Common use of Limitation and Expiration Clause in Contracts

Limitation and Expiration. (a) Subject to Section 9.6(b) below, the Indemnitor shall be liable for all Losses arising out of any breaches of the covenants, agreements, representations and warranties set forth in this Agreement, unless any such covenant, agreement, representation or warranty shall have been specifically waived in writing by the Indemnitee. Subject to Section 9.6(b) below, for Third Party Claims and, remedies where Indemnitee seeks to set off against the Promissory Note, the remedies set forth in this Article 9 shall be exclusive, and for any other claim, indemnity shall not be the exclusive cause of action or limit any other cause of action that may be available to an Indemnitee. However, no Party or Indemnitee shall be permitted to recover punitive or consequential damages from another Party or an Indemnitor, whether by way of indemnification or under any other cause of action, or theory of recovery under this Article 9, including Section 9.1(b) and, in any event, except as set forth in Section 9.6(b), 7.2(k) or 4.5, the Stockholders' maximum liability shall be the Indemnity Cap. The Parties acknowledge and agree that, except for the express representations and warranties made by any Party in this Agreement or the Asset Purchase and Sale Agreement, there are no representations or warranties made by the Parties, either express or implied, with respect to the Business, the Stock, the Subject Properties, or any of the transactions contemplated by this Agreement or the Related Documents. (b) The Parties acknowledge, that the provisions of this Article 9 were a material and substantial inducement for the transactions hereunder. In consideration of the representations and warranties hereunder, the Parties hereto agree that Stockholders' liability for and in respect of this Agreement and the transactions contemplated by this Agreement shall be subject and limited to the absolute, fixed amounts and for the absolute, fixed time limitations specified in this Article 9. These limitations of amount of liability and time to assert any such liability are exclusive, shall apply to all claims and other demands, charges, allegations, liabilities, responsibilities and exposures no matter how any and all of such claims may be brought or asserted, whether sounding in contract, tort or otherwise, whether known or unknown, contingent or otherwise. The Stockholders shall not have any liability to indemnify Landry's or the Purchaser for Losses unless the aggregate amount of Xxxxxx xor all breaches by the Sellers would, but for the provisions of this Section 9.6, exceed, on an aggregate basis, $100,000 ("Threshold Amount") for Third Parties Claims or any other claims, provided however that if such Threshold Amount is exceeded, the Stockholders shall be liable for all Losses from the first dollar. In no event shall the total liability of the Stockholders for all claims hereunder whether Third Party Claim, or any other claim, or both, exceed $10,000,000 (the "Indemnity Cap") (whether by way of indemnity or any other claim or theory of recovery in the aggregate; provided that notwithstanding the foregoing, the Stockholders shall be fully liable to indemnify Landry's and the Purchaser for Losses as a result of, caused by, arixxxx xxx of or in any way relating to the breach by the Stockholders of the representations or covenants or agreements set forth in Sections 9.1(b) and 7.2(k), and the representations set forth in Section 4.5 and any such amount shall not count towards the Threshold Amount or the Indemnity Cap. Any amounts paid by Sellers prior to the Closing Date arising out of or relating to the representations or warranties contained in Section 3.6(a)(ii) shall not count toward determining the Threshold Amount. Any amounts paid by Sellers prior to the Closing Date to Purchaser or Landry's in respect of any claim or Loss arising out of or in any wax xxxxxxng to Section 3.6(a)(ii) shall be the sole and exclusive remedy for such claims. From and after the Closing Date, Sellers shall have no further liability for any Loss or claim arising out of or relating in any way to the representations, warranties, covenants or agreements relating to Section 3.6(a)(ii). (c) The indemnification obligations under this Article 9 or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i), (ii) or (iii) of this Section 9.6, as applicable: (i) with respect to claims relating to breaches of representations, warranties or covenants contained in this Agreement in respect of Taxes or ERISA matters, such claim shall terminate six months following the running of the applicable statute of limitations; (ii) with respect to all claims other than those referred to in clause (i) of this Section 9.6(c) and any claim under Section 3.6(a)(ii), such claim shall terminate on the second anniversary of the Closing Date; or (iii) with respect to all claims relating to Section 1.4, such claim shall terminate on the eighth anniversary of the Closing Date; or (iv) the final resolution of claims or demands pending as of the relevant dates described in subparagraphs (i), (ii) and (iii) of this Section 9.6(c). (d) The right to indemnification or payment of Losses based on breach of any representations, warranties, covenants, and obligations will not be affected by any investigation conducted with respect to, or any Knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant, or obligation. The waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Losses, or other remedy based on such representations, warranties, covenants, and obligations.

