Common use of Limitation of Claims; Mitigation Clause in Contracts

Limitation of Claims; Mitigation. Notwithstanding anything to the contrary contained herein: (a) Except with respect to claims for breaches of Section 3.9 (Tax Matters) (each, a “Tax Representation”) and the Retained Liabilities, the maximum aggregate liability of Seller under this Agreement shall not exceed an amount equal to the Base Purchase Price (the “Cap”); provided, however, that with respect to indemnification obligations of Seller under Section 10.1(a)(i) (other than with regard to any breaches of any of Seller’s Fundamental Representations or a Tax Representation) the Cap shall be an amount equal to ten percent (10%) of the Base Purchase Price. (b) In no event shall Seller have any liability to Buyer in respect of any indemnification obligations under Section 10.1(a)(i) or Section 10.1(a)(ii) unless and until such liabilities exceed, in the aggregate, $75,000,000.00 (the “Basket Amount”), and then only to the extent such liabilities are in excess of the Basket Amount, subject to the Cap; provided, that the Basket Amount limitation shall not apply to breaches of any of Seller’s Fundamental Representation (other than with respect to Section 3.2(d)) or any Tax Representation. (c) No representation or warranty made in Article III shall be deemed to be breached and no claim for indemnification pursuant to Section 10.1(a)(i) may be made unless the Adverse Consequences resulting from or arising out of any individual circumstance or occurrence that results in Adverse Consequences actually incurred or paid by a Buyer Indemnified Party exceed $5,000,000.00 (the “Per Claim Threshold”), and if such Adverse Consequences exceed the Per Claim Threshold, the full amount thereof (after taking into account the limitations set forth in this Article X) shall be taken into account in determining whether, and the extent to which, the Basket Amount has been met and, if the Basket Amount has been met, shall be subject to indemnification under this Article except to the extent limited by this Section 10.5; provided, that the Per Claim Threshold limitation shall not apply to breaches of any of Seller’s Fundamental Representations or any Tax Representation. (d) An Indemnified Party shall not be entitled to any indemnity payment for breaches of representations and warranties by the Indemnifying Party to the extent the Indemnified Party had knowledge of any event, action or circumstance giving rise to such breach prior to the Closing. (e) Notwithstanding anything in this Agreement, (i) Seller shall not be liable for any Adverse Consequences actually incurred or paid by a Buyer Indemnified Party to the extent that such Adverse Consequences arose from (A) a change in accounting or Law, policy or practice made after the Closing Date or (B) any Law not in force on the Closing Date, and (ii) no Party shall be responsible for Adverse Consequences with respect to any claim which is contingent unless and until such contingent claim becomes an actual liability of the Indemnified Party and is due and payable, so long as such claim was timely submitted pursuant to Section 10.3. (f) Notwithstanding anything in this Agreement, no Party shall be liable under this Article X for an amount (i) to the extent, if any, that any Adverse Consequences giving rise to such amount results from a failure on the part of any Indemnified Party to exercise good faith in not jeopardizing or prejudicing the interests of the Indemnifying Party or otherwise arises out of any action taken or omitted to be taken by an Indemnified Party or (ii) unless and until all rights and remedies of an Indemnified Party under any other obligation of indemnification in its favor shall have first been exhausted, including using Reasonable Efforts to (A) secure payment from insurance policies that provide coverage with respect to such Adverse Consequences, and (B) secure reimbursement, indemnity or other payment from any third Person obligated by Contract or otherwise to reimburse, indemnify or pay the Indemnified Party with respect to such Adverse Consequences. (g) Notwithstanding anything in this Agreement or any applicable Law to the contrary, it is understood and agreed by each of the Parties that no stockholder, member, partner, manager, officer, director, employee, consultant, agent, representative or Affiliate of any Party hereto shall have (i) any personal liability to any Buyer Indemnified Party or Seller Indemnified Party as a result of the breach of any representation, warranty, covenant or agreement contained in this Agreement or otherwise arising out of or in connection with the Contemplated Transactions, or (ii) any personal obligation to indemnify any Buyer Indemnified Party or any Seller Indemnified Party for any claims pursuant to this Article X, and Buyer, for itself and all other Buyer Indemnified Parties and each Seller, for itself and all other Seller Indemnified Parties, hereby waive and release and shall have no recourse against any of such Persons described in this Section 10.5(g) as a result of the breach of any representation, warranty, covenant or agreement contained herein or otherwise arising out of or in connection with the Contemplated Transactions. An Indemnified Party shall use Reasonable Efforts to mitigate all Adverse Consequences relating to an indemnifiable claim, including availing itself of any defenses, limitations, rights of contribution, and other rights at law or equity, and shall provide such evidence and documentation of the nature and extent of such claim as may be reasonably requested by the Indemnifying Party. An Indemnified Party’s Reasonable Efforts shall include the reasonable expenditure of money, including the payment of any legal fees, to mitigate or otherwise reduce or eliminate any Adverse Consequences for which indemnification would otherwise be due under this Article X. (h) An Indemnifying Party’s indemnification obligations under this Article X shall be reduced (but not below zero) to the extent that the Adverse Consequences related to a claim is covered by and paid to the Indemnified Party pursuant to (A) a reimbursement, indemnification or payment from a third Person with respect to such Adverse Consequences, or (B) insurance policies that provide coverage with respect to such Adverse Consequences. (i) NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL ANY PARTY, OR ITS AFFILIATES, OR ITS OR THEIR STOCKHOLDERS, MEMBERS, PARTNERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR REPRESENTATIVES, BE RESPONSIBLE OR LIABLE FOR AND NO PARTY SHALL BE ENTITLED TO SEEK, ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECULATIVE, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES RELATED TO DIMINUTION IN VALUE, LOST BUSINESS, LOST PROFITS, LOST REVENUE, LOST INCOME, LOSS OF USE OR BUSINESS REPUTATION OR OPPORTUNITY, LOSS OF DATA, FAILURE TO REALIZE SAVINGS OR BENEFITS, OR ANY DAMAGES BASED ON OR MEASURED BY ANY TYPE OF MULTIPLE, AND THE DEFINITION OF “ADVERSE CONSEQUENCES” IN SECTION 1.1 SHALL BE INTERPRETED TO EXCLUDE SUCH DAMAGES) ARISING UNDER THIS AGREEMENT OR THE ANCILLARY AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS.

