Common use of Limitations on Indemnity Clause in Contracts

Limitations on Indemnity. Neither Buyer, on the one hand, nor any Seller Party, on the other hand, shall be liable under this ARTICLE VIII for any Damages until the aggregate amount otherwise due the party being indemnified exceeds an accumulated total of $150,000; provided, however, that this limitation shall apply only to the extent a party is entitled to indemnification exclusively under Sections 8.2(a)(i) or 8.2(b)(i) hereof and shall not apply to breaches of the Fundamental Representations or in the case of fraud. Once the aggregate amount of Damages exceeds such threshold amount, then the indemnified party shall have the right to recover all Damages without regard to such threshold, provided that the maximum amount of Damages which Buyer shall be liable to Seller Parties under Section 8.2(b)(i) hereof shall be $2,500,000 and the maximum amount of Damages which Seller Parties shall be liable to Buyer under Section 8.2(a)(i) hereof shall be $2,500,000, provided that such limitations shall not apply (i) in the case of fraud, or (ii) to inaccuracies in or breaches of any of the representations and warranties contained in Sections 3.1 (Organization), 3.2 (Subsidiaries), 3.3 (Capitalization), 3.4 (Authorization), 3.11 (No Conflict or Violation), 3.16(a) (Labor Matters), 3.22 (Tax Matters), 3.27 (No Brokers), 4.1 (Organization), 4.2 (Authorization), 4.3 (No Conflict or Violation), 4.5 (Title to Units), 4.8 (No Brokers), 4.9 (Accredited Status), 5.1 (Organization), 5.2 (Authorization), and 5.3 (No Conflict or Violation) (collectively, the “Fundamental Representations”).

Limitations on Indemnity. Neither Buyer, on the one hand, nor Notwithstanding any Seller Party, on the other hand, provision of this Agreement: (a) No claim or action shall be liable brought under this ARTICLE VIII clause (a) or (c) of Section 5.1 or clause (a) of Section 5.2 after the lapse of eighteen (18) months after the Closing Date (the “Claim Period”). Notwithstanding the foregoing, there shall be no time limitation on claims brought for any Damages until the aggregate amount otherwise due the party being indemnified exceeds an accumulated total (i) breaches of $150,000; representations and warranties contained in Sections 3.1-3.7 (Organization, Organizational Documents, etc.), 3.10 (Good Title), 3.14 (Taxes) (provided, however, that this limitation shall apply only to the extent a party is entitled to indemnification exclusively under Sections 8.2(a)(i) or 8.2(b)(i) hereof and shall not apply to breaches of the Fundamental Representations or in the case of fraud. Once the aggregate amount of Damages exceeds such threshold amount, then the indemnified party shall have the right to recover all Damages without regard to such threshold, provided that the maximum amount of Damages which Buyer shall be liable to Seller Parties under Section 8.2(b)(i) hereof shall be $2,500,000 and the maximum amount of Damages which Seller Parties shall be liable to Buyer under Section 8.2(a)(i) hereof shall be $2,500,000, provided that such limitations shall not apply (i) in the case of fraud, or (ii) to inaccuracies in or breaches of any of the representations and warranties contained in Sections 3.1 (OrganizationSection 3.14 shall only constitute Fundamental Representations to the extent related to income Taxes), 3.2 3.19 (Subsidiaries), 3.3 (Capitalization), 3.4 (Authorization), 3.11 (No Conflict or Violation), 3.16(a) (Labor Matters), 3.22 (Tax MattersEnvironmental), 3.27 (No BrokersSpecific Tax Matters) (provided, however, that the representations and warranties contained in Section 3.27(a) shall only constitute Fundamental Representations to the extent related to income Taxes), 4.1 3.29 (OrganizationSecurities Issues), 4.2 4.1-4.4 (AuthorizationOrganization of Buyer, Authority, etc.), 4.3 . and 4.7 (No Conflict or Violation), 4.5 (Title to Units), 4.8 (No Brokers), 4.9 (Accredited Status), 5.1 (Organization), 5.2 (Authorization), and 5.3 (No Conflict or ViolationSecurities Issues) (collectively, the “Fundamental Representations”); or (ii) based on intentional misrepresentation. (b) Seller shall not have any liability for indemnification under clause (a) or (c) of Section 5.1 for any Buyer Indemnified Liability that is individually (and collectively with all Buyer Indemnified Liabilities arising out of or relating to the same or substantially similar facts, circumstances, occurrences or conditions) less than the Threshold Amount (“Excluded Buyer Liabilities”), and no Excluded Buyer Liabilities shall be aggregated for purposes of determining whether the Basket Amount has been reached under Section 5.7(d) or for purposes of Section 5.7(e). The limitation set forth in this Section 5.7(b) shall not apply with respect to an indemnification claim based upon (i) a breach of a Fundamental Representation or (ii) intentional misrepresentation. (c) Buyer shall not have any liability for indemnification under clause (a) of Section 5.2 for any Seller Indemnified