Limitation and Expiration. (a) Subject to Notwithstanding Section 9.6(b) below, 7.01 the Indemnitor Seller Indemnifying Party shall not be liable for to indemnify and defend any Luminant Indemnified Party unless and until the aggregate amount of Damages incurred by all Losses arising out Luminant Indemnified Parties exceeds $25,000 (the "Indemnification Threshold"), at which time the Seller Indemnifying Party will be obligated to indemnify the Luminant Indemnified Parties with respect to the aggregate amount of any all Damages in excess of that Indemnification Threshold; provided, that the Indemnification Threshold shall not apply to (A) breaches of the covenants, agreements, representations and warranties covenants of the Sellers or any Member set forth in this Agreement, unless any such covenant, agreement, representation or warranty shall have been specifically waived in writing by the Indemnitee. Subject Agreement to Section 9.6(b) below, for Third Party Claims and, remedies where Indemnitee seeks to set off against the Promissory Note, the remedies set forth in this Article 9 shall be exclusive, and for any other claim, indemnity shall not be the exclusive cause of action or limit any other cause of action that may be available to an Indemnitee. However, no Party or Indemnitee shall be permitted to recover punitive or consequential damages from another Party or an Indemnitor, whether by way of indemnification or under any other cause of action, or theory of recovery under this Article 9, including Section 9.1(b) and, in any event, except as set forth in Section 9.6(b), 7.2(k) or 4.5, the Stockholders' maximum liability shall be the Indemnity Cap. The Parties acknowledge and agree that, except for the express representations and warranties made by any Party in this Agreement or the Asset Purchase and Sale Agreement, there are no representations or warranties made by the Parties, either express or implied, with respect to the Business, the Stock, the Subject Properties, or any of the transactions contemplated by this Agreement or the Related Documents. (b) The Parties acknowledge, that the provisions of this Article 9 were a material and substantial inducement for the transactions hereunder. In consideration of the representations and warranties hereunder, the Parties hereto agree that Stockholders' liability for and in respect of this Agreement and the transactions contemplated by this Agreement shall be subject and limited to the absolute, fixed amounts and for the absolute, fixed time limitations specified in this Article 9. These limitations of amount of liability and time to assert any such liability are exclusive, shall apply to all claims and other demands, charges, allegations, liabilities, responsibilities and exposures no matter how any and all of such claims may be brought or asserted, whether sounding in contract, tort or otherwise, whether known or unknown, contingent or otherwise. The Stockholders shall not have any liability to indemnify Landry's or the Purchaser for Losses unless the aggregate amount of Xxxxxx xor all breaches by the Sellers would, but for the provisions of this Section 9.6, exceed, on an aggregate basis, $100,000 ("Threshold Amount") for Third Parties Claims or any other claims, provided however that if such Threshold Amount is exceeded, the Stockholders shall be liable for all Losses from the first dollar. In no event shall the total liability of the Stockholders for all claims hereunder whether Third Party Claim, or any other claim, or both, exceed $10,000,000 (the "Indemnity Cap") (whether by way of indemnity or any other claim or theory of recovery in the aggregate; provided that notwithstanding the foregoing, the Stockholders shall be fully liable to indemnify Landry's and the Purchaser for Losses as a result of, caused by, arixxxx xxx of or in any way relating to the breach by the Stockholders of the representations or covenants or agreements set forth in Sections 9.1(b) and 7.2(k), and the representations