Limitation of Claims; Mitigation. Notwithstanding anything to the contrary contained herein: (a) Except with respect The maximum aggregate liability of Seller under this Agreement shall in no event exceed an amount equal to claims for breaches of Section 3.9 (Tax Matters) (each, a “Tax Representation”) and the Retained LiabilitiesBase Purchase Price. In addition, the maximum aggregate liability of Seller under this Agreement for claims pursuant to Section 10.1(a)(i) with respect to the breach by Seller of any Fundamental Representation or any of the representations and warranties set forth in Section 3.8 shall not exceed an amount equal to one hundred percent (100%) of the Base Purchase Price (Price, and the “Cap”); provided, however, that with respect to indemnification obligations maximum aggregate liability of Seller under this Agreement for all other claims pursuant to Section 10.1(a)(i) (other than with regard to any breaches of any of Seller’s Fundamental Representations or a Tax Representation) the Cap shall be not exceed an amount equal to ten percent (10%) of the Base Purchase PricePrice (each of the limitations set forth in this Section 10.5(a), a “Cap”). (b) In no event shall Seller have any liability to Buyer in respect of any indemnification obligations under Section 10.1(a)(i) of this Agreement with respect to a breach of any representation or Section 10.1(a)(ii) warranty of Seller contained in Article III of this Agreement unless and until such liabilities exceed, in the aggregate, $75,000,000.00 an amount equal to one percent (1%) of the Base Purchase Price (the “Basket Amount”), and then only to the extent such liabilities are in excess of the Basket Amount, subject to the applicable Cap; provided, that the Basket Amount limitation shall not apply to breaches of any of Seller’s Fundamental Representation (other than with respect to Section 3.2(d)) or any Tax Representation. (c) No representation or warranty made in Article III shall be deemed to be breached and no claim for indemnification pursuant to Section 10.1(a)(i) may be made unless the Adverse Consequences resulting from or arising out of any individual circumstance or occurrence that results in Adverse Consequences actually incurred or paid by a Buyer Indemnified Party exceed $5,000,000.00 (the “Per Claim Threshold”), and if such Adverse Consequences exceed the Per Claim Threshold, the full amount thereof (after taking into account the limitations set forth in this Article X) shall be taken into account in determining whether, and the extent to which, the Basket Amount has been met and, if the Basket Amount has been met, shall be subject to indemnification under this Article except to the extent limited by this Section 10.5; provided, that the Per Claim Threshold limitation shall not apply to breaches of any of Seller’s Fundamental Representations or any Tax Representation. (d) An Indemnified Party shall not be entitled to any indemnity payment for breaches of representations and warranties by the Indemnifying Party to the extent the Indemnified Party had actual knowledge of any event, action or circumstance giving rise to such breach prior to the Closing; provided, however, that Buyer shall not be deemed to have knowledge of any such fact, event or circumstance arising after the Effective Date as a result of Seller notifying Buyer of such event, action or circumstance after the Effective Date, except for deemed amendments and updates to the Schedules to reflect actions of the Sale Entities that are required by this Agreement, including Section 5.5, or consented to in writing by Buyer. (ed) Notwithstanding anything in this Agreement, (i) Seller shall not be liable for any Adverse Consequences actually incurred or paid by a Buyer Indemnified Party to the extent that an amount has been reserved, provided for or allowed for in the Financial Statements or if such Adverse Consequences arose from (A) a change in accounting or Law, policy or practice made after the Closing Date or (B) any Law not in force on or before the Closing Date, and (ii) no Party shall be responsible for Adverse Consequences with respect to any claim which is contingent unless and until such contingent claim becomes an actual liability of the Indemnified Party and is due and payable, so long as such claim was timely submitted pursuant to Section 10.3. (f) Notwithstanding anything in this Agreement, no Party shall be liable under this Article X for an amount (i) to the extent, if any, that any Adverse Consequences giving rise to such amount results from a failure on the part of any Indemnified Party to exercise good faith in not jeopardizing or prejudicing the interests of the Indemnifying Party or otherwise arises out of any action taken or omitted to be taken by an Indemnified Party or (ii) unless and until all rights and remedies of an Indemnified Party under any other obligation of indemnification in its favor shall have first been exhausted, including using Reasonable Efforts to (A) secure payment from insurance policies that provide coverage with respect to such Adverse Consequences, and (B) secure reimbursement, indemnity or other payment from any third Person obligated by Contract or otherwise to reimburse, indemnify or pay the Indemnified Party with respect to such Adverse Consequences. (ge) Notwithstanding anything in this Agreement or any applicable Law to the contrary, it is understood and agreed by each of the Parties that no stockholder, member, partner, manager, officer, director, employee, consultant, agent, representative Representative or Affiliate of any Party hereto shall have (i) any personal liability to any Buyer Indemnified Party or Seller Indemnified Party as a result of the breach of any representation, warranty, covenant or agreement contained in this Agreement or otherwise arising out of or in connection with the Contemplated Transactions, or (ii) any personal obligation to indemnify any Buyer Indemnified Party or any Seller Indemnified Party for any claims pursuant to this Article X, and Buyer, for itself and all other Buyer Indemnified Parties and each Seller, for itself and all other Seller Indemnified Parties, hereby waive and release and shall have no recourse against any of such Persons described in this Section 10.5(g10.5(e) as a result of the breach of any representation, warranty, covenant or agreement contained herein or otherwise arising out of or in connection with the Contemplated Transactions. An . (f) Prior to an Indemnifying Party having any obligation pursuant to Section 10.1(a) or Section 10.1(b), as applicable, an Indemnified Party shall use Reasonable Efforts (including the reasonable expenditure of money, payment of legal fees, or pursuit of reimbursement or indemnification or payment from a third Person or under applicable insurance policies with respect to such Adverse Consequences) to mitigate all Adverse Consequences relating to an indemnifiable claim, including availing itself of any defenses, limitations, rights of contribution, and other rights at law or equity, claim and shall provide such evidence and documentation of the nature and extent of such claim as may be reasonably requested by the Indemnifying Party. An Indemnified Party’s Reasonable Efforts shall include the reasonable expenditure of money, including the payment of any legal fees, to mitigate or otherwise reduce or eliminate any Adverse Consequences for which indemnification would otherwise be due under this Article X.. (hg) An Indemnifying Party’s indemnification obligations under this Article X shall be reduced (but not below zero) to the extent that the Adverse Consequences related to a claim is covered by and paid to the Indemnified Party pursuant to (Ai) a reimbursement, indemnification or payment from a third Person with respect to such Adverse Consequences, or (Bii) insurance policies that provide coverage with respect to such Adverse Consequences. (h) For the avoidance of doubt, with respect to any and all Adverse Consequences related to any claim by any Buyer Indemnified Party, such Adverse Consequences shall not include any Adverse Consequences that such Buyer Indemnified Party would have incurred solely due to Buyer’s or its Affiliate’s ownership of fifty percent (50%) of the JV Entities prior to the Closing (and assuming, for these purposes, that none of the Contemplated Transactions ever occurred). (i) NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL ANY PARTY, OR ITS AFFILIATES, OR ITS OR THEIR STOCKHOLDERS, MEMBERS, PARTNERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS DIRECTORS OR REPRESENTATIVES, BE RESPONSIBLE OR LIABLE FOR AND NO PARTY SHALL BE ENTITLED TO SEEK, ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECULATIVE, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES RELATED TO DIMINUTION IN VALUE, LOST BUSINESS, LOST PROFITS, LOST REVENUE, LOST INCOME, LOSS OF USE OR BUSINESS REPUTATION OR OPPORTUNITY, LOSS OF DATA, FAILURE TO REALIZE SAVINGS OR BENEFITS, OR ANY DAMAGES BASED ON OR MEASURED BY ANY TYPE OF MULTIPLE, OTHER THAN ANY SUCH DAMAGES SUFFERED BY ANY THIRD PARTY FOR WHICH ANY PARTY IS OBLIGATED TO INDEMNIFY ANOTHER PARTY UNDER THE TERMS HEREOF, AND THE DEFINITION OF “ADVERSE CONSEQUENCES” IN SECTION 1.1 SHALL BE INTERPRETED TO EXCLUDE SUCH DAMAGES) ARISING UNDER THIS AGREEMENT OR THE ANCILLARY AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS. (j) For purposes of determining the amount of Adverse Consequences resulting from, arising out of or related to a breach of any representation or warranty for purposes of indemnification pursuant to this Article X, each such representation or warranty shall be read without giving effect to any materiality or Material Adverse Effect limitations or qualifications thereto. (k) Notwithstanding anything to the contrary in this Section 10.5, or anything else to the contrary in this Agreement, (i) neither any claim related to any representation or warranty in Section 3.8 nor any claim related to Pre-Closing Taxes (including, for the avoidance of doubt, any claim made pursuant to Section 10.1(a) relating to Pre-Closing Taxes) nor any claim related to any covenant of Seller set forth in Section 5.4 shall be subject to any of the Basket Amount, the Financial Statements carve-out described in Section 10.5(d) or the limitation set forth in Section 10.5(c) and (ii) as a result, neither any claim related to any representation and warranty in Section 3.8 nor any claim related to Pre-Closing Taxes (including, for the avoidance of doubt, any claim made pursuant to Section 10.1(a) relating to Pre-Closing Taxes) nor any claim related to any covenant of Seller set forth in Section 5.4 shall be limited by such limits.

