Common use of Limitations on Indemnification by Buyer Clause in Contracts

Limitations on Indemnification by Buyer. (a) Payments pursuant to Section 7.5 shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity distribution or other similar payment actually received by Seller Indemnitees from any third party with respect thereto. A Seller Indemnitee shall exhaust all of its remedies against applicable insurers, Indemnitees or contributors or any other party prior to seeking indemnification hereunder. The amount of Losses otherwise recoverable under Section 7.5 shall be adjusted to the extent to which any federal, state, local or foreign tax liabilities or benefits are realized by the Seller Indemnitees by reason of any Losses or indemnity payment hereunder. (b) Notwithstanding anything herein to the contrary, no breach of any representation, warranty, covenant or agreement contained herein shall give rise to any right on the part of Seller or a Seller Indemnitee, after the consummation of the transactions contemplated hereby, to rescind this Agreement or any of the transactions contemplated hereby. (c) Neither the Buyer nor any of its Affiliates shall have any liability under any provision of this Agreement for any consequential, exemplary or punitive damages or any multiple of damages (other than such damages for the benefit of a third party). Seller and each Seller Indemnitee, shall take all reasonable steps to mitigate Seller Losses for which indemnification may be claimed by them pursuant to this Agreement upon and after becoming aware of any events that could reasonably be expected to give rise to such Seller Losses. (d) Any actual indemnity payment under Section 7.5 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, warranty, covenant or agreement. (e) No Seller Indemnitee shall be entitled to any indemnification hereunder with respect to any breach of any representation, warranty or covenant with respect to which (i) any shareholder, director, officer, employee, representative or agent of Seller had actual knowledge, at any time prior to the Closing, of such breach, that such breach was threatened or of the events, circumstances or conditions constituting or resulting in such breach, or (ii) to the extent Seller or such Seller Indemnitee could have, with reasonable efforts, mitigated or prevented the Seller Losses with respect to such breach. Notwithstanding the foregoing, this limitation shall not apply with respect to knowledge, if any, of any shareholder, director, officer, employee, representative or agent of Seller with respect to the use of intellectual property of third parties on vehicles, signage and other similar usage on the Purchased Assets before or after the Closing.

Limitations on Indemnification by Buyer. The right of Seller --------------------------------------- Indemnified Parties to indemnification under Section 6.3 shall be subject to the following provisions: (a) Payments No indemnification shall be payable to any Seller Indemnified Party in respect of any breach of any representation or warranty made by Buyer in this Agreement, or in any certificate, schedule or exhibit delivered by or on behalf of Buyer as part of or pursuant to this Agreement, or any third-party claim, action or proceeding asserted or instituted or arising out of any matter or thing covered by such representations or warranties (collectively, "Seller Warranty Claims"), unless the total of all claims for indemnification pursuant to Section 7.5 6.3 when aggregated with all claims made under Section 6.3 of the Affiliate Agreements shall exceed $50,000 in the aggregate, whereupon the full amount of such claims shall be limited to recoverable in accordance with the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity distribution or other similar payment actually received by Seller Indemnitees from any third party with respect thereto. A Seller Indemnitee shall exhaust all of its remedies against applicable insurers, Indemnitees or contributors or any other party prior to seeking indemnification hereunder. The amount of Losses otherwise recoverable under Section 7.5 shall be adjusted to the extent to which any federal, state, local or foreign tax liabilities or benefits are realized by the Seller Indemnitees by reason of any Losses or indemnity payment hereunder.terms hereof; (b) Notwithstanding anything herein Indemnification with respect to Seller Warranty Claims shall expire on the Indemnification Cut-Off Date; provided, however, that the limitation of this clause (i) shall not apply to Seller Warranty Claims involving fraud or intentional misrepresentation, for which the period for making such claims shall expire on the date on which the applicable statute of limitations relating thereto terminates. If prior to the contrary, no breach relevant date of any representation, warranty, covenant expiration a specific state of facts shall have become known which may constitute or agreement contained herein shall give rise to any right on the part of Seller or Warranty Claim as to which indemnity may be payable and a Seller IndemniteeIndemnified Party shall have given notice of such facts to Buyer, after then the consummation right to indemnification with respect thereto shall remain in effect without regard to when such matter shall have been finally determined and disposed of, according to the date on which notice of the transactions contemplated hereby, to rescind this Agreement or any of the transactions contemplated hereby.applicable claim is given; and (c) Neither The limitations herein with respect to Seller Warranty Claims shall not limit the Buyer nor any of its Affiliates shall have any liability under any provision of this Agreement for any consequential, exemplary or punitive damages or any multiple of damages (other than such damages for the benefit of a third party). Seller and each Seller Indemnitee, shall take all reasonable steps to mitigate Seller Losses for which indemnification may be claimed by them pursuant to this Agreement upon and after becoming aware rights of any events that could reasonably be expected to give rise to such Seller Losses. (d) Any actual indemnity payment under Section 7.5 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, warranty, covenant or agreement. (e) No Seller Indemnitee shall be entitled to any indemnification hereunder Indemnified Party with respect to any breach other claims arising under provisions of any representation, warranty or covenant with respect to which (i) any shareholder, director, officer, employee, representative or agent of Seller had actual knowledge, at any time prior to the Closing, of such breach, that such breach was threatened or of the events, circumstances or conditions constituting or resulting in such breach, or (ii) to the extent Seller or such Seller Indemnitee could have, with reasonable efforts, mitigated or prevented the Seller Losses with respect to such breach. Notwithstanding the foregoing, this limitation shall not apply with respect to knowledge, if any, of any shareholder, director, officer, employee, representative or agent of Seller with respect to the use of intellectual property of third parties on vehicles, signage and other similar usage on the Purchased Assets before or after the ClosingSection 6.3.