set forth in Section 4.5 and any such amount shall not count towards the Threshold Amount or the Indemnity Cap. Any amounts paid by Sellers prior to the Closing Date arising out of or relating to the representations or warranties contained in Section 3.6(a)(ii) shall not count toward determining the Threshold Amount. Any amounts paid by Sellers prior to the Closing Date to Purchaser or Landry's in respect of any claim or Loss arising out of or in any wax xxxxxxng to Section 3.6(a)(ii) shall be the sole and exclusive remedy for such claims. From and performed after the Closing Date, Sellers shall have no further liability for any Loss or claim (B) Damages arising out of the bad faith, willful misconduct, intentional fraud or relating in gross negligence of the Seller or any way Member, or (C) Damages for which insurance payments are available under Section 7.09, or (D) any Excluded Liabilities, or (E) breaches of Article X. (b) Notwithstanding Section 7.02 the Luminant Indemnifying Party shall not be liable to indemnify and defend any Seller Indemnified Party unless and until the aggregate amount of Damages incurred by all Seller Indemnified Parties exceeds the Indemnification Threshold, at which time the Luminant Indemnifying Party will be obligated to indemnify the Seller Indemnified Parties with respect to the representationsaggregate amount of all Damages in excess of that Indemnification Threshold; provided, warrantiesthat the Indemnification Threshold shall not apply to (A) breaches of the covenants of Luminant or the Purchaser set forth in this Agreement to be performed after the Closing Date or (B) Damages arising out of the bad faith, covenants willful misconduct, intentional fraud or agreements relating to gross negligence of the Luminant or the Purchaser, or (C) Damages for which insurance payments are available under Section 3.6(a)(ii)7.09, or (D) any Assumed Liabilities. (c) The indemnification obligations aggregate amount of the Seller Indemnifying Parties' liability under this Article 9 or under any certificate or writing furnished in connection herewith, VII shall terminate at the date that is the later of clause not exceed ONE MILLION ONE HUNDRED FIFTY-TWO THOUSAND DOLLARS (i$1,152,000), (ii) or (iii) of provided, that this Section 9.67.07(c) shall not apply to any Excluded Liabilities, as applicable: (i) with respect Purchase Price Reduction, Additional Purchase Price Reduction or Contingent Fees, or to claims relating to breaches any breach of representations, warranties Section 5.12 or covenants contained in this Agreement in respect breach of Taxes or ERISA matters, such claim shall terminate six months following the running of the applicable statute of limitations; (ii) with respect to all claims other than those referred to in clause (i) of this Section 9.6(c) and any claim under Section 3.6(a)(ii), such claim shall terminate on the second anniversary of the Closing DateArticle X; or (iii) with respect to all claims relating to Section 1.4, such claim shall terminate on the eighth anniversary of the Closing Date; or (iv) the final resolution of claims or demands pending as of the relevant dates described in subparagraphs (i), (ii) and (iii) of this Section 9.6(c).and (d) The right aggregate amount of the Luminant Indemnifying Parties' liability under this Article VII shall not exceed ONE MILLION ONE HUNDRED FIFTY-TWO THOUSAND DOLLARS ($1,152,000), provided, that this Section 7.07(d) shall not apply to indemnification any Assumed Liabilities, Purchase Price Increase, Installment Shares or payment of Losses based on Contingent Fees, or to any breach of any representations, warranties, covenants, and obligations will not be affected by any investigation conducted with respect to, or any Knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant, or obligation. The waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Losses, or other remedy based on such representations, warranties, covenants, and obligationsSection 5.12.

