Common use of Limitation on Actions Clause in Contracts

Limitation on Actions. (a) Except with respect to Sections 5.1, 5.2, 5.3, 5.4, 5.5 and 5.6, the representations and warranties of Seller set forth in Article 5 and the covenants and agreements of Seller in Article 8 shall survive the Closing until December 30, 2010. Except with respect to Sections 6.1, 6.2, 6.3, 6.4, and 6.5, the representations and warranties of Buyer set forth in Article 6 shall survive until December 30, 2010. The remainder of this Agreement shall survive the Closing without time limit except as may otherwise be expressly provided herein. Representations, warranties, covenants, and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, or agreement prior to its expiration date. (b) The indemnities in Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii), and 13.2(b)(iii) shall terminate as of the termination date of each respective representation, warranty, covenant, or agreement that is subject to indemnification, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnities in Sections 13.2(a)(i) and 13.2(b)(i) shall continue without time limit. (c) No Party shall have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which such Party admits, or it is otherwise finally determined, that such Party has an obligation to indemnify the other Party pursuant to the terms of one of such subsections exceeds Four Hundred Fifty Thousand Dollars ($450,000) (the "Individual Indemnity Threshold"). Without limiting the foregoing, no Party shall have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) until the aggregate amount of the liability for all Damages which satisfies all of the following clauses exceeds $4,500,000: (i) Claim Notices for such Damages have been delivered by the other Party in accordance with this Agreement; (ii) such Party admits (or it is otherwise finally determined) that such Party has an obligation to indemnify the other Party pursuant hereto for such Damages, and (iii) each individual matter related to a Damage claim exceeds the Individual Indemnity Threshold; provided, however, that in no event shall this subsection (c) limit indemnification of Buyer for the Retained Liabilities or indemnification of Seller for the Assumed Liabilities; and provided, further, that, for the purposes of this Article 13, any representation, warranty, or covenant set forth in this Agreement which is qualified by materiality or Material Adverse Effect shall be deemed not to be so qualified. (d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, neither Seller nor Buyer shall be required to indemnify the other Party under this Article 13 for aggregate Damages in excess of ten percent (10%) of the Base Purchase Price; provided, however, that this Section 13.5(d) shall not apply to or limit indemnification for the Retained Liabilities, the Assumed Liabilities, or Seller's obligations under the special warranty of title in the Assignment and Xxxx of Sale. (e) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 13 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder. (f) As used in this Agreement, the term "Damages" means the amount of any actual liability, loss, cost, expense, claim, award, or judgment incurred or suffered by any Indemnified Person arising out of or resulting from the indemnified matter, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to matters indemnified against, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity; provided, however, that "Damages" shall not include any adjustment for Taxes that may be assessed on payments under this Article 13 or for Tax benefits received by the Indemnified Person as a consequence of any Damages. Notwithstanding the foregoing, neither Buyer nor Seller shall be entitled to indemnification under this Article 13 for, and Damages shall not include, (a) loss of profits, whether actual or consequential, or other consequential damages suffered by the Party claiming indemnification, or any punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (b) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused by the actions or omissions of any Indemnified Person after the Closing Date.

Limitation on Actions. (a) Except with respect The representations and warranties of the Parties in Articles 4, 5 and 6 and the corresponding representations and warranties given in the certificates delivered at the Closing pursuant to Sections 5.1Section 9.2(b) and Section 9.3(c), 5.2as applicable, 5.3shall survive the Closing for a period of twelve (12) months, 5.4, 5.5 and 5.6, except that (i) the representations and warranties of Seller set forth in Article 5 Sections 5.8 and the covenants and agreements of Seller in Article 8 5.17 shall survive the Closing until December 30, 2010. Except with respect to Sections 6.1, 6.2, 6.3, 6.4, and 6.5, the representations and warranties expiration of Buyer set forth in Article 6 shall survive until December 30, 2010the applicable statute of limitations. The remainder of the representations, warranties, covenants and agreements provided for in this Agreement shall not survive Closing except that covenants and agreements contemplated to be complied with or performed following the Closing without time limit except as may otherwise be expressly provided hereinshall survive indefinitely. Representations, warranties, covenants, covenants and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim Claim asserted pursuant to this Agreement with respect to the breach of such a representation, warranty, covenant, covenant or agreement prior to on or before its expiration date. (b) The indemnities in Sections 13.2(a)(ii11.4(b)(iii), 13.2(a)(iii11.4(b)(iv), 13.2(b)(ii), 11.4(c)(ii) and 13.2(b)(iii11.4(c)(iii) shall terminate as of the termination date of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnification, except in each case as to matters for which a specific written claim for indemnity has been delivered Claims asserted pursuant to this Agreement with respect to the Indemnifying Person breach of such representation, warranty, covenant or agreement on or before such termination date. The Purchaser’s indemnities in Sections 13.2(a)(i11.4(b)(i), 11.4(b)(ii), and 11.4(b)(v) and 13.2(b)(iSeller’s indemnity in Section 11.4(c)(i) shall continue without time limit. (c) No Party Seller shall not have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(iiSection 11.4(c)(ii) or 13.2(b)(iiiSection 11.4(c)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which such Party admits, or it is otherwise finally determined, that such Party has an obligation to indemnify the other Party pursuant to the terms of one of such subsections individual Claim exceeds Four Hundred Fifty Thousand Dollars ($450,000) 100,000.00 (the "Individual Indemnity “Threshold"”). Without limiting the foregoing, no Party . (d) Seller shall not have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(iiSection 11.4(c)(ii) or 13.2(b)(iiiSection 11.4(c)(iii) until and unless the aggregate amount of the liability for all Damages Claims exceeding the Threshold exceeds $1,000,000.00 (the “First Deductible”), at which satisfies all point Seller shall be liable only for indemnification under Section 11.4(c)(iii) to the extent relating to an inaccuracy or breach of the following clauses representations or warranties in Section 5.13(b) or Section 5.13(d) (“Easement Claims”) and then only to the extent the amount of such Easement Claims exceeds $4,500,000: the First Deductible. With respect to all other claims for indemnification under Section 11.4(c)(ii)or Section 11.4(c)(iii), Seller shall not have any liability until and unless the aggregate amount of the liability for all Claims exceeding the Threshold, including all Claims counted toward the First Deductible, exceeds one and one half percent (1.5%) of the Purchase Price (the “Second Deductible”), and then only to the extent the amount of all such Claims exceeds the Second Deductible. Notwithstanding the foregoing: (i) Claim Notices this clause (d) shall not apply to liability for such Damages have been delivered by breaches of the other Party covenant in accordance with this Agreement; Section 7.8 and (ii) such Party admits (or it is otherwise finally determined) that such Party has an obligation the adjustments to indemnify the other Party pursuant hereto for such Damages, and (iii) each individual matter related to a Damage claim exceeds the Individual Indemnity Threshold; provided, however, that Purchase Price under Section 2.2 and any payments in no event respect thereof shall not be limited by this subsection (c) limit indemnification of Buyer for the Retained Liabilities or indemnification of Seller for the Assumed Liabilities; and provided, further, that, for the purposes of this Article 13, any representation, warranty, or covenant set forth in this Agreement which is qualified by materiality or Material Adverse Effect shall be deemed not to be so qualifiedSection. (de) Notwithstanding anything to the contrary contained elsewhere in this Agreement, neither Seller nor Buyer shall not be required to indemnify the other Party Purchaser under this Article 13 11 for aggregate Damages damages in excess of ten an amount equal to fifteen percent (1015%) of the Base Purchase Price; provided, however, that this Section 13.5(dclause (e) shall not apply to or limit indemnification liability for breaches of the Retained Liabilities, the Assumed Liabilities, or Seller's obligations under the special warranty of title covenant in the Assignment and Xxxx of SaleSection 7.8. (ef) For the purposes of determining whether a breach of the representations and warranties set forth in Section 5.13(d) occurred for which an Indemnified Party may be entitled to indemnity under this Article 11, and the amount of Claims resulting from any such breach, the representations and warranties set forth in Section 5.13(d) shall be read as though they were not qualified to the knowledge of Seller. Notwithstanding anything to the contrary in this Agreement, Purchaser shall not be entitled to seek indemnification hereunder with respect to any matters relating to or arising out of the Pre-Signing Title Matters. (g) The amount of any Damages Claims for which an Indemnified Person Purchaser Indemnitee is entitled to indemnity under this Article 13 11 as a result of a breach of any of the representations contained in Section 5.8 shall be reduced so as not to take into account any Taxes for which Purchaser is responsible under Section 7.8 or to the extent the breach otherwise results in benefits to Purchaser or its Affiliates. (h) The amount of any Claims for which an Indemnified Party is entitled to indemnity under this Article 11 shall be reduced by the amount of insurance proceeds or Tax benefits, if any, realized by the Indemnified Person Party or its Affiliates (or direct or indirect owners) with respect to such Damages (Claims, net of any collection costs); provided, however, that no costs and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunderor its Affiliates. (fi) As used in this Agreement, the term "Damages" means the amount of any actual liability, loss, cost, expense, claim, award, or judgment incurred or suffered by any Indemnified Person arising out of or resulting from the indemnified matter, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to matters indemnified against, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity; provided, however, that "Damages" Purchaser shall not include any adjustment for Taxes that may be assessed on payments under this Article 13 or for Tax benefits received by the Indemnified Person as a consequence of any Damages. Notwithstanding the foregoing, neither Buyer nor Seller shall be entitled to indemnification or any other remedy under this Agreement with respect to any Claims to the extent attributable to or arising out of the actions of Purchaser after Closing as owner of the Membership Interests or as owner and operator of any of the Pipeline Assets. (j) Notwithstanding anything herein to the contrary, in no event will the Seller Indemnitees or the Purchaser Indemnitees be entitled to duplicate recovery under this Article 13 11 with respect to (i) any Claim, even though the facts or series of related facts giving rise to such Claim may constitute a breach of more than one representation, warranty or covenant or agreement set forth herein or in any document delivered in connection with the Closing or (ii) any adjustments to the Purchase Price pursuant to Section 2.2. (k) Neither Party shall have any liability as to the other Party, and each expressly waives any claim for, punitive, exemplary, remote or speculative damages or damages that are not the natural, probable and Damages shall not includereasonably foreseeable result of a breach of this Agreement, (a) loss including damages arising from the special circumstances of profitsthe Purchaser Indemnitee or Seller Indemnitee, as applicable, whether actual or consequentialnot such special circumstances were communicated to the Parties at the time this Agreement was executed, or other consequential damages suffered by the Party claiming indemnification, or any punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (b) any increase in liability, loss, cost, expense, claim, award or judgment except to the extent such increase is caused damages are recovered by the actions or omissions of any Indemnified an unaffiliated third Person after the Closing Dateagainst such Party in a third Person Claim for which such Party would otherwise be entitled to indemnification pursuant to this Article 11.

Limitation on Actions. (a) Except with respect to Sections 5.1, 5.2, 5.3, 5.4, 5.5 and 5.6, the The representations and warranties of Seller set forth the Parties in Article ARTICLE 4 and ARTICLE 5 and the covenants and agreements of Seller the Parties in Article 8 ARTICLE 6 and the corresponding representations and warranties given in the certificate delivered at Closing pursuant to Section 8.2(c) and Section 8.3(d) shall survive the Closing until December 30for a period of nine months, 2010. Except with respect to Sections 6.1, 6.2, 6.3, 6.4, and 6.5, except that (i) the representations and warranties of Buyer set forth in Article 6 Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.5, Section 5.1, Section 5.2, Section 5.3, Section 5.4 and Section 5.5 shall survive until December 30indefinitely, 2010and (ii) the covenants and agreements, as applicable, in Section 6.7 and Section 6.12 shall survive indefinitely. The remainder of this Agreement shall survive the Closing without time limit except (a) as may otherwise be expressly provided hereinherein and (b) for the provisions of ARTICLE 11, which shall survive Closing until the applicable statute of limitations closes the taxable year to which the subject Taxes relate plus 90 days. RepresentationsThe representations, warranties, covenants, covenants and agreements of this Agreement shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, covenant or agreement prior to its expiration date. (b) . The indemnities in Sections 13.2(a)(iiSection 10.2(a)(ii), 13.2(a)(iiiSection 10.2(a)(iii), 13.2(b)(ii), Section 10.2(b)(iii) and 13.2(b)(iiiSection 10.2(b)(iv) shall terminate as of the termination date of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnificationindemnification thereunder, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person indemnifying Party on or before such termination date. The indemnities indemnity in Sections 13.2(a)(iSection 10.2(a)(i), Section 10.2(b)(i) and 13.2(b)(iSection 10.2(b)(ii) shall continue without time limit. (c) No Party shall have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which such Party admits, or it is otherwise finally determined, that such Party has an obligation to indemnify the other Party pursuant to the terms of one of such subsections exceeds Four Hundred Fifty Thousand Dollars ($450,000) (the "Individual Indemnity Threshold"). Without limiting the foregoing, no Party shall have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) until the aggregate amount of the liability for all Damages which satisfies all of the following clauses exceeds $4,500,000: (i) Claim Notices for such Damages have been delivered by the other Party in accordance with this Agreement; (ii) such Party admits (or it is otherwise finally determined) that such Party has an obligation to indemnify the other Party pursuant hereto for such Damages, and (iii) each individual matter related to a Damage claim exceeds the Individual Indemnity Threshold; provided, however, that in no event shall this subsection (c) limit indemnification of Buyer for the Retained Liabilities or indemnification of Seller for the Assumed Liabilities; and provided, further, that, for the purposes of this Article 13, any representation, warranty, or covenant set forth in this Agreement which is qualified by materiality or Material Adverse Effect shall be deemed not to be so qualified. (d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, neither Seller nor Buyer shall be required to indemnify the other Party under this Article 13 for aggregate Damages in excess of ten percent (10%) of the Base Purchase Price; provided, however, that this Section 13.5(d) shall not apply to or limit indemnification for the Retained Liabilities, the Assumed Liabilities, or Seller's obligations under the special warranty of title in the Assignment and Xxxx of Sale. (e) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 13 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder. (f) As used in this Agreement, the term "Damages" means the amount of any actual liability, loss, cost, expense, claim, award, or judgment incurred or suffered by any Indemnified Person arising out of or resulting from the indemnified matter, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to matters indemnified against, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity; provided, however, that "Damages" shall not include any adjustment for Taxes that may be assessed on payments under this Article 13 or for Tax benefits received by the Indemnified Person as a consequence of any Damages. Notwithstanding the foregoing, neither Buyer nor Seller shall be entitled to indemnification under this Article 13 for, and Damages shall not include, (a) loss of profits, whether actual or consequential, or other consequential damages suffered by the Party claiming indemnification, or any punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (b) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused by the actions or omissions of any Indemnified Person after the Closing Date.

Limitation on Actions. (a) Except with respect to Sections 5.1, 5.2, 5.3, 5.4, 5.5 and 5.6, the The representations and warranties of Seller set forth in Article 5 4 (excluding Seller’s Fundamental Representations and Sections 4.3, 4.7, and 4.14) and the corresponding representations, warranties, and affirmations given in the certificates delivered at Closing pursuant to Section 8.2(d), and the covenants and agreements of the Parties to be performed at or prior to Closing shall, in each case, survive the Closing for a period of twelve (12) months. The representation and warranty of Seller set forth in Article 8 Section 4.3 shall survive the Closing for a period of three (3) years and the representation and warranty of Seller set forth in Section 4.7 shall survive the Closing until December 30the date that the final settlement of the Purchase Price is agreed upon or determined pursuant to Section 8.4(c). The covenants and agreements of the Parties to be performed after Closing shall survive Closing as reasonably necessary to perform the same, 2010. Except with respect subject to Sections 6.1, 6.2, 6.3, 6.4, and 6.5, the representations and warranties of Buyer limitations set forth in Article 6 shall survive until December 30, 2010this Section 11.6. The remainder of this Agreement shall survive the Closing and delivery of the Assignment, Deed and Xxxx of Sale without time limit except as may otherwise be expressly provided herein. Representations, warranties, covenants, and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, or agreement prior to its expiration date. (b) The indemnities in Sections 13.2(a)(ii11.3(a)(ii), 13.2(a)(iii11.3(a)(iii), 13.2(b)(ii11.3(b)(ii), and 13.2(b)(iii11.3(b)(iii) shall terminate as of the termination date of each respective representation, warranty, covenant, or agreement that is subject to indemnificationindemnification thereunder, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnities indemnity in Section 11.3(b)(i) shall survive the Closing as follows: (i) as set forth in Sections 13.2(a)(i2.3 and 2.4 with respect to the matters described in clause (ii) of the definition of Retained Obligations; (ii) for the appliable statute of limitations with respect to the matters described in clause (iii) of the definition of Retained Obligations; (iii) for a period of twenty-four (24) months following the Closing Date with respect to the matters described in clauses (iv) and 13.2(b)(i(v) shall continue of the definition of Retained Obligations; and (iv) except as otherwise expressly provided in this Agreement, without time limit; except in each case of the forgoing as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. (c) No Party Seller shall not have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iiiSection 11.3(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which such Party admits, Seller admits (or it is otherwise finally determined, determined that such Party has Seller has) an obligation to indemnify the other Party Earthstone Parties pursuant to the terms of one of such subsections Section 11.3(b)(iii) exceeds Four One Hundred Fifty Thousand Dollars ($450,000100,000) (the "“Individual Indemnity Threshold"”). Without limiting the foregoing, no Party Seller shall not have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iiiSection 11.3(b)(iii) until and unless the aggregate amount of the liability for all Damages which satisfies all of the following clauses exceeds $4,500,000: (i) for which Claim Notices for such Damages have been are timely delivered by the other Party in accordance with this Agreement; Earthstone Parties, (ii) such Party with respect to which Seller admits (or it is otherwise finally determined) that such Party Seller has an obligation to indemnify Earthstone Parties pursuant to the other Party pursuant hereto for such Damagesterms of Section 11.3(b)(iii), and and (iii) each individual matter related to a Damage claim exceeds which exceed the Individual Indemnity Threshold; providedThreshold exceeds two percent (2%) of the Transaction Value, howeverand then only to the extent such Damages exceed two percent (2%) of the Transaction Value. Notwithstanding the foregoing, that in no event this Section 11.6(c) shall this subsection (c) not limit indemnification for breach of Buyer for the Retained Liabilities or indemnification of Seller for the Assumed Liabilities; and provided, further, that, for the purposes of this Article 13, any representation, warranty, or covenant set forth in this Agreement which is qualified by materiality or Material Adverse Effect shall be deemed not to be so qualifiedSeller’s Fundamental Representations. (d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, neither Seller nor Buyer shall not be required to indemnify the other Party Earthstone Parties (i) under this Article 13 Section 11.3(b)(iii) for aggregate Damages in excess of ten fifteen percent (1015%) of the Base Purchase PriceTransaction Value; provided, however, that this Section 13.5(d11.6(d) shall not apply to or limit indemnification for the Retained Liabilities, the Assumed Liabilitiesbreach of Seller’s Fundamental Representations, or Seller's obligations (ii) under this Agreement for aggregate Damages in excess of the special warranty of title in the Assignment and Xxxx of SaleTransaction Value. (e) Notwithstanding anything herein to the contrary, for purposes of this Article 11, (i) when determining whether a breach or inaccuracy of Seller’s representations or warranties contained in this Agreement has occurred and (ii) when calculating the amount of Damages incurred, arising out of or relating to any such breach or inaccuracy of any such representation or warranty by Seller, in each case, all references to materiality and Seller Material Adverse Effect contained in such representation or warranty shall be disregarded. (f) With respect to any investigation, remediation or other response action related to Damages for which Purchaser seeks indemnification from Seller pursuant to this Article 11, Purchaser hereby agrees to provide Seller with copies of all related reports and communications submitted to any Governmental Authority and the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by Purchaser. (g) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 13 11 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder. (fh) Seller shall be subrogated to the rights of any Indemnified Person that is a member of the Purchaser Group against any insurer, indemnitor, guarantor or other Person with respect to the subject matter of any Damages subject to indemnification by Seller pursuant to Section 11.3(b) to the extent that Seller pays any such Indemnified Person with respect to such Damages. Any member of the Purchaser Group who is indemnified pursuant to Section 11.3(b) shall assign or otherwise cooperate with Seller in the pursuit of any claims against, and any efforts to recover amounts from, such other Person for any such Damages for which any member of the Purchaser Group has been paid. Any such Purchaser Group Indemnified Person shall remit to Seller, within five (5) Business Days after receipt, any insurance proceeds or other payment that is received by any member of the Purchaser Group from a third Person and which relates to Damages for which (but only to the extent) such member of the Purchaser Group has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery) (i) Seller shall not have any obligation or liability under this Agreement or in connection with or with respect to the transactions contemplated by this Agreement for any breach, misrepresentation, or noncompliance with respect to any representation, warranty, covenant, indemnity, or obligation if such breach, misrepresentation, or noncompliance shall have been expressly waived in writing by Purchaser. (j) As used in this Agreement, the term "“Damages" ” means the amount of any actual liability, loss, cost, expense, Tax, claim, award, or judgment incurred or suffered by any Indemnified Person arising out of or resulting from the indemnified matterPerson, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to the matters indemnified againstin question, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity; provided, however, that "Damages" shall not include any adjustment for Taxes that may be assessed on payments under this Article 13 or for Tax benefits received by the Indemnified Person as a consequence of any Damagesindemnity provided hereunder. Notwithstanding the foregoing, neither Buyer the Earthstone Parties nor Seller shall be entitled to indemnification under Section 6.5, Section 9.5 or this Article 13 11 for, and Damages “Damages” shall not include, (ai) loss of profits, whether actual or consequentialprofits to the extent constituting consequential damages, or other consequential damages suffered by the Party claiming indemnification, or any special or punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (bii) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused solely by the actions or omissions of any Indemnified Person after the Closing Date, as determined by a final, non-appealable judgment of a court of competent jurisdiction.