Limitation of Claims; Mitigation. Notwithstanding anything to the contrary contained herein: (a) Except with respect to claims for breaches of Section 3.9 (Tax Matters) (each, a “Tax Representation”) and the Retained Liabilities, the maximum aggregate liability of Seller Sellers under this Agreement shall not exceed an amount equal to the Base Purchase Price (the “Cap”); provided, however, that with respect to indemnification obligations of Seller Sellers under Section 10.1(a)(i) (other than with regard to any breaches of any of Seller’s Sellers’ Fundamental Representations or a Tax Representation) the Cap shall be an amount equal to ten percent (10%) of the Base Purchase Price. (b) In no event shall Seller Sellers have any liability to Buyer in respect of any indemnification obligations under Section 10.1(a)(i) or Section 10.1(a)(ii) unless and until such liabilities exceed, in the aggregate, $75,000,000.00 (the “Basket Amount”), and then only to the extent such liabilities are in excess of the Basket Amount, subject to the Cap; provided, that the Basket Amount limitation shall not apply to breaches of any of Seller’s Sellers’ Fundamental Representation (other than with respect to Section 3.2(d)) or any Tax Representation. (c) No representation or warranty made in Article III shall be deemed to be breached and no claim for indemnification pursuant to Section 10.1(a)(i) may be made unless the Adverse Consequences resulting from or arising out of any individual circumstance or occurrence that results in Adverse Consequences actually incurred or paid by a Buyer Indemnified Party exceed $5,000,000.00 (the “Per Claim Threshold”), and if such Adverse Consequences exceed the Per Claim Threshold, the full amount thereof (after taking into account the limitations set forth in this Article X) shall be taken into account in determining whether, and the extent to which, the Basket Amount has been met and, if the Basket Amount has been met, shall be subject to indemnification under this Article except to the extent limited by this Section 10.5; provided, that the Per Claim Threshold limitation shall not apply to breaches of any of Seller’s Sellers’ Fundamental Representations or any Tax Representation. (d) An Indemnified Party shall not be entitled to any indemnity payment for breaches of representations and warranties by the Indemnifying Party to the extent the Indemnified Party had knowledge of any event, action or circumstance giving rise to such breach prior to the Closing. (e) Notwithstanding anything in this Agreement, (i) Seller Sellers shall not be liable for any Adverse Consequences actually incurred or paid by a Buyer Indemnified Party to the extent that such Adverse Consequences arose from (A) a change in accounting or Law, policy or practice made after the Closing Date or (B) any Law not in force on the Closing Date, and (ii) no Party shall be responsible for Adverse Consequences with respect to any claim which is contingent unless and until such contingent claim becomes an actual liability of the Indemnified Party and is due and payable, so long as such claim was timely submitted pursuant to Section 10.3. (f) Notwithstanding anything in this Agreement, no Party shall be liable under this Article X for an amount (i) to the extent, if any, that any Adverse Consequences giving rise to such amount results from a failure on the part of any Indemnified Party to exercise good faith in not jeopardizing or prejudicing the interests of the Indemnifying Party or otherwise arises out of any action taken or omitted to be taken by an Indemnified Party or (ii) unless and until all rights and remedies of an Indemnified Party under any other obligation of indemnification in its favor shall have first been exhausted, including using Reasonable Efforts to (A) secure payment from insurance policies that provide coverage with respect to such Adverse Consequences, and (B) secure reimbursement, indemnity or other payment from any third Person obligated by Contract or otherwise to reimburse, indemnify or pay the Indemnified Party with respect to such Adverse Consequences. (g) Notwithstanding anything in this Agreement or any applicable Law to the contrary, it is understood and agreed by each of the Parties that no stockholder, member, partner, manager, officer, director, employee, consultant, agent, representative or Affiliate of any Party hereto shall have (i) any personal liability to any Buyer Indemnified Party or Seller Indemnified Party as a result of the breach of any representation, warranty, covenant or agreement contained in this Agreement or otherwise arising out of or in connection with the Contemplated Transactions, or (ii) any personal obligation to indemnify any Buyer Indemnified Party or any Seller Indemnified Party for any claims pursuant to this Article X, and Buyer, for itself and all other Buyer Indemnified Parties and each Seller, for itself and all other Seller Indemnified Parties, hereby waive and release and shall have no recourse against any of such Persons described in this Section 10.5(g) as a result of the breach of any representation, warranty, covenant or agreement contained herein or otherwise arising out of or in connection with the Contemplated Transactions. An Indemnified Party shall use Reasonable Efforts to mitigate all Adverse Consequences relating to an indemnifiable claim, including availing itself of any defenses, limitations, rights of contribution, and other rights at law or equity, and shall provide such evidence and documentation of the nature and extent of such claim as may be reasonably requested by the Indemnifying Party. An Indemnified Party’s Reasonable Efforts shall include the reasonable expenditure of money, including the payment of any legal fees, to mitigate or otherwise reduce or eliminate any Adverse Consequences for which indemnification would otherwise be due under this Article X. (h) An Indemnifying Party’s indemnification obligations under this Article X shall be reduced (but not below zero) to the extent that the Adverse Consequences related to a claim is covered by and paid to the Indemnified Party pursuant to (A) a reimbursement, indemnification or payment from a third Person with respect to such Adverse Consequences, or (B) insurance policies that provide coverage with respect to such Adverse Consequences. (i) NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL ANY PARTY, OR ITS AFFILIATES, OR ITS OR THEIR STOCKHOLDERS, MEMBERS, PARTNERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR REPRESENTATIVES, BE RESPONSIBLE OR LIABLE FOR AND NO PARTY SHALL BE ENTITLED TO SEEK, ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECULATIVE, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES RELATED TO DIMINUTION IN VALUE, LOST BUSINESS, LOST PROFITS, LOST REVENUE, LOST INCOME, LOSS OF USE OR BUSINESS REPUTATION OR OPPORTUNITY, LOSS OF DATA, FAILURE TO REALIZE SAVINGS OR BENEFITS, OR ANY DAMAGES BASED ON OR MEASURED BY ANY TYPE OF MULTIPLE, AND THE DEFINITION OF “ADVERSE CONSEQUENCES” IN SECTION 1.1 SHALL BE INTERPRETED TO EXCLUDE SUCH DAMAGES) ARISING UNDER THIS AGREEMENT OR THE ANCILLARY AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS.

Limitation of Claims; Mitigation. Notwithstanding anything to the contrary contained herein: (a) Except with respect to claims for breaches of any indemnification obligations under Section 3.9 (Tax Matters10.1(a)(iii), Section 10.1(a)(iv) (each, a “Tax Representation”) and the Retained Liabilitiesor Section 10.1(a)(v), the maximum aggregate liability of Seller under this Agreement shall not exceed an amount equal to the Base Purchase Price (the “Cap”); provided, however, that with respect to indemnification obligations of Seller under Section 10.1(a)(i) (other than with regard to any breaches of any of Seller’s the Fundamental Representations of Seller, the Employee Retention Representation or a the Tax Representation) Representations), the Cap shall be an amount equal to ten percent (10%) of the Base Purchase Price. The maximum aggregate liability of Seller under this Agreement shall not exceed the Purchase Price, except for any and all Adverse Consequences actually incurred or paid by a Buyer Indemnified Party as a result of (i) the Excluded Assets or (ii) the Retained Liabilities. (b) In no event shall Seller have any liability to Buyer in respect of any indemnification obligations under Section 10.1(a)(i) or Section 10.1(a)(ii) unless and until such liabilities exceed, in the aggregate, $75,000,000.00 an amount equal to one and a quarter percent (1.25%) of the Base Purchase Price (the “Basket Amount”), and then only to the extent such liabilities are in excess of the Basket Amount, subject to the Cap; provided, provided that the Basket Amount limitation shall not apply to breaches of any of the Fundamental Representations of Seller’s Fundamental , the Employee Retention Representation (other than with respect to Section 3.2(d)) or any the Tax RepresentationRepresentations. (c) No representation or warranty made in Article III shall be deemed to be breached and no claim for indemnification pursuant to Section 10.1(a)(i) may be made unless the Adverse Consequences resulting from or arising out of any individual circumstance or occurrence that results in Adverse Consequences actually incurred or paid by a Buyer Indemnified Party exceed $5,000,000.00 1,750,000 (the “Per Claim Threshold”), and if such Adverse Consequences exceed the Per Claim Threshold, the full amount thereof (after taking into account the limitations set forth in this Article X) shall be taken into account in determining whether, and the extent to which, the Basket Amount has been met and, if the Basket Amount has been met, shall be subject to indemnification under this Article X except to the extent limited by this Section 10.5; provided, provided that the Per Claim Threshold limitation shall not apply to breaches of any of Seller’s the Fundamental Representations of Seller, Tax Representations or any Tax the Employee Retention Representation. (d) An Indemnified Party shall not be entitled to any indemnity payment for breaches of representations and warranties by the Indemnifying Party to the extent the Indemnified Party had knowledge of any event, action or circumstance giving rise to such breach prior to the Closing. (e) Notwithstanding anything in this Agreement, (i) Seller shall not be liable for any Adverse Consequences actually incurred or paid by a Buyer Indemnified Party to the extent that such Adverse Consequences arose from (A) a change in accounting or Law, policy or practice made after the Closing Date or (B) any Law not in force on the Closing Date, and (ii) no Party shall be responsible for Adverse Consequences with respect