Limitation and Expiration. Notwithstanding the above or any provision contained herein to the contrary: (a) Subject to Section 9.6(b) below, the Indemnitor there shall be liable no liability for all Losses arising out indemnification under Section 8.1 or Section 8.2 unless and until and solely to the extent that the aggregate amount of any breaches of Damages exceeds $450,000, respectively (the covenants"Indemnification Deductible"), agreementsprovided, representations however, that the Indemnification Deductible shall not apply to Claims under Section 8.1(a)(iii) and warranties set forth in this Agreement, unless any such covenant, agreement, representation or warranty shall have been specifically waived in writing by the Indemnitee. Subject to Claims under Section 9.6(b8.1(a)(iii) below, for Third Party Claims and, remedies where Indemnitee seeks to set off against the Promissory Note, the remedies set forth in this Article 9 shall be exclusive, and for any other claim, indemnity shall not be included in determining the exclusive cause application of action or limit the Indemnification Deductible to any other cause of action that may be available to an Indemnitee. However, no Party or Indemnitee shall be permitted to recover punitive or consequential damages from another Party or an Indemnitor, whether by way of indemnification or under any other cause of action, or theory of recovery under this Article 9, including Section 9.1(b) and, in any event, except as set forth in Section 9.6(b), 7.2(k) or 4.5, the Stockholders' maximum liability shall be the Indemnity Cap. The Parties acknowledge and agree that, except for the express representations and warranties made by any Party in this Agreement or the Asset Purchase and Sale Agreement, there are no representations or warranties made by the Parties, either express or implied, with respect to the Business, the Stock, the Subject Properties, or any of the transactions contemplated by this Agreement or the Related Documents.Claims; (b) The the aggregate amount of the Stockholders' liability for all Claims hereunder shall be limited to the Escrow Amount as the sole and exclusive remedy of the Buyer Indemnified Parties acknowledge, that the provisions of this Article 9 were a material and substantial inducement for the transactions Stockholders' indemnity obligations hereunder. In consideration ; provided, however, only with respect to Claims arising out of (i) the indemnification provided in Section 8.1(a)(i) with respect to any breaches of or inaccuracies in any of the representations and warranties hereundermade in Sections 3.4 (Capital Stock of the Company), 3.25 (Employee Benefit Plans), 3.26 (Taxes), 5.18(d) (ownership of Company Capital Stock) or (ii) the Parties hereto agree indemnification provided in Section 8.1(a)(iii) (Former Stockholder Payments) (collectively (i) and (ii) being the "Excluded Sections"), and to the extent that Stockholders' liability for and in respect of this Agreement the Escrow Amount is fully depleted or the escrow period has expired and the transactions contemplated by this Agreement shall be subject and limited to indemnity obligations of the absolute, fixed amounts and for the absolute, fixed time limitations specified in this Article 9. These limitations of amount of liability and time to assert any such liability are exclusive, shall apply to all claims and other demands, charges, allegations, liabilities, responsibilities and exposures no matter how any and all of such claims may be brought or asserted, whether sounding in contract, tort or otherwise, whether known or unknown, contingent or otherwise. The Stockholders shall not have any expired hereunder, then NII shall be entitled to make Claims under only the Excluded Sections directly against the Stockholders (severally and not jointly, in accordance with each Stockholders pro rata ownership of Company Common Stock immediately prior to the Merger); provided further that, with respect to Claims arising out of the Excluded Sections, the aggregate liability of each Stockholder for Claims made directly against such Stockholder shall not exceed the amount of the Merger Consideration delivered to indemnify Landry's or such Stockholder under this Agreement (including such Stockholders' pro rata allocable share of the Purchaser for Losses unless Escrow Amount); (c) the maximum aggregate amount of Xxxxxx xor all breaches by NII's and FMTTM's liability under this Agreement to the Sellers wouldSeller Indemnified Parties shall not exceed the amount of the Merger Consideration delivered to the Stockholders under this Agreement; provided however that NII's liability to each Stockholder (including their respective heirs, but successors, assigns, affiliates and representatives) shall not exceed the Merger Consideration delivered to such Stockholder under this Agreement; (d) for purposes of Section 8.3(b) and (c), the provisions value of the NII Common Stock shall equal $12.25 per share; (e) the indemnification obligations of the Stockholders, NII and FMTTM under this Article 8, shall terminate as follows: (A) except as to