Limitation on Actions. (a) Except with respect to Sections The representations and warranties of the Parties in this Agreement shall survive the Closing for a period of three (3) years from the Closing Date, except that (i) the representations, warranties and acknowledgements, as applicable, in Section 3.2, Section 3.3, Section 3.6, Section 3.10, Section 3.11, Section 4.1, Section 4.3, Section 4.13, Section 5.1, 5.2Section 5.2 and Section 5.4 (together, 5.3, 5.4, 5.5 the “Core Representations”) shall survive for five (5) years and 5.6, (ii) the representations and warranties of Seller set forth in Section 4.8 and the covenants contained in Article 5 9 shall terminate on the date that is ninety (90) days following the expiration of the applicable statute of limitations and (iii) the representation and warranties in Section 5.7 through Section 5.10 (inclusive) and Section 5.13 shall survive indefinitely. The covenants and agreements of Seller in Article 8 shall survive the Closing until December 30, 2010. Except with respect to Sections 6.1, 6.2, 6.3, 6.4, and 6.5, the representations and warranties of Buyer set forth Parties in Article 6 shall survive until December 30, 2010. The remainder of this Agreement shall survive the Closing without time limit except as may otherwise be expressly provided herein. Representations, warranties, covenants, and agreements shall be of no further force and effect after the date of fully performed in accordance with their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, or agreement prior to its expiration dateterms. (b) The indemnities in Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii), Section 8.1(a) and 13.2(b)(iiiSection 8.1(b) shall terminate as of the termination date expiration date, if any, of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnificationindemnification thereunder, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnities in Sections 13.2(a)(i) and 13.2(b)(i) shall continue without time limit. (c) No Party Except for indemnification related to the Core Representations, indemnification related to Section 8.1(c), the representations and warranties in Section 4.8 and the covenants contained in Article 9, as to which the limitations in this paragraph shall not apply, Sellers shall not have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iiiSection 8.1 (i) for an individual matter claims that do not exceed $25,000 in Damages and (ii) until and unless the amount of the liability for Damages with respect to which such Party admits, or it is otherwise finally determined, that such Party has an obligation to indemnify the other Party pursuant to the terms of one of such subsections exceeds Four Hundred Fifty Thousand Dollars ($450,000) (the "Individual Indemnity Threshold"). Without limiting the foregoing, no Party shall have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) until the aggregate amount of the liability for all Damages for which satisfies all of the following clauses Claim Notices are delivered by Purchaser exceeds $4,500,000: 250,000 (i) Claim Notices for the “Deductible”), and then only to the extent such Damages have been delivered by exceed the other Party in accordance with this Agreement; (ii) such Party admits (or it is otherwise finally determined) that such Party has an obligation to indemnify the other Party pursuant hereto for such Damages, and (iii) each individual matter related to a Damage claim exceeds the Individual Indemnity Threshold; provided, however, that in no event shall this subsection (c) limit indemnification of Buyer for the Retained Liabilities or indemnification of Seller for the Assumed Liabilities; and provided, further, that, for the purposes of this Article 13, any representation, warranty, or covenant set forth in this Agreement which is qualified by materiality or Material Adverse Effect shall be deemed not to be so qualifiedDeductible. (d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, neither Seller nor Buyer (i) except for indemnification related to the Core Representations, indemnification related to Section 8.1(c), the representations and warranties in Section 4.8 and the covenants contained in Article 9, as to which the limitations in this paragraph shall not apply, Sellers shall not be required to indemnify the other Party Purchaser Group under this Article 13 8 for aggregate Damages in excess of ten percent $31,250,000 and (10%ii) the aggregate amount of the Base Purchase Price; provided, however, that Sellers’ indemnification obligations under this Section 13.5(d) Article 8 shall not apply exceed the actual proceeds from the Purchase Price received by Sellers pursuant to or limit indemnification for the Retained Liabilities, the Assumed Liabilities, or Seller's obligations under the special warranty of title in the Assignment and Xxxx of Salethis Agreement. (e) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 13 8 shall be reduced by (i) the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages and (net ii) an amount equal to the amount of any collection costs); provided, however, that no Party shall Tax benefit reasonably expected to be required to seek recovery under received by the Indemnified Person or its Affiliates in connection with such Damages or any policy of insurance as a condition to indemnification hereunderthe circumstances giving rise thereto. (f) As used in this Agreement, the term "Damages" means the amount of In no event shall any actual liability, loss, cost, expense, claim, award, or judgment incurred or suffered by any Indemnified Person arising out of or resulting from the indemnified matter, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to matters indemnified against, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity; provided, however, that "Damages" shall not include any adjustment for Taxes that may be assessed on payments under this Article 13 or for Tax benefits received by the Indemnified Person as a consequence of any Damages. Notwithstanding the foregoing, neither Buyer nor Seller shall be entitled to indemnification under this Article 13 for, and Damages shall not include, (a) loss of profits, whether actual or consequential, or other consequential damages suffered hereunder with respect to a breach by the Party claiming indemnification, or any punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (b) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused by the actions or omissions an Indemnifying Person of any Indemnified of the representations, warranties or covenants made or agreed to by such Indemnifying Person after hereunder of which such Person had actual knowledge prior to the Closing Date.

Limitation on Actions. (a) Except with respect to Sections 5.1, 5.2, 5.3, 5.4, 5.5 and 5.6, the The representations and warranties of Seller set forth in Article 5 4 and the covenants and agreements of Seller Purchaser in Article 8 5, shall survive the Closing until December 30for a period of eighteen (18) months; provided, 2010. Except with respect to Sections 6.1however, 6.2, 6.3, 6.4, that the Fundamental and 6.5, Tax Representations and the representations and warranties of Buyer set forth in Article 6 Section 5.1, Section 5.2 and Section 5.3 shall survive until December the Closing and shall continue for the applicable statute of limitations relating to the subject matter thereof plus thirty (30, 2010) days. The remainder Each covenant and agreement of the Parties contained in this Agreement shall survive the Closing without time limit except as may indefinitely unless otherwise be expressly provided stated herein. Representations, warranties, covenants, covenants and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim duly asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, covenant or agreement prior to its expiration date. (b) The indemnities in Sections 13.2(a)(iiSection 9.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii), Section 9.2(a)(iii) and 13.2(b)(iiiSection 9.2(b)(ii) shall terminate as of the termination date of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnification, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnities in Sections 13.2(a)(iSection 9.2(a)(i) and 13.2(b)(iSection 9.2(b)(i) shall continue without time limit. (c) No Party Seller shall have any no liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(iiSection 9.2(b)(ii) or 13.2(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which such Party admits, or it is otherwise finally determined, that such Party has an obligation to indemnify the other Party pursuant to the terms of one of such subsections exceeds Four Hundred Fifty Thousand Dollars ($450,000) (the "Individual Indemnity Threshold"). Without limiting the foregoing, no Party shall have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) until the aggregate amount of the liability for all Damages for which satisfies all of Claim Notices are delivered by Purchaser exceeds the following clauses exceeds $4,500,000: Aggregate Indemnity Deductible, and then only to the extent such Damages exceed the Aggregate Indemnity Deductible. This Section 9.4(c) shall not limit indemnification with respect to (i) Claim Notices for such Damages have been delivered by the other Party in accordance with this Agreement; fraud, (ii) such Party admits (or it is otherwise finally determined) that such Party has an obligation to indemnify breaches of the other Party pursuant hereto for such DamagesFundamental and Tax Representations, and (iii) each individual matter related to a Damage claim exceeds the Individual Indemnity Threshold; provided, however, that in no event shall this subsection (c) limit indemnification of Buyer for the Retained Liabilities Seller Liabilities, or indemnification of Seller (iv) the indemnities in Section 9.2(b)(i), nor shall Damages for those matters count toward the Assumed Liabilities; and provided, further, that, for threshold in the purposes first sentence of this Article 13, any representation, warranty, or covenant set forth in this Agreement which is qualified by materiality or Material Adverse Effect shall be deemed not to be so qualifiedSection 9.4(c). (d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, neither Purchaser shall have no further recourse or remedy against Seller, and Seller nor Buyer shall be required have no liability to Purchaser, with respect to Seller’s obligations to indemnify the other Party Purchaser under this Article 13 Section 9.2(b)(ii) for aggregate Damages any amounts in excess of ten percent (10%) of the Base Purchase Price$734,150; provided, however, that this Section 13.5(d9.4(d) shall not apply to or limit indemnification for the Retained Liabilities, the Assumed Liabilities, or Seller's obligations under the special warranty of title in the Assignment and Xxxx of Sale. (e) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 13 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates ’s liability with respect to such Damages (net of any collection costs); providedi) fraud, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder. (fii) As used in this Agreement, the term "Damages" means the amount of any actual liability, loss, cost, expense, claim, award, or judgment incurred or suffered by any Indemnified Person arising out of or resulting from the indemnified matter, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to matters indemnified against, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement breaches of the indemnity; provided, however, that "Damages" shall not include any adjustment for Taxes that may be assessed on payments under this Article 13 or for Fundamental and Tax benefits received by the Indemnified Person as a consequence of any Damages. Notwithstanding the foregoing, neither Buyer nor Seller shall be entitled to indemnification under this Article 13 for, and Damages shall not includeRepresentations, (aiii) loss of profits, whether actual or consequential, or other consequential damages suffered by the Party claiming indemnification, or any punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties)Retained Seller Liabilities, and (biv) any increase the indemnities in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused by the actions or omissions of any Indemnified Person after the Closing DateSection 9.2(b)(i).

Limitation on Actions. (a) Except with respect to Sections 5.1, 5.2, 5.3, 5.4, 5.5 The representations and 5.6, warranties of the Parties in Article 4 and Article 5 (other than the Fundamental Representations and the representations and warranties of Seller set forth in Article 5 Section 4.9 to Section 4.17 inclusive) and the covenants and agreements of Seller the Parties in Article 8 shall survive the Closing until December 30, 2010. Except with respect to Sections 6.1, 6.2, 6.3, 6.4Section 6.5, 6.6 and 6.7, and 6.5, the corresponding representations and warranties of Buyer set forth given in Article 6 the certificates delivered at Closing pursuant to Section 9.2(i) and Section 9.3(b), as applicable, shall survive until December 30, 2010the Closing for a period of twelve (12) months (unless a shorter period is expressly provided within the applicable section). The Fundamental Representations shall survive without time limit. The representations and warranties in Section 4.9 to Section 4.17 shall survive the Closing for a period of seven (7) years. The remainder of this Agreement shall survive the Closing without time limit except as may otherwise be expressly provided herein. Representations, warranties, covenants, covenants and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, covenant or agreement prior to its expiration date. (b) The indemnities in Sections 13.2(a)(iiSection 11.1(a)(ii), 13.2(a)(iiiSection 11.1(a)(iii), 13.2(b)(ii), Section 11.1(b)(ii) and 13.2(b)(iiiSection 11.1(b)(iii) shall terminate as of twelve (12) months after the termination date of Closing, except to the extent that they relate to the representations and warranties in Section 4.9 to Section 4.17 inclusive, in which case they shall terminate seven years after Closing; and except to the extent that they relate to the Fundamental Representations, in which case they shall not terminate, provided that, in relation to each respective representation, warranty, covenant, or agreement representation and warranty that is subject to indemnificationa termination date, except in each case as to termination shall not affect matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such the relevant termination date. The indemnity in Section 11.1(b)(vii) shall terminate six (6) months after the Closing. The indemnity in Section 11.1(b)(i) shall terminate eighteen (18) months after the Closing. The indemnities in Sections 13.2(a)(iSection 11.1(a)(i), Section 11.1(b)(iv), Section 11.1(b)(v) and 13.2(b)(iSection 11.1(b)(vi) shall continue without time limitindefinitely, provided that the indemnity in Section 11.1(b)(vi) shall terminate if any Power of Attorney terminates, expires, or becomes otherwise invalid or unenforceable (other than as a result of the voluntary relinquishment by Seller, except as a result of receipt of an assignment (“ceder derechos litigiosos”)), or an assignment (“ceder derechos litigiosos”) is not delivered as required under Section 11.2(h), provided further, that such indemnity shall be reinstated if Purchasers cause the delivery of another Power of Attorney to replace the terminated, expired, invalid or unenforceable Power of Attorney or delivery of such assignment (“ceder derechos litigiosos”), as applicable. Indemnities shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such an indemnity prior to its expiration date. (c) No Party Seller shall not have any liability for any indemnification under Section 11.1(b) (excluding Sections 13.2(a)(ii11.1(b)(iv) and 11.1(b)(v), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii): (i) for an individual matter until and unless the amount of the liability for any Damages with respect to which such Party admitsany occurrence, claim, award or it is otherwise finally determined, judgment that such Party has an obligation to indemnify the other Party pursuant to the terms of one of such subsections exceeds Four Hundred Fifty Thousand Dollars ($450,000) do not individually exceed US$250,000 (the "“Individual Indemnity Claim Threshold"”). Without limiting the foregoing, no Party shall have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii; or (ii) or 13.2(b)(iii) unless and until the aggregate amount of the liability Damages for all Damages which satisfies all of the following clauses exceeds $4,500,000: (i) Claim Notices for claims meeting the Individual Claim Threshold are delivered by Purchaser exceed US$10 million, and then only to the extent such Damages have been delivered by exceed US$10 million. Notwithstanding the other Party in accordance preceding, this Section 11.3(c) shall not limit Seller’s liability with this Agreement; (ii) such Party admits (or it is otherwise finally determined) that such Party has an obligation respect to indemnify the other Party pursuant hereto for such Damages, and (iii) each individual matter related to a Damage claim exceeds the Individual Indemnity Threshold; provided, however, that in no event shall this subsection (c) limit indemnification breaches of Buyer for the Retained Liabilities or indemnification of Seller for the Assumed Liabilities; and provided, further, that, for the purposes of this Article 13, any representation, warranty, or covenant set forth in this Agreement which is qualified by materiality or Material Adverse Effect shall be deemed not to be so qualifiedFundamental Representation. (d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, neither Seller nor Buyer shall not collectively be required to indemnify the other Party Purchaser under this Article 13 11 for aggregate Damages in excess of ten twenty-five percent (1025%) of the Base Purchase Price; provided, howeverbut for purposes of such calculation, that this Section 13.5(dDamages recovered under Sections 11.1(b)(iv) and 11.1(b)(v) shall not apply be included. Notwithstanding the preceding, this Section 11.3(d) shall not limit Seller’s liability with respect to or limit indemnification for the Retained Liabilities, the Assumed Liabilities, or Seller's obligations under the special warranty breaches of title in the Assignment and Xxxx of Saleany Fundamental Representation. (e) The adjustments to the Purchase Price under Section 3.3, Tax obligations pursuant to Article 12 and Section 13.3, and any payments in respect of any of the preceding shall not be limited by Sections 11.3(c) and 11.3(d). (f) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 13 11 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder. (f) As used in this Agreement, and excluding the term "Damages" means the amount proceeds of any actual liability, loss, cost, expense, claim, award, insurance policy issued or judgment incurred or suffered by any Indemnified Person arising out of or resulting from the indemnified matter, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to matters indemnified against, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity; provided, however, that "Damages" shall not include any adjustment for Taxes that may be assessed on payments under this Article 13 or for Tax benefits received underwritten by the Indemnified Person as a consequence of or its Affiliates). (g) In no event shall any Damages. Notwithstanding the foregoing, neither Buyer nor Seller shall Indemnified Person be entitled to indemnification under this Article 13 forduplicate compensation with respect to the same Damage, and Damages shall not include, (a) loss of profits, whether actual or consequential, or other consequential damages suffered by the Party claiming indemnification, or any punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (b) any increase in liability, loss, cost, expense, claim, award or judgment to under more than one provision of this Agreement and the extent such increase is caused by various documents delivered in connection with the actions or omissions of any Indemnified Person after the Closing DateClosing.

