for which the Company is liable pursuant to any employment contractual agreement heretofore entered into by the Company, and Company on or before the Closing Date; (iv) any claim matter listed on Schedule 9.2; (v) any Liability of any creditor or beneficiary of the Seller or any of its Affiliates Subsidiaries (other than the Company) that is not also a Liability of the Company. (c) The Indemnification provided for in this Section 9.2 shall survive any investigation at any time made by or on behalf of Purchaser or any knowledge or information that Purchaser may have. (d) Purchaser and its Affiliates shall first recoup all Damages for which they are entitled to indemnification under this Section 9.2 by reducing the accrued interest and outstanding principal amount under the Seller Note. This shall affect the timing and amounts of payment required under the Seller Note in the same manner as if Purchaser had made a permitted prepayment (without penalty or premium) thereunder. (e) Notwithstanding anything to the contrary in this Agreement: (i) Seller shall have no obligation to indemnify Purchaser or any of its Affiliates with respect to any Damages which are caused by or occur as a result of the construction, modification (other than ordinary maintenance) or demolition after the Closing Date of structures or other improvements at the property set forth on Schedule 3.11(a), whether arising prior to, ; (ii) In the event that the property set forth on Schedule 3.11 (a) is rezoned or put to a materially different use after the Closing Date;, Seller shall have no obligation to indemnify Purchaser or any of its Affiliates with respect to the incremental amount of Damages that arise from or relate to such rezoning or change in use; and (iii) Seller’s obligation to indemnify Purchaser and/or any of its Affiliates for Damages for which Purchaser and its Affiliates are entitled to indemnification absent this clause (iii) that arise from or relate to a breach of the representations and warranties made by Seller in Section 3.21 shall be limited to 80% of the amount of such Damages if any such breach or the basis therefor is discovered in connection with any environmental investigation (other than a phase I investigation required or requested by a transferee or a lender in connection with a sale or transfer of the property) or cleanup that is not required by Environmental Laws or that likely would not be undertaken by a reasonably prudent business person in the absence of an indemnity.

Indemnification Provisions for Benefit of Purchaser. (ai) In the event that the of any breach by any Seller breaches of any of his, her or its representations, warranties or covenants contained in this Agreement or in any certificate delivered by the Seller herein, and, if there is an applicable survival period pursuant hereto and to SECTION 9.1(A) above, provided that, as to any claim for breach of representations or warranties, the that Purchaser makes a written claim for indemnification against any of the Seller Sellers within the applicable such survival period, if applicable, then each of the Seller Sellers agrees to indemnify the Purchaser and its Affiliates from and against all Damages the entirety of any Adverse Consequences Purchaser may suffer through and its Affiliates after the date of the claim for indemnification (including any Adverse Consequences Purchaser may suffer after the end of any applicable period) resulting from or from, arising out of, relating to, in the nature of, or caused by the breach, regardless of whether such eventSeller also breached his, her or its representations, warranties or covenants; providedsubject, however, that to the Seller following limitations: (a) the Sellers shall not have any obligation to indemnify the Purchaser from and against any Damages Adverse Consequences resulting from from, arising out of, relating to, in the nature of, or caused by the breach of any representation or warranty of the Seller (as opposed to any covenant of the Seller) contained in Article III of this Agreement until the Purchaser has suffered aggregate Damages, Adverse Consequences by reason of all such breaches in excess of a One Hundred Thousand Dollars ($25,000; provided further that (i100,000) and Seller shall have no obligation to indemnify the Purchaser for the initial $25,000 in Damagesaggregate deductible, and (iib) no after Purchaser has suffered Adverse Consequences in the amount of such deductible, the Sellers will be obligated to indemnify Purchaser from and against further such Adverse Consequences up to an aggregate amount of One Million Dollars ($1,000,000). The Parties hereby acknowledge and agree that Purchaser may only bring a claim may be made by Purchaser for Adverse Consequences under this Section 10.2(aSECTION 9.1(B)(i)(b) unless if such claim exceeds $10,000 is, individually, in value. In any event, the maximum an amount that Seller shall be required to pay as to all claims made under this Section 10.2(a) shall be equal to the Cash Escrow Amount as of the date on which each claim is madeat least Five Thousand Dollars ($5,000). (bii) Notwithstanding the foregoingforegoing or any provision