to any claim which is contingent unless and until such contingent claim becomes an actual liability of the Indemnified Party and is due and payable, so long as such claim was timely submitted pursuant to Section 10.3. (e) For purposes of calculating the amount of any Adverse Consequences indemnifiable hereunder, any reference to “material,” “materiality,” Material Adverse Effect or similar qualifier contained within such representations and warranties will be disregarded. (f) Notwithstanding anything in this Agreement, no Party shall be liable under this Article X for an amount (i) to the extent, if any, that any Adverse Consequences giving rise to such amount results from a failure on the part of any Indemnified Party to exercise good faith in not jeopardizing or prejudicing the interests of the Indemnifying Party or otherwise arises out of any action taken or omitted to be taken by an Indemnified Party or (ii) unless and until all rights and remedies of an Indemnified Party under any other obligation of indemnification in its favor shall have first been exhausted, including using Reasonable Efforts to (A) secure payment from insurance policies that provide coverage with respect to such Adverse Consequences, and (B) secure reimbursement, indemnity or other payment from any third Person obligated by Contract or otherwise to reimburse, indemnify or pay the Indemnified Party with respect to such Adverse Consequences. (g) Notwithstanding anything in this Agreement or any applicable Law to the contrary, it is understood and agreed by each of the Parties that no stockholder, member, partner, manager, officer, director, employee, consultant, agent, representative or Affiliate of any Party hereto shall have (i) any personal liability to any Buyer Indemnified Party or Seller Indemnified Party as a result of the breach of any representation, warranty, covenant or agreement contained in this Agreement or otherwise arising out of or in connection with the Contemplated Transactions, or (ii) any personal obligation to indemnify any Buyer Indemnified Party or any Seller Indemnified Party for any claims pursuant to this Article X, and Buyer, for itself and all other Buyer Indemnified Parties Parties, and each Seller, for itself and all other Seller Indemnified Parties, hereby waive and release and shall have no recourse against any of such Persons described in this Section 10.5(g) as a result of the breach of any representation, warranty, covenant or agreement contained herein or otherwise arising out of or in connection with the Contemplated Transactions. An Indemnified Party shall use Reasonable Efforts to mitigate all Adverse Consequences relating to an indemnifiable claim, including availing itself of any defenses, limitations, rights of contribution, and other rights at law Law or equity, and shall provide such evidence and documentation of the nature and extent of such claim as may be reasonably requested by the Indemnifying Party. An ; provided that if the Indemnified Party’s Reasonable Efforts Party fails to do so, the Indemnified Party shall include not be entitled to be indemnified, held harmless or reimbursed for the reasonable expenditure portion of money, including the payment of any legal fees, to mitigate or otherwise reduce or eliminate any Adverse Consequences for which indemnification would otherwise be due under this Article X.Consequence that reasonably could have been avoided had the Indemnified Party so complied. (h) An Indemnifying Party’s indemnification obligations under this Article X shall be reduced (but not below zero) to the extent that the Adverse Consequences related to a claim is are covered by and paid to the Indemnified Party pursuant to (A) a reimbursement, indemnification or payment from a third Person with respect to such Adverse Consequences, or (B) insurance policies that provide coverage with respect to such Adverse Consequences. (i) An Indemnifying Party’s indemnification obligations under this Article X shall be reduced (but not below zero) to take into account any Tax benefit (whether by refund, credit against or reduction in Taxes otherwise payable) arising from the incurrence of the Adverse Consequences and actually realized by the Indemnified Party or any of its Affiliates during or before, the calendar year in which the Indemnifying Party makes a payment pursuant to this Article X. To the extent such Tax benefit is not realized during or before the calendar year in which the Indemnifying Party makes a payment pursuant to this Article X, the Indemnified Party shall remit to the Indemnifying Party the amount of any Tax benefit actually realized by the Indemnified Party or any of its Affiliates during or with respect to the two (2) calendar years following the year in which the Indemnifying Party makes such payment. For purposes of this Section 10.5(i), a Tax benefit is realized when and to the extent (i) the hypothetical Tax liability of the Indemnified Party and its Affiliates, calculated by excluding the relevant Tax deductions attributable to the Adverse Consequences exceeds (ii) the actual Tax liability of the Indemnified Party and its Affiliates calculated by taking into account the relevant Tax deductions attributable to the Adverse Consequences (and treating such deductions as the last items in such calculation). The Indemnified Party shall remit to the Indemnifying Party the amount of the realized Tax benefit within ten (10) days after the date of realization. (j) NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, EXCEPT TO THE EXTENT AWARDED BY A COURT TO A THIRD PARTY PURSUANT TO A CLAIM ASSERTED AGAINST THE INDEMNIFIED PARTY BY A THIRD PARTY, UNDER NO CIRCUMSTANCES SHALL ANY PARTY, OR ITS AFFILIATES, OR ITS OR THEIR STOCKHOLDERS, MEMBERS, PARTNERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR REPRESENTATIVES, BE RESPONSIBLE OR LIABLE FOR AND NO PARTY SHALL BE ENTITLED TO SEEK, ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECULATIVE, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES RELATED TO DIMINUTION IN VALUE, LOST BUSINESS, LOST PROFITS, LOST REVENUE, LOST INCOME, LOSS OF USE OR BUSINESS REPUTATION OR OPPORTUNITY, LOSS OF DATA, FAILURE TO REALIZE SAVINGS OR BENEFITS, OR ANY DAMAGES BASED ON OR MEASURED BY ANY TYPE OF MULTIPLE, AND THE DEFINITION OF “ADVERSE CONSEQUENCES” IN SECTION 1.1 SHALL BE INTERPRETED TO EXCLUDE SUCH DAMAGES) ARISING UNDER THIS AGREEMENT OR THE ANCILLARY AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS.

Limitation of Claims; Mitigation. Notwithstanding anything to the contrary contained herein: (a) Except with respect to claims for breaches of Section 3.9 (Tax Matters) (each, a “Tax Representation”) and the Retained Liabilities, the The maximum aggregate liability of Seller Contributor under this Agreement (except in the case of fraud, intentional misrepresentation or willful misconduct) shall not exceed an amount equal to the Base Purchase Price Consideration Value (the “Cap”); provided, however, that with respect to indemnification obligations of Seller under Section 10.1(a)(i) (other than with regard to any breaches of any of Seller’s Fundamental Representations or a Tax Representation) the Cap shall be an amount equal to ten percent (10%) of the Base Purchase Price. (b) In no event shall Seller have any liability to Buyer in respect of any indemnification obligations under Section 10.1(a)(i) or Section 10.1(a)(ii) unless and until such liabilities exceed, in the aggregate, $75,000,000.00 (the “Basket Amount”), and then only to the extent such liabilities are in excess For all purposes of the Basket Amountindemnity obligations of Contributor set forth in this Article VIII, subject to the Cap; provided, that the Basket Amount limitation shall not apply to breaches of any of Seller’s Fundamental Representation (other than with respect to Section 3.2(d)any representation or warranty of Contributor contained herein, any express qualifications or limitations set forth in such representation or warranty as to materiality or “Contributor Material Adverse Effect” (or other similar materiality qualifier) contained therein shall be disregarded for the purposes of determining the amount of any Adverse Consequences resulting from any breach of any such representation or any Tax Representationwarranty. (c) No representation The maximum aggregate liability of the Acquirer Parties under this Agreement (except in the case of fraud, intentional misrepresentation or warranty made in Article III willful misconduct) shall be deemed to be breached and no claim for indemnification pursuant to Section 10.1(a)(i) may be made unless the Adverse Consequences resulting from or arising out of any individual circumstance or occurrence that results in Adverse Consequences actually incurred or paid by a Buyer Indemnified Party exceed $5,000,000.00 (the “Per Claim Threshold”), and if such Adverse Consequences not exceed the Per Claim Threshold, the full amount thereof (after taking into account the limitations set forth in this Article X) shall be taken into account in determining whether, and the extent to which, the Basket Amount has been met and, if the Basket Amount has been met, shall be subject to indemnification under this Article except to the extent limited by this Section 10.5; provided, that the Per Claim Threshold limitation shall not apply to breaches of any of Seller’s Fundamental Representations or any Tax RepresentationCap. (d) An Indemnified Each Party shall not be entitled to any indemnity payment for breaches of representations (and warranties by the Indemnifying Party shall, to the extent the it has authority and is permitted to do so, cause each other Acquirer Indemnified Party had knowledge of any eventto, action or circumstance giving rise to such breach prior to the Closing. (e) Notwithstanding anything in this Agreement, (i) Seller shall not be liable for any Adverse Consequences actually incurred or paid by a Buyer Indemnified Party to the extent that such Adverse Consequences arose from (A) a change in accounting or Law, policy or practice made after the Closing Date or (B) any Law not in force on the Closing Date, and (ii) no Party shall be responsible for Adverse Consequences with respect to any claim which is contingent unless the Acquirer Parties, and until such contingent claim becomes an actual liability of the each other Contributor Indemnified Party and is due and payableto, so long as such claim was timely submitted pursuant to Section 10.3. (f) Notwithstanding anything in this Agreement, no Party shall be liable under this Article X for an amount (i) to the extent, if any, that any Adverse Consequences giving rise to such amount results from a failure on the part of any Indemnified