Limitation on Actions. (a) Except with respect to Sections 5.1, 5.2, 5.3, 5.4, 5.5 and 5.6, the The representations and warranties of Seller set forth the Parties in Article ARTICLE 4 (excluding Section 4.1 through Section 4.5, Section 4.11, and Section 4.12) and ARTICLE 5 (excluding Section 5.1 through Section 5.6) and the covenants and agreements of Seller the Parties in Article 8 ARTICLE 6 (excluding Section 6.1, Section 6.2, Section 6.3, and Section 6.8) shall survive Closing for a period of three (3) months from the Closing until December 30, 2010Date (unless a shorter period is expressly provided within the applicable section). Except with respect to Sections 6.1, 6.2, 6.3, 6.4, and 6.5, the The representations and warranties of Buyer set forth Seller in Article 6 Section 4.12 shall survive Closing until December 30, 2010the date that is sixty (60) days after the end of the applicable statute of limitations period (including any extensions thereof). The remainder of this Agreement shall survive the Closing without time limit except as may otherwise be expressly provided herein. Representations, warranties, covenants, covenants and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, covenant or agreement prior to its expiration date. (b) The indemnities in Sections 13.2(a)(iiSection 8.1 (a)(ii), 13.2(a)(iiiSection 8.l (a)(iii), 13.2(b)(iiSection 8.l (b)(ii), and 13.2(b)(iiiSection 8.l (b) (iii) shall terminate as of the termination date of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnificationindemnification thereunder, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnities indemnity in Sections 13.2(a)(iSection 8. l (a) and 13.2(b)(i(i) shall continue without time limit and the indemnity in Section 8.l (b)(i) shall survive Closing without time limit. (c) No Party shall have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which such Party admits, or it is otherwise finally determined, that such Party has an obligation to indemnify the other Party pursuant to the terms of one of such subsections exceeds Four Hundred Fifty Thousand Dollars ($450,000) (the "Individual Indemnity Threshold"). Without limiting the foregoing, no Party shall have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) until the aggregate amount of the liability for all Damages which satisfies all of the following clauses exceeds $4,500,000: (i) Claim Notices for such Damages have been delivered by the other Party in accordance with this Agreement; (ii) such Party admits (or it is otherwise finally determined) that such Party has an obligation to indemnify the other Party pursuant hereto for such Damages, and (iii) each individual matter related to a Damage claim exceeds the Individual Indemnity Threshold; provided, however, that in no event shall this subsection (c) limit indemnification of Buyer for the Retained Liabilities or indemnification of Seller for the Assumed Liabilities; and provided, further, that, for the purposes of this Article 13, any representation, warranty, or covenant set forth in this Agreement which is qualified by materiality or Material Adverse Effect shall be deemed not to be so qualified. (d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, neither Seller nor Buyer shall be required to indemnify the other Party under this Article 13 for aggregate Damages in excess of ten percent (10%) of the Base Purchase Price; provided, however, that this Section 13.5(d) shall not apply to or limit indemnification for the Retained Liabilities, the Assumed Liabilities, or Seller's obligations under the special warranty of title in the Assignment and Xxxx of Sale. (e) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 13 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder. (f) As used in this Agreement, the term "Damages" means the amount of any actual liability, loss, cost, expense, claim, award, or judgment incurred or suffered by any Indemnified Person arising out of or resulting from the indemnified matter, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to matters indemnified against, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity; provided, however, that "Damages" shall not include any adjustment for Taxes that may be assessed on payments under this Article 13 or for Tax benefits received by the Indemnified Person as a consequence of any Damages. Notwithstanding the foregoing, neither Buyer nor Seller shall be entitled to indemnification under this Article 13 for, and Damages shall not include, (a) loss of profits, whether actual or consequential, or other consequential damages suffered by the Party claiming indemnification, or any punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (b) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused by the actions or omissions of any Indemnified Person after the Closing Date.

Limitation on Actions. (a) Except with respect to Sections 5.1, 5.2, 5.3, 5.4, 5.5 and 5.6, All of the representations and warranties of Seller set forth the Parties contained in Article 5 and the covenants and agreements of Seller in Article 8 this Agreement shall survive the Closing until December 30and continue in full force and effect for a period of eighteen (18) months thereafter; provided, 2010. Except with respect to Sections 6.1however, 6.2, 6.3, 6.4, and 6.5, that the representations and warranties of Buyer set forth in Article 6 Sections 3.1, 3.2(a)-(c), 3.2(e), 3.3(a)-(b), 3.3(d)-(p), 3.16, 4.1, 4.2, 4.3 and 4.5 through 4.11 shall survive without limitation as to time. Covenants shall survive Closing in accordance with their terms and any covenants or agreements contained in this Agreement that by their terms are to be performed after Closing shall survive until December 30fully discharged. Notwithstanding the foregoing, 2010. The remainder of this Agreement shall survive the Closing without time limit except as may otherwise be expressly provided herein. Representations, warranties, covenants, and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted by Seller pursuant to this Agreement with respect to such a representation, warranty, covenant, covenant or agreement of Purchaser prior to its expiration date. (b) The indemnities in Sections 13.2(a)(ii10.1(a)(ii), 13.2(a)(iii), 13.2(b)(ii), 10.1(a)(iii) and 13.2(b)(iii10.1(e) shall terminate as of the termination date of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnification, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person Party on or before such termination date. The indemnities indemnity in Sections 13.2(a)(i) and 13.2(b)(iSection 10.1(a)(i) shall continue without time limit. (c) No Party shall have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which such Party admits, or it is otherwise finally determined, that such Party has an obligation to indemnify the other Party pursuant to the terms of one of such subsections exceeds Four Hundred Fifty Thousand Dollars ($450,000) (the "Individual Indemnity Threshold"). Without limiting the foregoing, no Party shall have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) until the aggregate amount of the liability for all Damages which satisfies all of the following clauses exceeds $4,500,000: (i) Claim Notices for such Damages have been delivered by the other Party in accordance with this Agreement; (ii) such Party admits (or it is otherwise finally determined) that such Party has an obligation to indemnify the other Party pursuant hereto for such Damages, and (iii) each individual matter related to a Damage claim exceeds the Individual Indemnity Threshold; provided, however, that in no event shall this subsection (c) limit indemnification of Buyer for the Retained Liabilities or indemnification of Seller for the Assumed Liabilities; and provided, further, that, for the purposes of this Article 13, any representation, warranty, or covenant set forth in this Agreement which is qualified by materiality or Material Adverse Effect shall be deemed not to be so qualified. (d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, neither Seller nor Buyer shall be required to indemnify the other Party under this Article 13 for aggregate Damages in excess of ten percent (10%) of the Base Purchase Price; provided, however, that this Section 13.5(d) shall not apply to or limit indemnification for the Retained Liabilities, the Assumed Liabilities, or Seller's obligations under the special warranty of title in the Assignment and Xxxx of Sale. (e) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 13 10 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder. (f) As used in this Agreement, and excluding the term "Damages" means the amount proceeds of any actual liability, loss, cost, expense, claim, award, insurance policy issued or judgment incurred or suffered by any Indemnified Person arising out of or resulting from the indemnified matter, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to matters indemnified against, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity; provided, however, that "Damages" shall not include any adjustment for Taxes that may be assessed on payments under this Article 13 or for Tax benefits received underwritten by the Indemnified Person as a consequence of any Damages. Notwithstanding the foregoing, neither Buyer nor Seller shall be entitled to indemnification under this Article 13 for, and Damages shall not include, (a) loss of profits, whether actual or consequential, or other consequential damages suffered by the Party claiming indemnification, or any punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Partiesits Affiliates), and (b) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused by the actions or omissions of any Indemnified Person after the Closing Date.

Limitation on Actions. (a) Except The right to assert an indemnification claim with respect to Sections 5.1, 5.2, 5.3, 5.4, 5.5 and 5.6, the representations and warranties of Seller set forth and Purchaser in Article 5 Articles 3 and 4, and the covenants corresponding representations and agreements warranties given in the certificates delivered at Closing pursuant to Section 8.2(d) or Section 8.3(b), as applicable, shall survive the Closing for three (3) years, except that the right to assert an indemnification claim with respect to (i) the representations and warranties of Seller in Article 8 Sections 3.1(a), (b), (c) and (e) (Seller), Sections 3.2(a), (c), (d) and (e) (The Company), Section 3.3 (Subsidiaries) and Section 3.12 (Liability for Brokers’ Fees), Section 3.26 (Bankruptcy), Section 3.30 (Bonds; Letter of Credit and Guarantees) and Section 3.33 (Specified Matters) (such representations and warranties being collectively, the “Fundamental Representations”) shall survive the Closing for six (6) years, (ii) the representations and warranties of Seller in Section 3.7 (Taxes) shall survive the Closing until December thirty (30, 2010. Except with respect to Sections 6.1, 6.2, 6.3, 6.4) days after the expiration of the applicable statute of limitations, and 6.5, (iii) the representations and warranties of Buyer Purchaser in Section 4.1 (Existence and Qualification), Section 4.2 (Power), Section 4.3 (Authorization and Enforceability), Section 4.8 (Investment Intent), Section 4.10 (Liability for Brokers’ Fees), Section 4.12 (Issuance of Purchaser Parent Shares) and Section 4.16 (Bankruptcy) shall survive the Closing for six (6) years, and except, further, that the representations and warranties of Purchaser in Section 4.13 (SEC Reports) shall survive the Closing for one (1) year. (b) The right to assert an indemnification claim for the breach of any other covenant or agreement of the Parties in this Agreement: (i) that is to be performed at or prior to Closing shall survive the Closing for twelve (12) months; or (ii) that is to be performed following Closing shall survive until twelve (12) months following the period provided in such covenants and agreements, if any, or until fully performed, except that the right to assert an indemnification claim with respect to the covenants set forth in Article 6 shall survive until December 30, 2010. The remainder of this Agreement 9 shall survive the Closing without time limit except as may otherwise be expressly provided hereinuntil thirty (30) days after the expiration of the applicable statute of limitations. Seller’s special warranty of Defensible Title in Section 6.8 shall survive the Closing for six (6) years. (c) Representations, warranties, covenants, covenants and agreements shall be of no further force and effect after the date of their expirationthe expiration of a right to assert an indemnification claim with respect thereto, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, covenant or agreement prior to its the applicable expiration date. (bd) The indemnities in Sections 13.2(a)(iiSection 11.2(a)(ii), 13.2(a)(iiiSection 11.2(a)(iii), 13.2(b)(ii), Section 11.2(b)(i) and 13.2(b)(iiiSection 11.2(b)(ii) shall terminate as of the termination date of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnification, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnities in Sections 13.2(a)(i) and 13.2(b)(iSection 11.2(a)(i) shall continue without time limit. The indemnity in Section 11.2(b)(iii) shall survive the Closing until ninety (90) days after the applicable statute of limitations has run, except as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. (ce) No Party Seller shall not have any liability for any indemnification under Sections 13.2(a)(ii)the Interim Breach Provision, 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which such Party admits, or it is otherwise finally determined, that such Party has an obligation to indemnify the other Party pursuant to the terms of one of such subsections exceeds Four Hundred Fifty Thousand Dollars ($450,000) (the "Individual Indemnity Threshold"). Without limiting the foregoing, no Party shall have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) until the aggregate amount of the liability for all Damages for which satisfies all Claim Notices are delivered by Purchaser for indemnification under such Section exceed an amount equal to four percent (4%) of the following clauses exceeds $4,500,000: (i) Claim Notices for Unadjusted Purchase Price, and then only to the extent such Damages exceed such amount. Seller shall not have been delivered by any liability for any indemnification under the other Party Interim Breach Provision unless Purchaser provides Seller with written notice of an Interim Breach prior to the Closing Date in accordance with the notice provisions of this Agreement; (ii) such Party admits (or it is otherwise finally determined) ; provided that such Party has an obligation this requirement of Purchaser to indemnify provide written notice of any Interim Breach prior to the other Party Closing Date shall not apply to Interim Breaches and/or the circumstance giving rise thereto notified by Seller to Purchaser pursuant hereto for such Damages, and (iii) each individual matter related to a Damage claim exceeds the Individual Indemnity Threshold; provided, however, that in no event shall this subsection (c) limit indemnification of Buyer for the Retained Liabilities or indemnification of Seller for the Assumed Liabilities; and provided, further, that, for the purposes of this Article 13, any representation, warranty, or covenant set forth in this Agreement which is qualified by materiality or Material Adverse Effect shall be deemed not to be so qualifiedAgreement. (df) Notwithstanding anything to the contrary contained elsewhere in this Agreement, neither (i) Seller nor Buyer shall not be required to indemnify Purchaser for claims under the other Party under this Article 13 Interim Breach Provision for aggregate Damages in excess of an amount equal to ten percent (10%) of the Base Unadjusted Purchase Price; provided, however(ii) Seller shall not be required to indemnify Purchaser under Section 11.2(b)(ii)(B) for aggregate Damages in excess of an amount equal to $28,000.00, that (iii) Seller shall not be required to indemnify Purchaser under Section 11.2(b)(i)(B) or Section 11.2(b)(ii)(A) for aggregate Damages in excess of an amount equal to $87,500.00, and (iv) Seller’s total Damages and liabilities arising out of this Agreement or the transactions contemplated hereunder, including with respect to indemnity obligations under Section 13.5(d11.2(b) shall not apply exceed one hundred percent (100%) of the Unadjusted Purchase Price. For the avoidance of doubt, and notwithstanding anything to or limit indemnification for the Retained Liabilitiescontrary herein, the Assumed Liabilities, Parties intend that Seller’s sole and exclusive exposure from and after Closing with respect to the representations and warranties in Article 3 or Seller's obligations under the special warranty of title in the Assignment closing certificate delivered pursuant to Section 8.2(d) shall be limited to the amounts set forth in Section 11.4(f)(i), Section 11.4(f)(ii), Section 11.4(f)(iii) and Xxxx of SaleSection 11.4(f)(iv), as applicable. (eg) Notwithstanding anything herein to the contrary, for both the purposes of determining whether or not the representation or warranty of any Party in Article 3 or Article 4 or any closing certificate delivered pursuant to Section 8.2(d) or Section 8.3(b) has been breached, and the purposes of determining the amount of any Damages for which any Indemnifying Person is obligated to indemnify under Section 11.2(a)(iii) or Section 11.2(b)(ii), such determination of breach and calculation of Damages shall be made by excluding and without giving effect to any qualifiers as to materiality or Material Adverse Effect set forth in any representation or warranty of any Party in Article 3 or Article 4 or any closing certificate delivered pursuant to Section 8.2(d) or Section 8.3(b) (except in the case of the representations and warranties set forth in Section 3.14(a) and the representations and warranties made in respect of the Tax Partnerships as a result of Section 3.7(p) and the corresponding representations and warranties in any closing certificate delivered pursuant to Section 8.2(d)). (h) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 13 11 shall be reduced by the amount of insurance proceeds actually realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any reasonable and documented collection costs); provided, howeverincluding all the costs and expenses incurred by third parties in investigating, that no Party shall be required prosecuting, defending and collecting such recovered amount and, any deductibles paid to seek recovery under any policy of obtain insurance as a condition to indemnification hereunder. (f) As used in this Agreementcoverage, and excluding the term "Damages" means the amount proceeds of any actual liability, loss, cost, expense, claim, award, insurance policy issued or judgment incurred or suffered by any Indemnified Person arising out of or resulting from the indemnified matter, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to matters indemnified against, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity; provided, however, that "Damages" shall not include any adjustment for Taxes that may be assessed on payments under this Article 13 or for Tax benefits received underwritten by the Indemnified Person as a consequence or its Affiliates). From and after the Closing, Seller shall (without any obligation to incur out of pocket costs, expenses, or any Damagesobligation of Seller to undertake any liability or obligation to any Person) use good faith efforts to reasonably cooperate with Purchaser in connection with any claim made by Purchaser under the R&W Policy. Notwithstanding the foregoing, neither Buyer nor or any other provision herein, except solely with respect to the Interim Breach Provision, the risk that the R&W Policy will not respond or otherwise provide coverage (excluding, for the avoidance of doubt, retention under the R&W Policy) with respect to a given claim shall be borne entirely by Purchaser. (i) Notwithstanding anything to the contrary contained herein, all payments made or to be made under this Article 11 to Purchaser shall be made by Seller by payment in cash and not via the return of any Purchaser Parent Shares. (j) The representations, warranties and covenants of each of the Parties set forth in this Agreement, subject to the express exceptions thereto, shall not be affected by any information furnished to, or any investigation or audit conducted before or after the Closing Date by, any Person in connection with the transactions contemplated hereby. In order to preserve the benefit of the bargain otherwise represented by this Agreement, each Party shall be entitled to rely upon the representations, warranties, covenants and agreements of the other Party or Parties set forth herein notwithstanding any investigation or audit conducted or any knowledge acquired (or capable of being acquired) before or after the Closing Date or the decision of any Party to complete the Closing. The right to indemnification or other remedy based on any of the representations, warranties, covenants or agreements in this Agreement shall not be affected by any investigation or audit 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 agreement. (k) Notwithstanding anything in this Agreement to the contrary, in no event shall any Indemnified Person be entitled to recover any Damages to which such Indemnified Person has already recovered the full amount of such Damages pursuant to another provision of this Agreement or any document in connection herewith, or otherwise, and any liability for indemnification under this Article 13 forAgreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, and Damages shall not includewarranty, (a) loss of profits, whether actual or consequentialcovenant, or other consequential damages suffered by the Party claiming indemnification, or any punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (b) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused by the actions or omissions of any Indemnified Person after the Closing Dateagreement.