hereof to the contrary, the Seller (a) Mr. Siegel and Mrs. Siegel shall indemnify, defend be jointly and hold harmless the Company, the Purchaser and severally liable with xxxxxxx xx theix xxxxxxxxxe liability for any of their respective Affiliates from and against any and all Damages resulting from or arising out breach of any representation or warranty by Mr. Olivier hereunder, and (b) the indemnification liability of the following Sexxxxx xxxxxnder shall (which indemnificationexcept between the Siegels themselves) be several, defense and hold harmless shall not be subject to any joint and several, and the amount of the limitations set forth in Section 10.2(a)): (i) The pending threatened claim indemnification liability of a former employee identified in Schedule 3.21, any claim arising from any employment agreement heretofore entered into by the Company, and any claim of any creditor or beneficiary each of the Seller or any Sellers shall be that percentage of its Affiliates (other than the Company), whether arising prior to, on or after total amount of the Closing Date;indemnification liability of all the Sellers as follows:

Indemnification Provisions for Benefit of Purchaser. (a) In the event that the Seller either Shareholder breaches any of its his or her representations, warranties or covenants contained in this Agreement or in any certificate delivered by the Seller said Shareholder pursuant hereto and provided that, as to any claim for breach of representations or warranties, the Purchaser makes a written claim for indemnification against the Seller Shareholders within the applicable survival period, if applicable, then the Seller agrees Shareholders agree to indemnify the Purchaser and its Affiliates from and against all Damages the Purchaser and its Affiliates suffer resulting from or arising out of such event; provided, however, that the Seller Shareholders shall not have any obligation to indemnify the Purchaser from and against any such Damages resulting from the breach of any representation or warranty of the Seller (as opposed to any covenant of the Seller) contained in Article III of this Agreement until the Purchaser has suffered aggregate Damages, Damages by reason of all such breaches in excess of $25,00050,000.00 USD and then only to the extent of Damages in excess of said $50,000.00 USD; provided further that (i) and Seller shall have no obligation to indemnify the Purchaser for the initial $25,000 in Damages, and (ii) no claim may be made by Purchaser under this Section 10.2(a) unless such the total of the Damages associated with any single event or occurrence triggering an indemnification claim exceeds $10,000 in value10,000.00 USD. In any event, the maximum amount that Seller Shareholders shall be required to pay as to all claims made under this Section 10.2(a) shall be equal to the Cash Escrow Amount lesser of $4,000,000.00 USD, or the actual consideration received by Shareholders pursuant to this Agreement as of the date of Shareholders’ payment of such indemnification claim, and the payment of which, at Shareholders’ election, may be satisfied in whole or in part by (A) the return of any portion of the Stock Consideration remaining in the Shareholders’ possession, which shall be valued for purposes of this paragraph at the greater of (i) the per share price at which they were issued to the Shareholders, or (ii) the per share closing price of IMSI’s common stock as reported on the OTCBB on the date on which each claim is madethe shares are returned to IMSI or (B) setting off of such amounts against all or any portion of the remaining amounts due under the Promissory Note. In addition, the maximum indemnification amount set forth herein shall be reduced by the net loss (including brokerage fees and commissions), if any, incurred by the Shareholders as a result of the sale of any portion of the Stock Consideration. (b) Notwithstanding Without limiting the generality or effect of the foregoing, the Seller Shareholder shall indemnify, defend and hold harmless the CompanyIMSI, the Purchaser and any of their respective Affiliates from and against any and all Damages resulting from or arising out of any of the following Pre-Closing Taxes (which indemnification, defense and hold harmless shall not be subject to any of the limitations set forth in Section 10.2(a9.2(a) above)): . For purposes of this Agreement, “Pre-Closing Taxes” shall mean: (i) The pending threatened claim all liability for Taxes of a former employee identified in Schedule 3.21, any claim arising from any employment agreement heretofore entered into by the Company, and any claim of any creditor or beneficiary of the Seller or any of its Affiliates (other than the Company), whether arising prior to, WHL for tax periods ending on or after prior to the Closing Date;; (ii) all liability for Taxes described in Section 5.1; (iii) all liability for Taxes associated with the activities set forth on Schedule 3.23; and (iv) all liability for Taxes of any other person or entity due and owing with respect to the period on or before the Closing Date pursuant to any contractual agreement entered into on or before the Closing Date.