Liability that is individually (and collectively with all Seller Indemnified Liabilities arising out of or relating to the same or substantially similar facts, circumstances, occurrences or conditions) less than the Threshold Amount (“Excluded Seller Liabilities”), and no Excluded Seller Liabilities shall be aggregated for purposes of determining whether the Basket Amount has been reached under Section 5.7(f). The limitation set forth in this Section 5.7(c) shall not apply with respect to an indemnification claim based upon (i) a breach of a Fundamental Representation or (ii) intentional misrepresentation. (d) Seller shall not have any liability for indemnification under clause (a) or (c) of Section 5.1 until the aggregate amount of all Buyer Indemnified Liabilities (excluding and without considering or taking into account Excluded Buyer Liabilities) incurred by Buyer which are subject to indemnification under clause (a) or (c) of Section 5.1 exceeds Eight Hundred Thousand Dollars ($800,000) (the “Basket Amount”), at which xxxx Xxxxxx shall (subject to the other limitations set forth in this Article V) be liable for all such Buyer Indemnified Liabilities in excess of Four Hundred Thousand Dollars ($400,000). The limitation set forth in this Section 5.7(d) shall not apply with respect to an indemnification claim based upon (i) a breach of a Fundamental Representation or (ii) intentional misrepresentation. (e) Seller shall not have any liability for indemnification under clause (a) of Section 5.1 with respect to claims based upon a breach of Section 3.19 until the aggregate amount of all Buyer Indemnified Liabilities (excluding and without considering or taking into account Excluded Buyer Liabilities) incurred by Buyer with respect to breaches of representations and warranties contained in Section 3.19 exceeds One Hundred Thousand Dollars ($100,000), at which xxxx Xxxxxx shall (subject to the other limits of this Article V) be liable for all Buyer Indemnified Liabilities with respect to breaches of representations and warranties contained in Section 3.19 in excess of Fifty Thousand Dollars ($50,000). The limitation set forth in this Section 5.7(e) shall not apply with respect to an indemnification claim based upon (i) a breach of a representation or warranty contained in any section other than Section 3.19 or (ii) intentional misrepresentation. (f) Buyer shall not have any liability for indemnification under clause (a) of Section 5.2 until the aggregate amount of all Seller Indemnified Liabilities (excluding and without considering or taking into account Excluded Seller Liabilities) incurred by Seller which are subject to indemnification under clause (a) of Section 5.2 exceeds the Basket Amount, at which time Buyer shall (subject to the other limitations set forth in this Article V) be liable for all such Seller Indemnified Liabilities in excess of Four Hundred Thousand Dollars ($400,000). The limitation set forth in this Section 5.7(f) shall not apply with respect to an indemnification claim based upon (i) a breach of a Fundamental Representation or (ii) intentional misrepresentation. (g) Seller shall not have any liability for indemnification under clause (a) or (c) of Section 5.1 once the aggregate amount of Buyer Indemnified Liabilities actually indemnified by Seller pursuant to clauses (a) and (c) of Section 5.1 exceeds Four Million Dollars ($4,000,000) (the “Cap Amount”). The limitation set forth in this Section 5.7(g) shall not apply with respect to an indemnification claim based upon (i) a breach of a Fundamental Representation or (ii) intentional misrepresentation. (h) Buyer shall not have any liability for indemnification under clause (a) of Section 5.2 once the aggregate amount of Seller Indemnified Liabilities actually indemnified by Buyer pursuant to clause (a) of Section 5.2 exceeds the Cap Amount. The limitation set forth in this Section 5.7(h) shall not apply with respect to an indemnification claim based upon (i) a breach of a Fundamental Representation or (ii) intentional misrepresentation. (i) To the extent that any matter set forth in Sections 5.1 or 5.2 is capable of remedy or cure, as a condition precedent to enforcing and collecting a claim for indemnification pursuant to Sections 5.1 or 5.2, the Indemnified Party will afford the Indemnifying Party a reasonable opportunity (which will not be more than thirty (30) days) to remedy or cure such matter and the Indemnified Party shall (at the Indemnifying Party’s cost) provide to the Indemnifying Party all reasonable assistance (including access to buildings, offices, records, files, properties and assets) in connection with the Indemnifying Party’s efforts to effect a remedy or cure. The effect of the extent of any such remedy or cure, including any partial remedy or cure, shall be taken into account and shall mitigate and reduce any indemnification claim with respect to the underlying alleged breach under Sections 5.1 or 5.2. (j) If the same claim for indemnification may be brought as a result