Limitation on Actions. (a) Except The right to assert an indemnification claim with respect to Sections 5.1, 5.2, 5.3, 5.4, 5.5 and 5.6, the representations and warranties of Seller set forth and Purchaser in Article 5 Articles 3 and 4, and the covenants corresponding representations and agreements warranties given in the certificates delivered at Closing pursuant to Section 8.2(d) or Section 8.3(b), as applicable, shall survive the Closing for three (3) years, except that the right to assert an indemnification claim with respect to (i) the representations and warranties of Seller in Article 8 Sections 3.1(a), (b), (c) and (e) (Seller), Sections 3.2(a), (c), (d) and (e) (The Company), Section 3.3 (Subsidiaries) and Section 3.12 (Liability for Brokers’ Fees), Section 3.26 (Bankruptcy), Section 3.30 (Bonds; Letter of Credit and Guarantees) and Section 3.33 (Specified Matters) (such representations and warranties being collectively, the “Fundamental Representations”) shall survive the Closing for six (6) years, (ii) the representations and warranties of Seller in Section 3.7 (Taxes) shall survive the Closing until December thirty (30, 2010. Except with respect to Sections 6.1, 6.2, 6.3, 6.4) days after the expiration of the applicable statute of limitations, and 6.5, (iii) the representations and warranties of Buyer Purchaser in Section 4.1 (Existence and Qualification), Section 4.2 (Power), Section 4.3 (Authorization and Enforceability), Section 4.8 (Investment Intent), Section 4.10 (Liability for Brokers’ Fees), Section 4.12 (Issuance of Purchaser Parent Shares) and Section 4.16 (Bankruptcy) shall survive the Closing for six (6) years, and except, further, that the representations and warranties of Purchaser in Section 4.13 (SEC Reports) shall survive the Closing for one (1) year. (b) The right to assert an indemnification claim for the breach of any other covenant or agreement of the Parties in this Agreement: (i) that is to be performed at or prior to Closing shall survive the Closing for twelve (12) months; or (ii) that is to be performed following Closing shall survive until twelve (12) months following the period provided in such covenants and agreements, if any, or until fully performed, except that the right to assert an indemnification claim with respect to the covenants set forth in Article 6 shall survive until December 30, 2010. The remainder of this Agreement 9 shall survive the Closing without time limit except as may otherwise be expressly provided hereinuntil thirty (30) days after the expiration of the applicable statute of limitations. Seller’s special warranty of Defensible Title in Section 6.8 shall survive the Closing for six (6) years. (c) Representations, warranties, covenants, covenants and agreements shall be of no further force and effect after the date of their expirationthe expiration of a right to assert an indemnification claim with respect thereto, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, covenant or agreement prior to its the applicable expiration date. (bd) The indemnities in Sections 13.2(a)(iiSection 11.2(a)(ii), 13.2(a)(iiiSection 11.2(a)(iii), 13.2(b)(ii), Section 11.2(b)(i) and 13.2(b)(iiiSection 11.2(b)(ii) shall terminate as of the termination date of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnification, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnities in Sections 13.2(a)(i) and 13.2(b)(iSection 11.2(a)(i) shall continue without time limit. The indemnity in Section 11.2(b)(iii) shall survive the Closing until ninety (90) days after the applicable statute of limitations has run, except as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. (ce) No Party Seller shall not have any liability for any indemnification under Sections 13.2(a)(ii)the Interim Breach Provision, 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which such Party admits, or it is otherwise finally determined, that such Party has an obligation to indemnify the other Party pursuant to the terms of one of such subsections exceeds Four Hundred Fifty Thousand Dollars ($450,000) (the "Individual Indemnity Threshold"). Without limiting the foregoing, no Party shall have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) until the aggregate amount of the liability for all Damages for which satisfies all Claim Notices are delivered by Purchaser for indemnification under such Section exceed an amount equal to four percent (4%) of the following clauses exceeds $4,500,000: (i) Claim Notices for Unadjusted Purchase Price, and then only to the extent such Damages exceed such amount. Seller shall not have been delivered by any liability for any indemnification under the other Party Interim Breach Provision unless Purchaser provides Seller with written notice of an Interim Breach prior to the Closing Date in accordance with the notice provisions of this Agreement; (ii) such Party admits (or it is otherwise finally determined) ; provided that such Party has an obligation this requirement of Purchaser to indemnify provide written notice of any Interim Breach prior to the other Party Closing Date shall not apply to Interim Breaches and/or the circumstance giving rise thereto notified by Seller to Purchaser pursuant hereto for such Damages, and (iii) each individual matter related to a Damage claim exceeds the Individual Indemnity Threshold; provided, however, that in no event shall this subsection (c) limit indemnification of Buyer for the Retained Liabilities or indemnification of Seller for the Assumed Liabilities; and provided, further, that, for the purposes of this Article 13, any representation, warranty, or covenant set forth in this Agreement which is qualified by materiality or Material Adverse Effect shall be deemed not to be so qualifiedAgreement. (df) Notwithstanding anything to the contrary contained elsewhere in this Agreement, neither (i) Seller nor Buyer shall not be required to indemnify Purchaser for claims under the other Party under this Article 13 Interim Breach Provision for aggregate Damages in excess of an amount equal to ten percent (10%) of the Base Unadjusted Purchase Price; provided, however(ii) Seller shall not be required to indemnify Purchaser under Section 11.2(b)(ii)(B) for aggregate Damages in excess of an amount equal to $295,272.73, that (iii) Seller shall not be required to indemnify Purchaser under Section 11.2(b)(i)(B) or Section 11.2(b)(ii)(A) for aggregate Damages in excess of an amount equal to $922,727.27, and (iv) Seller’s total Damages and liabilities arising out of this Agreement or the transactions contemplated hereunder, including with respect to indemnity obligations under Section 13.5(d11.2(b) shall not apply exceed one hundred percent (100%) of the Unadjusted Purchase Price. For the avoidance of doubt, and notwithstanding anything to or limit indemnification for the Retained Liabilitiescontrary herein, the Assumed Liabilities, Parties intend that Seller’s sole and exclusive exposure from and after Closing with respect to the representations and warranties in Article 3 or Seller's obligations under the special warranty of title in the Assignment closing certificate delivered pursuant to Section 8.2(d) shall be limited to the amounts set forth in Section 11.4(f)(i), Section 11.4(f)(ii), Section 11.4(f)(iii) and Xxxx of SaleSection 11.4(f)(iv), as applicable. (eg) Notwithstanding anything herein to the contrary, for both the purposes of determining whether or not the representation or warranty of any Party in Article 3 or Article 4 or any closing certificate delivered pursuant to Section 8.2(d) or Section 8.3(b) has been breached, and the purposes of determining the amount of any Damages for which any Indemnifying Person is obligated to indemnify under Section 11.2(a)(iii) or Section 11.2(b)(ii), such determination of breach and calculation of Damages shall be made by excluding and without giving effect to any qualifiers as to materiality or Material Adverse Effect set forth in any representation or warranty of any Party in Article 3 or Article 4 or any closing certificate delivered pursuant to Section 8.2(d) or Section 8.3(b) (except in the case of the representations and warranties set forth in Section 3.14(a) and the representations and warranties made in respect of the Tax Partnerships as a result of Section 3.7(p) and the corresponding representations and warranties in any closing certificate delivered pursuant to Section 8.2(d)). (h) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 13 11 shall be reduced by the amount of insurance proceeds actually realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any reasonable and documented collection costs); provided, howeverincluding all the costs and expenses incurred by third parties in investigating, that no Party shall be required prosecuting, defending and collecting such recovered amount and, any deductibles paid to seek recovery under any policy of obtain insurance as a condition to indemnification hereunder. (f) As used in this Agreementcoverage, and excluding the term "Damages" means the amount proceeds of any actual liability, loss, cost, expense, claim, award, insurance policy issued or judgment incurred or suffered by any Indemnified Person arising out of or resulting from the indemnified matter, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to matters indemnified against, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity; provided, however, that "Damages" shall not include any adjustment for Taxes that may be assessed on payments under this Article 13 or for Tax benefits received underwritten by the Indemnified Person as a consequence or its Affiliates). From and after the Closing, Seller shall (without any obligation to incur out of pocket costs, expenses, or any Damagesobligation of Seller to undertake any liability or obligation to any Person) use good faith efforts to reasonably cooperate with Purchaser in connection with any claim made by Purchaser under the R&W Policy. Notwithstanding the foregoing, neither Buyer nor or any other provision herein, except solely with respect to the Interim Breach Provision, the risk that the R&W Policy will not respond or otherwise provide coverage (excluding, for the avoidance of doubt, retention under the R&W Policy) with respect to a given claim shall be borne entirely by Purchaser. (i) Notwithstanding anything to the contrary contained herein, all payments made or to be made under this Article 11 to Purchaser shall be made by Seller by payment in cash and not via the return of any Purchaser Parent Shares. (j) The representations, warranties and covenants of each of the Parties set forth in this Agreement, subject to the express exceptions thereto, shall not be affected by any information furnished to, or any investigation or audit conducted before or after the Closing Date by, any Person in connection with the transactions contemplated hereby. In order to preserve the benefit of the bargain otherwise represented by this Agreement, each Party shall be entitled to rely upon the representations, warranties, covenants and agreements of the other Party or Parties set forth herein notwithstanding any investigation or audit conducted or any knowledge acquired (or capable of being acquired) before or after the Closing Date or the decision of any Party to complete the Closing. The right to indemnification or other remedy based on any of the representations, warranties, covenants or agreements in this Agreement shall not be affected by any investigation or audit 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 agreement. (k) Notwithstanding anything in this Agreement to the contrary, in no event shall any Indemnified Person be entitled to recover any Damages to which such Indemnified Person has already recovered the full amount of such Damages pursuant to another provision of this Agreement or any document in connection herewith, or otherwise, and any liability for indemnification under this Article 13 forAgreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, and Damages shall not includewarranty, (a) loss of profits, whether actual or consequentialcovenant, or other consequential damages suffered by the Party claiming indemnification, or any punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (b) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused by the actions or omissions of any Indemnified Person after the Closing Dateagreement.

Limitation on Actions. (a) Except The right to assert an indemnification claim with respect to Sections 5.1, 5.2, 5.3, 5.4, 5.5 and 5.6, the representations and warranties of Seller set forth and Purchaser in Article 5 Articles 3 and 4, and the covenants corresponding representations and agreements warranties given in the certificates delivered at Closing pursuant to Section 8.2(d) or Section 8.3(b), as applicable, shall survive the Closing for three (3) years, except that the right to assert an indemnification claim with respect to (i) the representations and warranties of Seller in Article 8 Sections 3.1(a), (b), (c) and (e) (Seller), Sections 3.2(a), (c), (d) and (e) (The Companies), Section 3.3(a), (c), (d) and (e) (Subsidiaries) and Section 3.12 (Liability for Brokers’ Fees), Section 3.26 (Bankruptcy), Section 3.30 (Bonds; Letter of Credit and Guarantees) and Section 3.33 (Specified Matters) (such representations and warranties being collectively, the “Fundamental Representations”) shall survive the Closing for six (6) years, (ii) the representations and warranties of Seller in Section 3.7 (Taxes) shall survive the Closing until December thirty (30, 2010. Except with respect to Sections 6.1, 6.2, 6.3, 6.4) days after the expiration of the applicable statute of limitations, and 6.5, (iii) the representations and warranties of Buyer Purchaser in Section 4.1 (Existence and Qualification), Section 4.2 (Power), Section 4.3 (Authorization and Enforceability), Section 4.8 (Investment Intent), Section 4.10 (Liability for Brokers’ Fees), Section 4.12 (Issuance of Purchaser Parent Shares) and Section 4.16 (Bankruptcy) shall survive the Closing for six (6) years, and except, further, that the representations and warranties of Purchaser in Section 4.13 (SEC Reports) shall survive the Closing for one (1) year. (b) The right to assert an indemnification claim for the breach of any other covenant or agreement of the Parties in this Agreement: (i) that is to be performed at or prior to Closing shall survive the Closing for twelve (12) months; or (ii) that is to be performed following Closing shall survive until twelve (12) months following the period provided in such covenants and agreements, if any, or until fully performed, except that the right to assert an indemnification claim with respect to the covenants set forth in Article 6 shall survive until December 30, 2010. The remainder of this Agreement 9 shall survive the Closing without time limit except as may otherwise be expressly provided hereinuntil thirty (30) days after the expiration of the applicable statute of limitations. Seller’s special warranty of Defensible Title in Section 6.8 shall survive the Closing for six (6) years. (c) The right to assert an indemnification claim with respect to the indemnities in Section 11.2(b)(iii)(C) shall survive the Closing for a period of three (3) years. (d) Representations, warranties, covenants, covenants and agreements shall be of no further force and effect after the date of their expirationthe expiration of a right to assert an indemnification claim with respect thereto, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, covenant or agreement prior to its the applicable expiration date. (be) The indemnities in Sections 13.2(a)(iiSection 11.2(a)(ii), 13.2(a)(iiiSection 11.2(a)(iii), 13.2(b)(ii), Section 11.2(b)(i) and 13.2(b)(iiiSection 11.2(b)(ii) shall terminate as of the termination date of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnification, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnities in Sections 13.2(a)(iSection 11.2(a)(i), Section 11.2(b)(iii)(A) and 13.2(b)(iSection 11.2(b)(iii)(B) shall continue without time limit. The indemnity in Section 11.2(b)(iii)(C) shall continue in accordance with Section 11.4(c). The indemnity in Section 11.2(b)(iv) shall survive the Closing until ninety (90) days after the applicable statute of limitations has run, except as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. (cf) No Party Seller shall not have any liability for any indemnification under Sections 13.2(a)(ii)the Interim Breach Provision, 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which such Party admits, or it is otherwise finally determined, that such Party has an obligation to indemnify the other Party pursuant to the terms of one of such subsections exceeds Four Hundred Fifty Thousand Dollars ($450,000) (the "Individual Indemnity Threshold"). Without limiting the foregoing, no Party shall have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) until the aggregate amount of the liability for all Damages for which satisfies all Claim Notices are delivered by Purchaser for indemnification under such Section exceed an amount equal to four percent (4%) of the following clauses exceeds $4,500,000: (i) Claim Notices for Unadjusted Purchase Price, and then only to the extent such Damages exceed such amount. Seller shall not have been delivered by any liability for any indemnification under the other Party Interim Breach Provision unless Purchaser provides Seller with written notice of an Interim Breach prior to the Closing Date in accordance with the notice provisions of this Agreement; (ii) such Party admits (or it is otherwise finally determined) ; provided that such Party has an obligation this requirement of Purchaser to indemnify provide written notice of any Interim Breach prior to the other Party Closing Date shall not apply to Interim Breaches and/or the circumstance giving rise thereto notified by Seller to Purchaser pursuant hereto for such Damages, and (iii) each individual matter related to a Damage claim exceeds the Individual Indemnity Threshold; provided, however, that in no event shall this subsection (c) limit indemnification of Buyer for the Retained Liabilities or indemnification of Seller for the Assumed Liabilities; and provided, further, that, for the purposes of this Article 13, any representation, warranty, or covenant set forth in this Agreement which is qualified by materiality or Material Adverse Effect shall be deemed not to be so qualifiedAgreement. (dg) Notwithstanding anything to the contrary contained elsewhere in this Agreement, neither (i) Seller nor Buyer shall not be required to indemnify Purchaser for claims under the other Party under this Article 13 Interim Breach Provision for aggregate Damages in excess of an amount equal to ten percent (10%) of the Base Unadjusted Purchase Price; provided, however(ii) Seller shall not be required to indemnify Purchaser under Section 11.2(b)(ii)(B) for aggregate Damages in excess of an amount equal to $1,144,109.09, that (iii) Seller shall not be required to indemnify Purchaser under Section 11.2(b)(i)(B) or Section 11.2(b)(ii)(A) for aggregate Damages in excess of an amount equal to $3,575,340.91, and (iv) Seller’s total Damages and liabilities arising out of this Agreement or the transactions contemplated hereunder, including with respect to indemnity obligations under Section 13.5(d11.2(b) shall not apply exceed one hundred percent (100%) of the Unadjusted Purchase Price. For the avoidance of doubt, and notwithstanding anything to or limit indemnification for the Retained Liabilitiescontrary herein, the Assumed Liabilities, Parties intend that Seller’s sole and exclusive exposure from and after Closing with respect to the representations and warranties in Article 3 or Seller's obligations under the special warranty of title in the Assignment closing certificate delivered pursuant to Section 8.2(d) shall be limited to the amounts set forth in Section 11.4(g)(i), Section 11.4(g)(ii), Section 11.4(g)(iii) and Xxxx of SaleSection 11.4(g)(iv), as applicable. (eh) Notwithstanding anything herein to the contrary, for both the purposes of determining whether or not the representation or warranty of any Party in Article 3 or Article 4 or any closing certificate delivered pursuant to Section 8.2(d) or Section 8.3(b) has been breached, and the purposes of determining the amount of any Damages for which any Indemnifying Person is obligated to indemnify under Section 11.2(a)(iii) or Section 11.2(b)(ii), such determination of breach and calculation of Damages shall be made by excluding and without giving effect to any qualifiers as to materiality or Material Adverse Effect set forth in any representation or warranty of any Party in Article 3 or Article 4 or any closing certificate delivered pursuant to Section 8.2(d) or Section 8.3(b) (except in the case of the representations and warranties set forth in Section 3.14(a) and the representations and warranties made in respect of the Subsidiaries as a result of Section 3.7(p) and the corresponding representations and warranties in any closing certificate delivered pursuant to Section 8.2(d)). (i) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 13 11 shall be reduced by the amount of insurance proceeds actually realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any reasonable and documented collection costs); provided, howeverincluding all the costs and expenses incurred by third parties in investigating, that no Party shall be required prosecuting, defending and collecting such recovered amount and, any deductibles paid to seek recovery under any policy of obtain insurance as a condition to indemnification hereunder. (f) As used in this Agreementcoverage, and excluding the term "Damages" means the amount proceeds of any actual liability, loss, cost, expense, claim, award, insurance policy issued or judgment incurred or suffered by any Indemnified Person arising out of or resulting from the indemnified matter, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to matters indemnified against, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity; provided, however, that "Damages" shall not include any adjustment for Taxes that may be assessed on payments under this Article 13 or for Tax benefits received underwritten by the Indemnified Person as a consequence or its Affiliates). From and after the Closing, Seller shall (without any obligation to incur out of pocket costs, expenses, or any Damagesobligation of Seller to undertake any liability or obligation to any Person) use good faith efforts to reasonably cooperate with Purchaser in connection with any claim made by Purchaser under the R&W Policy. Notwithstanding the foregoing, neither Buyer nor or any other provision herein, except solely with respect to the Interim Breach Provision, the risk that the R&W Policy will not respond or otherwise provide coverage (excluding, for the avoidance of doubt, retention under the R&W Policy) with respect to a given claim shall be borne entirely by Purchaser. (j) Notwithstanding anything to the contrary contained herein, all payments made or to be made under this Article 11 to Purchaser shall be made by Seller by payment in cash and not via the return of any Purchaser Parent Shares. (k) The representations, warranties and covenants of each of the Parties set forth in this Agreement, subject to the express exceptions thereto, shall not be affected by any information furnished to, or any investigation or audit conducted before or after the Closing Date by, any Person in connection with the transactions contemplated hereby. In order to preserve the benefit of the bargain otherwise represented by this Agreement, each Party shall be entitled to rely upon the representations, warranties, covenants and agreements of the other Party or Parties set forth herein notwithstanding any investigation or audit conducted or any knowledge acquired (or capable of being acquired) before or after the Closing Date or the decision of any Party to complete the Closing. The right to indemnification or other remedy based on any of the representations, warranties, covenants or agreements in this Agreement shall not be affected by any investigation or audit 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 agreement. (l) Notwithstanding anything in this Agreement to the contrary, in no event shall any Indemnified Person be entitled to recover any Damages to which such Indemnified Person has already recovered the full amount of such Damages pursuant to another provision of this Agreement or any document in connection herewith, or otherwise, and any liability for indemnification under this Article 13 forAgreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, and Damages shall not includewarranty, (a) loss of profits, whether actual or consequentialcovenant, or other consequential damages suffered by the Party claiming indemnification, or any punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (b) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused by the actions or omissions of any Indemnified Person after the Closing Dateagreement.