Indemnification Provisions for Benefit of Purchaser. (a) In the event that the Seller breaches agrees to indemnify Purchaser and its Affiliates against (i) any Damages Purchaser suffers arising out of or resulting from Seller's breach of any of its representations, warranties or covenants contained in this Agreement or in any certificate delivered by the Seller pursuant hereto to this Agreement and provided that, as to any claim for breach of representations or warranties, the Purchaser makes a written claim for indemnification against the Seller within the applicable survival period, if applicable, then the Seller agrees to indemnify the Purchaser and its Affiliates from (ii) any and against all Damages related to any of the Purchaser and its Affiliates suffer resulting from or arising out of such eventExcluded Liabilities; provided, however, that the Seller shall not have any obligation to indemnify the Purchaser from and against any Damages resulting from the breach of any representation or warranty of the Seller (as opposed to any covenant of the Seller) contained in Article III IV of this Agreement (other than Perpetual Representations): (x) until the Purchaser has suffered aggregate Damages, by reason of all such breaches (excluding breaches or series of related breaches resulting in Damages of less than $5,000), in excess of $25,000; provided further that 250,000 (ior $150,000 in the event of a breach of Section 4.28 hereof (the "Plan Basket")) and (the "Deductible") (after which point Seller shall have no obligation will be obligated only to indemnify Purchaser from and against further Damages in excess of the Deductible), (y) in the case of a breach, or alleged breach, of the representations and warranties contained in Section 4.21, to the extent that Purchaser for has not complied with the initial $25,000 provisions of Section 13.5, or (z) notwithstanding anything to the contrary contained in Damagesthis Agreement, and (ii) no claim may be made by Purchaser under this Section 10.2(a) unless such claim exceeds $10,000 in value. In any event, to the maximum extent the aggregate amount that Seller has actually indemnified Purchaser for prior breaches of representations and warranties of Seller contained in Article IV of this Agreement exceeds the Purchase Price (the "Cap"). Breaches of Section 4.28 shall be required to pay as to all claims made under this Section 10.2(a) shall be equal applied first against the Plan Basket and thereafter, to the Cash Escrow Amount as extent of any excess, against the date on which each claim is made$250,000 Deductible. (b) Notwithstanding Without limiting the generality or effect of the foregoing, the Seller shall indemnify, defend and hold harmless the Company, the Purchaser and any of their respective its Affiliates from and against any and all Damages resulting from or arising out of any of the following (which indemnification, defense and hold harmless shall not be subject to any of the limitations set forth in Section 10.2(a)):following: (i) The pending threatened claim of a former employee identified in Schedule 3.21Subject to Section 13.5, any claim arising from any employment agreement heretofore entered into business or property formerly operated by the Company, and Business or any predecessor but not operated by the Business or included in the Acquired Assets at the Closing; (ii) Any claim of any creditor or beneficiary of the Seller or any of its Affiliates (other than the Company)that is not an Assumed Liability, whether arising prior to, on or after the Closing Date; or (iii) except with respect to the Plans identified under Items 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 20, and 25 on Schedule 4.18(a) annexed hereto and in Schedule 4.18(j)) (x) any Liability to any Former Business Employee or any employee of any predecessor of Seller as of the Closing Date arising under any employee welfare benefit plan, including, without limitation, post-retirement health benefits, to the extent not fully funded immediately prior to the Closing and (y) except as set forth in Section 13.3(w) below, any severance or other benefit payable to any Business Employee or Former Business Employee by reason of this Agreement or the transactions contemplated hereby, including, without limitation, any stay bonus, golden parachute or other change-in-control payment or benefit; (iv) (A) Any breach of the 1994 Acquisition Agreement by JPSGP Inc., Foamex-JPS Automotive L.P., Seller or any of their respective Affiliates to the extent occurring or commencing, in whole or in part, prior to the closing date thereof and (B) all Taxes of another Person assumed by Seller pursuant to the 1994 Acquisition Agreement which Seller is obligated to pay. (c) The Indemnification provided for in Sections 13.2(a) and 13.2(b) shall survive any investigation at any time made by or on behalf of Purchaser or any knowledge or information that Purchaser may have. (d) Notwithstanding anything to the contrary contained in this Agreement, including this Section 13.2, Purchaser shall not be entitled to indemnity hereunder if and to the extent that there has been an increase in a Liability or contra-asset with respect to the matter for which indemnification is sought in the period from May 3, 1997 to the Closing Date as reflected on the Closing Date Balance Sheet as finally adjusted in connection with the computation of Actual Net Worth Amount. (e) Notwithstanding anything to the contrary contained in this Agreement, including this Section 13.2, Purchaser shall not be entitled to indemnity hereunder for any breach of Section 4.11(a), until Purchaser has first made, or has caused Seller to first make, a demand against the insurer under any available title insurance and Purchaser has concluded in its sole discretion that such insurer is unable or unwilling to comply with such demand.