Party to exercise good faith in not jeopardizing or prejudicing the interests of the Indemnifying Party or otherwise arises out of any action taken or omitted to be taken by an Indemnified Party or (ii) unless and until all rights and remedies of an Indemnified Party under any other obligation of indemnification in its favor shall have first been exhausted, including using Reasonable Efforts to (A) secure payment from insurance policies that provide coverage with respect to such Adverse Consequences, and (BContributor) secure reimbursement, indemnity or other payment from any third Person obligated by Contract or otherwise to reimburse, indemnify or pay the Indemnified Party with respect to such Adverse Consequences. (g) Notwithstanding anything in this Agreement or any applicable Law to the contrary, it is understood and agreed by each of the Parties that no stockholder, member, partner, manager, officer, director, employee, consultant, agent, representative or Affiliate of any Party hereto shall have (i) any personal liability to any Buyer Indemnified Party or Seller Indemnified Party as a result of the breach of any representation, warranty, covenant or agreement contained in this Agreement or otherwise arising out of or in connection with the Contemplated Transactions, or (ii) any personal obligation to indemnify any Buyer Indemnified Party or any Seller Indemnified Party for any claims pursuant to this Article X, and Buyer, for itself and all other Buyer Indemnified Parties and each Seller, for itself and all other Seller Indemnified Parties, hereby waive and release and shall have no recourse against any of such Persons described in this Section 10.5(g) as a result of the breach of any representation, warranty, covenant or agreement contained herein or otherwise arising out of or in connection with the Contemplated Transactions. An Indemnified Party shall use Reasonable Efforts to mitigate all Adverse Consequences relating to an indemnifiable claim, including availing itself after becoming aware of any defenses, limitations, rights of contribution, and other rights at law or equity, and shall provide such evidence and documentation of the nature and extent of such claim as may event which could reasonably be reasonably requested by the Indemnifying Party. An Indemnified Party’s Reasonable Efforts shall include the reasonable expenditure of money, including the payment of any legal fees, expected to mitigate or otherwise reduce or eliminate give rise to any Adverse Consequences that are indemnifiable hereunder, including, as applicable, pursuing any counterclaim, offset, insurance settlement or other claim which could result in a recovery that would reduce such Person’s Adverse Consequences for which indemnification would otherwise be due under purposes of this Article X.Agreement. (he) An Indemnifying Party’s indemnification obligations under this Article X VIII shall be reduced (but not below zero): (i) to the extent that the any Adverse Consequences related to a claim is are covered by by, and have been actually paid to to, the Indemnified Party pursuant to to, (A) a reimbursement, indemnification or payment from a third Person with respect to such Adverse Consequences, or (B) insurance policies that provide coverage with respect to such Adverse Consequences; and (ii) to take into account any Tax benefit (whether by refund, credit against or reduction in Taxes otherwise payable) arising from the incurrence of the Adverse Consequences and actually realized by the Indemnified Party or any of its Affiliates during, or before, the calendar year in which the Indemnifying Party makes a payment pursuant to this Article VIII. (if) NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL ANY PARTY, OR ITS AFFILIATES, OR ITS OR THEIR STOCKHOLDERS, MEMBERS, PARTNERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR RESPECTIVE REPRESENTATIVES, BE RESPONSIBLE OR LIABLE FOR FOR, AND NO PARTY SHALL BE ENTITLED TO SEEK, ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECULATIVE, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES RELATED TO DIMINUTION IN VALUE, LOST BUSINESS, LOST PROFITS, LOST REVENUE, LOST INCOME, LOSS OF USE OR BUSINESS REPUTATION OR OPPORTUNITY, LOSS OF DATA, FAILURE TO REALIZE SAVINGS OR BENEFITS, OR ANY DAMAGES BASED ON OR MEASURED BY ANY TYPE OF MULTIPLE, AND THE DEFINITION OF “ADVERSE CONSEQUENCES” IN SECTION 1.1 SHALL BE INTERPRETED TO EXCLUDE SUCH DAMAGES) ARISING UNDER THIS AGREEMENT OR THE ANCILLARY AGREEMENTOTHER TRANSACTION DOCUMENTS, EVEN IF ADVISED OF INCLUDING LOST PROFITS (BUT ONLY TO THE POSSIBILITY OF EXTENT SUCH LOSSLOST PROFITS ARE CONSEQUENTIAL DAMAGES), UNLESS ANY SUCH AMOUNTS ARE ACTUALLY PAID TO ANY THIRD PERSON PURSUANT TO A THIRD PARTY CLAIM.

Limitation of Claims; Mitigation. Notwithstanding anything to the contrary contained herein: (a) Except with respect to claims for breaches of any indemnification obligations under Section 3.9 (Tax Matters10.1(a)(iii), Section 10.1(a)(iv) (each, a “Tax Representation”) and the Retained Liabilitiesor Section 10.1(a)(v), the maximum aggregate liability of Seller under this Agreement shall not exceed an amount equal to the Base Purchase Price (the “Cap”); provided, however, that with respect to indemnification obligations of Seller under Section 10.1(a)(i) (other than with regard to any breaches of any of Seller’s the Fundamental Representations of Seller, the Employee Retention Representation or a the Tax Representation) Representations), the Cap shall be an amount equal to ten percent (10%) of the Base Purchase Price. The maximum aggregate liability of Seller under this Agreement shall not exceed the Purchase Price, except for any and all Adverse Consequences actually incurred or paid by a Buyer Indemnified Party as a result of (i) the Excluded Assets or (ii) the Retained Liabilities. (b) In no event shall Seller have any liability to Buyer in respect of any indemnification obligations under Section 10.1(a)(i) or Section 10.1(a)(ii) unless and until such liabilities exceed, in the aggregate, $75,000,000.00 an amount equal to 1.15% of the Base Purchase Price (the “Basket Amount”), and then only to the extent such liabilities are in excess of the Basket Amount, subject to the Cap; provided, provided that the Basket Amount limitation shall not apply to breaches of any of the Fundamental Representations of Seller’s Fundamental , the Employee Retention Representation (other than with respect to Section 3.2(d)) or any the Tax RepresentationRepresentations. (c) No representation or warranty made in Article ARTICLE III shall be deemed to be breached and no claim for indemnification pursuant to Section 10.1(a)(i) may be made unless the Adverse Consequences resulting from or arising out of any individual circumstance or occurrence that results in Adverse Consequences actually incurred or paid by a Buyer Indemnified Party exceed $5,000,000.00 1,750,000 (the “Per Claim Threshold”), and if such Adverse Consequences exceed the Per Claim Threshold, the full amount thereof (after taking into account the limitations set forth in this Article ARTICLE X) shall be taken into account in determining whether, and the extent to which, the Basket Amount has been met and, if the Basket Amount has been met, shall be subject to indemnification under this Article ARTICLE X except to the extent limited by this Section 10.5; provided, provided that the Per Claim Threshold limitation shall not apply to breaches of any of Seller’s the Fundamental Representations of Seller, Tax Representations or any Tax the Employee Retention Representation. (d) An Indemnified Party shall not be entitled to any indemnity payment for breaches of representations and warranties by the Indemnifying Party to the extent the Indemnified Party had knowledge of any event, action or circumstance giving rise to such breach prior to the Closing. (e) Notwithstanding anything in this Agreement, (i) Seller shall not be liable for any Adverse Consequences actually incurred or paid by a Buyer Indemnified Party to the extent that such Adverse Consequences arose from (A) a change in accounting or Law, policy or practice made after the Closing Date or (B) any Law not in force on the Closing Date, and (ii) no Party shall be responsible for Adverse Consequences with respect to any claim which is contingent unless and until such contingent claim becomes an actual liability of the Indemnified Party and is due and payable, so long as such claim was timely submitted pursuant to Section 10.3. (e) For purposes of calculating the amount of any Adverse Consequences indemnifiable hereunder, any reference to “material,” “materiality,” Material Adverse Effect or similar qualifier contained within such representations and warranties will be disregarded. (f) Notwithstanding anything in this Agreement, no Party shall be liable under this Article ARTICLE X for an amount (i) to the extent, if any, that any Adverse Consequences giving rise to such amount results from a failure on the part of any Indemnified Party to exercise good faith in not jeopardizing or prejudicing the interests of the Indemnifying Party or otherwise arises out of any action taken or omitted to be taken by an Indemnified Party or (ii) unless and until all rights and remedies of an Indemnified Party under any other obligation of indemnification in its favor shall have first been exhausted, including using Reasonable Efforts to (A) secure payment from insurance policies that provide coverage with respect to such Adverse Consequences, and (B) secure reimbursement, indemnity or other payment from any third Person obligated by Contract or otherwise to reimburse, indemnify or pay the Indemnified Party with respect to such Adverse Consequences. (g) Notwithstanding anything in this Agreement or any applicable Law to the contrary, it is understood and agreed by each of the Parties that no stockholder, member, partner, manager, officer, director, employee, consultant, agent, representative or Affiliate of any Party hereto shall have (i) any personal liability to any Buyer Indemnified Party or Seller Indemnified Party as a result of the breach of any representation, warranty, covenant or agreement contained in this Agreement or otherwise arising out of or in connection with the Contemplated Transactions, or (ii) any personal obligation to indemnify any Buyer Indemnified Party or any Seller Indemnified Party for any claims pursuant to this Article ARTICLE X, and Buyer, for itself and all other Buyer Indemnified Parties Parties, and each Seller, for itself and all other Seller Indemnified Parties, hereby waive and release and shall have no recourse against any of such Persons described in this Section 10.5(g) as a result of the breach of