Limitation on Actions. (a) Except with respect to Sections 5.1, 5.2, 5.3, 5.4, 5.5 and 5.6, the The representations and warranties of Seller set forth the Parties in Article 5 3, Article 4, Article 5, and the covenants corresponding representations and agreements of Seller warranties given in Article 8 the certificates delivered at Closing pursuant to Section 8.2(b) and Section 8.3(b), as applicable, shall survive the Closing until December 3015 months after the Closing Date (the “Survival Period”), 2010. Except with respect to Sections 6.1except that (i) the representations, 6.2warranties and acknowledgements, 6.3as applicable, 6.4in Section 3.1, Section 3.2, Section 3.3, Section 3.4(a), Section 3.6, Section 4.1, Section 4.2(a), Section 4.3, Section 4.4, Section 4.5 (a), (c) and 6.5(d), Section 5.1, Section 5.2, Section 5.3(a), Section 5.4 and Section 12.17(a), (c) and (e) (together, the “Core Representations”) shall survive the Closing until 36 months after the Closing Date; (ii) the representations and warranties of Buyer set forth in Article 6 Section 4.8 shall survive Closing until December 30, 201030 days after the applicable statute of limitations closes the taxable year to which the subject Taxes relate; and (iii) the representations and warranties in Section 4.11 shall not survive and shall terminate at the Closing. The remainder covenants and agreements of the Parties in this Agreement shall survive until fully performed in accordance with their terms, except that the Closing without time limit except covenants and agreements, as may otherwise be expressly provided hereinapplicable, in Section 6.3 and Section 6.6, shall survive for two years. Representations, warranties, covenants, covenants and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, covenant or agreement prior to its expiration date. For purposes of clarification, the Parties acknowledge the fact that a representation or warranty surviving the Closing does not make it a continuing representation or warranty, and no Party shall have a duty after the Closing to advise another Party or its affiliates of any change in circumstances thereto. (b) The indemnities in Sections 13.2(a)(iiSection 10.1(a), 13.2(a)(iii), 13.2(b)(ii), Section 10.1(b) and 13.2(b)(iiiSection 10.1(c) shall terminate as of the termination date last day of the applicable Survival Period, if any, of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnificationindemnification thereunder, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnities in Sections 13.2(a)(iPurchaser’s indemnification obligations pursuant to Section 10.1(a), and the Sellers’ indemnification obligations pursuant to Section 10.1(c)(i) and 13.2(b)(iSection 10.1(c)(iii) shall continue without time limitnot be subject to any deductibles or caps. (c) No Party The Sellers shall not have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(iiSection 10.1(b) or 13.2(b)(iiiand Section 10.1(c)(ii): (i) for an individual matter claims that do not exceed $100,000 in Damages, (ii) until and unless the amount of the liability for Damages with respect to which such Party admits, or it is otherwise finally determined, that such Party has an obligation to indemnify the other Party pursuant to the terms of one of such subsections exceeds Four Hundred Fifty Thousand Dollars ($450,000) (the "Individual Indemnity Threshold"). Without limiting the foregoing, no Party shall have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) until the aggregate amount of the liability for all Damages thereunder for which satisfies all of the following clauses exceeds $4,500,000: (i) Claim Notices for such Damages have been are delivered by the other Party in accordance with this Agreement; Purchaser exceeds $1,125,000 (ii) the “Deductible”), and then only to the extent such Party admits (or it is otherwise finally determined) that such Party has an obligation to indemnify Damages exceed the other Party pursuant hereto for such Damages, and Deductible and (iii) each individual matter related to a Damage claim exceeds the Individual Indemnity Thresholdaggregate amount of the liability for all Damages for which the Sellers shall be liable shall not exceed $11,250,000; provided, however, that the foregoing limitations shall not apply to any indemnification under Section 10.1(b) and Section 10.1(c)(ii) for Damages incurred or suffered by the Purchaser Group related to the Core Representations, representations and warranties in no event shall this subsection (c) limit Section 4.8 or Seller Taxes, and the Sellers’ aggregate liability for any such Damages, together with any other indemnification obligations of Buyer for the Retained Liabilities or indemnification of Seller for the Assumed Liabilities; and provided, further, that, for the purposes of Sellers under this Article 1310, any representation, warranty, or covenant set forth in this Agreement which is qualified by materiality or Material Adverse Effect shall be deemed not to be so qualifiedexceed the Purchase Price. (d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, neither Seller nor Buyer shall be required to indemnify the other Party under this Article 13 for aggregate Damages in excess of ten percent (10%) of the Base Purchase Price; provided, however, that this Section 13.5(d) shall not apply to or limit indemnification for the Retained Liabilities, the Assumed Liabilities, or Seller's obligations under the special warranty of title in the Assignment and Xxxx of Sale. (e) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 13 10 shall be reduced by the amount of insurance proceeds realized actually received by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunderDamages. (f) As used in this Agreement, the term "Damages" means the amount of any actual liability, loss, cost, expense, claim, award, or judgment incurred or suffered by any Indemnified Person arising out of or resulting from the indemnified matter, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to matters indemnified against, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity; provided, however, that "Damages" shall not include any adjustment for Taxes that may be assessed on payments under this Article 13 or for Tax benefits received by the Indemnified Person as a consequence of any Damages. Notwithstanding the foregoing, neither Buyer nor Seller shall be entitled to indemnification under this Article 13 for, and Damages shall not include, (a) loss of profits, whether actual or consequential, or other consequential damages suffered by the Party claiming indemnification, or any punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (b) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused by the actions or omissions of any Indemnified Person after the Closing Date.

Limitation on Actions. (a) Except The right to assert an indemnification claim with respect to Sections 5.1, 5.2, 5.3, 5.4, 5.5 and 5.6, the representations and warranties of Seller set forth and Purchaser in Article 5 Articles 3 and 4, and the covenants corresponding representations and agreements warranties given in the certificates delivered at Closing pursuant to Section 8.2(d) or Section 8.3(b), as applicable, shall survive the Closing for three (3) years, except that the right to assert an indemnification claim with respect to (i) the representations and warranties of Seller in Article 8 Sections 3.1(a), (b), (c) and (e) (Seller), Sections 3.2(a), (c), (d) and (e) (The Companies), Section 3.3 (Subsidiaries) and Section 3.12 (Liability for Brokers’ Fees), Section 3.26 (Bankruptcy), Section 3.30 (Bonds; Letter of Credit and Guarantees) and Section 3.33 (Specified Matters) (such representations and warranties being collectively, the “Fundamental Representations”) shall survive the Closing for six (6) years, (ii) the representations and warranties of Seller in Section 3.7 (Taxes) shall survive the Closing until December thirty (30, 2010. Except with respect to Sections 6.1, 6.2, 6.3, 6.4) days after the expiration of the applicable statute of limitations, and 6.5, (iii) the representations and warranties of Buyer Purchaser in Section 4.1 (Existence and Qualification), Section 4.2 (Power), Section 4.3 (Authorization and Enforceability), Section 4.8 (Investment Intent), Section 4.10 (Liability for Brokers’ Fees), Section 4.12 (Issuance of Purchaser Parent Shares) and Section 4.16 (Bankruptcy) shall survive the Closing for six (6) years, and except, further, that the representations and warranties of Purchaser in Section 4.13 (SEC Reports) shall survive the Closing for one (1) year. (b) The right to assert an indemnification claim for the breach of any other covenant or agreement of the Parties in this Agreement: (i) that is to be performed at or prior to Closing shall survive the Closing for twelve (12) months; or (ii) that is to be performed following Closing shall survive until twelve (12) months following the period provided in such covenants and agreements, if any, or until fully performed, except that the right to assert an indemnification claim with respect to the covenants set forth in Article 6 shall survive until December 30, 2010. The remainder of this Agreement 9 shall survive the Closing without time limit except as may otherwise be expressly provided hereinuntil thirty (30) days after the expiration of the applicable statute of limitations. Seller’s special warranty of Defensible Title in Section 6.8 shall survive the Closing for six (6) years. (c) The right to assert an indemnification claim with respect to the indemnities in Section 11.2(b)(iii)(C) shall survive the Closing for a period of three (3) years. (d) Representations, warranties, covenants, covenants and agreements shall be of no further force and effect after the date of their expirationthe expiration of a right to assert an indemnification claim with respect thereto, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, covenant or agreement prior to its the applicable expiration date. (be) The indemnities in Sections 13.2(a)(iiSection 11.2(a)(ii), 13.2(a)(iiiSection 11.2(a)(iii), 13.2(b)(ii), Section 11.2(b)(i) and 13.2(b)(iiiSection 11.2(b)(ii) shall terminate as of the termination date of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnification, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnities in Sections 13.2(a)(iSection 11.2(a)(i), Section 11.2(b)(iii)(A) and 13.2(b)(iSection 11.2(b)(iii)(B) shall continue without time limit. The indemnity in Section 11.2(b)(iii)(C) shall continue in accordance with Section 11.4(c). The indemnity in Section 11.2(b)(iv) shall survive the Closing until ninety (90) days after the applicable statute of limitations has run, except as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. (cf) No Party Seller shall not have any liability for any indemnification under Sections 13.2(a)(ii)the Interim Breach Provision, 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which such Party admits, or it is otherwise finally determined, that such Party has an obligation to indemnify the other Party pursuant to the terms of one of such subsections exceeds Four Hundred Fifty Thousand Dollars ($450,000) (the "Individual Indemnity Threshold"). Without limiting the foregoing, no Party shall have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) until the aggregate amount of the liability for all Damages for which satisfies all Claim Notices are delivered by Purchaser for indemnification under such Section exceed an amount equal to four percent (4%) of the following clauses exceeds $4,500,000: (i) Claim Notices for Unadjusted Purchase Price, and then only to the extent such Damages exceed such amount. Seller shall not have been delivered by any liability for any indemnification under the other Party Interim Breach Provision unless Purchaser provides Seller with written notice of an Interim Breach prior to the Closing Date in accordance with the notice provisions of this Agreement; (ii) such Party admits (or it is otherwise finally determined) ; provided that such Party has an obligation this requirement of Purchaser to indemnify provide written notice of any Interim Breach prior to the other Party Closing Date shall not apply to Interim Breaches and/or the circumstance giving rise thereto notified by Seller to Purchaser pursuant hereto for such Damages, and (iii) each individual matter related to a Damage claim exceeds the Individual Indemnity Threshold; provided, however, that in no event shall this subsection (c) limit indemnification of Buyer for the Retained Liabilities or indemnification of Seller for the Assumed Liabilities; and provided, further, that, for the purposes of this Article 13, any representation, warranty, or covenant set forth in this Agreement which is qualified by materiality or Material Adverse Effect shall be deemed not to be so qualifiedAgreement. (dg) Notwithstanding anything to the contrary contained elsewhere in this Agreement, neither (i) Seller nor Buyer shall not be required to indemnify Purchaser for claims under the other Party under this Article 13 Interim Breach Provision for aggregate Damages in excess of an amount equal to ten percent (10%) of the Base Unadjusted Purchase Price; provided, however(ii) Seller shall not be required to indemnify Purchaser under Section 11.2(b)(ii)(B) for aggregate Damages in excess of an amount equal to $1,042,000.00, that (iii) Seller shall not be required to indemnify Purchaser under Section 11.2(b)(i)(B) or Section 11.2(b)(ii)(A) for aggregate Damages in excess of an amount equal to $3,256,250.00, and (iv) Seller’s total Damages and liabilities arising out of this Agreement or the transactions contemplated hereunder, including with respect to indemnity obligations under Section 13.5(d11.2(b) shall not apply exceed one hundred percent (100%) of the Unadjusted Purchase Price. For the avoidance of doubt, and notwithstanding anything to or limit indemnification for the Retained Liabilitiescontrary herein, the Assumed Liabilities, Parties intend that Seller’s sole and exclusive exposure from and after Closing with respect to the representations and warranties in Article 3 or Seller's obligations under the special warranty of title in the Assignment closing certificate delivered pursuant to Section 8.2(d) shall be limited to the amounts set forth in Section 11.4(g)(i), Section 11.4(g)(ii), Section 11.4(g)(iii) and Xxxx of SaleSection 11.4(g)(iv), as applicable. (eh) Notwithstanding anything herein to the contrary, for both the purposes of determining whether or not the representation or warranty of any Party in Article 3 or Article 4 or any closing certificate delivered pursuant to Section 8.2(d) or Section 8.3(b) has been breached, and the purposes of determining the amount of any Damages for which any Indemnifying Person is obligated to indemnify under Section 11.2(a)(iii) or Section 11.2(b)(ii), such determination of breach and calculation of Damages shall be made by excluding and without giving effect to any qualifiers as to materiality or Material Adverse Effect set forth in any representation or warranty of any Party in Article 3 or Article 4 or any closing certificate delivered pursuant to Section 8.2(d) or Section 8.3(b) (except in the case of the representations and warranties set forth in Section 3.14(a) and the corresponding representations and warranties in any closing certificate delivered pursuant to Section 8.2(d)). (i) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 13 11 shall be reduced by the amount of insurance proceeds actually realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any reasonable and documented collection costs); provided, howeverincluding all the costs and expenses incurred by third parties in investigating, that no Party shall be required prosecuting, defending and collecting such recovered amount and, any deductibles paid to seek recovery under any policy of obtain insurance as a condition to indemnification hereunder. (f) As used in this Agreementcoverage, and excluding the term "Damages" means the amount proceeds of any actual liability, loss, cost, expense, claim, award, insurance policy issued or judgment incurred or suffered by any Indemnified Person arising out of or resulting from the indemnified matter, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to matters indemnified against, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity; provided, however, that "Damages" shall not include any adjustment for Taxes that may be assessed on payments under this Article 13 or for Tax benefits received underwritten by the Indemnified Person as a consequence or its Affiliates). From and after the Closing, Seller shall (without any obligation to incur out of pocket costs, expenses, or any Damagesobligation of Seller to undertake any liability or obligation to any Person) use good faith efforts to reasonably cooperate with Purchaser in connection with any claim made by Purchaser under the R&W Policy. Notwithstanding the foregoing, neither Buyer nor or any other provision herein, except solely with respect to the Interim Breach Provision, the risk that the R&W Policy will not respond or otherwise provide coverage (excluding, for the avoidance of doubt, retention under the R&W Policy) with respect to a given claim shall be borne entirely by Purchaser. (j) Notwithstanding anything to the contrary contained herein, all payments made or to be made under this Article 11 to Purchaser shall be made by Seller by payment in cash and not via the return of any Purchaser Parent Shares. (k) The representations, warranties and covenants of each of the Parties set forth in this Agreement, subject to the express exceptions thereto, shall not be affected by any information furnished to, or any investigation or audit conducted before or after the Closing Date by, any Person in connection with the transactions contemplated hereby. In order to preserve the benefit of the bargain otherwise represented by this Agreement, each Party shall be entitled to rely upon the representations, warranties, covenants and agreements of the other Party or Parties set forth herein notwithstanding any investigation or audit conducted or any knowledge acquired (or capable of being acquired) before or after the Closing Date or the decision of any Party to complete the Closing. The right to indemnification or other remedy based on any of the representations, warranties, covenants or agreements in this Agreement shall not be affected by any investigation or audit 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 agreement. (l) Notwithstanding anything in this Agreement to the contrary, in no event shall any Indemnified Person be entitled to recover any Damages to which such Indemnified Person has already recovered the full amount of such Damages pursuant to another provision of this Agreement or any document in connection herewith, or otherwise, and any liability for indemnification under this Article 13 forAgreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, and Damages shall not includewarranty, (a) loss of profits, whether actual or consequentialcovenant, or other consequential damages suffered by the Party claiming indemnification, or any punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (b) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused by the actions or omissions of any Indemnified Person after the Closing Dateagreement.