representations, warranties, and covenants specified in clause (i)(B) of this Section 9.68.3(c), exceedeighteen months after the Closing Date; and (B) with respect to representations and warranties contained in Sections 3.4 (Capital Stock of the Company), 3.25 (Employee Benefit Plans), 3.26 (Taxes) and 5.18(d), and the indemnification set forth in Section 8.1(a)(iii) on the earlier to occur of (A) on the date that is one (1) month after the expiration of the respective applicable federal or state statute of limitation (including extensions thereof), and (B) five (5) years after the Closing Date; and (ii) if an aggregate basisIndemnified Party delivers to an Indemnifying Party, $100,000 before the expiration or the period specified in Section 8.3(d)(i), a Claim Notice or a notice described in Section 5.1(b)(i), then such indemnification obligation shall continue, but only for purposes of the resolution of the matter covered by the Claim Notice or notice described in Section 5.1(b)(i); and (f) Notwithstanding anything in this Agreement to the contrary and subject to the conditions of this Section 8.3(f), for purposes of determining whether an indemnification Claim under this Article 8 has occurred by reason of a breach of or inaccuracy in a representation or warranty, any phrases indicating "Threshold Amountmateriality" or "Material Adverse Effect" contained in such representation or warranty (each a "Materiality Qualifier") for Third Parties Claims shall be respected. However, notwithstanding that because of the existence of a Materiality Qualifier in a representation or warranty there has been no a breach of or inaccuracy in such representation or warranty, if a Buyer Indemnified Party or Seller Indemnified Party suffers or incurs any other claims, provided however Damages because of an event or circumstance that if would have been a breach of or an inaccuracy in such Threshold Amount is exceededrepresentation or warranty had such representation or warranty not contained a Materiality Qualifier, the Stockholders amount of such Damages shall be liable for all Losses from nevertheless count against the first dollarIndemnification Deductible applicable to such parties' aggregate Claims. In no event Nothing in this Section 8.3(f) shall create any additional indemnification obligation of any Indemnifying Party beyond the total liability of the Stockholders for all claims hereunder whether Third Party Claim, or any other claim, or both, exceed $10,000,000 (the "Indemnity Cap") (whether by way of indemnity or any other claim or theory of recovery in the aggregate; provided that notwithstanding the foregoing, the Stockholders shall be fully liable to indemnify Landry's and the Purchaser for Losses as a result of, caused by, arixxxx xxx of or in any way relating to the breach by the Stockholders of the representations or covenants or agreements obligations set forth in Sections 9.1(b8.3(a) and 7.2(k), and the representations set forth in Section 4.5 and any such amount shall through (e) that is not count towards the Threshold Amount or the Indemnity Cap. Any amounts paid by Sellers prior otherwise collectible pursuant to the Closing Date arising out of or relating to the representations or warranties contained in Section 3.6(a)(ii) shall not count toward determining the Threshold Amount. Any amounts paid by Sellers prior to the Closing Date to Purchaser or Landry's in respect of any claim or Loss arising out of or in any wax xxxxxxng to Section 3.6(a)(ii) shall be the sole and exclusive remedy for such claims. From and after the Closing Date, Sellers shall have no further liability for any Loss or claim arising out of or relating in any way to the representations, warranties, covenants or agreements relating to Section 3.6(a)(ii). (c) The indemnification obligations under this Article 9 or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i), (ii) or (iii) of this Section 9.6, as applicable: (i) with respect to claims relating to breaches of representations, warranties or covenants contained in this Agreement in respect of Taxes or ERISA matters, such claim shall terminate six months following the running of the applicable statute of limitations; (ii) with respect to all claims other than those referred to in clause (i) of this Section 9.6(c) and any claim under Section 3.6(a)(ii), such claim shall terminate on the second anniversary of the Closing Date; or (iii) with respect to all claims relating to Section 1.4, such claim shall terminate on the eighth anniversary of the Closing Date; or (iv) the final resolution of claims or demands pending as of the relevant dates described in subparagraphs (i), (ii) and (iii) of this Section 9.6(c)8. (d) The right to indemnification or payment of Losses based on breach of any representations, warranties, covenants, and obligations will not be affected by any investigation conducted with respect to, or any Knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant, or obligation. The waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Losses, or other remedy based on such representations, warranties, covenants, and obligations.

Limitation and Expiration. Notwithstanding the above: (a) Subject subject to Section 9.6(b) belowthe limitations herein, the Indemnitor shall be liable for all Losses arising out of any breaches aggregate amount of the covenants, agreements, representations and warranties set forth in this Agreement, unless any such covenant, agreement, representation or warranty shall have been specifically waived in writing by the Indemnitee. Subject to Sole Stockholder's liability under Section 9.6(b) below, for Third Party Claims and, remedies where Indemnitee seeks to set off against the Promissory Note, the remedies set forth in this Article 9 shall be exclusive, and for any other claim, indemnity 8.1 shall not be exceed the exclusive cause of action or limit any other cause of action that may be available to an Indemnitee. However, no Party or Indemnitee shall be permitted to recover punitive or consequential damages from another Party or an Indemnitor, whether by way of indemnification or under any other cause of action, or theory of recovery under this Article 9, including Section 9.1(b) and, in any event, except as set forth in Section 9.6(b), 7.2(k) or 4.5, the Stockholders' maximum liability shall be the Indemnity Cap. The Parties acknowledge and agree that, except for the express representations and warranties made by any Party in this Agreement or the Asset Purchase and Sale Agreement, there are no representations or warranties made by the Parties, either express or implied, with respect to the Business, the Stock, the Subject Properties, or any value of the transactions contemplated by this Agreement or the Related Documents.Pledged Stock; (b) The Parties acknowledge, that the provisions of this Article 9 were a material and substantial inducement for the transactions hereunder. In consideration of the representations and warranties hereunder, the Parties hereto agree that Stockholders' liability for and in respect of this Agreement and the transactions contemplated by this Agreement shall be subject and limited Notwithstanding anything herein to the absolutecontrary, fixed amounts and for the absolute, fixed time limitations specified in this Article 9. These limitations of amount of liability and time to assert any such liability are exclusive, shall apply to all claims and other demands, charges, allegations, liabilities, responsibilities and exposures no matter how any and all of such claims may be brought or asserted, whether sounding in contract, tort or otherwise, whether known or unknown, contingent or otherwise. The Stockholders shall not have any liability to indemnify Landry's or the Purchaser for Losses unless the aggregate amount of Xxxxxx xor all breaches the Sole Stockholder's liability under Section 8.2 shall be equal to but not exceed the total amount of consideration received by the Sellers would, but for Sole Stockholder upon the provisions closing of this Section 9.6, exceed, on an aggregate basis, $100,000 ("Threshold Amount") for Third Parties Claims or any other claims, provided however that if such Threshold Amount is exceeded, the Stockholders shall be liable for all Losses from the first dollar. In no event shall the total liability of the Stockholders for all claims hereunder whether Third Party Claim, or any other claim, or both, exceed $10,000,000 (the "Indemnity Cap") (whether by way of indemnity or any other claim or theory of recovery in the aggregate; provided that notwithstanding the foregoing, the Stockholders shall be fully liable to indemnify Landry's and the Purchaser for Losses as a result of, caused by, arixxxx xxx of or in any way relating to the breach by the Stockholders of the representations or covenants or agreements set forth in Sections 9.1(b) and 7.2(k), and the representations set forth in Section 4.5 and any such amount shall not count towards the Threshold Amount or the Indemnity Cap. Any amounts paid by Sellers prior to the Closing Date arising out of or relating to the representations or warranties contained in Section 3.6(a)(ii) shall not count toward determining the Threshold Amount. Any amounts paid by Sellers prior to the Closing Date to Purchaser or Landry's in respect of any claim or Loss arising out of or in any wax xxxxxxng to Section 3.6(a)(ii) shall be the sole and exclusive remedy for such claims. From and after the Closing Date, Sellers shall have no further liability for any Loss or claim arising out of or relating in any way to the representations, warranties, covenants or agreements relating to Section 3.6(a)(ii).transaction; (c) The indemnification the Indemnification obligations under this Article 9 Section 8.1 or under in any certificate or writing furnished in connection herewith, herewith shall terminate at the date that is Release Date, which shall occur (a) at the later earlier of clause (i)) the First Anniversary of the Effective Time, or (ii) or (iii) at the completion of this Section 9.6, as applicable: (i) with respect to claims relating to breaches of representations, warranties or covenants contained in this Agreement in respect of Taxes or ERISA matters, such claim shall terminate six months the First Audit. Promptly following the running Release Date, FTI shall return or cause to be returned to the Sole Stockholder the Pledged Stock, less any Pledged Stock having an aggregate value equal to the amount of any Indemnification