Limitations on Indemnification by Buyer. Notwithstanding anything contained in Section 10.2, the indemnification obligations of Buyer are subject to the following limitations: (a) Buyer shall not be required to indemnify any Seller Indemnified Person in respect of any Losses for which indemnity is claimed under Section 10.2(b)(i), unless and until the aggregate amount of all such Losses for which indemnification is being claimed equals or exceeds the Deductible (at which point Buyer shall be responsible for the full amount of all such Losses in excess of the Deductible); provided that the Deductible shall not apply to any Losses resulting from or related to fraud or intentional misrepresentation. (b) Buyer shall not be required to indemnify the Seller Indemnified Persons in respect of any Losses for which indemnity is claimed under Section 10.2(b)(i) to the extent that the aggregate amount of such Losses exceeds the Cap; provided that the Cap shall not apply to any Losses resulting from or related to fraud or intentional misrepresentation. (c) Payments pursuant to Section 7.5 by Buyer in respect of any Loss shall be limited to the amount of any liability Liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity distribution indemnity, contribution or other similar payment actually received by Seller Indemnitees from any third party with respect thereto. A Seller Indemnitee shall exhaust all of its remedies against applicable insurers, Indemnitees or contributors or any other party prior reasonably expected to seeking indemnification hereunder. The amount of Losses otherwise recoverable under Section 7.5 shall be adjusted to the extent to which any federal, state, local or foreign tax liabilities or benefits are realized received by the Seller Indemnitees by reason Indemnified Persons in respect of any Losses or indemnity payment hereunder. (b) such claim. Notwithstanding anything herein to the contraryforegoing, no breach of any representation, warranty, covenant or agreement contained nothing herein shall give rise be construed as requiring any Seller Indemnified Person to any right on the part of Seller seek recovery under insurance policies or a Seller Indemniteeindemnity, after the consummation of the transactions contemplated hereby, to rescind this Agreement contribution or any of the transactions contemplated hereby. (c) Neither the Buyer nor any of its Affiliates shall have any liability under any provision of this Agreement for any consequential, exemplary or punitive damages or any multiple of damages (other than such damages for the benefit of a third party). Seller and each Seller Indemnitee, shall take all reasonable steps to mitigate Seller Losses for which indemnification may be claimed by them pursuant to this Agreement upon and after becoming aware of any events that could reasonably be expected to give rise to such Seller Lossessimilar agreements. (d) Any actual indemnity payment under Section 7.5 In no event shall any Buyer be determined without duplication liable to any Seller Indemnified Persons for any punitive, incidental, consequential, special or indirect damages, including loss of recovery by reason future revenue or income, loss of business reputation or opportunity relating to the state of facts giving rise to such liability constituting a breach or alleged breach of more than one representation, warranty, covenant or agreement. (e) No Seller Indemnitee shall be entitled to any indemnification hereunder with respect to any breach of any representation, warranty or covenant with respect to which (i) any shareholder, director, officer, employee, representative or agent of Seller had actual knowledge, at any time prior to the Closing, of such breach, that such breach was threatened or of the events, circumstances or conditions constituting or resulting in such breachthis Agreement, or (ii) to the extent Seller diminution of value or such Seller Indemnitee could have, with reasonable efforts, mitigated or prevented the Seller Losses with respect to such breach. Notwithstanding the foregoing, this limitation shall not apply with respect to knowledge, if any, any damages based on any type of any shareholder, director, officer, employee, representative or agent of Seller with respect to the use of intellectual property of third parties on vehicles, signage and other similar usage on the Purchased Assets before or after the Closingmultiple.