Limitation on Actions. (a) Except The right to assert an indemnification claim with respect to Sections 5.1, 5.2, 5.3, 5.4, 5.5 and 5.6, the representations and warranties of Seller set forth and Purchaser in Article 5 Articles 3 and 4, and the covenants corresponding representations and agreements warranties given in the certificates delivered at Closing pursuant to Section 8.2(d) or Section 8.3(b), as applicable, shall survive the Closing for three (3) years, except that the right to assert an indemnification claim with respect to (i) the representations and warranties of Seller in Article 8 Sections 3.1(a), (b), (c) and (e) (Seller), Sections 3.2(a), (c), (d) and (e) (The Companies), Section 3.3 (Subsidiaries) and Section 3.12 (Liability for Brokers’ Fees), Section 3.26 (Bankruptcy), Section 3.30 (Bonds; Letter of Credit and Guarantees) and Section 3.33 (Specified Matters) (such representations and warranties being collectively, the “Fundamental Representations”) shall survive the Closing for six (6) years, (ii) the representations and warranties of Seller in Section 3.7 (Taxes) shall survive the Closing until December thirty (30, 2010. Except with respect to Sections 6.1, 6.2, 6.3, 6.4) days after the expiration of the applicable statute of limitations, and 6.5, (iii) the representations and warranties of Buyer Purchaser in Section 4.1 (Existence and Qualification), Section 4.2 (Power), Section 4.3 (Authorization and Enforceability), Section 4.8 (Investment Intent), Section 4.10 (Liability for Brokers’ Fees), Section 4.12 (Issuance of Purchaser Parent Shares) and Section 4.16 (Bankruptcy) shall survive the Closing for six (6) years, and except, further, that the representations and warranties of Purchaser in Section 4.13 (SEC Reports) shall survive the Closing for one (1) year. (b) The right to assert an indemnification claim for the breach of any other covenant or agreement of the Parties in this Agreement: (i) that is to be performed at or prior to Closing shall survive the Closing for twelve (12) months; or (ii) that is to be performed following Closing shall survive until twelve (12) months following the period provided in such covenants and agreements, if any, or until fully performed, except that the right to assert an indemnification claim with respect to the covenants set forth in Article 6 shall survive until December 30, 2010. The remainder of this Agreement 9 shall survive the Closing without time limit except as may otherwise be expressly provided hereinuntil thirty (30) days after the expiration of the applicable statute of limitations. Seller’s special warranty of Defensible Title in Section 6.8 shall survive the Closing for six (6) years. (c) The right to assert an indemnification claim with respect to the indemnities in Section 11.2(b)(iii)(C) shall survive the Closing for a period of three (3) years. (d) Representations, warranties, covenants, covenants and agreements shall be of no further force and effect after the date of their expirationthe expiration of a right to assert an indemnification claim with respect thereto, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, covenant or agreement prior to its the applicable expiration date. (be) The indemnities in Sections 13.2(a)(iiSection 11.2(a)(ii), 13.2(a)(iiiSection 11.2(a)(iii), 13.2(b)(ii), Section 11.2(b)(i) and 13.2(b)(iiiSection 11.2(b)(ii) shall terminate as of the termination date of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnification, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnities in Sections 13.2(a)(iSection 11.2(a)(i), Section 11.2(b)(iii)(A) and 13.2(b)(iSection 11.2(b)(iii)(B) shall continue without time limit. The indemnity in Section 11.2(b)(iii)(C) shall continue in accordance with Section 11.4(c). The indemnity in Section 11.2(b)(iv) shall survive the Closing until ninety (90) days after the applicable statute of limitations has run, except as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. (cf) No Party Seller shall not have any liability for any indemnification under Sections 13.2(a)(ii)the Interim Breach Provision, 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which such Party admits, or it is otherwise finally determined, that such Party has an obligation to indemnify the other Party pursuant to the terms of one of such subsections exceeds Four Hundred Fifty Thousand Dollars ($450,000) (the "Individual Indemnity Threshold"). Without limiting the foregoing, no Party shall have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) until the aggregate amount of the liability for all Damages for which satisfies all Claim Notices are delivered by Purchaser for indemnification under such Section exceed an amount equal to four percent (4%) of the following clauses exceeds $4,500,000: (i) Claim Notices for Unadjusted Purchase Price, and then only to the extent such Damages exceed such amount. Seller shall not have been delivered by any liability for any indemnification under the other Party Interim Breach Provision unless Purchaser provides Seller with written notice of an Interim Breach prior to the Closing Date in accordance with the notice provisions of this Agreement; (ii) such Party admits (or it is otherwise finally determined) ; provided that such Party has an obligation this requirement of Purchaser to indemnify provide written notice of any Interim Breach prior to the other Party Closing Date shall not apply to Interim Breaches and/or the circumstance giving rise thereto notified by Seller to Purchaser pursuant hereto for such Damages, and (iii) each individual matter related to a Damage claim exceeds the Individual Indemnity Threshold; provided, however, that in no event shall this subsection (c) limit indemnification of Buyer for the Retained Liabilities or indemnification of Seller for the Assumed Liabilities; and provided, further, that, for the purposes of this Article 13, any representation, warranty, or covenant set forth in this Agreement which is qualified by materiality or Material Adverse Effect shall be deemed not to be so qualifiedAgreement. (dg) Notwithstanding anything to the contrary contained elsewhere in this Agreement, neither (i) Seller nor Buyer shall not be required to indemnify Purchaser for claims under the other Party under this Article 13 Interim Breach Provision for aggregate Damages in excess of an amount equal to ten percent (10%) of the Base Unadjusted Purchase Price; provided, however(ii) Seller shall not be required to indemnify Purchaser under Section 11.2(b)(ii)(B) for aggregate Damages in excess of an amount equal to $30,618.18, that (iii) Seller shall not be required to indemnify Purchaser under Section 11.2(b)(i)(B) or Section 11.2(b)(ii)(A) for aggregate Damages in excess of an amount equal to $95,681.82, and (iv) Seller’s total Damages and liabilities arising out of this Agreement or the transactions contemplated hereunder, including with respect to indemnity obligations under Section 13.5(d11.2(b) shall not apply exceed one hundred percent (100%) of the Unadjusted Purchase Price. For the avoidance of doubt, and notwithstanding anything to or limit indemnification for the Retained Liabilitiescontrary herein, the Assumed Liabilities, Parties intend that Seller’s sole and exclusive exposure from and after Closing with respect to the representations and warranties in Article 3 or Seller's obligations under the special warranty of title in the Assignment closing certificate delivered pursuant to Section 8.2(d) shall be limited to the amounts set forth in Section 11.4(g)(i), Section 11.4(g)(ii), Section 11.4(g)(iii) and Xxxx of SaleSection 11.4(g)(iv), as applicable. (eh) Notwithstanding anything herein to the contrary, for both the purposes of determining whether or not the representation or warranty of any Party in Article 3 or Article 4 or any closing certificate delivered pursuant to Section 8.2(d) or Section 8.3(b) has been breached, and the purposes of determining the amount of any Damages for which any Indemnifying Person is obligated to indemnify under Section 11.2(a)(iii) or Section 11.2(b)(ii), such determination of breach and calculation of Damages shall be made by excluding and without giving effect to any qualifiers as to materiality or Material Adverse Effect set forth in any representation or warranty of any Party in Article 3 or Article 4 or any closing certificate delivered pursuant to Section 8.2(d) or Section 8.3(b) (except in the case of the representations and warranties set forth in Section 3.14(a) and the corresponding representations and warranties in any closing certificate delivered pursuant to Section 8.2(d)). (i) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 13 11 shall be reduced by the amount of insurance proceeds actually realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any reasonable and documented collection costs); provided, howeverincluding all the costs and expenses incurred by third parties in investigating, that no Party shall be required prosecuting, defending and collecting such recovered amount and, any deductibles paid to seek recovery under any policy of obtain insurance as a condition to indemnification hereunder. (f) As used in this Agreementcoverage, and excluding the term "Damages" means the amount proceeds of any actual liability, loss, cost, expense, claim, award, insurance policy issued or judgment incurred or suffered by any Indemnified Person arising out of or resulting from the indemnified matter, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to matters indemnified against, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity; provided, however, that "Damages" shall not include any adjustment for Taxes that may be assessed on payments under this Article 13 or for Tax benefits received underwritten by the Indemnified Person as a consequence or its Affiliates). From and after the Closing, Seller shall (without any obligation to incur out of pocket costs, expenses, or any Damagesobligation of Seller to undertake any liability or obligation to any Person) use good faith efforts to reasonably cooperate with Purchaser in connection with any claim made by Purchaser under the R&W Policy. Notwithstanding the foregoing, neither Buyer nor or any other provision herein, except solely with respect to the Interim Breach Provision, the risk that the R&W Policy will not respond or otherwise provide coverage (excluding, for the avoidance of doubt, retention under the R&W Policy) with respect to a given claim shall be borne entirely by Purchaser. (j) Notwithstanding anything to the contrary contained herein, all payments made or to be made under this Article 11 to Purchaser shall be made by Seller by payment in cash and not via the return of any Purchaser Parent Shares. (k) The representations, warranties and covenants of each of the Parties set forth in this Agreement, subject to the express exceptions thereto, shall not be affected by any information furnished to, or any investigation or audit conducted before or after the Closing Date by, any Person in connection with the transactions contemplated hereby. In order to preserve the benefit of the bargain otherwise represented by this Agreement, each Party shall be entitled to rely upon the representations, warranties, covenants and agreements of the other Party or Parties set forth herein notwithstanding any investigation or audit conducted or any knowledge acquired (or capable of being acquired) before or after the Closing Date or the decision of any Party to complete the Closing. The right to indemnification or other remedy based on any of the representations, warranties, covenants or agreements in this Agreement shall not be affected by any investigation or audit 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 agreement. (l) Notwithstanding anything in this Agreement to the contrary, in no event shall any Indemnified Person be entitled to recover any Damages to which such Indemnified Person has already recovered the full amount of such Damages pursuant to another provision of this Agreement or any document in connection herewith, or otherwise, and any liability for indemnification under this Article 13 forAgreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, and Damages shall not includewarranty, (a) loss of profits, whether actual or consequentialcovenant, or other consequential damages suffered by the Party claiming indemnification, or any punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (b) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused by the actions or omissions of any Indemnified Person after the Closing Dateagreement.

Limitation on Actions. (a) Except with respect to Sections 5.1, 5.2, 5.3, 5.4, 5.5 and 5.6, the All representations and warranties of Seller in Article IV and Purchaser in Article V shall survive until the day that is one (1) year counted from and after the Closing Date and expire thereafter; provided, however, that the Fundamental Representations shall survive until the expiration of the applicable statute of limitations period. The covenants and other agreements of Seller and Purchaser set forth in Article 5 and the covenants and agreements of Seller in Article 8 shall survive the Closing until December 30, 2010. Except with respect to Sections 6.1, 6.2, 6.3, 6.4, and 6.5, the representations and warranties of Buyer set forth in Article 6 shall survive until December 30, 2010. The remainder of this Agreement shall survive the Closing without time limit except as may otherwise be expressly provided hereinuntil fully performed in accordance with their terms and expire thereafter. Representations, warranties, covenants, covenants and agreements shall terminate and be of no further force and effect after the respective date of their expiration, after which time no claim may be asserted thereunder by any Person, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, covenant or agreement prior to its expiration or termination date. The remainder of this Agreement shall survive the Closing without time limit except as may otherwise be expressly provided herein. (b) The indemnities in Sections 13.2(a)(ii9.1(a)(ii), 13.2(a)(iii9.1(a)(iii), 13.2(b)(ii), 9.1(b)(i) and 13.2(b)(iii9.1(b)(ii) shall terminate with respect to a representation, warranty, covenant or agreement as of the termination date of each respective such representation, warranty, covenant, covenant or agreement that is subject to indemnification, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnities in Sections 13.2(a)(i) Section 9.1(a)(i), and 13.2(b)(i) shall all disclaimers, express acknowledgements, waivers and releases herein, continue without time limit. (c) No Party The indemnity obligations under Section 9.1(b)(ii), as applicable, except the Fundamental Representations, shall apply as follows: (i) Seller shall not be required to indemnify any Person under Section 9.1(b)(ii) for any individual liability, loss, cost, expense, claim, award or judgment that does not exceed Seventy-Five Thousand Dollars ($75,000) in the aggregate, and such individual Damages may not be applied towards the Indemnity Deductible; (ii) Seller shall not have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(iiSection 9.1(b)(ii) or 13.2(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which such Party admits, or it is otherwise finally determined, that such Party has an obligation to indemnify the other Party pursuant to the terms of one of such subsections exceeds Four Hundred Fifty Thousand Dollars ($450,000) (the "Individual Indemnity Threshold"). Without limiting the foregoing, no Party shall have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) until the aggregate amount of the liability for all Damages for which satisfies all Claim Notices are timely delivered by Purchaser exceeds a deductible amount equal to one and a half percent (1.5%) of the following clauses exceeds $4,500,000: Purchase Price (i) Claim Notices for such the “Indemnity Deductible”), after which point Purchaser or Purchaser Indemnified Persons shall be entitled to claim Damages have been delivered by in excess of the other Party in accordance with this Agreement; (ii) such Party admits (or it is otherwise finally determined) that such Party has an obligation to indemnify the other Party pursuant hereto for such Damages, Indemnity Deductible; and (iii) each individual matter related to a Damage claim exceeds the Individual Indemnity Threshold; provided, however, that in no event Seller shall this subsection (c) limit indemnification of Buyer for the Retained Liabilities or indemnification of Seller for the Assumed Liabilities; and provided, further, that, for the purposes of this Article 13, any representation, warranty, or covenant set forth in this Agreement which is qualified by materiality or Material Adverse Effect shall be deemed not to be so qualified. (d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, neither Seller nor Buyer shall be required to indemnify the other Party Purchaser under this Article 13 Section 9.1(b)(ii) for aggregate Damages in excess of ten fifteen percent (1015%) of the Base Purchase Price; provided, however, that this Section 13.5(d) shall not apply to or limit indemnification for the Retained Liabilities, the Assumed Liabilities, or Seller's obligations under the special warranty of title in the Assignment and Xxxx of Sale. (ed) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 13 IX shall be reduced by the amount of insurance proceeds realized actually received by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costscosts and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder. Upon the request of the Indemnifying Person, the Indemnified Person shall provide the Indemnifying Person with information sufficient to allow the Indemnifying Person to calculate the amount of the indemnity payment in accordance with this Agreement. An Indemnified Person shall take all reasonable steps to mitigate damages in respect of any Damages for which it is seeking indemnification and shall use commercially reasonable efforts to avoid costs or expenses associated with such Damages and, if such costs and expenses cannot be avoided, to minimize the amount thereof. (e) Notwithstanding any provision of Section 9.1(b) to the contrary, if Seller is required to provide indemnification under Section 9.1(b)(ii) for any Damages incurred or suffered by an Acquired Company or that otherwise arise from or are based on such Damages, Seller’s liability to provide such indemnification shall in all respects be limited to fifty percent (50%) of such Damages, subject to any other limitations imposed on Seller’s liability under this Article IX (including Section 9.3(c) and Section 9.3(d)). In addition, Seller shall have no obligation to provide indemnification to Purchaser Group under this Article IX for any Damage to the extent Seller, through affirmative evidence, demonstrates that it arises from or is caused by the ownership or operation of the Alpha Contributed Assets prior to the Seller Ownership Period. (f) As used in this Agreement, the term "Damages" means the amount of any actual liability, loss, cost, expense, claim, award, or judgment incurred or suffered by In no event shall any Indemnified Person arising out of or resulting from the indemnified matter, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to matters indemnified against, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity; provided, however, that "Damages" shall not include any adjustment for Taxes that may be assessed on payments under this Article 13 or for Tax benefits received by the Indemnified Person as a consequence of any Damages. Notwithstanding the foregoing, neither Buyer nor Seller shall be entitled to indemnification under this Article 13 forduplicate compensation with respect to the same Damage, and Damages shall not include, (a) loss of profits, whether actual or consequential, or other consequential damages suffered by the Party claiming indemnification, or any punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (b) any increase in liability, loss, cost, expense, claim, award or judgment to under more than one provision of this Agreement and the extent such increase is caused by various documents delivered in connection with the actions or omissions of any Indemnified Person after the Closing DateClosing.

Limitation on Actions. (a) Except with respect to Sections 5.1, 5.2, 5.3, 5.4, 5.5 and 5.6, the The representations and warranties of Seller set forth the Parties in Article 5 3, Article 4, Article 5, and the covenants corresponding representations and agreements of Seller warranties given in Article 8 the certificates delivered at Closing pursuant to Section 8.2(b) and Section 8.3(b), as applicable, shall survive the Closing until December 3015 months after the Closing Date (the “Survival Period”), 2010. Except with respect to Sections 6.1except that (i) the representations, 6.2warranties and acknowledgements, 6.3as applicable, 6.4in Section 3.1, Section 3.2, Section 3.3, Section 3.4(a), Section 3.6, Section 4.1, Section 4.2(a), Section 4.3, Section 4.4, Section 4.5(a), (c) and 6.5(d), Section 5.1, Section 5.2, Section 5.3(a), Section 5.4 and Section 12.17(a), (c) and (e) (together, the “Core Representations”) shall survive the Closing until 36 months after the Closing Date; (ii) the representations and warranties of Buyer set forth in Article 6 Section 4.8 shall survive Closing until December 30, 201030 days after the applicable statute of limitations closes the taxable year to which the subject Taxes relate; and (iii) the representations and warranties in Section 4.11 shall not survive and shall terminate at the Closing. The remainder covenants and agreements of the Parties in this Agreement shall survive until fully performed in accordance with their terms, except that the Closing without time limit except covenants and agreements, as may otherwise be expressly provided hereinapplicable, in Section 6.3 and Section 6.6, shall survive for two years. Representations, warranties, covenants, covenants and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, covenant or agreement prior to its expiration date. For purposes of clarification, the Parties acknowledge the fact that a representation or warranty surviving the Closing does not make it a continuing representation or warranty, and no Party shall have a duty after the Closing to advise another Party or its affiliates of any change in circumstances thereto. (b) The indemnities in Sections 13.2(a)(iiSection 10.1(a), 13.2(a)(iii), 13.2(b)(ii), Section 10.1(b) and 13.2(b)(iiiSection 10.1(c) shall terminate as of the termination date last day of the applicable Survival Period, if any, of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnificationindemnification thereunder, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnities in Sections 13.2(a)(iPurchaser’s indemnification obligations pursuant to Section 10.1(a), and the Sellers’ indemnification obligations pursuant to Section 10.1(c)(i) and 13.2(b)(iSection 10.1(c)(iii) shall continue without time limitnot be subject to any deductibles or caps. (c) No Party The Sellers shall not have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(iiSection 10.1(b) or 13.2(b)(iiiand Section 10.1(c)(ii): (i) for an individual matter claims that do not exceed $100,000 in Damages, (ii) until and unless the amount of the liability for Damages with respect to which such Party admits, or it is otherwise finally determined, that such Party has an obligation to indemnify the other Party pursuant to the terms of one of such subsections exceeds Four Hundred Fifty Thousand Dollars ($450,000) (the "Individual Indemnity Threshold"). Without limiting the foregoing, no Party shall have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) until the aggregate amount of the liability for all Damages thereunder for which satisfies all of the following clauses exceeds $4,500,000: (i) Claim Notices for such Damages have been are delivered by the other Party in accordance with this Agreement; Purchaser exceeds $1,125,000 (ii) the “Deductible”), and then only to the extent such Party admits (or it is otherwise finally determined) that such Party has an obligation to indemnify Damages exceed the other Party pursuant hereto for such Damages, and Deductible and (iii) each individual matter related to a Damage claim exceeds the Individual Indemnity Thresholdaggregate amount of the liability for all Damages for which the Sellers shall be liable shall not exceed $11,250,000; provided, however, that the foregoing limitations shall not apply to any indemnification under Section 10.1(b) and Section 10.1(c)(ii) for Damages incurred or suffered by the Purchaser Group related to the Core Representations, representations and warranties in no event shall this subsection (c) limit Section 4.8 or Seller Taxes, and the Sellers’ aggregate liability for any such Damages, together with any other indemnification obligations of Buyer for the Retained Liabilities or indemnification of Seller for the Assumed Liabilities; and provided, further, that, for the purposes of Sellers under this Article 1310, any representation, warranty, or covenant set forth in this Agreement which is qualified by materiality or Material Adverse Effect shall be deemed not to be so qualifiedexceed the Purchase Price. (d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, neither Seller nor Buyer shall be required to indemnify the other Party under this Article 13 for aggregate Damages in excess of ten percent (10%) of the Base Purchase Price; provided, however, that this Section 13.5(d) shall not apply to or limit indemnification for the Retained Liabilities, the Assumed Liabilities, or Seller's obligations under the special warranty of title in the Assignment and Xxxx of Sale. (e) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 13 10 shall be reduced by the amount of insurance proceeds realized actually received by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunderDamages. (f) As used in this Agreement, the term "Damages" means the amount of any actual liability, loss, cost, expense, claim, award, or judgment incurred or suffered by any Indemnified Person arising out of or resulting from the indemnified matter, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to matters indemnified against, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity; provided, however, that "Damages" shall not include any adjustment for Taxes that may be assessed on payments under this Article 13 or for Tax benefits received by the Indemnified Person as a consequence of any Damages. Notwithstanding the foregoing, neither Buyer nor Seller shall be entitled to indemnification under this Article 13 for, and Damages shall not include, (a) loss of profits, whether actual or consequential, or other consequential damages suffered by the Party claiming indemnification, or any punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (b) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused by the actions or omissions of any Indemnified Person after the Closing Date.