obligations of the applicable statute of limitations; (ii) with respect Sole Stockholders pursuant to all claims other than those referred to in clause (i) of this Section 9.6(c) and any claim under Section 3.6(a)(ii), such claim shall terminate on the second anniversary 8.1. For purposes of the Closing Date; or (iii) with respect preceding sentence, the value of FTI Common Stock held as Pledged Stock shall be the average daily closing sale price of FTI Common Stock on The Nasdaq Stock Market for the five trading days immediately prior to all claims relating to Section 1.4, such claim the date on which the amount for which FTI shall terminate on the eighth anniversary of the Closing Date; or (iv) the final resolution of claims or demands pending as of the relevant dates described in subparagraphs (i), (ii) and (iii) of this Section 9.6(c).have been indemnified has been finally determined; (d) The right Notwithstanding anything herein to indemnification the contrary, the Indemnification obligations under Section 8.2, or payment in any certificate or writing furnished in connection herewith relating to the subject matter thereof, shall survive the Closing and continue indefinitely; (e) for purposes of Losses based on breach of the indemnity in this Section 8, all representations contained in Section 3 are made without any representations, warranties, covenants, and obligations will not be affected limitations as to materiality. (f) No liability under this contract provision shall apply if a liability or action is legally determined to have been solely caused by any investigation conducted with respect to, or any Knowledge acquired (or capable act of being acquired) at any time, whether before or an indemnitee arising after the execution and delivery date of this Agreement that shall have been independent of any act or omission by indemnitor. In connection with any Damages indemnified under Section 8.1 of this Agreement only, if the Closing Dateindemnitee and the indemnitor are held to both be liable based on claims against each of them, with respect the amount of the indemnitee's and indemnitor's liability hereunder shall be determined based on relative fault of the parties and relative benefits to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant, or obligation. The waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Losses, or other remedy based on such representations, warranties, covenants, and obligationsparties.

Limitation and Expiration. Notwithstanding the above: (a) Subject to Section 9.6(b) below, the Indemnitor shall be liable for all Losses arising out of any breaches of the covenants, agreements, representations and warranties set forth in this Agreement, unless any such covenant, agreement, representation or warranty shall have been specifically waived in writing by the Indemnitee. Subject to Section 9.6(b) below, for Third Party Claims and, remedies where Indemnitee seeks to set off against the Promissory Note, the remedies set forth in this Article 9 shall be exclusive, and for any other claim, indemnity shall not be the exclusive cause of action or limit any other cause of action that may be available to an Indemnitee. However, no Party or Indemnitee shall be permitted to recover punitive or consequential damages from another Party or an Indemnitor, whether by way of indemnification or under any other cause of action, or theory of recovery under this Article 9, including Section 9.1(b) and, in any event, except as set forth in Section 9.6(b), 7.2(k) or 4.5, the Stockholders' maximum liability shall be the Indemnity Cap. The Parties acknowledge and agree that, except for the express representations and warranties made by any Party in this Agreement or the Asset Purchase and Sale Agreement, there are no representations or warranties made by the Parties, either express or implied, with respect to the Businessany Claim for Damages, the Stock, the Subject Properties, or any each Stockholder's liability with respect thereto under Article 8 shall be limited to that Stockholder's Applicable Percentage of the transactions contemplated by this Agreement or Damages amount applicable to that Claim. A Stockholder's "Applicable Percentage" shall be equal to the Related Documentspercentage of the issued Company shares which the Stockholder holds immediately prior to the Closing. (b) The Parties acknowledgethe aggregate amount of the Stockholders' liability under this Article 8 shall not exceed the Merger Consideration; provided, however, that the provisions of this Article 9 were a material and substantial inducement for the transactions hereunder. In consideration of the representations and warranties hereunder, the Parties hereto agree that Stockholders' liability for and Damages described in respect of this Agreement and the transactions contemplated by this Agreement Section 8.1(a)(ii) shall not be subject to such limitation and limited to the absolute, fixed amounts and for the absolute, fixed time limitations specified in this Article 9. These limitations of amount of liability and time to assert any such liability are exclusive, shall apply to all claims and other demands, charges, allegations, liabilities, responsibilities and exposures no matter how any and all of such claims may be brought or asserted, whether sounding in contract, tort or otherwise, whether known or unknown, contingent or