Limitations on Indemnification by Buyer. (a) Payments Buyer will have no Liability pursuant to Section 7.5 shall 7.3(a)(i) (i) unless and until the Seller Indemnitees have suffered aggregate Adverse Consequences by reason of all such breaches indemnifiable pursuant to Section 7.3(a)(i) in excess of the Threshold, after which point Buyer will be limited obligated to indemnify the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity distribution or other similar payment actually received by Seller Indemnitees from and against all indemnifiable Adverse Consequences from and including [****] (for the avoidance of doubt, Adverse Consequences will not apply towards the Threshold if they are claimed by a Seller Indemnified Party pursuant to any third party with respect thereto. A Seller Indemnitee shall exhaust all provision other than Section 7.3(a)(i)) and (ii) for any individual claim or series of its remedies against applicable insurersrelated claims, Indemnitees or contributors or any other party prior to seeking indemnification hereunder. The amount of Losses otherwise recoverable under Section 7.5 shall be adjusted to the extent to which any federal, state, local or foreign tax liabilities or benefits are realized by unless and until the Seller Indemnitees by reason have suffered aggregate indemnifiable Adverse Consequences arising out of any Losses such claim or indemnity payment hereunder. (bseries of related claims under Section 7.3(a)(i) Notwithstanding anything herein with respect to the contrary, no breach of any representation, warranty, covenant or agreement contained herein shall give rise to any right on the part of Seller or a Seller Indemnitee, after the consummation such representations and warranties in excess of the transactions contemplated herebyEligible Claim Threshold (provided, that, any claim or series of related claims not exceeding such amount shall not be aggregated to rescind this Agreement or any of count towards the transactions contemplated hereby. (c) Neither the Buyer nor any of its Affiliates Threshold and shall have any liability under any provision of this Agreement for any consequential, exemplary or punitive damages or any multiple of damages (other than such damages for the benefit of a third party). Seller and each Seller Indemnitee, shall take all reasonable steps to mitigate Seller Losses for which indemnification may not be claimed by them pursuant to this Agreement upon and after becoming aware of any events that could reasonably be expected to give rise to such Seller Losses. (d) Any actual indemnity payment indemnifiable under Section 7.5 7.3(a)(i)); provided, however, that the foregoing limitations 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, warranty, covenant or agreement. (e) No Seller Indemnitee shall be entitled to any indemnification hereunder not apply with respect to any breach of any representationof the Buyer Fundamental Representations or any claim based on Fraud. (b) The aggregate maximum Liability of Buyer pursuant to Section 7.3(a)(i) shall not exceed the Cap; provided, warranty or covenant with respect to which (i) any shareholder, director, officer, employee, representative or agent of Seller had actual knowledge, at any time prior to the Closing, of such breachhowever, that such breach was threatened or of the events, circumstances or conditions constituting or resulting in such breach, or (ii) to the extent Seller or such Seller Indemnitee could have, with reasonable efforts, mitigated or prevented the Seller Losses with respect to such breach. Notwithstanding the foregoing, this foregoing limitation shall not apply with respect to knowledge, if any, any breach of any shareholderof the Buyer Fundamental Representations. Buyer’s aggregate maximum Liability pursuant to Section 7.3(a)(i), director, officer, employee, representative or agent of Seller with respect to inaccuracies in or breaches of the use of intellectual property of third parties Buyer Fundamental Representations, and Section 7.3(a)(iii), collectively, will not exceed an aggregate amount, which, if added to all other amounts paid as indemnification payments by Buyer under Section 7.3(a)(i) and Section 7.3(a)(iii), collectively, is equal to $[****]. Notwithstanding the foregoing, the limitations set forth in this Section 7.5(b) shall not apply with respect to any claim based on vehicles, signage and other similar usage on the Purchased Assets before or after the ClosingFraud.

Limitations on Indemnification by Buyer. (a) Payments pursuant The right of Seller Indemnified Parties to indemnification under Section 7.5 8.4(a) shall be limited subject to the following provision: (i) Indemnification with respect to all Seller Indemnifiable Claims shall expire twelve (12) months after the Closing; provided, however, that the limitations of this clause shall not apply to: (A) Seller Indemnifiable Claims (1) involving or arising from fraud or intentional misrepresentation or (2) arising under Sections 8.4(b) or 8.4(c) for which the period for making such claims shall expire on the date which is three (3) months after the termination of the applicable statute of limitations, including any extension thereof, relating thereto; or (B) Seller Indemnifiable Claims arising under Section 8.4(a) if the underlying claim results from a breach of the representations and warranties in Section 3.1(b) for which the period for making such claims shall be indefinite. (ii) If prior to the relevant date of expiration a specific state of facts shall have become known which may constitute or give rise to any Seller Indemnifiable Claim as to which indemnity may be payable and a Seller Indemnified Party shall have given notice of such facts to Buyer, then the right to indemnification with respect thereto shall remain in effect without regard to when such matter shall have been finally determined and disposed of, according to the date on which notice of the applicable claim is given. (iii) No indemnification shall be payable with respect to Seller Indemnifiable Claims not involving fraud or intentional misrepresentation if such Seller Indemnifiable Claims arise solely under Section 8.4(a) unless the total of all Seller Indemnifiable Claims shall exceed $500,000 in the aggregate (the "Buyer Basket"), whereupon the amount of such claim in excess of $500,000 shall be recovered in accordance with the terms hereof; provided, however, that Seller Indemnifiable Claims arising under Sections 8.4(b), 5.14 and 8.4(c) shall not be subject to such Buyer Basket and provided further that the Buyer Basket shall not be applicable to amounts recoverable under Section 8.4(a) if the underlying claim arises as a result of a breach of the representations and warranties in Section 3.1(b). (iv) Buyer shall not be obligated to indemnify Seller Indemnified Parties in respect of Seller Indemnifiable Claims not involving fraud or intentional misrepresentation if such Seller Indemnifiable Claims arise solely under Sections 8.4(a) or 5.14(a) after the cumulative amount of all Seller Indemnifiable Claims exceeds $20,000,000 (the "Maximum Buyer Liability Amount"). The limitations on liability of the Maximum Buyer Liability Amount shall not be applicable and shall be calculated exclusive of any liability recovery under (A) Seller Indemnifiable Claims arising under Sections 8.4(b) (including, without limitation, where the underlying claim results from a breach of the covenants in Section 5.14(b), (c), (d), (e), (f) or damage that remains after deducting therefrom (g) but not including Section 5.14(a)) or 8.4(c) or (B) amounts recoverable under Section 8.4(a) if the underlying claim arises as a result of breach of the representations and warranties in Section 3.1(b). (v) Any indemnification payable with respect to a Seller Indemnifiable Claim shall be (A) net of any insurance proceeds and any indemnity distribution or other similar payment actually