Limitation on Actions. (a) Except with respect to Sections 5.1, 5.2, 5.3, 5.4, 5.5 and 5.6, the The representations and warranties of Seller set forth the Parties in Article ARTICLE 4 and ARTICLE 5 and the covenants and agreements of Seller the Parties in Article 8 ARTICLE 6 and the corresponding representations and warranties given in the certificate delivered at Closing pursuant to Section 8.2(c) and Section 8.3(d) shall survive the Closing until December 30for a period of twelve months, 2010. Except with respect to Sections 6.1, 6.2, 6.3, 6.4, and 6.5, except that (i) the representations and warranties of Buyer set forth in Article 6 Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 5.1, Section 5.2, Section 5.3 and Section 5.4 shall survive until December 30indefinitely and (ii) the covenants and agreements, 2010as applicable, in Section 6.6 and Section 6.11 shall survive indefinitely. The remainder of this Agreement shall survive the Closing without time limit except (a) as may otherwise be expressly provided hereinherein and (b) for the provisions of ARTICLE 11, which shall survive Closing until the applicable statute of limitations closes the taxable year to which the subject Taxes relate plus 90 days. RepresentationsThe representations, warranties, covenants, covenants and agreements of this Agreement shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, covenant or agreement prior to its expiration date. (b) . The indemnities in Sections 13.2(a)(iiSection 10.2(a)(ii), 13.2(a)(iiiSection 10.2(a)(iii), 13.2(b)(ii), Section 10.2(b)(ii) and 13.2(b)(iiiSection 10.2(b)(iii) shall terminate as of the termination date of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnificationindemnification thereunder, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person indemnifying Party on or before such termination date. The indemnities indemnity in Sections 13.2(a)(iSection 10.2(a)(i) and 13.2(b)(iSection 10.2(b)(i) shall continue without time limit. (c) No Party shall have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which such Party admits, or it is otherwise finally determined, that such Party has an obligation to indemnify the other Party pursuant to the terms of one of such subsections exceeds Four Hundred Fifty Thousand Dollars ($450,000) (the "Individual Indemnity Threshold"). Without limiting the foregoing, no Party shall have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) until the aggregate amount of the liability for all Damages which satisfies all of the following clauses exceeds $4,500,000: (i) Claim Notices for such Damages have been delivered by the other Party in accordance with this Agreement; (ii) such Party admits (or it is otherwise finally determined) that such Party has an obligation to indemnify the other Party pursuant hereto for such Damages, and (iii) each individual matter related to a Damage claim exceeds the Individual Indemnity Threshold; provided, however, that in no event shall this subsection (c) limit indemnification of Buyer for the Retained Liabilities or indemnification of Seller for the Assumed Liabilities; and provided, further, that, for the purposes of this Article 13, any representation, warranty, or covenant set forth in this Agreement which is qualified by materiality or Material Adverse Effect shall be deemed not to be so qualified. (d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, neither Seller nor Buyer shall be required to indemnify the other Party under this Article 13 for aggregate Damages in excess of ten percent (10%) of the Base Purchase Price; provided, however, that this Section 13.5(d) shall not apply to or limit indemnification for the Retained Liabilities, the Assumed Liabilities, or Seller's obligations under the special warranty of title in the Assignment and Xxxx of Sale. (e) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 13 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder. (f) As used in this Agreement, the term "Damages" means the amount of any actual liability, loss, cost, expense, claim, award, or judgment incurred or suffered by any Indemnified Person arising out of or resulting from the indemnified matter, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to matters indemnified against, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity; provided, however, that "Damages" shall not include any adjustment for Taxes that may be assessed on payments under this Article 13 or for Tax benefits received by the Indemnified Person as a consequence of any Damages. Notwithstanding the foregoing, neither Buyer nor Seller shall be entitled to indemnification under this Article 13 for, and Damages shall not include, (a) loss of profits, whether actual or consequential, or other consequential damages suffered by the Party claiming indemnification, or any punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (b) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused by the actions or omissions of any Indemnified Person after the Closing Date.

Limitation on Actions. (a) Except with respect to The Sections 4.1, 4.2, 4.3, 4.6, 4.7, 4.9(a) and 4.14 (the “Fundamental Reps”) and the representations and warranties of Purchaser in Sections 5.1, 5.25.2 and 5.3 and the corresponding representations and warranties given in the certificates delivered at the Closing pursuant to Sections 3.2(b) and 3.3(c), 5.3as applicable, 5.4, 5.5 and 5.6, shall survive the Closing indefinitely; the representations and warranties of Seller set forth in Section 4.9 shall survive until six months after the expiration of the applicable statute of limitations (taking into account any extension thereof); and all other representations and warranties of the Parties in Article 4 and Article 5 and the covenants corresponding representations and agreements of Seller warranties given in Article 8 the certificates delivered at the Closing pursuant to Sections 3.2(b) and 3.3(c), as applicable, shall survive the Closing until December 30, 2010. Except with respect to Sections 6.1, 6.2, 6.3, 6.4, and 6.5, the representations and warranties for a period of Buyer set forth in Article 6 shall survive until December 30, 2010. The remainder of this Agreement shall survive the Closing without time limit except as may otherwise be fifteen (15) months (unless a shorter period is expressly provided hereinwithin the applicable section). Representations, warranties, covenants, covenants and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, covenant or agreement prior to its expiration date. (b) The indemnity in Section 9.1(a)(i) and 9.1(b)(iii) shall continue without time limit. The indemnities in Sections 13.2(a)(ii9.1(a)(ii), 13.2(a)(iii9.1(a)(iii), 13.2(b)(ii), 9.1(b)(i) and 13.2(b)(iii9.1(b)(ii) shall terminate as of the termination date of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnificationindemnification thereunder, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnities in Sections 13.2(a)(i) and 13.2(b)(i) shall continue without time limit. (c) No Party Subject to Section 9.3(e), neither Seller nor Purchaser shall have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(iiSection 9.1(a)(iii) or 13.2(b)(iiiSection 9.1(b)(ii) for an individual matter until and unless the amount of the liability for any Damages with respect to which such Party admitsany claim (or a series of related claims arising from the same facts or circumstances) that do not exceed $60,000 (the “Individual Claim Threshold”), or it is otherwise finally determinedprovided, that such Party has an obligation to indemnify the other Party pursuant however, to the terms extent all claims (or a series of one related claims arising from the same facts or circumstances) for indemnification by Seller result in aggregate Damages exceeding the Deductible (including those claims (or a series of related claims arising from the same facts or circumstances) under the Individual Claim Threshold), then Purchaser shall be entitled to be indemnified for such subsections exceeds Four Hundred Fifty Thousand Dollars Damages under this Article 9 without regard to the Individual Claim Threshold. ($450,000d) Subject to Section 9.3(c) and Section 9.3(e), (the "Individual Indemnity Threshold"). Without limiting the foregoing, no Party A) Seller shall not have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(iiSection 9.1(b)(ii) or 13.2(b)(iii) unless and until the aggregate amount of the liability Damages for all Damages which satisfies all of the following clauses exceeds $4,500,000: (i) Claim Notices for claims (or a series of related claims arising from the same facts or circumstances) meeting the Individual Claim Threshold are delivered by Purchaser with respect to such matters exceed one percent (1%) of the Purchase Price (the “Deductible”), and then only to the extent such Damages have been delivered by exceed the other Party in accordance with this Agreement; Deductible and (iiB) such Party admits (or it is otherwise finally determined) that such Party has an obligation to indemnify the other Party pursuant hereto for such Damages, and (iii) each individual matter related to a Damage claim exceeds the Individual Indemnity Threshold; provided, however, that in no event Seller shall this subsection (c) limit indemnification of Buyer for the Retained Liabilities or indemnification of Seller for the Assumed Liabilities; and provided, further, that, for the purposes of this Article 13, any representation, warranty, or covenant set forth in this Agreement which is qualified by materiality or Material Adverse Effect shall be deemed not to be so qualified. (d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, neither Seller nor Buyer shall be required to indemnify Purchaser under the other Party under this Article 13 indemnity in Section 9.1(b)(ii) for aggregate Damages in excess of ten fifteen percent (1015%) of the Base Purchase Price; provided, however, that this Section 13.5(dPrice (the “Cap”). (e) The Deductible and the Cap shall not apply to any indemnification obligations of Seller under Section 9.1(b)(ii) for Damages caused by or limit indemnification arising out of or resulting from Seller’s breach of any Fundamental Reps; provided that Seller shall not be required to indemnify Purchaser under this Article 9 for breaches of such Fundamental Reps for aggregate Damages in excess of the Retained Liabilities, the Assumed Liabilities, or Seller's obligations under the special warranty of title in the Assignment and Xxxx of SalePurchase Price. (ef) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 13 9 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates); provided, however, . (g) Any Indemnified Person that no Party becomes aware of a loss for which it seeks indemnification shall be required to seek recovery under use commercially reasonable efforts to mitigate the loss, including taking any policy of insurance as a condition actions reasonably requested by the Indemnifying Party, and an Indemnifying Party shall not be liable for any loss to indemnification hereunderthe extent that it is attributable to the Indemnified Party’s failure to use commercially reasonable efforts to mitigate. (fh) As used in this Agreement, the term "Damages" means the amount of any actual liability, loss, cost, expense, claim, award, or judgment incurred or suffered by In no event shall any Indemnified Person arising out of or resulting from the indemnified matter, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to matters indemnified against, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity; provided, however, that "Damages" shall not include any adjustment for Taxes that may be assessed on payments under this Article 13 or for Tax benefits received by the Indemnified Person as a consequence of any Damages. Notwithstanding the foregoing, neither Buyer nor Seller shall be entitled to indemnification under this Article 13 forduplicate compensation with respect to the same Damage, and Damages shall not include, (a) loss of profits, whether actual or consequential, or other consequential damages suffered by the Party claiming indemnification, or any punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (b) any increase in liability, loss, cost, expense, claim, award or judgment to under more than one provision of this Agreement and the extent such increase is caused by various documents delivered in connection with the actions or omissions of any Indemnified Person after the Closing DateClosing.

Limitation on Actions. (a) Except with respect The representations and warranties of Seller in Article 4 (excluding Sections 4.1, 4.3, 4.7, 4.9, 4.10, and 4.14) and the covenants and agreements of the Parties in Article 6, (excluding Sections 6.5 and 6.7), and the corresponding representations, warranties, and affirmations given in the certificates delivered at Closing pursuant to Sections 5.18.2(f) and 8.3(e), 5.2as applicable, 5.3, 5.4, 5.5 shall survive the Closing for a period of twelve (12) months and 5.6, the representations and warranties of Seller set forth in Article 5 and the covenants and agreements of Seller in Article 8 Section 4.3 shall survive the Closing until December 30, 2010the expiration of the applicable statute of limitations. Except with respect to Sections 6.1, 6.2, 6.3, 6.4, The representation and 6.5, the representations and warranties warranty of Buyer Seller set forth in Article 6 Section 4.7 shall survive the Closing until December 30, 2010the Cut-Off Date. The remainder of this Agreement shall survive the Closing and delivery of the Assignment and Xxxx of Sale without time limit except as may otherwise be expressly provided herein. Representations, warranties, covenants, and agreements shall be of no further force and effect after the date of their expirationexpiration (if applicable), provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, or agreement prior to its expiration date. (b) The indemnities in Sections 13.2(a)(ii11.3(a)(ii), 13.2(a)(iii11.3(a)(iii), 13.2(b)(ii11.3(b)(ii), and 13.2(b)(iii11.3(b)(iii) shall terminate as of the termination date of each respective representation, warranty, covenant, or agreement that is subject to indemnificationindemnification thereunder, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination datedate in accordance with Section 11.4. The indemnity in Section 11.3(b)(i) shall survive the Closing without time limit except that such indemnity shall survive (i) as set forth in Sections 2.3 and 2.4 with respect to Section 11.2(b) and (ii) until the expiration of the applicable statute of limitations with respect to the matters set forth in Sections 11.2(c), 11.2(d), 11.2(e), 11.2(f), 11.2(g) and 11.2(l). The indemnities in Sections 13.2(a)(i11.3(a)(i) and 13.2(b)(i11.3(a)(iv) shall continue survive the Closing without time limit. (c) No Party shall have any liability for any indemnification under Sections 13.2(a)(ii)Section 11.3, 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which such Party admits, admits (or it is otherwise finally determined, determined that such Party has has) an obligation to indemnify the other Party pursuant to the terms of one of such subsections Section 11.3 exceeds Four One Hundred Fifty Thousand Dollars ($450,000100,000) (the "“Individual Indemnity Threshold"”). Without limiting the foregoing, no Party Seller shall not have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii11.3(b)(ii) or 13.2(b)(iii11.3(b)(iii) until and unless the aggregate amount of the liability for all Damages which satisfies all of the following clauses exceeds $4,500,000: (i) for which Claim Notices for such Damages have been are delivered by the other Party in accordance with this Agreement; Purchaser under Sections 11.3(b)(ii) and 11.3(b)(iii), (ii) such Party with respect to which Seller admits (or it is otherwise finally determined) that such Party Seller has an obligation to indemnify Purchaser pursuant to the other Party pursuant hereto for such Damagesterms of under Sections 11.3(b)(ii) or 11.3(b)(iii), and and (iii) each individual matter related to a Damage claim exceeds which exceed the Individual Indemnity Threshold; providedThreshold exceeds two percent (2.0%) of the Unadjusted Purchase Price, howeverand then only to the extent such Damages exceed two percent (2.0%) of the Unadjusted Purchase Price. Notwithstanding the foregoing, that in no event this Section 11.6(c) shall this subsection (c) not limit indemnification for breach of Buyer for the (A) Retained Liabilities or indemnification of Seller for the Assumed Liabilities; and provided, further, that, for the purposes of this Article 13, any representation, warranty, or covenant Obligations set forth in this Agreement which is qualified by materiality Section 11.2(a), 11.2(b), 11.2(c), 11.2(k), 11.2(h), 11.2(i), and 11.2(j), (B) representations and warranties in Sections 4.1, 4.3, 4.9, 4.10, 4.14, (C) Purchaser’s representations and warranties in Article 5, (D) the covenants and agreements set forth in Sections 6.5 or Material Adverse Effect shall be deemed not to be so qualified6.7, or (E) the indemnity obligations set forth in 11.3(a)(iv). (d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, neither Seller nor Buyer shall not be required to indemnify the other Party Purchaser under this Article 13 Sections 11.3(b)(ii) and 11.3(b)(iii) for aggregate Damages in excess of ten fifteen percent (1015%) of the Base Unadjusted Purchase Price; provided, however, that this Section 13.5(d11.6(d) shall not apply to or limit indemnification for breach of the Retained Liabilitiesrepresentations and warranties in Sections 4.1, the Assumed Liabilities4.3, 4.9, 4.10, 4.14, or Seller's obligations under the special warranty of title covenants and agreements set forth in the Assignment and Xxxx of SaleSection 6.7. (e) Notwithstanding anything in this Agreement to the contrary, Seller shall have no obligation to indemnify any Indemnified Person for any Damages resulting from any environmental remediation, removal or other response action undertaken by any Indemnified Person to the extent attributable to the (i) costs of such remediation, removal or other response action in excess of the least stringent permissible legal cleanup standard under Environmental Law or required by a Governmental Authority, in each case, existing as of the Closing Date or, if more stringent, as required under the express remediation obligations set forth in any applicable Lease, or (ii) costs results from meeting a more stringent cleanup standard resulting from a change in land use by an Indemnified Person from the use in effect as of the Closing Date. (f) With respect to any investigation, remediation or other response action related to Damages for which Purchaser seeks indemnification from Seller pursuant to this Article 11, Purchaser hereby agrees to provide Seller with copies of all related reports and communications submitted to any Governmental Authority and the results of all sampling and analysis activities within three (3) Business Days after receipt thereof by Purchaser. (g) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 13 11 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder. (fh) As used in this AgreementAny Purchaser Group Indemnified Person shall remit to Seller, the term "Damages" means the amount of within five (5) Business Days after receipt, any actual liability, loss, cost, expense, claim, award, insurance proceeds or judgment incurred or suffered other payment that is received by any member of the Purchaser Group from a third Person and which relates to Damages for which (but only to the extent) such member of the Purchaser Group has been previously compensated hereunder (minus the reasonable out-of-pocket costs incurred in obtaining such recovery). (i) Any Seller Group Indemnified Person arising out of or resulting from the indemnified mattershall remit to Purchaser, whether attributable to personal injury or deathwithin five (5) Business Days after receipt, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, any insurance proceeds or other agents and experts reasonably incident to matters indemnified against, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement payment that is received by any member of the indemnity; provided, however, that "Damages" shall not include any adjustment for Taxes that may be assessed on payments under this Article 13 or for Tax benefits received by the Indemnified Seller Group from a third Person as a consequence of any Damages. Notwithstanding the foregoing, neither Buyer nor Seller shall be entitled and which relates to indemnification under this Article 13 for, and Damages shall not include, (a) loss of profits, whether actual or consequential, or other consequential damages suffered by the Party claiming indemnification, or any punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (b) any increase in liability, loss, cost, expense, claim, award or judgment but only to the extent extent) such increase is caused by member of the actions or omissions of any Indemnified Person after Seller Group has been previously compensated hereunder (minus the Closing Datereasonable out-of-pocket costs incurred in obtaining such recovery).