Indemnification Provisions for Benefit of Purchaser. (a) In the event that the Seller breaches any of its representations, warranties or covenants contained in this Agreement or in any certificate delivered by the Seller pursuant hereto and provided that, as to any claim for breach of representations or warranties, the Purchaser makes a written claim for indemnification against the Seller within the applicable survival period, if applicable, then the Seller agrees to indemnify the Purchaser and its Affiliates from and against all Damages the Purchaser and its Affiliates suffer resulting from or arising out of such event; provided, however, that the Seller shall not have any obligation to indemnify the Purchaser from and against any Damages resulting from the breach of any representation or warranty of the Seller (as opposed to any covenant of the Seller) contained in Article III of this Agreement until the Purchaser has suffered aggregate Damages, by reason of all such breaches in excess of $25,000; provided further that (i) and Seller shall have no obligation to indemnify the Purchaser for the initial $25,000 in Damages, and (ii) no claim may be made by Purchaser under this Section 10.2(a) unless such claim exceeds $10,000 in value. In any event, the maximum amount that Seller shall be required to pay as to all claims made under this Section 10.2(a) shall be equal to the Cash Escrow Amount amount of unpaid Earn-Out Payments as of the date on which each claim is made. (b) Notwithstanding Without limiting the generality or effect of the foregoing, the Seller shall indemnify, defend and hold harmless the Company, the Purchaser and any of their respective Affiliates from and against any and all Damages resulting from or arising out of any of the following (which indemnification, defense and hold harmless shall not be subject to any of the limitations set forth in Section 10.2(a)): (i) The pending threatened claim of a former employee identified in Schedule 3.21, any claim arising from any employment agreement heretofore entered into by the Company, and any Any claim of any creditor or beneficiary of the Seller or any of its Affiliates (other than the Company), whether arising prior to, on or after the Closing Date;.

Indemnification Provisions for Benefit of Purchaser. (a) In the event that the If Seller breaches and/or Shareholders breach any of its representations, representations and warranties or covenants contained in this Agreement or in the Collateral Documents or any certificate documents, instruments and certificates delivered by the Seller pursuant hereto hereunder and provided thatthereunder, as to any claim for breach of representations or warranties, the and if Purchaser makes a written claim for indemnification against the Seller and/or Shareholders within the applicable survival period, if applicableSurvival Period, then the Seller agrees to indemnify the and Shareholders shall jointly and severally indemnify, defend and hold harmless Purchaser and its Affiliates and the shareholders, directors, officers, employees, agents, successors and assigns of any of such Persons, from and against all Damages any Adverse Consequences that any such Person may suffer through and after the Purchaser and its Affiliates date of the claim for indemnification (including any Adverse Consequences that any such Person may suffer after the end of the Survival Period) resulting from or from, arising out of such eventof, relating to or caused by the breach; provided, however, that the Seller Shareholders shall not have be liable for Adverse Consequences resulting from, arising out of or relating to legal claims of Subscribers that the Equipment Receivables do not comply with applicable law unless any obligation such Shareholder had reason to indemnify the Purchaser from and against any Damages resulting from the breach of any representation or warranty of the Seller (as opposed know prior to any covenant of the Seller) contained in Article III of this Agreement until the Purchaser has suffered aggregate Damages, by reason of