received by Seller Indemnitees from any third party with respect thereto. A Seller Indemnitee shall exhaust all to such Loss and (B) net of its remedies against applicable insurersany tax benefits actually realized (through receipt of a refund or actual reduction of tax liability) as a result of (i.e., Indemnitees which would not have been received or contributors or any other party prior to seeking indemnification hereunder. The amount of Losses otherwise recoverable under Section 7.5 shall be adjusted to credited but for) the extent Loss to which any federal, state, local or foreign tax liabilities or benefits are realized by the Seller Indemnitees by reason of any Losses or indemnity such indemnification payment hereunderrelates. (b) Notwithstanding anything herein to the contrarycontrary in the foregoing section, Buyer shall in no breach event be liable to BIB or any Stockholder for any consequential, special or indirect damages suffered by BIB or any Stockholder under any provision of any representationthis Agreement, warranty, covenant or agreement contained herein shall give rise to any right on the part of Seller or a Seller Indemnitee, after the consummation even if advised of the transactions contemplated hereby, to rescind this Agreement or any possibility of the transactions contemplated herebysuch. (c) Neither Except to the extent any Losses are incurred by the Seller Indemnified Party resulting from any fraudulent or intentional misrepresentation by any of the Buyer nor any of its Affiliates shall have any liability under any provision of this Agreement for any consequential(prior to the Closing Date), exemplary or punitive damages or any multiple of damages (other than such damages for the benefit of a third party). Seller sole and each Seller Indemnitee, shall take all reasonable steps to mitigate Seller Losses for which indemnification may be claimed by them pursuant to this Agreement upon and after becoming aware exclusive monetary remedy of any events that could reasonably be expected to give rise to such Seller Losses. (d) Any actual indemnity payment under Section 7.5 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, warranty, covenant or agreement. (e) No Seller Indemnitee shall be entitled to any indemnification hereunder Indemnified Party with respect to any breach of any representation, warranty or covenant with respect to which (i) any shareholder, director, officer, employee, representative or agent of Seller had actual knowledge, at any time prior and all claims relating to the Closing, subject matter of such breach, that such breach was threatened or of the events, circumstances or conditions constituting or resulting in such breach, or (ii) this Agreement shall be pursuant to the extent Seller or such Seller Indemnitee could have, with reasonable efforts, mitigated or prevented the Seller Losses with respect to such breachindemnification provisions set forth in this Article 8. Notwithstanding In furtherance of the foregoing, this limitation shall not apply with respect to knowledgeeach Seller Indemnified Party hereby waives, if any, of any shareholder, director, officer, employee, representative or agent of Seller with respect to the use fullest extent permitted under applicable law, any and all rights, claims and causes of intellectual property action it may have against Buyer arising under or based upon any Law (including, without limitation, any such rights, claims or causes of third parties on vehicles, signage and other similar usage on the Purchased Assets before action arising under or after the Closingbased upon common law or otherwise).

Limitations on Indemnification by Buyer. Notwithstanding the foregoing Section 5.3, the rights of Seller to indemnification shall be subject to the following provisions (a) Payments No indemnification shall be payable to Seller by Buyer pursuant to Section 7.5 5.3(a) unless the total of all claims for indemnification pursuant to Section 5.3(a) shall exceed $50,000 in the aggregate, whereupon Seller shall be limited entitled to recover the aggregate amount of any liability or damage that remains after deducting therefrom any insurance proceeds such claims in accordance with the terms hereof, and any indemnity distribution or other similar payment actually received not just those claims in excess of the foregoing amount. Individual claims involving Damages of less than $2,000 shall not be indemnified and shall not be applied in determining whether the aggregate Damages exceed the foregoing threshold. No such limitations shall apply to claims made by Seller Indemnitees from any third party with respect thereto. A Seller Indemnitee shall exhaust all to Sections 5.3(b), (c), (d) and (e) of its remedies against applicable insurers, Indemnitees or contributors or any other party prior to seeking indemnification hereunder. The amount of Losses otherwise recoverable under Section 7.5 shall be adjusted to the extent to which any federal, state, local or foreign tax liabilities or benefits are realized by the Seller Indemnitees by reason of any Losses or indemnity payment hereunderthis Agreement. (b) Notwithstanding anything herein No indemnification shall be payable to the contrary, no breach Seller pursuant to Section 5.3(a) for amounts in excess of any representation, warranty, covenant or agreement contained herein shall give rise to any right on the part of Seller or a Seller Indemnitee, after the consummation 70% of the transactions contemplated herebyPurchase Price in the aggregate. No such limitation shall apply to claims made by Seller with respect to Sections 5.3(b), to rescind (c), (d) and (e) of this Agreement or any of the transactions contemplated herebyAgreement. (c) Neither the Buyer nor any of its Affiliates No indemnification shall have any liability under any provision of this Agreement for any consequential, exemplary or punitive damages or any multiple of damages (other than such damages for the benefit of a third party). be payable to Seller and each Seller Indemnitee, shall take all reasonable steps to mitigate Seller Losses for which indemnification may be claimed by them pursuant to this Agreement upon Section 5.3(a) with respect to any claim asserted by Seller after the Termination Date; provided, however, that the foregoing shall not apply to claims resulting from any breach of the representations and after becoming aware of any events that could reasonably warranties contained in Sections 3.1 and 3.2, with respect to which Seller shall be expected entitled to give rise assert claims without limitation as to such Seller Lossestime. (d) Any actual indemnity payment under Section 7.5 No indemnification shall be determined without duplication of recovery payable to Seller pursuant to Section 5.3(c) with respect to any claim asserted by reason of Seller after the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement. (e) No Termination Date. Seller Indemnitee shall be entitled to any indemnification hereunder with respect pursuant to any breach of any representationSections 5.3(b), warranty or covenant with respect (d) and (e) without limitation as to which (i) any shareholder, director, officer, employee, representative or agent of Seller had actual knowledge, at any time prior to the Closing, of such breach, that such breach was threatened or of the events, circumstances or conditions constituting or resulting in such breach, or (ii) to the extent Seller or such Seller Indemnitee could have, with reasonable efforts, mitigated or prevented the Seller Losses with respect to such breach. Notwithstanding the foregoing, this limitation shall not apply with respect to knowledge, if any, of any shareholder, director, officer, employee, representative or agent of Seller with respect to the use of intellectual property of third parties on vehicles, signage and other similar usage on the Purchased Assets before or after the Closingtime.