any representation, warranty, covenant or agreement contained herein or otherwise arising out of or in connection with the Contemplated Transactions. An Indemnified Party shall use Reasonable Efforts to mitigate all Adverse Consequences relating to an indemnifiable claim, including availing itself of any defenses, limitations, rights of contribution, and other rights at law Law or equity, and shall provide such evidence and documentation of the nature and extent of such claim as may be reasonably requested by the Indemnifying Party. An ; provided that if the Indemnified Party’s Reasonable Efforts Party fails to do so, the Indemnified Party shall include not be entitled to be indemnified, held harmless or reimbursed for the reasonable expenditure portion of money, including the payment of any legal fees, to mitigate or otherwise reduce or eliminate any Adverse Consequences for which indemnification would otherwise be due under this Article X.Consequence that reasonably could have been avoided had the Indemnified Party so complied. (h) An Indemnifying Party’s indemnification obligations under this Article ARTICLE X shall be reduced (but not below zero) to the extent that the Adverse Consequences related to a claim is are covered by and paid to the Indemnified Party pursuant to (A) a reimbursement, indemnification or payment from a third Person with respect to such Adverse Consequences, or (B) insurance policies that provide coverage with respect to such Adverse Consequences. (i) NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARYAn Indemnifying Party’s indemnification obligations under this ARTICLE X shall be reduced (but not below zero) to take into account any Tax benefit (whether by refund, UNDER NO CIRCUMSTANCES SHALL ANY PARTYcredit against or reduction in Taxes otherwise payable) arising from the incurrence of the Adverse Consequences and actually realized by the Indemnified Party or any of its Affiliates during or before, OR ITS AFFILIATESthe calendar year in which the Indemnifying Party makes a payment pursuant to this ARTICLE X. To the extent such Tax benefit is not realized during or before the calendar year in which the Indemnifying Party makes a payment pursuant to this ARTICLE X, OR ITS OR THEIR STOCKHOLDERS, MEMBERS, PARTNERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR REPRESENTATIVES, BE RESPONSIBLE OR LIABLE FOR AND NO PARTY SHALL BE ENTITLED TO SEEK, ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECULATIVE, SPECIAL OR CONSEQUENTIAL DAMAGES the Indemnified Party shall remit to the Indemnifying Party the amount of any Tax benefit actually realized by the Indemnified Party or any of its Affiliates during or with respect to the two (INCLUDING, WITHOUT LIMITATION, DAMAGES RELATED TO DIMINUTION IN VALUE, LOST BUSINESS, LOST PROFITS, LOST REVENUE, LOST INCOME, LOSS OF USE OR BUSINESS REPUTATION OR OPPORTUNITY, LOSS OF DATA, FAILURE TO REALIZE SAVINGS OR BENEFITS, OR ANY DAMAGES BASED ON OR MEASURED BY ANY TYPE OF MULTIPLE, AND THE DEFINITION OF “ADVERSE CONSEQUENCES” IN SECTION 1.1 SHALL BE INTERPRETED TO EXCLUDE SUCH DAMAGES2) ARISING UNDER THIS AGREEMENT OR THE ANCILLARY AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS.calendar years following the year in which the Indemnifying Party makes such payment. For purposes of this

Limitation of Claims; Mitigation. Notwithstanding anything to the contrary contained herein: (a) Except with respect Subject to claims the other limitations set forth herein, and except for indemnifiable Claims arising out of or based upon (i) fraud, (ii) breaches of Section 3.9 Fundamental Representations, and (Tax Mattersiii) (each, a “Tax Representation”) and the Retained Liabilities, the maximum aggregate liability sole and exclusive source of Seller under this Agreement shall not exceed an amount equal to recovery for indemnifiable claims of the Base Purchase Price (the “Cap”); provided, however, that with respect to indemnification obligations of Seller Buyer Indemnified Parties under Section 10.1(a)(i) (other than with regard to any breaches of any of Seller’s Fundamental Representations or a Tax Representation) the Cap shall be an amount equal (x) first, to ten percent (10%) of the Base Purchase Price. (b) In no event shall Seller have any liability to Buyer in respect of any indemnification obligations under Section 10.1(a)(i) or Section 10.1(a)(ii) unless and until extent such liabilities Adverse Consequences exceed, in the aggregate, $75,000,000.00 8,887,500 (the “Basket Amount”), from Seller until Adverse Consequences paid by Seller under Section 10.1(a)(i) equal $8,887,500 (the “Cap”), and then only (y) second, from the R&W Insurance Policy. For the avoidance of doubt, in the event that a recovery under the R&W Insurance Policy or otherwise is unavailable or insufficient for any or no reason, to satisfy the extent full amount of indemnifiable Adverse Consequences of the Buyer Indemnified Parties asserted against the Seller under Section 10.1(a)(i), the Seller shall have no liability or obligation whatsoever to any Buyer Indemnified Party under this Agreement or otherwise for such liabilities are claims or Adverse Consequences in excess of the Basket AmountCap, subject except for indemnifiable claims arising out of or based upon fraud or breaches of the Fundamental Representations or the Retained Liabilities. (b) Subject to the Cap; providedother limitations set forth herein, that the Basket Amount limitation Seller shall not apply to breaches of any of Seller’s Fundamental Representation have liability under this Agreement (other than with respect to Section 3.2(d)for Retained Liabilities and fraud) or any Tax Representationin excess of the Base Purchase Price. (c) No representation or warranty made in Article III shall be deemed to be breached and no claim for indemnification pursuant to Section 10.1(a)(i) may be made unless the Adverse Consequences resulting from or arising out of any individual circumstance or occurrence that results in Adverse Consequences actually incurred or paid by a Buyer Indemnified Party exceed $5,000,000.00 2,000,000 (the “Per Claim Threshold”), and if such Adverse Consequences exceed the Per Claim Threshold, the full amount thereof (after taking into account the limitations set forth in this Article X) shall be taken into account in determining whether, and the extent to which, the Basket Amount has been met and, if the Basket Amount has been met, shall be subject to indemnification under this Article except to the extent limited by this Section 10.5; provided, that the Per Claim Threshold limitation shall not apply to breaches of any of Seller’s Fundamental Representations or any Tax Representationfraud. (d) An Indemnified Party shall not be entitled For purposes of determining the existence of a breach of any representations or warranties indemnifiable hereunder, and in calculating the amount of any Adverse Consequences indemnifiable hereunder, except with respect to the Fundamental Representations, Sections 3.5 and 3.6 and the definition of “Material Contracts”, any indemnity payment for breaches of reference to “material,” “materiality,” or Material Adverse Effect contained within such representations and warranties by the Indemnifying Party to the extent the Indemnified Party had knowledge of any event, action or circumstance giving rise to such breach prior to the Closingwill be disregarded. (e) Notwithstanding anything in this Agreement, (i) Seller shall not be liable for any Adverse Consequences actually incurred or paid by a Buyer Indemnified Party to the extent that such Adverse Consequences arose from (A) a change in accounting or Law, policy or practice made after the Closing Date or (B) any Law not in force on the Closing Date, and (ii) no Party shall be responsible for Adverse Consequences with respect to any claim which is contingent unless and until such contingent claim becomes an actual liability Adverse Consequence of the Indemnified Party and is due and payableParty, so long as such claim was timely submitted pursuant to Section 10.3. (f) Notwithstanding anything in this Agreement, no Party shall be liable under this Article X for an amount (i) to the extent, if any, that any Adverse Consequences giving rise to such amount results from a failure on the part of any Indemnified Party to exercise good faith in not jeopardizing or prejudicing the interests of the Indemnifying Party or otherwise arises out of any action taken or omitted to be taken by an Indemnified Party or (ii) unless and until all rights and remedies of an Indemnified Party under any other obligation of indemnification in its favor shall have first been exhausted, including using Reasonable Efforts to (A) secure payment from insurance policies that provide coverage with respect to such Adverse Consequences, and (B) secure reimbursement, indemnity or other payment from any third Person obligated by Contract or otherwise to reimburse, indemnify or pay the Indemnified Party with respect to such Adverse Consequences. (g) Notwithstanding anything in this Agreement or any applicable Law to the contrary, it is understood and agreed by each of the Parties that that, except in the case of fraud, no stockholder, member, partner, manager, officer, director, employee, consultant, agent, representative or Affiliate of any Party hereto shall have (i) any personal liability to any Buyer Indemnified Party or Seller Indemnified Party as a result of the breach of any representation, warranty, covenant or agreement contained in this Agreement or otherwise arising out of or in connection with the Contemplated Transactions, or (ii) any personal obligation to indemnify any Buyer Indemnified Party or any Seller Indemnified Party for any claims pursuant to this Article X, and Buyer, for itself and all other Buyer Indemnified Parties and each Seller, for itself and all other Seller Indemnified Parties, hereby waive and release and shall have no recourse against any of such Persons described in this Section 10.5(g) as a result of the breach of any representation, warranty, covenant or agreement contained herein or otherwise arising out of or in connection with the Contemplated Transactions. An Indemnified Party shall use Reasonable Efforts to mitigate all Adverse Consequences relating to an indemnifiable claim, including availing itself of any defenses, limitations, rights of contribution, and other rights at law or equityclaim as required under applicable Law, and shall provide such evidence and documentation of the nature and extent of such claim as may be reasonably requested by the Indemnifying Party. An Indemnified Party’s Reasonable Efforts shall include the reasonable expenditure of money, including the payment of any legal