of a breach of more than one representation or warranty contained in this Agreement, the indemnified party may choose the representation or warranty under which to pursue the indemnification claim, and the fact that such indemnification claim may be limited or barred if brought pursuant to a breach of one particular representation or warranty contained in this Agreement shall not impact or limit an indemnified party’s ability to bring the same claim for breach of another representation or warranty to which such limitation does not apply. In addition, the limitations set forth in this Section 5.7 do not limit the obligation of any party to indemnify the other party from and against any claim arising from any breach of a covenant, even if such breach also constitutes a breach of a representation or warranty. (k) Seller shall not have any liability for indemnification under this Article V as a result of any claim by a Buyer Indemnified Party that (i) asserts a breach of any representations or warranties whatsoever, either express or implied, at law or in equity, concerning the subject matter of this Agreement other than those representations and warranties specifically set forth in this Agreement; or (ii) is premised on or related to any reliance by Buyer on any information with respect to which Buyer has disclaimed reliance pursuant to Sections 4.8-4.9, unless such is also a breach of a representation or warranty specifically set forth herein. (l) Seller shall not have any liability for indemnification under this Article V (i) WITH RESPECT TO ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY CONSEQUENTIAL DAMAGES CONSISTING OF BUSINESS INTERRUPTION, LOSS OF BUSINESS, LOSS OF GOODWILL, LOSS OF REVENUE OR LOST PROFITS (OR ANY MULTIPLE THEREOF), OR WITH RESPECT TO ANY PUNITIVE DAMAGES (EXCEPT WITH RESPECT TO CLAIMS (A) UNDER SECTION 5.1(E); (B) FOR BREACHES OF REPRESENTATIONS AND WARRANTIES CONTAINED IN SECTION 3.3 OR SECTION 3.5; OR (C) FOR BREACHES OF SECTION 6.1, WITH RESPECT TO WHICH THIS CLAUSE (i) DOES NOT APPLY); (ii) for the amount of any Buyer Indemnified Liability in excess of the amount of such Buyer Indemnified Liability which would have been incurred but for (A) the failure of the Buyer Indemnified Party to take commercially reasonable actions to mitigate such Buyer Indemnified Liability upon becoming aware of such Buyer Indemnified Liability (including taking commercially reasonable steps to prevent any contingent Buyer Indemnified Liability from becoming an actual Buyer Indemnified Liability), or (B) the unlawful conduct of the Buyer Indemnified Party or breach by the Buyer Indemnified Party of any of the provisions of this Agreement; and (iii) duplicative claims in respect of a single set of facts or circumstances under more than one representation or warranty in this Agreement whether such facts or circumstances would give rise to a breach of more than one representation or warranty in this Agreement, or for any Buyer Indemnified Liability to the extent a Purchase Price reduction was incurred as a result of Section 2.4. (m) Buyer shall not have any liability for indemnification under this Article V (i) WITH RESPECT TO ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY CONSEQUENTIAL DAMAGES CONSISTING OF BUSINESS INTERRUPTION, LOSS OF BUSINESS, LOSS OF GOODWILL, LOSS OF REVENUE OR LOST PROFITS (OR ANY MULTIPLE THEREOF), OR WITH RESPECT TO ANY PUNITIVE DAMAGES; (ii) for the amount of any Seller Indemnified Liability in excess of the amount of such Seller Indemnified Liability which would have been incurred but for (A) the failure of the Seller Indemnified Party to take commercially reasonable actions to mitigate such Seller Indemnified Liability upon becoming aware of such Seller Indemnified Liability (including taking commercially reasonable steps to prevent any contingent Seller Indemnified Liability from becoming an actual Seller Indemnified Liability), or (B) the unlawful conduct of the Seller Indemnified Party or breach by the Seller Indemnified Party of any of the provisions of this Agreement; and (iii) duplicative claims in respect of a single set of facts or circumstances under more than one representation or warranty in this Agreement whether such facts or circumstances would give rise to a breach of more than one representation or warranty in this Agreement. (n) For purposes of calculating the amount of any Liabilities incurred in connection with any breach of any representation, warranty or covenant set forth in this Agreement (but not for purposes of determining whether such representation, warranty or covenant has been breached), any and all references to “material”, or “Material Adverse Effect” (or other correlative or similar terms or qualifiers) shall be disregarded. (o) Buyer shall not have any liability for indemnification under clause (c) of Section 5.2 once the aggregate amount of Buyer Indemnified Liabilities actually indemnified by Seller pursuant to clause (c) of Section 5.2 exceeds Three Million Dollars ($3,000,000).