Limitations on Indemnification by Buyer. The right of Seller --------------------------------------- Indemnified Parties to indemnification under Section 6.3 shall be subject to the following provisions: (a) Payments No indemnification shall be payable to any Seller Indemnified Party in respect of any breach of any representation or warranty made by Buyer in this Agreement, or in any certificate, schedule or exhibit delivered by or on behalf of Buyer as part of or pursuant to this Agreement, or any third-party claim, action or proceeding asserted or instituted or arising out of any matter or thing covered by such representations or warranties (collectively, "Seller Warranty Claims"), unless the total of all claims for indemnification pursuant to Section 7.5 6.3, when aggregated with all claims made under Section 6.3 of the Affiliate Agreements, shall exceed $50,000 in the aggregate, whereupon the full amount of such claims shall be limited to recoverable in accordance with the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity distribution or other similar payment actually received by Seller Indemnitees from any third party with respect thereto. A Seller Indemnitee shall exhaust all of its remedies against applicable insurers, Indemnitees or contributors or any other party prior to seeking indemnification hereunder. The amount of Losses otherwise recoverable under Section 7.5 shall be adjusted to the extent to which any federal, state, local or foreign tax liabilities or benefits are realized by the Seller Indemnitees by reason of any Losses or indemnity payment hereunder.terms hereof; (b) Notwithstanding anything herein Indemnification with respect to Seller Warranty Claims shall expire on the Indemnification Cut-Off Date; provided, however, that the limitation of this clause (i) shall not apply to Seller Warranty Claims involving fraud or intentional misrepresentation, for which the period for making such claims shall expire on the date on which the applicable statute of limitations relating thereto terminates. If prior to the contrary, no breach relevant date of any representation, warranty, covenant expiration a specific state of facts shall have become known which may constitute or agreement contained herein shall give rise to any right on the part of Seller or Warranty Claim as to which indemnity may be payable and a Seller IndemniteeIndemnified Party shall have given notice of such facts to Buyer, after then the consummation right to indemnification with respect thereto shall remain in effect without regard to when such matter shall have been finally determined and disposed of, according to the date on which notice of the transactions contemplated hereby, to rescind this Agreement or any of the transactions contemplated hereby.applicable claim is given; and (c) Neither The limitations herein with respect to Seller Warranty Claims shall not limit the Buyer nor any of its Affiliates shall have any liability under any provision of this Agreement for any consequential, exemplary or punitive damages or any multiple of damages (other than such damages for the benefit of a third party). Seller and each Seller Indemnitee, shall take all reasonable steps to mitigate Seller Losses for which indemnification may be claimed by them pursuant to this Agreement upon and after becoming aware rights of any events that could reasonably be expected to give rise to such Seller Losses. (d) Any actual indemnity payment under Section 7.5 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, warranty, covenant or agreement. (e) No Seller Indemnitee shall be entitled to any indemnification hereunder Indemnified Party with respect to any breach other claims arising under provisions of any representation, warranty or covenant with respect to which (i) any shareholder, director, officer, employee, representative or agent of Seller had actual knowledge, at any time prior to the Closing, of such breach, that such breach was threatened or of the events, circumstances or conditions constituting or resulting in such breach, or (ii) to the extent Seller or such Seller Indemnitee could have, with reasonable efforts, mitigated or prevented the Seller Losses with respect to such breach. Notwithstanding the foregoing, this limitation shall not apply with respect to knowledge, if any, of any shareholder, director, officer, employee, representative or agent of Seller with respect to the use of intellectual property of third parties on vehicles, signage and other similar usage on the Purchased Assets before or after the ClosingSection 6.3.