fees, to mitigate or otherwise reduce or eliminate any Adverse Consequences for which indemnification would otherwise be due under this Article X.X, in each case to the extent required under applicable Law. (h) An Indemnifying Party’s indemnification obligations under this Article X shall be reduced (but not below zero) to the extent that the Adverse Consequences related to a claim is (A) covered by and paid to the Indemnified Party pursuant to (A) a reimbursement, indemnification or payment from a third Person with respect to such Adverse Consequences, or (B) covered by any insurance policies that provide coverage with respect to such Adverse Consequences. (i) NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL ANY PARTY, OR ITS AFFILIATES, OR ITS OR THEIR STOCKHOLDERS, MEMBERS, PARTNERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR REPRESENTATIVES, BE RESPONSIBLE OR LIABLE FOR AND NO PARTY SHALL BE ENTITLED TO SEEK, ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECULATIVE, SPECIAL EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES RELATED TO DIMINUTION IN VALUE, LOST BUSINESS, LOST PROFITS, LOST REVENUE, LOST INCOME, LOSS OF USE OR BUSINESS REPUTATION OR OPPORTUNITY, LOSS OF DATA, FAILURE THE EXTENT NOT REASONABLY FORESEEABLE) DAMAGES; PROVIDED THE FOREGOING SHALL NOT APPLY TO REALIZE SAVINGS OR BENEFITSTHIRD PARTY CLAIMS FOR WHICH ANY PARTY IS OBLIGATED TO INDEMNIFY ANOTHER PARTY HEREUNDER, OR ANY DAMAGES BASED ON OR MEASURED BY ANY TYPE OF MULTIPLE, AND THE DEFINITION OF “ADVERSE CONSEQUENCES” IN SECTION 1.1 SHALL BE INTERPRETED TO EXCLUDE SUCH DAMAGES) ARISING UNDER THIS AGREEMENT OR THE ANCILLARY AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSSFRAUD.

Limitation of Claims; Mitigation. Notwithstanding anything to the contrary contained herein: (a) Except with respect to claims for breaches of Section 3.9 (Tax Matters) (each, a “Tax Representation”) and the Retained Liabilities, the The maximum aggregate liability of Seller the Contributor Parties under this Agreement (except in the case of fraud, intentional misrepresentation or willful misconduct) shall not exceed an amount equal to the Base Purchase Price Consideration Value (the “Cap”); provided, however, that with respect to indemnification obligations of Seller under Section 10.1(a)(i) (other than with regard to any breaches of any of Seller’s Fundamental Representations or a Tax Representation) the Cap shall be an amount equal to ten percent (10%) of the Base Purchase Price. (b) In no event shall Seller have any liability to Buyer in respect of any indemnification obligations under Section 10.1(a)(i) or Section 10.1(a)(ii) unless and until such liabilities exceed, in the aggregate, $75,000,000.00 (the “Basket Amount”), and then only to the extent such liabilities are in excess For all purposes of the Basket Amountindemnity obligations of the Parties set forth in this Article VIII, subject to the Cap; provided, that the Basket Amount limitation shall not apply to breaches of any of Seller’s Fundamental Representation (other than with respect to Section 3.2(d)any representation or warranty herein, any express qualifications or limitations set forth in such representation or warranty as to materiality, “Acquirer Material Adverse Effect” or “Contributor Material Adverse Effect” (or other similar materiality qualifier) contained therein shall be disregarded for the purposes of determining the amount of any Adverse Consequences resulting from any breach of any such representation or any Tax Representationwarranty. (c) No representation The maximum aggregate liability of the Acquirer Parties under this Agreement (except in the case of fraud, intentional misrepresentation or warranty made in Article III willful misconduct) shall be deemed to be breached and no claim for indemnification pursuant to Section 10.1(a)(i) may be made unless the Adverse Consequences resulting from or arising out of any individual circumstance or occurrence that results in Adverse Consequences actually incurred or paid by a Buyer Indemnified Party exceed $5,000,000.00 (the “Per Claim Threshold”), and if such Adverse Consequences not exceed the Per Claim Threshold, the full amount thereof (after taking into account the limitations set forth in this Article X) shall be taken into account in determining whether, and the extent to which, the Basket Amount has been met and, if the Basket Amount has been met, shall be subject to indemnification under this Article except to the extent limited by this Section 10.5; provided, that the Per Claim Threshold limitation shall not apply to breaches of any of Seller’s Fundamental Representations or any Tax RepresentationCap. (d) An Indemnified Each Party shall not be entitled to any indemnity payment for breaches of representations (and warranties by the Indemnifying Party shall, to the extent the it has authority and is permitted to do so, cause each other Acquirer Indemnified Party had knowledge of any eventto, action or circumstance giving rise to such breach prior to the Closing. (e) Notwithstanding anything in this Agreement, (i) Seller shall not be liable for any Adverse Consequences actually incurred or paid by a Buyer Indemnified Party to the extent that such Adverse Consequences arose from (A) a change in accounting or Law, policy or practice made after the Closing Date or (B) any Law not in force on the Closing Date, and (ii) no Party shall be responsible for Adverse Consequences with respect to any claim which is contingent unless the Acquirer Parties, and until such contingent claim becomes an actual liability of the each other Contributor Indemnified Party and is due and payableto, so long as such claim was timely submitted pursuant to Section 10.3. (f) Notwithstanding anything in this Agreement, no Party shall be liable under this Article X for an amount (i) to the extent, if any, that any Adverse Consequences giving rise to such amount results from a failure on the part of any Indemnified Party to exercise good faith in not jeopardizing or prejudicing the interests of the Indemnifying Party or otherwise arises out of any action taken or omitted to be taken by an Indemnified Party or (ii) unless and until all rights and remedies of an Indemnified Party under any other obligation of indemnification in its favor shall have first been exhausted, including using Reasonable Efforts to (A) secure payment from insurance policies that provide coverage with respect to such Adverse Consequences, and (Bthe Contributor Parties) secure reimbursement, indemnity or other payment from any third Person obligated by Contract or otherwise to reimburse, indemnify or pay the Indemnified Party with respect to such Adverse Consequences. (g) Notwithstanding anything in this Agreement or any applicable Law to the contrary, it is understood and agreed by each of the Parties that no stockholder, member, partner, manager, officer, director, employee, consultant, agent, representative or Affiliate of any Party hereto shall have (i) any personal liability to any Buyer Indemnified Party or Seller Indemnified Party as a result of the breach of any representation, warranty, covenant or agreement contained in this Agreement or otherwise arising out of or in connection with the Contemplated Transactions, or (ii) any personal obligation to indemnify any Buyer Indemnified Party or any Seller Indemnified Party for any claims pursuant to this Article X, and Buyer, for itself and all other Buyer Indemnified Parties and each Seller, for itself and all other Seller Indemnified Parties, hereby waive and release and shall have no recourse against any of such Persons described in this Section 10.5(g) as a result of the breach of any representation, warranty, covenant or agreement contained herein or otherwise arising out of or in connection with the Contemplated Transactions. An Indemnified Party shall use Reasonable Efforts to mitigate all Adverse Consequences relating to an indemnifiable claim, including availing itself after becoming aware of any defenses, limitations, rights of contribution, and other rights at law or equity, and shall provide such evidence and documentation of the nature and extent of such claim as may event which could reasonably be reasonably requested by the Indemnifying Party. An Indemnified Party’s Reasonable Efforts shall include the reasonable expenditure of money, including the payment of any legal fees, expected to mitigate or otherwise reduce or eliminate give rise to any Adverse Consequences that are indemnifiable hereunder, including, as applicable, pursuing any counterclaim, offset, insurance settlement or other claim which could result in a recovery that would reduce such Person’s Adverse Consequences for which indemnification would otherwise be due under purposes of this Article X.Agreement. (he) An Indemnifying Party’s indemnification obligations under this Article X VIII shall be reduced (but not below zero): (i) to the extent that the any Adverse Consequences related to a claim is are covered by by, and have been actually paid to to, the Indemnified Party pursuant to to, (A) a reimbursement, indemnification or payment from a third Person with respect to such Adverse Consequences, or (B) insurance policies that provide coverage with respect to such Adverse Consequences; and (ii) to take into account any Tax benefit (whether by refund, credit against or reduction in Taxes otherwise payable) arising from the incurrence of the Adverse Consequences and actually realized by the Indemnified Party or any of its Affiliates during, or before, the calendar year in which the Indemnifying Party makes a payment pursuant to this Article VIII. (if) NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL ANY PARTY, OR ITS AFFILIATES, OR ITS OR THEIR STOCKHOLDERS, MEMBERS, PARTNERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR RESPECTIVE REPRESENTATIVES, BE RESPONSIBLE OR LIABLE FOR FOR, AND NO PARTY SHALL BE ENTITLED TO SEEK, ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECULATIVE, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES RELATED TO DIMINUTION IN VALUE, LOST BUSINESS, LOST PROFITS, LOST REVENUE, LOST INCOME, LOSS OF USE OR BUSINESS REPUTATION OR OPPORTUNITY, LOSS OF DATA, FAILURE TO REALIZE SAVINGS OR BENEFITS, OR ANY DAMAGES BASED ON OR MEASURED BY ANY TYPE OF MULTIPLE, AND THE DEFINITION OF “ADVERSE CONSEQUENCES” IN SECTION 1.1 SHALL BE INTERPRETED TO EXCLUDE SUCH DAMAGES) ARISING UNDER THIS AGREEMENT OR THE ANCILLARY AGREEMENTOTHER TRANSACTION DOCUMENTS, EVEN IF ADVISED OF INCLUDING LOST PROFITS (BUT ONLY TO THE POSSIBILITY OF EXTENT SUCH LOSSLOST PROFITS ARE CONSEQUENTIAL DAMAGES), UNLESS ANY SUCH AMOUNTS ARE ACTUALLY PAID TO ANY THIRD PERSON PURSUANT TO A THIRD PARTY CLAIM.