Limitation on Actions. (a) Except with respect to The Sections 4.1, 4.2, 4.3, 4.6, 4.7, 4.9(b) and 4.14, (the “Fundamental Reps”) and the representations and warranties of Purchaser in Sections 5.1, 5.25.2 and 5.3 and the corresponding representations and warranties given in the certificates delivered at the Closing pursuant to Sections 3.2(b) and 3.3(c), 5.3as applicable, 5.4, 5.5 and 5.6, shall survive the Closing indefinitely; the representations and warranties of Seller set forth in Section 4.9 shall survive until six months after the expiration of the applicable statute of limitations (taking into account any extension thereof); and all other representations and warranties of the Parties in Article 4 and Article 5 and the covenants corresponding representations and agreements of Seller warranties given in Article 8 the certificates delivered at the Closing pursuant to Sections 3.2(b) and 3.3(c), as applicable, shall survive the Closing until December 30, 2010. Except with respect to Sections 6.1, 6.2, 6.3, 6.4, and 6.5, the representations and warranties for a period of Buyer set forth in Article 6 shall survive until December 30, 2010. The remainder of this Agreement shall survive the Closing without time limit except as may otherwise be fifteen (15) months (unless a shorter period is expressly provided hereinwithin the applicable section). Representations, warranties, covenants, covenants and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, covenant or agreement prior to its expiration date. (b) The indemnity in Section 9.1(a)(i) and 9.1(b)(iii) shall continue without time limit. The indemnities in Sections 13.2(a)(ii9.1(a)(ii), 13.2(a)(iii9.1(a)(iii), 13.2(b)(ii), 9.1(b)(i) and 13.2(b)(iii9.1(b)(ii) shall terminate as of the termination date of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnificationindemnification thereunder, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnities in Sections 13.2(a)(i) and 13.2(b)(i) shall continue without time limit. (c) No Party Subject to Section 9.3(e), neither Seller nor Purchaser shall have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(iiSection 9.1(a)(iii) or 13.2(b)(iiiSection 9.1(b)(ii) for an individual matter until and unless the amount of the liability for any Damages with respect to which such Party admitsany claim (or a series of related claims arising from the same facts or circumstances) that do not exceed $100,000 (the “Individual Claim Threshold”), or it is otherwise finally determinedprovided, that such Party has an obligation to indemnify the other Party pursuant however, to the terms extent all claims (or a series of one related claims arising from the same facts or circumstances) for indemnification by Seller result in aggregate Damages exceeding the Deductible (including those claims (or a series of related claims arising from the same facts or circumstances) under the Individual Claim Threshold), then Purchaser shall be entitled to be indemnified for such subsections exceeds Four Hundred Fifty Thousand Dollars Damages under this Article 9 without regard to the Individual Claim Threshold. ($450,000d) Subject to Section 9.3(c) and Section 9.3(e), (the "Individual Indemnity Threshold"). Without limiting the foregoing, no Party A) Seller shall not have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(iiSection 9.1(b)(ii) or 13.2(b)(iii) unless and until the aggregate amount of the liability Damages for all Damages which satisfies all of the following clauses exceeds $4,500,000: (i) Claim Notices for claims (or a series of related claims arising from the same facts or circumstances) meeting the Individual Claim Threshold are delivered by Purchaser with respect to such matters exceed one percent (1%) of the Purchase Price (the “Deductible”), and then only to the extent such Damages have been delivered by exceed the other Party in accordance with this Agreement; Deductible and (iiB) such Party admits (or it is otherwise finally determined) that such Party has an obligation to indemnify the other Party pursuant hereto for such Damages, and (iii) each individual matter related to a Damage claim exceeds the Individual Indemnity Threshold; provided, however, that in no event Seller shall this subsection (c) limit indemnification of Buyer for the Retained Liabilities or indemnification of Seller for the Assumed Liabilities; and provided, further, that, for the purposes of this Article 13, any representation, warranty, or covenant set forth in this Agreement which is qualified by materiality or Material Adverse Effect shall be deemed not to be so qualified. (d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, neither Seller nor Buyer shall be required to indemnify Purchaser under the other Party under this Article 13 indemnity in Section 9.1(b)(ii) for aggregate Damages in excess of ten fifteen percent (1015%) of the Base Purchase Price; provided, however, that this Section 13.5(dPrice (the “Cap”). (e) The Deductible and the Cap shall not apply to any indemnification obligations of Seller under Section 9.1(b)(ii) for Damages caused by or limit indemnification arising out of or resulting from Seller’s breach of any Fundamental Reps; provided that Seller shall not be required to indemnify Purchaser under this Article 9 for breaches of such Fundamental Reps for aggregate Damages in excess of the Retained Liabilities, the Assumed Liabilities, or Seller's obligations under the special warranty of title in the Assignment and Xxxx of SalePurchase Price. (ef) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 13 9 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs, and excluding the proceeds of any insurance policy issued or underwritten by the Indemnified Person or its Affiliates); provided, however, . (g) Any Indemnified Person that no Party becomes aware of a loss for which it seeks indemnification shall be required to seek recovery under use commercially reasonable efforts to mitigate the loss, including taking any policy of insurance as a condition actions reasonably requested by the Indemnifying Party, and an Indemnifying Party shall not be liable for any loss to indemnification hereunderthe extent that it is attributable to the Indemnified Party’s failure to use commercially reasonable efforts to mitigate. (fh) As used in this Agreement, the term "Damages" means the amount of any actual liability, loss, cost, expense, claim, award, or judgment incurred or suffered by In no event shall any Indemnified Person arising out of or resulting from the indemnified matter, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to matters indemnified against, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity; provided, however, that "Damages" shall not include any adjustment for Taxes that may be assessed on payments under this Article 13 or for Tax benefits received by the Indemnified Person as a consequence of any Damages. Notwithstanding the foregoing, neither Buyer nor Seller shall be entitled to indemnification under this Article 13 forduplicate compensation with respect to the same Damage, and Damages shall not include, (a) loss of profits, whether actual or consequential, or other consequential damages suffered by the Party claiming indemnification, or any punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (b) any increase in liability, loss, cost, expense, claim, award or judgment to under more than one provision of this Agreement and the extent such increase is caused by various documents delivered in connection with the actions or omissions of any Indemnified Person after the Closing DateClosing.

Limitation on Actions. (a) Except with respect to Sections 5.1The representations and warranties of Sellers in Article 5 and of Purchaser in Article 6, 5.2shall survive the Closing for a period of 12 months; provided, 5.3however, 5.4, 5.5 that the Fundamental and 5.6, Tax Representations and the representations and warranties of Seller set forth in Article 5 Section 6.1, Section 6.2 and the covenants and agreements of Seller in Article 8 Section 6.3 shall survive the Closing until December 30, 2010and shall continue for the applicable statute of limitations relating to the subject matter thereof. Except with respect to Sections 6.1, 6.2, 6.3, 6.4, Each covenant and 6.5, agreement of the representations and warranties of Buyer set forth Parties contained in Article 6 shall survive until December 30, 2010. The remainder of this Agreement shall survive the Closing without time limit except as may indefinitely unless otherwise be expressly provided stated herein. Representations, warranties, covenants, covenants and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim duly asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, covenant or agreement prior to its expiration date. (b) The indemnities in Sections 13.2(a)(iiSection 12.2(a)(ii), 13.2(a)(iiiSection 12.2(a)(iii), 13.2(b)(ii), Section 12.2(b)(ii) and 13.2(b)(iiiSection 12.2(b)(iii) shall terminate as of the termination date of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnification, except in each case as to matters for which a specific written claim for 39 indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnities in Sections 13.2(a)(iSection 12.2(a)(i) and 13.2(b)(iSection 12.2(b)(i) shall continue without time limit. (c) No Party Sellers shall have any liability no Liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(iiSection 12.2(a)(iii) or 13.2(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which such Party admits, or it any individual claim for Damages that is otherwise finally determined, that such Party has an obligation less than $5,000. This Section 12.4(c) shall not limit indemnification with respect to indemnify the other Party pursuant to the terms of one of such subsections exceeds Four Hundred Fifty Thousand Dollars ($450,000) (the "Individual Indemnity Threshold"). Without limiting the foregoing, no Party shall have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) until the aggregate amount of the liability for all Damages which satisfies all of the following clauses exceeds $4,500,000: (i) Claim Notices for such Damages have been delivered by the other Party in accordance with this Agreement; fraud, (ii) such Party admits (or it is otherwise finally determined) that such Party has an obligation to indemnify breaches of the other Party pursuant hereto for such DamagesFundamental and Tax Representations, and (iii) each individual matter related to a Damage claim exceeds the Individual Indemnity Threshold; provided, however, that in no event shall this subsection (c) limit indemnification of Buyer for the Retained Liabilities or indemnification of Seller for the Assumed Liabilities; and provided, further, that, for the purposes of this Article 13, any representation, warranty, or covenant set forth in this Agreement which is qualified by materiality or Material Adverse Effect shall be deemed not to be so qualified. (d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, neither Seller nor Buyer shall be required to indemnify the other Party under this Article 13 for aggregate Damages in excess of ten percent (10%) of the Base Purchase Price; provided, however, that this Section 13.5(d) shall not apply to or limit indemnification for the Retained Liabilities, the Assumed Sellers Liabilities, or Seller's obligations under (iv) the special warranty of title in the Assignment and Xxxx of SaleAssumed Obligations. (e) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 13 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder. (f) As used in this Agreement, the term "Damages" means the amount of any actual liability, loss, cost, expense, claim, award, or judgment incurred or suffered by any Indemnified Person arising out of or resulting from the indemnified matter, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to matters indemnified against, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity; provided, however, that "Damages" shall not include any adjustment for Taxes that may be assessed on payments under this Article 13 or for Tax benefits received by the Indemnified Person as a consequence of any Damages. Notwithstanding the foregoing, neither Buyer nor Seller shall be entitled to indemnification under this Article 13 for, and Damages shall not include, (a) loss of profits, whether actual or consequential, or other consequential damages suffered by the Party claiming indemnification, or any punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (b) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused by the actions or omissions of any Indemnified Person after the Closing Date.

Limitation on Actions. (a) Except with respect Any claim for indemnification pursuant to Sections 5.1Section 10.1(a)(iii) or Section 10.1(c)(iii) must be made on or prior to the date 18 months after the Second Closing Date, 5.2, 5.3, 5.4, 5.5 provided that third party claims and 5.6, such claims arising from a breach of the representations and warranties of Seller set forth in Article 5 Section 5.4 (Liability for Broker’s Fees), Section 5.6 (Litigation), Section 5.7 (Taxes and the covenants Assessments), Section 5.10 (Payments for Production), and agreements of Seller in Article 8 Section 6.5 (Liability for Broker’s Fees), shall survive the Second Closing Date until December 30, 2010the expiration of the applicable statute of limitations. Except with respect to Sections 6.1, 6.2, 6.3, 6.4, and 6.5, the representations and warranties The termination of Buyer indemnities as set forth in Article 6 shall survive until December 30, 2010. The remainder of this Agreement shall survive the Closing without time limit except as may otherwise be expressly provided herein. Representations, warranties, covenants, and agreements shall be of no further force and effect after the date of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, or agreement prior to its expiration date. clause (ba) The indemnities in Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii), and 13.2(b)(iii) shall terminate as of the termination date of each respective representation, warranty, covenant, or agreement that is subject to indemnification, except in each case does not apply as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person Party on or before such the applicable termination date. (b) Neither Indemnified Party may make a claim against the Indemnifying Party for indemnity pursuant to Sections 10.1 unless and until the aggregate amount of Damages with respect to all claims (including, without limitation, for Third Party Claims) asserted by the PURCHASE AND SALE AGREEMENT Indemnified Party under Sections 10.1 exceeds $50,000. The indemnities Once such minimum threshold in Sections 13.2(a)(i) and 13.2(b)(i) shall continue without time limitDamages has been sustained, the entirety of all Damages in excess of such minimum threshold sustained by the Indemnified Party will be compensable under this ARTICLE 10 (subject to Section 10.4(c)). (c) No Following the date of this Agreement, the sole and exclusive remedy of a Party shall have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) for an individual matter until and unless the amount of the liability for Damages with respect to which such Party admits, or it is otherwise finally determined, that such Party has an obligation to indemnify the other Party pursuant to the terms of one of such subsections exceeds Four Hundred Fifty Thousand Dollars ($450,000) (the "Individual Indemnity Threshold"). Without limiting the foregoing, no Party shall have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) until the aggregate amount of the liability for all Damages which satisfies all of the following clauses exceeds $4,500,000: (i) Claim Notices for such Damages have been delivered claim resulting in a breach by the other Party in accordance with this Agreement; (ii) such Party admits (or it is otherwise finally determined) that such Party has an obligation to indemnify of the other Party pursuant hereto for such DamagesParty’s representations, and (iii) each individual matter related to a Damage claim exceeds the Individual Indemnity Threshold; providedwarranties, however, that in no event shall this subsection (c) limit indemnification of Buyer for the Retained Liabilities or indemnification of Seller for the Assumed Liabilities; and provided, further, that, for the purposes of this Article 13, any representation, warrantycovenants, or covenant agreements made in this Agreement or the failure of a Party to perform its obligations under this Agreement shall be a claim under ARTICLE 10, except to the extent the claim results from the fraud or willful misconduct of a Party. To the fullest extent permitted by Law and Environmental Laws, the Parties hereby waive any provision of Law and Environmental Laws to the extent that it would limit or restrict the agreements set forth in this Agreement which is qualified by materiality or Material Adverse Effect shall be deemed not to be so qualifiedARTICLE 10. (d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, neither Seller nor Buyer shall be required to indemnify the other Party under this Article 13 for aggregate Damages in excess of ten percent (10%) of the Base Purchase Price; provided, however, that this Section 13.5(d) shall not apply to or limit indemnification for the Retained Liabilities, the Assumed Liabilities, or Seller's obligations under the special warranty of title in the Assignment and Xxxx of Sale. (e) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 13 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder. (f) As used in this Agreement, the term "Damages" means the amount of any actual liability, loss, cost, expense, claim, award, or judgment incurred or suffered by any Indemnified Person arising out of or resulting from the indemnified matter, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to matters indemnified against, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity; provided, however, that "Damages" shall not include any adjustment for Taxes that may be assessed on payments under this Article 13 or for Tax benefits received by the Indemnified Person as a consequence of any Damages. Notwithstanding the foregoing, neither Buyer nor Seller shall be entitled to indemnification under this Article 13 for, and Damages shall not include, (a) loss of profits, whether actual or consequential, or other consequential damages suffered by the Party claiming indemnification, or any punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Parties), and (b) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused by the actions or omissions of any Indemnified Person after the Closing Date.

Limitation on Actions. (a) (a) Except with respect to Sections 5.1, 5.2, 5.3, 5.4, 5.5 and 5.6, the The representations and warranties of Seller set forth the Parties in Article 5 Articles 3 and 4 and the covenants and agreements of Seller the Parties in Article 8 5, and the corresponding representations and warranties given in the certificates delivered at Closing pursuant to Sections 7.2(b) and (c) and 7.3(b), as applicable, shall survive the Closing until December 30the earlier of (i) a Sale Transaction or (ii) the expiration of a period ending eighteen months from the Closing Date, 2010. Except except with respect to Sections 6.1, 6.2, 6.3, 6.4, and 6.5, the representations contained in Sections 3.1, 3.2, 3.3, 3.22, 3.25 and warranties of Buyer set forth in Article 6 shall survive until December 30, 2010. The remainder of this Agreement 3.32 which shall survive the Closing without time limit except as may otherwise be expressly provided herein. Representations, warranties, covenants, and agreements shall be until ninety (90) days following the expiration of no further force and effect after the date applicable statute of their expiration, provided that there shall be no termination of any bona fide claim asserted pursuant to this Agreement with respect to such a representation, warranty, covenant, or agreement prior to its expiration datelimitations. (b) The indemnities in Sections 13.2(a)(ii9.1(a)(i), 13.2(a)(iii9.1(a)(ii), 13.2(b)(ii), 9.1(b)(i) and 13.2(b)(iii9.1(b)(ii) shall terminate as of the termination date of each respective representation, warranty, covenant, covenant or agreement that is subject to indemnification, except in each case as to matters for which a specific written claim for indemnity has been delivered to the Indemnifying Person on or before such termination date. The indemnities in Sections 13.2(a)(i) and 13.2(b)(i) shall continue without time limit. (c) No Party Neither the Company nor BCEOC shall have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) for an individual matter Section 9.1 until and unless the amount of the liability for Damages with respect to which such Party admits, or it is otherwise finally determined, that such Party has an obligation to indemnify the other Party pursuant to the terms of one of such subsections exceeds Four Hundred Fifty Thousand Dollars ($450,000) (the "Individual Indemnity Threshold"). Without limiting the foregoing, no Party shall have any liability for any indemnification under Sections 13.2(a)(ii), 13.2(a)(iii), 13.2(b)(ii) or 13.2(b)(iii) until the aggregate amount of the liability for all Damages for which satisfies all of Claim Notices are delivered by the following clauses Purchasers exceeds $4,500,000: 3,000,000 (“Threshold”) at which point the Company and BCEOC shall be liable for the amount of all Damages, including those below the Threshold, except that the Company and BCEOC shall be liable for the full amount for, and such Threshold shall not apply in any respect to, any indemnification (i) Claim Notices for such Damages have been caused by, or arising out of or resulting from any breach of any of the representations or warranties contained in Sections 3.1, 3.2, 3.3 and 3.32 or (ii) caused by, or arising out of or resulting from any breach of any representation of warranty made by the Company or BCEOC contained in Article 3 of this Agreement or, the certificate delivered by the other Party Company and BCEOC at Closing, pursuant to Section 7.2(b) of 7.2(c) or the Company’s or BCEOC’s breach of any of their respective covenants or agreements contained in accordance with this Agreement; (ii) Article 5, in which the failure of such Party admits (representation or it is otherwise finally determined) that such Party has an obligation to indemnify the other Party pursuant hereto for such Damages, and (iii) each individual matter related to a Damage claim exceeds the Individual Indemnity Threshold; provided, however, that in no event shall this subsection (c) limit indemnification of Buyer for the Retained Liabilities or indemnification of Seller for the Assumed Liabilities; and provided, further, that, for the purposes of this Article 13, any representation, warranty, or covenant set forth in this Agreement which is qualified by materiality or Material Adverse Effect shall be deemed not warranty to be so qualifiedtrue and correct or the breach of such covenant or agreement is attributable to fraud or willful misstatement or willful breach by the Company or BCEOC. (d) Notwithstanding anything to the contrary contained elsewhere in this Agreement, neither Seller nor Buyer the aggregate liability of each Purchaser under Section 9.1 shall be required to indemnify not exceed the other Party under this Article 13 for aggregate Damages in excess of ten percent (10%) portion of the Base Purchase Price; provided, however, that this Section 13.5(d) shall not apply to or limit indemnification Price paid by such Purchaser in consideration for the Retained LiabilitiesShares, the Assumed Liabilities, or Seller's obligations under the special warranty of title in the Assignment and Xxxx of Saleas set forth on Schedule 2.1. (e) The amount of any Damages for which an Indemnified Person is entitled to indemnity under this Article 13 9 shall be reduced by the amount of insurance proceeds realized by the Indemnified Person or its Affiliates with respect to such Damages (net of any collection costs); provided, however, that no Party shall be required to seek recovery under any policy of insurance as a condition to indemnification hereunder. (f) As used in this Agreement, and excluding the term "Damages" means the amount proceeds of any actual liability, loss, cost, expense, claim, award, insurance policy issued or judgment incurred or suffered by any Indemnified Person arising out of or resulting from the indemnified matter, whether attributable to personal injury or death, property damage, contract claims, torts, or otherwise, including reasonable fees and expenses of attorneys, consultants, accountants, or other agents and experts reasonably incident to matters indemnified against, and the costs of investigation and/or monitoring of such matters, and the costs of enforcement of the indemnity; provided, however, that "Damages" shall not include any adjustment for Taxes that may be assessed on payments under this Article 13 or for Tax benefits received underwritten by the Indemnified Person as a consequence of any Damages. Notwithstanding the foregoing, neither Buyer nor Seller shall be entitled to indemnification under this Article 13 for, and Damages shall not include, (a) loss of profits, whether actual or consequential, or other consequential damages suffered by the Party claiming indemnification, or any punitive damages (other than loss of profits, consequential damages, or punitive damages suffered by third Persons for which responsibility is allocated among the Partiesits Affiliates), and (b) any increase in liability, loss, cost, expense, claim, award or judgment to the extent such increase is caused by the actions or omissions of any Indemnified Person after the Closing Date.