Limitations on Indemnification by Buyer. (a) Payments Notwithstanding any provision to the contrary contained in this Agreement, Buyer shall be under no liability to indemnify the Seller Indemnified Parties under Section 11.1 and no claim under Section 11.1 shall: (i) be made to the extent that such claim relates to a liability of the Seller Indemnified Parties arising out of or relating to any act, omission, event or occurrence connected with: (A) the use, ownership or operation of any of the Facilities prior to the Closing Date, or (B) the use, operation or ownership of any of the Purchased Assets prior to the Closing Date, other than as specifically included in the Assumed Liabilities; (ii) be made to the extent such claim relates to an obligation or liability for which Seller has agreed to indemnify Buyer pursuant to Section 7.5 shall be limited 11.3; and (iii) with respect to matters encompassed by Section 11.1(i), accrue to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds Seller Indemnified Parties unless and any indemnity distribution or other similar payment actually received by Seller Indemnitees from any third party with respect thereto. A Seller Indemnitee shall exhaust all of its remedies against applicable insurers, Indemnitees or contributors or any other party prior to seeking indemnification hereunder. The amount of Losses otherwise recoverable under Section 7.5 shall be adjusted only to the extent to that (A) the liability of Buyer in respect of any single claim exceeds Ten Thousand Dollars ($10,000) and (B) the total liability of Buyer in respect of all claims in the aggregate exceeds Five Hundred Thousand Dollars ($500,000) (the "Seller Aggregate Amount"), in which any federal, state, local or foreign tax liabilities or benefits are realized by event the Seller Indemnitees by reason Indemnified Parties shall be entitled to seek indemnification under Section 11.1 (i) for all claims only in an amount of any Seller Losses or indemnity payment hereunderwhich exceed the Seller Aggregate Amount. (b) Subject to the limitations set forth in Section 11.2(a), the total liability of Buyer for indemnification under Section 11.1(i), in the aggregate, shall be limited to an amount equal to Fifty Million Dollars ($50,000,000). Notwithstanding anything herein to the contrary, no breach of any representation, warranty, covenant or agreement the limitations contained herein in this Section 11.2(b) shall give rise not apply to any right on the part of Seller or indemnification claims arising under Section 11.1(i) as a Seller Indemnitee, after the consummation result of the transactions contemplated hereby, to rescind this Agreement intentional misrepresentation or any fraud of the transactions contemplated herebyBuyer. (c) Neither If a Seller Indemnified Party is entitled to recover any sum (whether by payment, discount, credit or otherwise) from any third party in respect of any matter for which a claim of indemnity could be made against Buyer hereunder, Seller shall use its commercially reasonable best efforts to recover such sum from such third party and any sum recovered will reduce the amount of the claim. If Buyer nor any of its Affiliates shall have any liability under any provision of this Agreement for any consequential, exemplary or punitive damages or any multiple of damages (other than such damages for the benefit pays to a Seller Indemnified Party an amount in respect of a claim, and the Seller Indemnified Party subsequently recovers from a thirty party a sum which is referable to that claim, Seller shall cause the Seller Indemnified Party to promptly repay to Buyer so much of the amount paid to it as does not exceed the sum recovered from the third party less all reasonable costs, charges and expenses incurred by Seller and the Seller Indemnified Party in obtaining payment in respect of that claim and in recovering that sum from the third party). Seller and each Seller Indemnitee, shall take all reasonable steps to mitigate Seller Losses for which indemnification may be claimed by them pursuant to this Agreement upon and after becoming aware of any events that could reasonably be expected to give rise to such Seller Losses. (d) Any actual indemnity payment under Section 7.5 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, warranty, covenant or agreement. (e) No Seller Indemnitee shall be entitled to any indemnification hereunder with respect to any breach of any representation, warranty or covenant with respect to which (i) any shareholder, director, officer, employee, representative or agent of Seller had actual knowledge, at any time prior to the Closing, of such breach, that such breach was threatened or of the events, circumstances or conditions constituting or resulting in such breach, or (ii) to the extent Seller or such Seller Indemnitee could have, with reasonable efforts, mitigated or prevented the Seller Losses with respect to such breach. Notwithstanding the foregoing, this limitation shall not apply with respect to knowledge, if any, of any shareholder, director, officer, employee, representative or agent of Seller with respect to the use of intellectual property of third parties on vehicles, signage and other similar usage on the Purchased Assets before or after the Closing.