all Closing that there existed a Basis for such breaches in excess of $25,000; provided further that (i) and Seller shall have no obligation to indemnify the Purchaser for the initial $25,000 in Damages, and (ii) no claim may be made by Purchaser under this Section 10.2(a) unless such claim exceeds $10,000 in value. In any event, the maximum amount that Seller shall be required to pay as to all claims made under this Section 10.2(a) shall be equal to the Cash Escrow Amount as of the date on which each claim is madeclaims. (b) Notwithstanding Seller and Shareholders agree, jointly and severally, to indemnify Purchaser and its Affiliates, and the shareholders, directors, officers, employees, agents, successors and assigns of any of such Persons, from and against the entirety of any Adverse Consequences that any such Person may suffer resulting from, arising out of, relating to, in the nature of, or caused by any breach of any covenant, agreement or obligation of Seller and/or Shareholders contained in this Agreement or the Collateral Documents or any documents, instruments and certificates delivered hereunder and thereunder. In addition to, but not exclusive of, any indemnity on account of the foregoing, the Seller shall indemnify, defend and hold harmless the Company, the agrees to indemnify Purchaser and its Affiliates, and the shareholders, directors, officers, employees, agents, successors and assigns of any of their respective Affiliates such Persons, from and against the entirety of any and all Damages Adverse Consequences that any such Person may suffer resulting from or from, arising out of, relating to, in the nature of or caused by any act or omission of Seller with respect to, or any event or circumstance related to, the ownership or operation of the following (which indemnification, defense and hold harmless shall not be subject to any Assets or the conduct of the limitations set forth in Section 10.2(a)): (i) The pending threatened Business, which act, omission, event or circumstance occurred or existed prior to or at the Closing Date, without regard to whether a claim of a former employee identified in Schedule 3.21, any claim arising from any employment agreement heretofore entered into by the Company, and any claim of any creditor or beneficiary of the Seller or any of its Affiliates (other than the Company), whether arising prior to, on with respect to such matter is asserted before or after the Closing Date;; any Liability of Seller and/or Shareholders or the Business that is not an Assumed Liability; any Liability of Purchaser arising by operation of law as a consequence of the Closing (including under any bulk transfer law of any jurisdiction or under any common law doctrine of de facto merger or successor liability or under any fraudulent conveyance law of any jurisdiction) that is not an Assumed Liability; and any Liability for Taxes attributable to the use, ownership or operation of the Assets by Seller or the Business relating to periods prior to Closing. Except as otherwise provided in this agreement, Seller's and Shareholders' obligations under this Section 11.2(b) shall expire at the end of the Survival Period; provided, however, that such expiration will not include, extend or apply to rights for indemnity with respect to any claim asserted in a written notice to the Seller and/or Shareholders before such expiration. (c) No Person otherwise entitled to indemnification under this Section 11.2 shall be so entitled until the aggregate amount otherwise payable under this Section exceeds $50,000, and shall then be entitled to the indemnification only as to the excess. The right of Purchaser and its Affiliates and the shareholders, directors, officers, employees, agents, successors and assigns of any such Person to indemnity under this Section 11.2 shall be limited to $5,000,000 in the aggregate. In addition, the liability of Shareholders other than Xxxxxx shall be limited to the following allocable portions of Adverse Consequences relating to any indemnifiable claim: Xxxxx Xxxxxx, 1 percent; E.