Limitation of Claims; Mitigation. Notwithstanding anything to the contrary contained herein: (a) Except with respect to claims for breaches of Section 3.9 (Tax Matters) (each, a “Tax Representation”) and the Retained Liabilities, the maximum aggregate liability of Seller under Notwithstanding anything contained in this Agreement shall not exceed an amount equal to the Base Purchase Price (the “Cap”); providedcontrary, however, that with respect to indemnification obligations of Seller under Section 10.1(a)(i) (other than with regard to any breaches of any of Seller’s Fundamental Representations or a Tax Representation) the Cap shall be an amount equal to ten percent (10%) of the Base Purchase Price. (b) In no event shall Seller have any liability to Buyer in respect of any indemnification obligations under Section 10.1(a)(i) or Section 10.1(a)(ii) unless and until such liabilities exceed, in the aggregate, $75,000,000.00 (the “Basket Amount”), and then only to the extent such liabilities are in excess of the Basket Amount, but subject to the Cap; provided, that the Basket Amount limitation shall not apply to breaches of any of Seller’s Fundamental Representation (other than with respect to Section 3.2(d)) or any Tax Representation. (c) No representation or warranty made in Article III shall be deemed to be breached and no claim for indemnification pursuant to Section 10.1(a)(i) may be made unless the Adverse Consequences resulting from or arising out of any individual circumstance or occurrence that results in Adverse Consequences actually incurred or paid by a Buyer Indemnified Party exceed $5,000,000.00 (the “Per Claim Threshold”), and if such Adverse Consequences exceed the Per Claim Threshold, the full amount thereof (after taking into account the limitations set forth in this Article X) shall be taken into account Section 10.5, Section 11.16 or otherwise in determining whetherthis Agreement, the aggregate amount of DEI and Seller’s liability, on the one hand, and Buyer’s and BHE’s liability (other than any obligation to pay the extent Purchase Price, any obligations under any Back-to-Back Guaranty, or any of Buyer’s obligations under Section 5.5(b)), on the other hand, pursuant to which, this Agreement and the Basket Amount has been met and, if the Basket Amount has been met, shall be subject to indemnification under this Article except to the extent limited by this Section 10.5; provided, that the Per Claim Threshold limitation Contemplated Transactions shall not apply to breaches of any of Seller’s Fundamental Representations or any Tax Representationexceed $1,650,000,000.00. (db) An Indemnified Party shall not be entitled to any indemnity payment for breaches of representations and warranties by the Indemnifying Party to the extent the Indemnified Party had knowledge of any event, action or circumstance giving rise to such breach prior to the Closing. (ec) Notwithstanding anything in this Agreement, (i) neither Seller nor DEI shall not be liable for any Adverse Consequences actually incurred or paid by a Buyer Indemnified Party to the extent that such Adverse Consequences arose from (A) a change in accounting or Law, policy or practice made after the Closing Date or (B) any Law not in force on the Closing Date, and (ii) no Party shall be responsible for Adverse Consequences with respect to any claim which is contingent unless and until such contingent claim becomes an actual liability of the Indemnified Party and is due and payable, so long as such claim was timely submitted pursuant to Section 10.3. (fd) Notwithstanding anything in this Agreement, no Party shall be liable under this Article X for an amount (i) to the extent, if any, that any Adverse Consequences giving rise to such amount results from a failure on the part of any Indemnified Party to exercise good faith in not jeopardizing or prejudicing the interests of the Indemnifying Party or otherwise arises out of any action taken or omitted to be taken by an Indemnified Party or (ii) unless and until all rights and remedies of an Indemnified Party under any other obligation of indemnification in its favor shall have first been exhausted, including using Reasonable Efforts to (A) secure payment from insurance policies that provide coverage with respect to such Adverse Consequences, and (B) secure reimbursement, indemnity or other payment from any third Person obligated by Contract or otherwise to reimburse, indemnify or pay the Indemnified Party with respect to such Adverse Consequences. (ge) Notwithstanding anything in this Agreement or any applicable Law to the contrary, it is understood and agreed by each of the Parties that no stockholder, member, partner, manager, officer, director, employee, consultant, agent, representative or Affiliate of any Party hereto shall have (i) any personal liability to any Buyer Indemnified Party or Seller Indemnified Party as a result of the breach of any representation, warranty, covenant or agreement contained in this Agreement or otherwise arising out of or in connection with the Contemplated Transactions, or (ii) any personal obligation to indemnify any Buyer Indemnified Party or any Seller Indemnified Party for any claims pursuant to this Article X, and BuyerXxxxx and BHE, for itself themselves and all other Buyer Indemnified Parties and each SellerSeller and DEI, for itself themselves and all other Seller Indemnified Parties, hereby waive and release and shall have no recourse against any of such Persons described in this Section 10.5(g10.5(e) as a result of the breach of any representation, warranty, covenant or agreement contained herein or otherwise arising out of or in connection with the Contemplated Transactions. An Indemnified Party shall use Reasonable Efforts to mitigate all Adverse Consequences relating to an indemnifiable claim, including availing itself of any defenses, limitations, rights of contribution, and other rights at law or equity, and shall provide such evidence and documentation of the nature and extent of such claim as may be reasonably requested by the Indemnifying Party. An Indemnified Party’s Reasonable Efforts shall include the reasonable expenditure of money, including the payment of any legal fees, to mitigate or otherwise reduce or eliminate any Adverse Consequences for which indemnification would otherwise be due under this Article X. (hf) An Indemnifying Party’s indemnification obligations under this Article X shall be reduced (but not below zero) to the extent that the Adverse Consequences related to a claim is covered by and paid to the Indemnified Party pursuant to (A) a reimbursement, indemnification or payment from a third Person with respect to such Adverse Consequences, or (B) insurance policies that provide coverage with respect to such Adverse Consequences. (i) NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL ANY PARTY, OR ITS AFFILIATES, OR ITS OR THEIR STOCKHOLDERS, MEMBERS, PARTNERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR REPRESENTATIVES, BE RESPONSIBLE OR LIABLE FOR AND NO PARTY SHALL BE ENTITLED TO SEEK, ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECULATIVE, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES RELATED TO DIMINUTION IN VALUE, LOST BUSINESS, LOST PROFITS, LOST REVENUE, LOST INCOME, LOSS OF USE OR BUSINESS REPUTATION OR OPPORTUNITY, LOSS OF DATA, FAILURE TO REALIZE SAVINGS OR BENEFITS, OR ANY DAMAGES BASED ON OR MEASURED BY ANY TYPE OF MULTIPLE, AND THE DEFINITION OF “ADVERSE CONSEQUENCES” IN SECTION 1.1 SHALL BE INTERPRETED TO EXCLUDE SUCH DAMAGES) ARISING UNDER THIS AGREEMENT OR THE ANCILLARY AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS.