Common use of Limitation on Indemnities Clause in Contracts

Limitation on Indemnities. No claim may be made for indemnification pursuant to Section 9.2(a) or Section 9.2(b) until the aggregate dollar amount of all Losses indemnifiable pursuant to such section exceeds Five Hundred Thousand Dollars ($500,000) and then only to the extent such Losses exceed the Five Hundred Thousand Dollar ($500,000) threshold. To the extent the Surviving Corporation is entitled to indemnification pursuant to Section 9.2(a), (i) the Surviving Corporation shall be entitled to obtain such indemnification only out of the then remaining balance of the Indemnification Escrow Amount, (ii) the aggregate amount of all Losses for which the Surviving Corporation shall be entitled to indemnification shall not exceed Seven Million Dollars ($7,000,000), and (iii) the Surviving Corporation shall not have any recourse against the Holder Representative or the Holders, for indemnification pursuant to this Article IX or otherwise. Notwithstanding anything contained in this Agreement, the indemnification provisions of this Article IX shall expire on June 30, 1999 (or, in the case of the representations and warranties of Holdings in Section 3.17, the date provided in Section 9.1) and any claims for indemnification which are not asserted prior to such date shall be forfeited; PROVIDED, HOWEVER, that such indemnification obligations with respect to any claim for indemnification asserted in writing to the indemnifying party prior to June 30, 1999 (or, in the case of the representations and warranties of Holdings in Section 3.17, the date provided in Section 9.1) shall survive until such claim is either resolved or satisfied.

Limitation on Indemnities. No claim may be made for indemnification pursuant to Section 9.2(a(a) or Section 9.2(b) until the aggregate dollar amount of all Losses indemnifiable pursuant to such section exceeds Five Hundred Thousand Dollars ($500,000) and then only Notwithstanding anything to the extent such Losses exceed the Five Hundred Thousand Dollar ($500,000) threshold. To the extent the Surviving Corporation is entitled to indemnification pursuant to Section 9.2(a)contrary contained herein, (i) the Surviving Corporation shall be entitled to obtain such indemnification only out of the then remaining balance of the Indemnification Escrow Amount, (ii) the aggregate amount of all Losses for which the Surviving Corporation shall Parent Indemnified Parties will not be entitled to indemnification shall not exceed Seven Million for Losses pursuant to a claim under Sections 11.3(a) or 11.3(c) unless and until it has been finally determined that the Parent Indemnified Parties have incurred Losses otherwise recoverable pursuant to Sections 11.3(a) or 11.3(c) (after giving effect to the limitations contained in this Agreement) in excess of Eight Hundred Seventy Five Thousand U.S. Dollars ($7,000,000875,000) in the aggregate (the “Deductible Threshold”), and (iii) after which, subject to the Surviving Corporation shall not have any recourse against the Holder Representative or the Holders, for indemnification pursuant to this Article IX or otherwise. Notwithstanding anything other limitations contained in this Agreement, the Parent Indemnified Parties shall be entitled to recover only Losses in excess of the Deductible Threshold; and (ii) the Company Securityholder Indemnified Parties will not be entitled to indemnification provisions for Losses pursuant to a claim under Section 11.4(a) unless and until it has been finally determined that the Company Securityholder Indemnified Parties have incurred Losses otherwise recoverable pursuant to Section 11.4(a) (after giving effect to the limitations contained in this Agreement) in excess of the Deductible Threshold, after which, subject to the other limitations contained in this Agreement, the Company Securityholder Indemnified Parties shall be entitled to recover only Losses in excess of the Deductible Threshold. (b) For purposes of this Article IX XI, when determining the amount of Losses suffered by an Indemnified Party as a result of, or whether there occurred, any breach or inaccuracy of a representation or warranty that is qualified or limited in scope as to materiality or Material Adverse Effect or similar qualification, such representation or warranty shall expire on June 30be deemed to be made without such qualification or limitation. (c) Subject to the other limitations imposed by this Article XI including the Deductible Threshold (to the extent applicable): (i) all indemnification claims under Section 11.3 (other than as set forth in Section 11.8(c)(ii)): (A) shall first by paid and satisfied from the Indemnity Escrow Funds, 1999 and (orB) shall then be paid and satisfied exclusively from the R&W Insurance Policy; and (ii) all indemnification claims under Sections 11.3(a) or 11.3(c) as a result of fraud or under Section 11.3(b) as a result of breach of Sections 10.7 (Protective Covenants) or 10.8 (Confidentiality): (A) shall first be paid and satisfied from the Indemnity Escrow Funds, (B) shall then be paid and satisfied from the R&W Insurance Policy, and (C) to the extent (1) such claims are expressly excluded from the R&W Insurance Policy, (2) such claims are otherwise not recoverable under the R&W Insurance Policy after the Parent Indemnified Party has satisfied its obligations in Section 11.7(a), or (3) the underlying Losses of such claims exceed the amounts recoverable under the R&W Insurance Policy, shall then be paid and satisfied directly from the Company Securityholder or Rollover Member that committed such fraud or breach. For the avoidance of doubt, notwithstanding anything in this Agreement to the contrary, in the case no event shall any Company Securityholder or Rollover Member be liable for any fraud of, or breach or violation of the representations and warranties of Holdings in Section 3.17any covenant or agreement by, the date provided in Section 9.1) and any claims for indemnification which are not asserted prior to such date shall be forfeited; PROVIDED, HOWEVER, that such indemnification obligations with respect to any claim for indemnification asserted in writing to the indemnifying party prior to June 30, 1999 (or, in the case of the representations and warranties of Holdings in Section 3.17, the date provided in Section 9.1) shall survive until such claim is either resolved other Company Securityholder or satisfiedRollover Member.

Limitation on Indemnities. No claim may (a) Notwithstanding anything to the contrary set forth in this Agreement, the Company Stockholders shall not be made for indemnification liable hereunder to the Parent Indemnified Parties pursuant to Section 9.2(aSECTIONS 11.3(A) OR (B) as a result of any breach of any of the representations or Section 9.2(b) until warranties of the aggregate dollar amount Company as set forth in ARTICLE IV or any covenants of all Losses indemnifiable the Company as set forth in this Agreement or in any certificate delivered by the Company pursuant to SECTION 8.2(A), if, with respect to any individual item of Loss, such section exceeds Five Hundred item is less than Twenty-five Thousand Dollars ($500,00025,000) (a "MINOR CLAIM"). (b) Notwithstanding anything to the contrary set forth in this Agreement except as provided for in SECTION 11.7(C), the Company Stockholders shall not be liable hereunder to the Parent Indemnified Parties pursuant to SECTIONS 11.3(A) OR (B) as a result of any breach of any of the representations or warranties of the Company as set forth in ARTICLE IV or any covenants of the Company as set forth in this Agreement or in any certificate delivered by the Company pursuant to SECTION 8.2(A), except to the extent that the Losses incurred by the Parent Indemnified Parties as a result of such breaches shall exceed in the aggregate One Million, Two Hundred and Fifty Thousand Dollars ($1,250,000), and then only to the extent of such excess; PROVIDED, HOWEVER, in no case will such Losses exceed include any Minor Claim. (c) The aggregate amount required to be paid by the Five Hundred Thousand Dollar ($500,000) threshold. To the extent the Surviving Corporation is entitled to indemnification Company Stockholders pursuant to Section 9.2(a), (i) the Surviving Corporation shall be entitled to obtain such indemnification only out SECTION 11.3 as a result of the then remaining balance any breach of the Indemnification Escrow Amount, (ii) the aggregate amount of all Losses for which the Surviving Corporation shall be entitled to indemnification shall not exceed Seven Million Dollars ($7,000,000), and (iii) the Surviving Corporation shall not have any recourse against the Holder Representative or the Holders, for indemnification pursuant to this Article IX or otherwise. Notwithstanding anything contained in this Agreement, the indemnification provisions of this Article IX shall expire on June 30, 1999 (or, in the case of the representations and warranties of Holdings the Company as set forth in Section 3.17ARTICLE IV, other than the date provided representations and warranties in Section 9.1SECTION 4.10(F), or any of the covenants of the Company as set forth in this Agreement, or in any certificate delivered by the Company pursuant to SECTION 8.2(A) and any claims for indemnification which are or pursuant to SECTION 11.10, shall not asserted prior to such date shall be forfeited; PROVIDED, HOWEVER, that such indemnification obligations with respect to any claim for indemnification asserted in writing to the indemnifying party prior to June 30, 1999 (or, exceed in the case aggregate Fifty Million Dollars ($50,000,000) until the first anniversary of the Closing and thereafter Twenty-Five Million Dollars ($25,000,000) (the "CAP AMOUNT"). The aggregate amount required to be paid by the Company Stockholders pursuant to SECTION 11.3 as a result of any breach of any of the representations and warranties in SECTION 4.10(F) or under SECTION 11.3(C) that result in Income Taxes for periods beginning on or after the Closing Date, shall not exceed in the aggregate One Hundred Million Dollars ($100,000,000) MINUS any amounts paid or payable pursuant to the first sentence of Holdings this SECTION 11.7(C). Notwithstanding the foregoing or anything to the contrary herein, in Section 3.17, no event shall the date provided combined aggregate amount paid or payable by the Company Stockholders pursuant to the first and second sentences of this SECTION 11.7(C) exceed One Hundred Million Dollars ($100,000,000). The aggregate amount required to be paid by the Company Stockholders pursuant to SECTION 11.3 as a result of any breach of representations and warranties in Section 9.1SECTION 4.10(F) that result in Income Taxes payable for periods ending on or prior the Closing Date shall survive until such claim is either resolved or satisfiednot exceed in the aggregate the Merger Consideration and shall not be subject to any of the other limitations set forth in this SECTION 11.7(C).

Limitation on Indemnities. No claim may (a) Notwithstanding anything to the contrary set forth in this ARTICLE XI, the Sellers shall not be made for indemnification liable hereunder to the Buyer Indemnified Parties pursuant to Section 9.2(aSECTION 11.4 or SECTION 11.5 as a result of any breach of any of the representations or warranties of ATT or the Sellers as set forth in ARTICLE III or ARTICLE IV (other than the Title Representations, the Rollover Representations and the Enforceability Representation) or Section 9.2(b) until in any certificate delivered by ATT or the Sellers pursuant to this Agreement, except to the extent that the Losses incurred by the Buyer Indemnified Parties as a result of such breaches shall exceed in the aggregate dollar amount of all Losses indemnifiable pursuant to such section exceeds Five Hundred Thousand Dollars ($500,000) 2,000,000 and then only to the extent such Losses exceed the Five Hundred Thousand Dollar ($500,000. (b) threshold. To The aggregate amount required to be paid by the extent the Surviving Corporation is entitled to indemnification Sellers pursuant to Section 9.2(a), (i) the Surviving Corporation shall be entitled to obtain such indemnification only out SECTION 11.4 and SECTION 11.5 as a result of the then remaining balance any breach of the Indemnification Escrow Amount, (ii) the aggregate amount of all Losses for which the Surviving Corporation shall be entitled to indemnification shall not exceed Seven Million Dollars ($7,000,000), and (iii) the Surviving Corporation shall not have any recourse against the Holder Representative or the Holders, for indemnification pursuant to this Article IX or otherwise. Notwithstanding anything contained in this Agreement, the indemnification provisions of this Article IX shall expire on June 30, 1999 (or, in the case of the representations and warranties of Holdings ATT or the Sellers as set forth in Section 3.17ARTICLE III or ARTICLE IV (other than the Title Representations and the Rollover Representations) or any covenants or agreements of ATT, the date provided Sellers' Representative or the Sellers as set forth in Section 9.1this Agreement or in any certificate delivered by ATT, the Sellers' Representative or Sellers pursuant to this Agreement (other than, for the avoidance of doubt, the agreements and covenants in SECTION 11.4 (III), (IV), (V) AND (VI), SECTION 11.5(D) and other than the covenants and agreements in SECTIONS 1.1, 2.1, 2.3, 6.2, 6.4, 6.5, 6.7, 6.10, 6.11, 10.2, 13.6 and any claims for indemnification which are breach of any covenant or agreement of ATT, the Sellers' Representative or the Sellers that would cause the Closing not asserted prior to such date occur) shall be forfeited; PROVIDED, HOWEVER, that such indemnification obligations with respect to any claim for indemnification asserted in writing not exceed $30,000,000 (the "CAP AMOUNT"). (c) Notwithstanding anything to the indemnifying party prior contrary set forth in this ARTICLE XI, the Buyer shall not be liable hereunder to June 30the Seller Indemnified Parties pursuant to SECTION 11.6 as a result of any breach of any of the representations or warranties of Buyer as set forth in ARTICLE V or in any certificate delivered by Buyer pursuant to this Agreement, 1999 (or, except to the extent that the Losses incurred by the Seller Indemnified Parties as a result of such breaches shall exceed in the case aggregate $2,000,000 and then only to the extent such Losses exceed $500,000. (d) The aggregate amount required to be paid by the Buyer pursuant to SECTION 11.6 as a result of any breach of any of the representations and warranties of Holdings Buyer as set forth in Section 3.17ARTICLE V or any covenants or agreements of Buyer as set forth in this Agreement (other than covenants and agreements in SECTION 2.1, 7.1, 7.2, 7.5, 10.2, 13.6 and any breach of any covenant or agreement of the Buyer that would cause the Closing not to occur) or in any certificate delivered by Buyer pursuant to SECTION 8.3 shall not exceed the Cap Amount. (e) Notwithstanding anything to the contrary contained in this Agreement, neither the Buyer nor any of the Sellers shall be obligated to satisfy any claims for Losses under this ARTICLE XI for $20,000 or less (with Losses arising out of the same or related set of circumstances being aggregated for the purpose of determining whether the $20,000 threshold has been met but such claims shall not be aggregated for the purposes of SECTIONS 11.9(A),(B),(C) or (D)). (f) The several liability (for indemnification or otherwise) of each individual Seller with respect to the matters governed by SECTION 11.4 shall be his, her or its proportionate share of the Cap Amount, based on such Seller's Pro Rata Percentage Interest under the Allocation Schedule, and the Buyer shall not be entitled to claim against any particular Seller an amount which is greater than such Seller's proportionate share of the Cap Amount based on such Seller's Pro Rata Percentage Interest set forth in the Allocation Schedule hereto. For the avoidance of doubt, the date several liability (for indemnification or otherwise) of each individual Seller with respect to any single claim governed by SECTION 11.4 shall be his, her or its Pro Rata Percentage Interest of the amount of such claim and the "Escrow Amount Pro Rata Percentage" as defined in the Escrow Agreement shall be such Seller's Pro Rata Percentage Interest. (g) In no event shall the several liability (for indemnification or otherwise) of any Seller with respect to the matters governed by Section 11.4 and 11.5 exceed the aggregate proceeds (including the Rollover Shares issued to Rollover Sellers, based on the value attributed to such Rollover Shares at the time of Closing, as determined in accordance with SECTION 2.1(A)) received by such Seller (after giving effect to all adjustments to the proceeds as provided in Section 9.1this Agreement) under this Agreement for such Seller's Shares. (h) All liabilities of an individual Seller under SECTION 11.5 shall survive until be the sole responsibility of such Seller and the Buyer shall not be entitled to claim is either resolved or satisfiedagainst any other Seller with respect to such claim.

Limitation on Indemnities. No claim may be made for indemnification (a) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the limitations set forth in the second sentence of this Section 10.7(a)), the Seller pursuant to Section 9.2(a10.3 shall not be liable hereunder to the Buyer Indemnified Parties with respect to claims for breaches of representations and warranties referred to in Section 10.3 above (i) or Section 9.2(b) until except to the extent that the aggregate dollar amount Losses incurred by the Buyer Indemnified Parties as a result of all Losses indemnifiable pursuant to such section exceeds Five Hundred Thousand Dollars ($500,000) breaches shall exceed in the aggregate the Basket Amount, and then only to the extent such Losses exceed the Five Hundred Thousand Dollar ($500,000) threshold. To the extent the Surviving Corporation is entitled to indemnification pursuant to Section 9.2(a), (i) the Surviving Corporation shall be entitled to obtain such indemnification only out of the then remaining balance of excess above the Indemnification Escrow Basket Amount, and (ii) to the extent the aggregate amount of all Losses for which incurred by the Surviving Corporation shall be entitled Buyer Indemnified Parties as a result of such breaches exceeds the Cap Amount. Notwithstanding any provision herein to indemnification the contrary, (x) the foregoing limitations on indemnity recovery shall not exceed Seven Million Dollars ($7,000,000), and (iii) the Surviving Corporation shall not have apply in respect of any recourse against the Holder Representative or the Holders, for indemnification pursuant to this Article IX or otherwise. Notwithstanding anything contained in this Agreement, the indemnification provisions of this Article IX shall expire on June 30, 1999 (or, in the case of the representations and warranties of Holdings in Section 3.17, the date provided in Section 9.1) and any claims for indemnification which are not asserted prior to such date shall be forfeited; PROVIDED, HOWEVER, that such indemnification obligations Loss with respect to any claim for indemnification asserted breach (A) of any covenant of the Seller, (B) of any Fundamental Seller Representation, (C) of Section 3.13 or Section 3.29, or (D) that constitutes fraud by the Seller, (y) any Loss related to a breach of the first sentence of Section 3.29 shall be limited to (I) the difference between the Threshold Net Working Capital and the actual Net Working Capital as of the Closing Date and (II) the reasonable costs incurred by the Buyer to recover payment of such difference from the Seller, and (z) any Loss related to a breach of the second sentence of Section 3.29 shall be limited to (I) the amount of any Indebtedness (other than capital lease obligations reflected in writing the Interim Financial Statements) of the Acquired Companies as of the Closing Date and (II) the reasonable costs incurred by the Buyer to recover payment of such amount from the Seller. Notwithstanding any provision herein to the indemnifying party prior contrary, the Seller pursuant to June 30, 1999 Section 10.3 shall not be liable to the Buyer Indemnified Parties with respect to claims for breaches of (or, i) Section 3.7 except to the extent that the aggregate Losses incurred by the Buyer Indemnified Parties as a result of such breaches shall exceed in the case aggregate the Tax Basket Amount, but then the Seller shall be liable for the total aggregate Losses as a result of such breaches, and (ii) Section 3.20 except to the extent that the aggregate Losses incurred by the Buyer Indemnified Parties as a result of such breaches shall exceed in the aggregate the Environmental Basket Amount, but then the Seller shall be liable for the total aggregate Losses as a result of such breaches. (b) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the limitations set forth in the last sentence of this Section 10.7(b)), the Buyer shall not be liable hereunder to the Seller Indemnified Parties with respect to claims for breaches of representations and warranties of Holdings referred to in Section 3.1710.4 above (i) except to the extent that the aggregate Losses incurred by the Seller Indemnified Parties as a result of such breaches shall exceed in the aggregate the Basket Amount, and then only to the extent of the excess above the Basket Amount, and (ii) to the extent the aggregate amount of Losses incurred by the Seller Indemnified Parties as a result of such breaches exceeds the Cap Amount. Notwithstanding any provision herein to the contrary, the date provided foregoing limitations on indemnity recovery shall not apply in Section 9.1respect of any Loss with respect to any breach (x) shall survive until such claim is either resolved of any covenant of the Buyer, (y) of any Fundamental Buyer Representation, or satisfied(z) that constitutes fraud by the Buyer.

Limitation on Indemnities. No claim may be made for indemnification (a) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the limitations set forth in the second sentence of this SECTION 10.8(a)), the Seller pursuant to Section 9.2(aSECTION 10.4 shall not be liable hereunder to the Buyer Indemnified Parties with respect to claims for breaches of representations and warranties referred to in SECTION 10.4 above (i) if the Losses incurred by the Buyer Indemnified Parties as a result of such breach or Section 9.2(bseries of related breaches do not exceed the Threshold Amount, (ii) until except to the extent that the aggregate dollar amount Losses incurred by the Buyer Indemnified Parties as a result of all such breaches (other than individual breaches for which the Losses indemnifiable pursuant to such section exceeds Five Hundred Thousand Dollars ($500,000) do not exceed the Threshold Amount), shall exceed in the aggregate the Deductible Amount, and then only to the extent such Losses exceed of the Five Hundred Thousand Dollar excess above the Deductible Amount, and ($500,000iii) threshold. To to the extent the Surviving Corporation aggregate amount of Losses incurred by the Buyer Indemnified Parties as a result of such breaches exceeds the Cap Amount; provided that the Cap Amount shall be reduced on the fifteen month anniversary of the Closing Date to the greater of (but only if the amount so determined under this proviso is entitled to less than the Cap Amount) (1) the sum of (A) $2,300,000 plus (B) the aggregate amount of Losses specified in any then unresolved indemnification claims made by the Buyer Indemnified Parties pursuant to Section 9.2(athis ARTICLE X, and (2) the sum of (A) the aggregate amount of Losses paid to the Buyer Indemnified Parties by or on behalf of the Seller or the Members pursuant to this ARTICLE X in respect of indemnification claims made by the Buyer Indemnified Parties prior to such date and (B) the aggregate amount of Losses specified in any then unresolved indemnification claims made by the Buyer Indemnified Parties pursuant to this ARTICLE X. Notwithstanding any provision herein to the contrary, the foregoing limitations on indemnity recovery shall not apply in respect of any Loss with respect to any breach of (x) any covenant of the Seller or any Member, or (y) any Fundamental Seller Representation. In pursuing the collection of any indemnification claim under SECTION 10.4 against the Seller, the Buyer Indemnified Parties shall, except as provided under SECTION 2.2, proceed first against the Escrow Funds prior to pursuing any other monetary right or remedy available to the Buyer Indemnified Parties hereunder or otherwise. (b) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the limitations set forth in the last sentence of this SECTION 10.8(b)), the Buyer shall not be liable hereunder to the Seller Indemnified Parties with respect to claims for breaches of representations and warranties referred to in SECTION 10.5 above (i) if the Surviving Corporation shall be entitled to obtain Losses incurred by the Seller Indemnified Parties as a result of such indemnification only out breach or series of related breaches do not exceed the then remaining balance of the Indemnification Escrow Threshold Amount, (ii) except to the extent that the aggregate amount Losses incurred by the Seller Indemnified Parties as a result of all Losses such breaches (other than individual breaches for which the Surviving Corporation shall be entitled to indemnification shall Losses do not exceed Seven Million Dollars ($7,000,000the Threshold Amount), shall exceed in the aggregate the Deductible Amount, and then only to the extent of the excess above the Deductible Amount, and (iii) to the Surviving Corporation extent the aggregate amount of Losses incurred by the Seller Indemnified Parties as a result of such breaches exceeds the Cap Amount. Notwithstanding any provision herein to the contrary, the foregoing limitations on indemnity recovery shall not have apply in respect of any recourse against the Holder Representative or the Holders, for indemnification pursuant to this Article IX or otherwise. Notwithstanding anything contained in this Agreement, the indemnification provisions of this Article IX shall expire on June 30, 1999 (or, in the case of the representations and warranties of Holdings in Section 3.17, the date provided in Section 9.1) and any claims for indemnification which are not asserted prior to such date shall be forfeited; PROVIDED, HOWEVER, that such indemnification obligations Loss with respect to any claim for indemnification asserted in writing breach of (x) any covenant of the Buyer, or (y) any Fundamental Buyer Representation. (c) On or prior to the indemnifying party prior to June 30, 1999 three (or, in the case 3) year anniversary of the representations and warranties of Holdings in Section 3.17Closing, the date provided Buyer shall not undertake or allow environmental investigations, testing or any other action to identify, discover or assess adverse Hazardous Materials that may be present in Section 9.1soil or groundwater at any of the Real Property located in Mexico ("MEXICAN REAL PROPERTY") that would reasonably be expected to accelerate the timing of a claim arising from or in connection with the presence of Hazardous Materials in soil or groundwater at the Mexican Real Property ("ACT OF ACCELERATION") except where such investigation or testing is: (i) affirmatively required by applicable Environmental, Health and Safety Requirements, (ii) affirmatively required by an order or directive of a Governmental Authority; (iii) required by the owner of such property, (iv) reasonably necessary to defend against a third party claim, or (v) reasonably necessary to address circumstances that suggest an imminent and substantial endangerment to health or the environment. Acts of Acceleration are prohibited under this SECTION 10.8(c) that shall survive until such claim is either resolved include, without limitation, soliciting or satisfiedcontacting a Governmental Authority to obtain or request the issuance of an order or directive regarding the investigation or remediation of Hazardous Materials and/or soliciting the property owner to request or require an investigation or testing for Hazardous Materials. The Seller shall have no duty to indemnify or defend any Buyer Indemnified Party to the extent a Loss results from or in connection with an Act of Acceleration or any condition discovered as a result thereof.

Limitation on Indemnities. No claim may be made for indemnification pursuant to Section 9.2(a) or Section 9.2(b) until the aggregate dollar amount of all Losses indemnifiable pursuant to such section exceeds Five Hundred Thousand Dollars ($500,000) and then only to the extent such Losses exceed the Five Hundred Thousand Dollar ($500,000) threshold. To the extent the Surviving Corporation is entitled to indemnification pursuant to Section 9.2(a), Except with respect to: (i) claims relating to or arising from the Surviving Corporation shall be entitled to obtain such indemnification only out of the then remaining balance of the Indemnification Escrow AmountFundamental Representations, (ii) claims related to or arising from the aggregate amount of all Losses Excluded Assets, (iii) claims based on fraud, (iv) claims for which the Surviving Corporation shall be entitled to indemnification shall not exceed Seven Million Dollars ($7,000,000under Section 12.2(a), and (v) claims related to or arising from Seller’s obligations pursuant to Section 8.11 above: (a) no claim for indemnification will be made by Purchaser, by Seller or by a Property Seller under Sections 10.2(a) (other than clause (v) thereof), Section 10.2(b) (other than clause (iii) thereof), or Section 10.3 (other than a third-party claim arising out of Purchaser’s ownership or operation of the Surviving Corporation Business or use of the Purchased Assets on or after the Closing Date or a third-party claim arising out of Seller’s or Property Sellers’ ownership or operation of the Business or use of the Purchased Assets prior to the Closing Date) hereof, as the case may be, with respect to any individual item of liability or damage unless and to the extent that the aggregate of all such claims by Purchaser under this Agreement, Circle K under the Circle K Purchase Agreement and Circle K under the Terminal Purchase Agreement, on the one hand, or by Seller and Property Sellers under this Agreement, Seller and Property Sellers under the Circle K Purchase Agreement and Terminal Seller under the Terminal Purchase Agreement, on the other hand, shall be in excess of One Million and No/100 Dollars ($1,000,000.00) (the “Deductible”), whereupon Purchaser, on the one hand, or Seller and the Property Sellers, on the other hand, as the case may be, only shall be liable for such claims, damages and liabilities in excess of the Deductible; and (b) the maximum aggregate liability of Seller and Property Sellers under this Agreement, Seller and Property Sellers under the Circle K Purchase Agreement and Terminal Seller under the Terminal Purchase Agreement for claims, damages and liabilities shall be Six Million Five Hundred Thousand and No/100 Dollars ($6,500,000.00) (the “Seller Indemnification Cap”), and the maximum aggregate liability of Purchaser under this Agreement, Circle K under the Circle K Purchase Agreement and Circle K under the Terminal Purchase Agreement for such claims, damages and liabilities shall be Six Million Five Hundred Thousand and No/100 Dollars ($6,500,000.00) in excess of the commercial general liability insurance Purchaser is required to carry under Section 10.2(b) of this Agreement, Circle K is required to carry under Section 10.2(b) of the Circle K Purchase Agreement and Circle K is required to carry under Section 10.2(b) of the Terminal Purchase Agreement. For the avoidance of doubt, any amounts paid for the cost of any Remedial Measures pursuant to Section 8.11(a) shall not have be included as any recourse against part or all of the Holder Representative or the Holders, for indemnification Seller Indemnification Cap. (c) Payments by an indemnifying Party pursuant to this Article IX Section 10.3 shall be limited to the amount of any liability or otherwisedamage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment actually recovered by the indemnified Party from any third party with respect thereto. Notwithstanding anything to the contrary contained in this Agreement, no claim by any Party hereto may be asserted, nor may any action be commenced against any Party hereto, for breach of any representation, warranty, covenant or agreement unless notice thereof is received in writing describing in reasonable detail the indemnification provisions of this Article IX shall expire on June 30, 1999 (or, in the case of the representations and warranties of Holdings in Section 3.17, the date provided in Section 9.1) and any claims for indemnification which are not asserted prior to such date shall be forfeited; PROVIDED, HOWEVER, that such indemnification obligations facts or circumstances with respect to any the subject matter of such claim for indemnification asserted in writing on or before the date on which the representation, warranty, covenant or agreement on which such claim or action is based ceases to the indemnifying party prior to June 30, 1999 (or, in the case of the representations and warranties of Holdings survive as set forth in Section 3.1710.1, irrespective of whether the date provided in Section 9.1) shall survive until subject matter of such claim is either resolved or satisfiedaction shall have occurred before, on or after such date.