Limitations on Indemnity. Neither Buyer(a) The Shareholders shall not have any liability or obligation to Parent, on Merger Sub or the one handSurviving Corporation whatsoever, nor any Seller Party, on the other hand, and no claim shall be liable asserted against the Shareholders, for indemnification under this ARTICLE VIII for any Damages Section 8.1(a) unless and until the aggregate amount otherwise due of Losses incurred by Merger Sub and/or the party being indemnified Surviving Corporation as a result thereof exceeds an accumulated total $20,000, and then only to the extent the aggregate amount of such Losses exceeds $150,00020,000 and is less than $1,100,000; provided, however, that the limitations set forth above in this limitation shall apply only to the extent a party is entitled to indemnification exclusively under Sections 8.2(a)(iSection 8.3(a) or 8.2(b)(i) hereof and shall not apply to breaches of the Fundamental Representations or in the case of fraud. Once the aggregate amount of Damages exceeds such threshold amount, then the indemnified party shall have the right to recover all Damages without regard to such threshold, provided that the maximum amount of Damages which Buyer shall be liable to Seller Parties under Section 8.2(b)(i) hereof shall be $2,500,000 and the maximum amount of Damages which Seller Parties shall be liable to Buyer under Section 8.2(a)(i) hereof shall be $2,500,000, provided that such limitations shall not apply (i) in any breach or inaccuracy of the case Shareholders' representations or warranties of fraudwhich any Shareholder had knowledge at any time prior to or on the date hereof, or (ii) to inaccuracies in claims for indemnification resulting from the breach or breaches of any inaccuracy of the representations and warranties contained set forth in Sections 3.1 (Organization), 3.2 (Subsidiaries), 3.3 (Capitalization), 3.4 (Authorization), 3.11 (No Conflict or Violation), 3.16(a4.1(a) (Labor Matters), 3.22 (Tax Matters), 3.27 (No Brokers), 4.1 (Organization), 4.2 (Authorization), 4.3 (No Conflict or ViolationValidity; Binding Effect), 4.5 4.5(a) (Title to UnitsShares) and 4.18 (Broker's Fees) (the matters described in clauses (i) and (ii) immediately above, collectively, "Carve-Out Claims"). For the avoidance of doubt, the limitations set forth above in this Section 8.3(a) shall not apply to claims for indemnification arising under Sections 8.1(b) through (d). (b) All representations and warranties in this Agreement, the Schedules and the certificates and other documents delivered pursuant hereto shall survive the Closing and be enforceable against the party making the same for a period of two (2) years from the Closing Date at which time they shall expire and be of no further force or effect; provided, however, that (i) Carve-Out Claims shall survive indefinitely, and (ii) the representations and warranties set forth in Sections 4.15 (Employee Benefits), 4.8 (No Brokers), 4.9 Taxes) and 4.11 (Accredited Status), 5.1 (Organization), 5.2 (Authorization), Environmental) shall survive for the period of the statute of limitations applicable to such representations and 5.3 (No Conflict or Violation) (collectively, the “Fundamental Representations”)warranties. Any claim for indemnification with respect to any such matter which is not asserted by a notice given as herein provided within such period of survival may not be pursued and shall be thereafter forever barred.