otherwise. The Stockholders shall not have any liability to indemnify Landry's or count toward the Purchaser for Losses unless limitation described in the aggregate amount of Xxxxxx xor all breaches by the Sellers would, but for the provisions first clause of this Section 9.68.2(b); (c) with respect to claims made by Aztec or the Company directly against the Stockholder under Article 8, exceedthe term Damages shall in no event include any special, on an aggregate basisconsequential, $100,000 ("Threshold Amount") for Third Parties Claims exemplary, speculative or punitive damages or any other claimsdamages postulating or including a measure or calculation of lost profits or advantages or similar method or theory, provided however provided, however, that if such Threshold Amount is exceeded, the Stockholders this limitation shall be liable for all Losses from the first dollar. In in no event shall apply with respect to any such Damages awarded against the total liability of the Stockholders for all claims hereunder whether Company or Aztec under a Third Party Claim, as to which all Damages, whether direct or any other claimindirect, incidental, special, consequential, exemplary, speculative or bothpunitive, exceed $10,000,000 (suffered by Aztec or the "Indemnity Cap") (whether by way of indemnity or any other claim or theory of recovery in the aggregate; provided that notwithstanding the foregoing, the Stockholders shall be fully liable to indemnify Landry's and the Purchaser for Losses Company as a result ofthereof, caused by, arixxxx xxx of or in any way relating to the breach by the Stockholders of the representations or covenants or agreements limitation set forth in Sections 9.1(bthe first clause of this Section 8.2(c) and 7.2(k), and the representations set forth in Section 4.5 and any such amount shall not count towards the Threshold Amount or the Indemnity Cap. Any amounts paid by Sellers prior to apply; (d) if on the Closing Date arising out the Indemnified Party knows of any information that would cause any representation or relating warranty made by the Indemnifying Party to be inaccurate as of the representations date made, the Indemnified Party shall have no right or warranties contained in Section 3.6(a)(ii) shall not count toward determining the Threshold Amount. Any amounts paid by Sellers prior to remedy after the Closing Date with respect to Purchaser or Landry's such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereof; (e) if the Indemnified Party receives any payment from any Indemnifying Party in respect of any Damages, and the Indemnified Party could have recovered all or part of such Damages from a third person (a "Potential Contributor") based on the underlying claim or Loss arising out asserted against the Indemnifying Party, the Indemnified Party shall assign such of or its rights to proceed against the Potential Contributor as are necessary to permit the Indemnifying Party to recover from the Potential Contributor the amount of such payment, and shall otherwise assist (at the Indemnifying Party's cost) in any wax xxxxxxng to Section 3.6(a)(ii) shall be the sole and exclusive remedy for effecting such claims. From and after the Closing Date, Sellers shall have no further liability for any Loss or claim arising out of or relating in any way to the representations, warranties, covenants or agreements relating to Section 3.6(a)(ii).recovery; (cf) The the indemnification obligations under this Article 9 8, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i), (ii) or (iiiii) of this Section 9.68.2(f), as applicableprovided that with respect to any Claim the Claim Notice provisions of Section 8.3 have been complied with: (i) with respect to claims relating to breaches of representations, warranties or covenants contained in this Agreement in respect of Taxes or ERISA matters, such claim shall terminate six months following the running of the applicable statute of limitations; (ii1) with respect to all claims Claims relating to or arising out of Section 3.22 for a failure to comply with any Environmental Laws, or Section 3.25 for failure to pay any Tax: (A) the date that is six (6) months after the expiration of the longest applicable Federal or state statute of limitation (including extensions thereof), or (B) if there is no applicable statute of limitation, (x) ten (10) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (y) five (5) years after the Closing Date for any other than those referred to in Claim covered by clause (ii)(1)(B) of this Section 9.6(c) and any claim under Section 3.6(a)(ii8.2(f), such claim shall terminate on the second anniversary of the Closing Date; or (iii) with respect to all claims relating to Section 1.4, such claim shall terminate on the eighth anniversary of the Closing Date; or (iv) the final resolution of claims or demands pending as of the relevant dates described in subparagraphs (i), (ii) and (iii) of this Section 9.6(c). (d) The right to indemnification or payment of Losses based on breach of any representations, warranties, covenants, and obligations will not be affected by any investigation conducted with respect to, or any Knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant, or obligation. The waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Losses, or other remedy based on such representations, warranties, covenants, and obligations.