Limitation on Indemnities. No Notwithstanding any other provision hereof, the rights of any party to be indemnified shall be subject to the following limitations: (a) With respect to the indemnification obligations of Seller pursuant Section 11.2(a), Seller shall not be obligated to indemnify Buyer or its Insiders (or any one of them) under Section 11.2(a), unless the claim may be made for indemnification pursuant to is submitted within the period of survival set forth in Section 9.2(a11.1 hereof, and (x) or Section 9.2(b) until unless the aggregate dollar amount of all Losses indemnifiable pursuant to such section exceeds Five Hundred Thousand Dollars ($500,000) and then only to the extent such Losses exceed the Five Hundred Thousand Dollar ($500,000) threshold. To the extent the Surviving Corporation is entitled to indemnification pursuant to Section 9.2(a), (i) the Surviving Corporation shall be entitled to obtain such indemnification only out of the then remaining balance of the Indemnification Escrow Amount, (ii) the aggregate amount of all Losses for which Seller would, but for this clause (x), be liable under Section 11.2(a) exceeds on a cumulative basis $100,000, at which point the Surviving Corporation Buyer or its Insiders (or any one of them) shall be entitled to all indemnification amounts from Seller under Section 11.2(a) including the first full $100,000 of Losses or (y) for any Losses for which Seller would, but for this clause (y), be obligated to indemnify the Buyer Indemnified Parties under Section 11.2(a) in excess of an amount equal to Deposit Premium; provided, however, that the limitations in this Section 11.4(a) shall not exceed Seven Million Dollars apply to any indemnification obligations arising from the representations and warranties set forth in Section 3.1 ($7,000,000Organization), Section 3.2 (Authorization), Section 3.4 (Compliance with Laws), Section 3.8 (Title to Assets), Section 3.10 (Environmental Matters), Section 3.14 (Taxes) and Section 3.20(e)(xii) (Loans). (b) With respect to the indemnification obligations of Buyer pursuant to Section 11.3(a), Buyer shall not be obligated to indemnify Seller or its Insiders (or any one of them) under Section 11.3(a), unless the claim is submitted within the period of survival set forth in Section 11.1 hereof, and (iiix) unless the Surviving Corporation aggregate of all Losses for which Buyer would, but for this clause (x), be liable under Section 11.3(a) exceeds on a cumulative basis $100,000, at which point Seller shall be entitled to all indemnification amounts under Section 11.3(a) including the first full $100,000 of Losses, or (y) for any Losses for which Buyer would, but for this clause (y), be obligated to indemnify Seller under Section 11.3(a) in excess of the Deposit Premium; provided, however, that the limitations in this Section 11.4(b) shall not have apply to any recourse against indemnification obligations arising from the Holder Representative or the Holders, for indemnification pursuant to this Article IX or otherwise. representations and warranties set forth in Section 4.2 (Authorization). (c) Notwithstanding anything to the contrary contained in this Agreement, the indemnification provisions of this Article IX shall expire on June 30, 1999 (or, Buyer and Seller agree that in the case event that there shall arise or exist one or more Pre-Closing Environmental Liabilities for which Buyer is otherwise entitled to be indemnified pursuant to Section 11.2(c) hereof, Buyer agrees to share with Seller, and remain liable for and not seek from Seller indemnification for, fifty percent (50%) of the first Two Hundred Fifty Thousand Dollars ($250,000) of Losses arising out of all such Pre-Closing Environmental Liabilities; provided, however, if any such claims made pursuant to Section 11.2(c) and with respect to any Pre-Closing Environmental Liability and (i) such Pre-Closing Environmental Liability is attributable or related to a breach or violation of the representations and warranties of Holdings made by Seller pursuant to Article III hereof, (ii) such Pre-Closing Environmental Liability was disclosed on Schedule 3.10 or in Section 3.17, the date provided in Section 9.1) and any claims for indemnification which are not asserted prior to such date shall be forfeited; PROVIDED, HOWEVER, that such indemnification obligations with respect to any claim for indemnification asserted in writing documents (or attachments to the indemnifying party prior documents) referred to June 30on Schedule 3.10 or (iii) such Pre-Closing Environmental Liability was revealed during or in connection with any Phase I Assessment or Phase II Assessment conducted by Buyer pursuant to Section 5.9(b) hereof, 1999 (orthen, in the case any such case, Seller shall indemnify Buyer for one hundred percent (100%) of the representations and warranties any such Losses arising out of Holdings in Section 3.17, the date provided in Section 9.1) shall survive until any such claim is either resolved or satisfiedPre-Closing Environmental Liability.