Limitations on Indemnification by Buyer. (a) Payments pursuant to Section 7.5 shall be limited With respect to the amount matters described in Section 6.2(a), Buyer will have no liability with respect to such matters until Seller Indemnitees have suffered Adverse Consequences by reason of any liability or damage that remains all such breaches in excess of the Threshold, after deducting therefrom any insurance proceeds and any indemnity distribution or other similar payment actually received by which point Buyer will be obligated to indemnify Seller Indemnitees from any third party with and against all Adverse Consequences from dollar one; provided, that the foregoing limitations shall not apply in respect thereto. A Seller Indemnitee shall exhaust all of its remedies against applicable insurers, Indemnitees or contributors or any other party prior to seeking indemnification hereunder. The amount of Losses otherwise recoverable under Section 7.5 shall be adjusted to the extent to which any federal, state, local or foreign tax liabilities or benefits are realized by the Seller Indemnitees by reason of any Losses Adverse Consequences relating to (a) breaches of any representation made in Sections 2.2(b) (Authorization of Transaction) and 2.2(d) (Brokers’ Fees) or indemnity payment hereunder(b) any intentional or fraudulent breach of a representation or warranty. (b) Notwithstanding anything herein With respect to the contrarymatters described in Section 6.2(a), no the aggregate maximum liability of Buyer shall be the Cap; provided, that the foregoing limitation shall not apply in respect of any Adverse Consequences relating to (i) breaches of any representation made in Sections 2.2(b) (Authorization of Transaction) and 2.2(d) (Brokers’ Fees) or (b) any intentional or fraudulent breach of any representation, a representation or warranty, covenant or agreement contained herein shall give rise to any right on the part of Seller or a Seller Indemnitee, after the consummation of the transactions contemplated hereby, to rescind this Agreement or any of the transactions contemplated hereby. (c) Neither the If any Adverse Consequences sustained by a Buyer nor any of its Affiliates shall have any liability under any provision of this Agreement for any consequentialIndemnitee are covered by an insurance policy, exemplary or punitive damages or any multiple of damages (other than such damages for the benefit of a third party). Seller and each Seller Indemnitee, shall take all reasonable steps to mitigate Seller Losses for which indemnification may be claimed by them pursuant to this Agreement upon and after becoming aware of any events that could reasonably be expected to give rise to such Seller Losses. (d) Any actual indemnity payment under Section 7.5 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, warranty, covenant or agreement. (e) No Seller Buyer Indemnitee shall be entitled use commercially reasonable efforts to any indemnification hereunder with respect to any breach of any representationcollect such insurance proceeds. If a Buyer Indemnitee receives such insurance proceeds or indemnity, warranty contribution or covenant with respect to which (i) any shareholder, director, officer, employee, representative or agent of Seller had actual knowledge, at any time similar payments prior to the Closing, of such breach, that such breach was threatened or of the events, circumstances or conditions constituting or resulting in such breach, or (ii) to the extent Seller or such Seller Indemnitee could have, with reasonable efforts, mitigated or prevented the Seller Losses being indemnified with respect to such breach. Notwithstanding Adverse Consequence under this Article 6, the foregoing, payment under this limitation shall not apply Article 6 with respect to knowledgesuch Adverse Consequence shall be reduced by the amount of such insurance proceeds or indemnity, if anycontribution or similar payments, of any shareholderless reasonable attorney’s fees and other reasonable expenses incurred in connection with such recovery. If a Buyer Indemnitee receives such insurance proceeds or indemnity, director, officer, employee, representative contribution or agent of Seller similar payments after being indemnified with respect to some or all of such Adverse Consequence, such Buyer Indemnitee shall pay to the use Representative (or return such amount to the Escrow Account if the Escrow Account remains in place at such time) the lesser of intellectual property (i) the amount of third parties on vehiclessuch insurance proceeds or indemnity, signage contribution or similar payment, less reasonable attorney’s fees and other similar usage reasonable expenses incurred in connection with such recovery and (ii) the aggregate amount paid by the Sellers to any Buyer Indemnitee with respect to such Adverse Consequence. Nothing in this Section 6.5(c) shall neither party shall create or be deemed to create any obligation on the Purchased Assets before any party hereto to obtain or after the Closingmaintain any specific insurance policy.

Limitations on Indemnification by Buyer. (ai) Payments The Buyer shall not be obligated to indemnify the Seller and Fearxxxxxxx xxx Seller Losses arising from the inaccuracy of any representation or warranty made by the Buyer herein or in any certificate or other document delivered pursuant to Section 7.5 hereto unless and until the aggregate amount of such Seller Losses exceeds $25,000, in which case the Buyer shall be limited obligated to indemnify the Seller and Fearxxxxxxx xxx the amount of any such Seller Losses aggregating in excess of $25,000; provided, however, the limitations of this clause (i) shall not apply to claims for indemnification arising out of or in connection with or based upon the inaccuracy or breach of the Buyer's representations set forth in Section 4.4. (ii) The Buyer's aggregate liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity distribution or other similar payment actually for indemnification for all provisions under this Agreement shall under no circumstances exceed the Asset Acquisition Consideration received by Fearxxxxxxx xxxer this Agreement, valued as of the Measurement Date. (iii) A claim for breach of warranty, representation or covenant may not be made under this Agreement and the Buyer shall not be liable for indemnification under this section, unless notice of the Seller Indemnitees from Loss on which such claim or right to indemnification is based is given in writing or through telex or telecopier by the Seller or Fearxxxxxxx xx the Buyer reasonably promptly after the Seller or Fearxxxxxxx, xx the case may be, shall become aware of the Seller Loss, but in any third party event, with respect thereto. A to claims of Seller Indemnitee Loss arising under Sections 9.3(c)(i) and (ii), within one year after the Closing Date. (iv) Subject to the limitations on indemnification set forth in Sections (i)-(iii) above, if any event shall exhaust all of its remedies against applicable insurers, Indemnitees or contributors or any other party prior to seeking occur which would otherwise entitle the Seller and Fearxxxxxxx xx assert a claim for indemnification hereunder. The amount of , no Seller Losses otherwise recoverable under Section 7.5 shall be adjusted deemed to have been sustained by the Seller or Fearxxxxxxx, xx the case may be, to the extent to which of (i) any federal, state, local or foreign tax liabilities or benefits are savings realized by the Seller Indemnitees by reason of any Losses or indemnity payment hereunder. (b) Notwithstanding anything herein to the contrary, no breach of any representation, warranty, covenant or agreement contained herein shall give rise to any right on the part of Seller or a Seller Indemnitee, after the consummation of the transactions contemplated hereby, to rescind this Agreement or any of the transactions contemplated hereby. (c) Neither the Buyer nor any of its Affiliates shall have any liability under any provision of this Agreement for any consequential, exemplary or punitive damages or any multiple of damages (other than such damages for the benefit of a third party). Seller and each Seller Indemnitee, shall take all reasonable steps to mitigate Seller Losses for which indemnification may be claimed by them pursuant to this Agreement upon and after becoming aware of any events that could reasonably be expected to give rise to such Seller Losses. (d) Any actual indemnity payment under Section 7.5 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, warranty, covenant or agreement. (e) No Seller Indemnitee shall be entitled to any indemnification hereunder with Fearxxxxxxx xxxh respect to any breach of any representation, warranty or covenant with respect to which (i) any shareholder, director, officer, employee, representative or agent of Seller had actual knowledge, at any time prior to the Closing, of such breach, that such breach was threatened or of the events, circumstances or conditions constituting or resulting in such breach, thereto or (ii) to any net proceeds received by the extent Seller or such Seller Indemnitee could haveFearxxxxxxx xxxm any insurance policy with respect thereto, with reasonable efforts, mitigated or prevented to which policies the Seller Losses with respect and Fearxxxxxxx xxxll resort prior to such breach. Notwithstanding the foregoing, this limitation shall not apply with respect to knowledge, if any, of any shareholder, director, officer, employee, representative or agent of Seller with respect to the use of intellectual property of third parties on vehicles, signage and other similar usage on the Purchased Assets before or after the Closingasserting a claim for indemnification hereunder.