Indemnification Provisions for Benefit of Purchaser. (a) In the event that the Seller breaches agrees to indemnify Purchaser and its Affiliates against (i) any Damages Purchaser suffers arising out of or resulting from Seller's breach of any of its representations, warranties or covenants contained in this Agreement or in any certificate delivered by the Seller pursuant hereto to this Agreement and provided that, as to any claim for breach of representations or warranties, the Purchaser makes a written claim for indemnification against the Seller within the applicable survival period, if applicable, then the Seller agrees to indemnify the Purchaser and its Affiliates from (ii) any and against all Damages related to any of the Purchaser and its Affiliates suffer resulting from or arising out of such eventExcluded Liabilities; provided, however, that the Seller shall not have any obligation to indemnify the Purchaser from and against any Damages resulting from the breach of any representation or warranty of the Seller (as opposed to any covenant of the Seller) contained in Article III ARTICLE IV of this Agreement (other than Perpetual Representations): (x) until the Purchaser has suffered aggregate Damages, by reason of all such breaches (excluding breaches or series of related breaches resulting in Damages of less than $5,000), in excess of $25,000; provided further that 250,000 (ior $150,000 in the event of a breach of SECTION 4.28 hereof (the "PLAN BASKET")) and (the "DEDUCTIBLE") (after which point Seller shall have no obligation will be obligated only to indemnify Purchaser from and against further Damages in excess of the Deductible), (y) in the case of a breach, or alleged breach, of the representations and warranties contained in SECTION 4.21, to the extent that Purchaser for has not complied with the initial $25,000 provisions of SECTION 13.5, or (z) notwithstanding anything to the contrary contained in Damagesthis Agreement, and (ii) no claim may be made by Purchaser under this Section 10.2(a) unless such claim exceeds $10,000 in value. In any event, to the maximum extent the aggregate amount that Seller has actually indemnified Purchaser for prior breaches of representations and warranties of Seller contained in ARTICLE IV of this Agreement exceeds the Purchase Price (the "CAP"). Breaches of SECTION 4.28 shall be required to pay as to all claims made under this Section 10.2(a) shall be equal applied first against the Plan Basket and thereafter, to the Cash Escrow Amount as extent of any excess, against the date on which each claim is made$250,000 Deductible. (b) Notwithstanding Without limiting the generality or effect of the foregoing, the Seller shall indemnify, defend and hold harmless the Company, the Purchaser and any of their respective its Affiliates from and against any and all Damages resulting from or arising out of any of the following (which indemnification, defense and hold harmless shall not be subject to any of the limitations set forth in Section 10.2(a)):following: (i) The pending threatened claim of a former employee identified in Schedule 3.21Subject to SECTION 13.5, any claim arising from any employment agreement heretofore entered into business or property formerly operated by the Company, and Business or any predecessor but not operated by the Business or included in the Acquired Assets at the Closing; (ii) Any claim of any creditor or beneficiary of the Seller or any of its Affiliates (other than the Company)that is not an Assumed Liability, whether arising prior to, on or after the Closing Date; or (iii) except with respect to the Plans identified under Items 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 20, and 25 on SCHEDULE 4.18(A) annexed hereto and in SCHEDULE 4.18(J)) (x) any Liability to any Former Business Employee or any employee of any predecessor of Seller as of the Closing Date arising under any employee welfare benefit plan, including, without limitation, post-retirement health benefits, to the extent not fully funded immediately prior to the Closing and (y) except as set forth in SECTION 13.3(W) below, any severance or other benefit payable to any Business Employee or Former Business Employee by reason of this Agreement or the transactions contemplated hereby, including, without limitation, any stay bonus, golden parachute or other change-in-control payment or benefit; (iv) (A) Any breach of the 1994 Acquisition Agreement by JPSGP Inc., Foamex-JPS Automotive L.P., Seller or any of their respective Affiliates to the extent occurring or commencing, in whole or in part, prior to the closing date thereof and (B) all Taxes of another Person assumed by Seller pursuant to the 1994 Acquisition Agreement which Seller is obligated to pay. (c) The Indemnification provided for in SECTIONS 13.2(A) and 13.2(B) shall survive any investigation at any time made by or on behalf of Purchaser or any knowledge or information that Purchaser may have. (d) Notwithstanding anything to the contrary contained in this Agreement, including this SECTION 13.2, Purchaser shall not be entitled to indemnity hereunder if and to the extent that there has been an increase in a Liability or contra-asset with respect to the matter for which indemnification is sought in the period from May 3, 1997 to the Closing Date as reflected on the Closing Date Balance Sheet as finally adjusted in connection with the computation of Actual Net Worth Amount. (e) Notwithstanding anything to the contrary contained in this Agreement, including this SECTION 13.2, Purchaser shall not be entitled to indemnity hereunder for any breach of SECTION 4.11(A), until Purchaser has first made, or has caused Seller to first make, a demand against the insurer under any available title insurance and Purchaser has concluded in its sole discretion that such insurer is unable or unwilling to comply with such demand. 62