Limitations on Indemnification by Buyer. Notwithstanding the --------------------------------------- foregoing, the right of Equityholder Indemnified Parties to indemnification under Section 9.03 shall be subject to the following provisions: (a) Payments pursuant to Section 7.5 shall be limited Subject to the exceptions set forth in Subsection 9.04(d), the Buyer's aggregate liability for indemnification under this Agreement shall not exceed an amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity distribution or other similar payment actually received by Seller Indemnitees from any third party with respect thereto. A Seller Indemnitee shall exhaust all of its remedies against applicable insurers, Indemnitees or contributors or any other party prior to seeking indemnification hereunder. The amount of Losses otherwise recoverable under Section 7.5 shall be adjusted equal to the extent to which any federal, state, local or foreign tax liabilities or benefits are realized by the Seller Indemnitees by reason of any Losses or indemnity payment hereunderCap. (b) Notwithstanding anything herein Subject to the contraryexceptions set forth in Subsection 9.04(d), no indemnification shall be payable pursuant to Subsection 9.03(b) above to any Equityholder Indemnified Party, unless the cumulative amount of all claims for indemnification pursuant to Section 9.03 ("Equityholder Claims") shall exceed ------------------- the Deductible, whereupon only the amount of such claims in excess of such Deductible shall be recoverable by the Equityholder Indemnified Parties. For the sole purpose of calculating the amount of Equityholder Claims arising out of any breach of any representationrepresentation or warranty made by Buyer or Sub, warranty, covenant references to material adverse effect or agreement contained herein materiality (or other correlative terms) shall give rise to any right on the part of Seller or a Seller Indemnitee, after the consummation of the transactions contemplated hereby, to rescind this Agreement or any of the transactions contemplated herebybe disregarded. (c) Neither Subject to the Buyer nor any exceptions set forth in Subsection 9.04(d), no indemnification shall be payable to a Equityholder Indemnified Party with respect to claims under Subsection 9.03(b) which are asserted after the Expiration Date; provided that if on or prior to the Expiration Date a specific -------- state of its Affiliates facts shall have any liability under any provision of this Agreement for any consequential, exemplary or punitive damages or any multiple of damages (other than such damages for the benefit of a third party). Seller and each Seller Indemnitee, shall take all reasonable steps to mitigate Seller Losses for become known which indemnification may be claimed by them pursuant to this Agreement upon and after becoming aware of any events that could reasonably be expected to give rise to a claim for indemnification under Subsection 9.03(b) and a Equityholder Indemnified Party shall have given written notice to Buyer of such Seller Lossesfacts known by such Equityholder Indemnified Party at such time, then the right to indemnification with respect to such claim shall remain in effect without regard to when such matter shall be finally determined and disposed of. (d) Any actual indemnity payment under The limitations contained in Subsections 9.04(a), 9.04(b) and 9.04(c) of this Section 7.5 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, warranty, covenant or agreement. (e) No Seller Indemnitee shall be entitled to any indemnification hereunder with respect to any breach of any representation, warranty or covenant with respect to which (i) any shareholder, director, officer, employee, representative or agent of Seller had actual knowledge, at any time prior to the Closing, of such breach, that such breach was threatened or of the events, circumstances or conditions constituting or resulting in such breach, or (ii) to the extent Seller or such Seller Indemnitee could have, with reasonable efforts, mitigated or prevented the Seller Losses with respect to such breach. Notwithstanding the foregoing, this limitation 9.04 shall not apply with respect to knowledge, if any, of any shareholder, director, officer, employee, representative or agent of Seller with respect to the use indemnification obligations of intellectual property Buyer arising under Subsection 9.03(a). The limitations contained in Subsections 9.04(b) of third parties on vehicles, signage this Section 9.04 shall not apply to adjustments required to be made pursuant to Sections 1.13 and other similar usage on the Purchased Assets before or after the Closing1.