Limitations on Indemnity. Neither Buyer11.5.1. The Indemnified Parties agree not to seek recourse against, on the one handand shall not recover from, nor any Seller Party, on the other hand, shall be liable Indemnifying Party under this ARTICLE VIII for Section 11 on account of any Damages Loss resulting from a breach of any representation or warranty herein or in any certificate delivered pursuant hereto until the aggregate amount otherwise due of all Losses suffered by the party being indemnified Indemnified Parties as a result of breaches of all representations or warranties herein (as adjusted pursuant to Section 11.4) exceeds an accumulated total One Hundred Thousand Dollars ($100,000) (the “Deductible”), in which case the Indemnifying Party shall be liable only for the aggregate amount of $150,000Losses suffered by the Indemnified Party in excess of the Deductible; provided, however, that this (a) the limitation shall apply only to of the extent a party is entitled to indemnification exclusively under Sections 8.2(a)(i) or 8.2(b)(i) hereof and Deductible shall not apply to Losses resulting from a breach of any representation or warranty contained in Section 5.2.1, Section 5.2.2, Section 5.4, the first three sentences of Section 6.2, Section 6.5, or the first three sentences of Section 7.2; and (b) for purposes of determining Losses under this Section 11 resulting from any breach of any representation or warranty, such representations and warranties shall be interpreted to disregard all qualifications and conditions in such representations and warranties relating to materiality or Material Adverse Effect. 11.5.2. The aggregate liability of the Indemnifying Parties under this Section 11 resulting from breaches of representations or warranties herein and in any certificates delivered pursuant hereto shall be limited to an amount equal to the Fundamental Representations or in Purchase Price (the case of fraud. Once the aggregate amount of Damages exceeds such threshold amount“Cap”); provided, then the indemnified party shall have the right to recover all Damages without regard to such thresholdhowever, provided that the maximum amount limitation of Damages which Buyer shall be liable to Seller Parties under Section 8.2(b)(i) hereof shall be $2,500,000 and the maximum amount of Damages which Seller Parties shall be liable to Buyer under Section 8.2(a)(i) hereof shall be $2,500,000, provided that such limitations Cap shall not apply (i) to Losses resulting from a breach of any representation or warranty contained in Section 5.2.1, Section 5.2.2, Section 5.4, the case first three sentences of fraudSection 6.2, Section 6.5, or (ii) to inaccuracies in or breaches the first three sentences of any of the representations and warranties contained in Sections 3.1 (Organization), 3.2 (Subsidiaries), 3.3 (Capitalization), 3.4 (Authorization), 3.11 (No Conflict or Violation), 3.16(a) (Labor Matters), 3.22 (Tax Matters), 3.27 (No Brokers), 4.1 (Organization), 4.2 (Authorization), 4.3 (No Conflict or Violation), 4.5 (Title to Units), 4.8 (No Brokers), 4.9 (Accredited Status), 5.1 (Organization), 5.2 (Authorization), and 5.3 (No Conflict or Violation) (collectively, the “Fundamental Representations”)Section 7.2.

Limitations on Indemnity. Neither Buyer11.5.1. The Indemnified Parties agree not to seek recourse against, on the one handand shall not recover from, nor any Seller Party, on the other hand, shall be liable Indemnifying Party under this ARTICLE VIII for Section 11 on account of any Damages Loss resulting from a breach of any representation or warranty herein or in any certificate delivered pursuant hereto until the aggregate amount otherwise due of all Losses suffered by the party being indemnified Indemnified Parties as a result of breaches of all representations or warranties herein (as adjusted pursuant to Section 11.4) exceeds an accumulated total One Hundred Thousand Dollars ($100,000) (the “Deductible”), in which case the Indemnifying Party shall be liable only for the aggregate amount of $150,000Losses suffered by the Indemnified Party in excess of the Deductible; provided, however, that this (a) the limitation shall apply only to of the extent a party is entitled to indemnification exclusively under Sections 8.2(a)(i) or 8.2(b)(i) hereof and Deductible shall not apply to Losses resulting from a breach of any representation or warranty contained in Section 5.2.1, Section 5.2.2, Section 5.4, the first three sentences of Section 6.2, Section 6.5, or the first three sentences of Section 7.2; and (b) for purposes of determining Losses under this Section 11 resulting from any breach of any representation or warranty, such representations and warranties shall be interpreted to disregard all qualifications and conditions in such representations and warranties relating to materiality or Material Adverse Effect. 11.5.2. The aggregate liability of the Indemnifying Parties under this Section 11 resulting from breaches of representations or warranties herein and in any certificates delivered pursuant hereto shall be limited to an amount equal to forty percent (40%) of the Fundamental Representations or in Purchase Price (the case of fraud. Once the aggregate amount of Damages exceeds such threshold amount“Cap”); provided, then the indemnified party shall have the right to recover all Damages without regard to such thresholdhowever, provided that the maximum amount limitation of Damages which Buyer shall be liable to Seller Parties under Section 8.2(b)(i) hereof shall be $2,500,000 and the maximum amount of Damages which Seller Parties shall be liable to Buyer under Section 8.2(a)(i) hereof shall be $2,500,000, provided that such limitations Cap shall not apply (i) to Losses resulting from a breach of any representation or warranty contained in Section 5.2.1, Section 5.2.2, Section 5.4, the case first three sentences of fraudSection 6.2, Section 6.5, or (ii) to inaccuracies in or breaches the first three sentences of any of the representations and warranties contained in Sections 3.1 (Organization), 3.2 (Subsidiaries), 3.3 (Capitalization), 3.4 (Authorization), 3.11 (No Conflict or Violation), 3.16(a) (Labor Matters), 3.22 (Tax Matters), 3.27 (No Brokers), 4.1 (Organization), 4.2 (Authorization), 4.3 (No Conflict or Violation), 4.5 (Title to Units), 4.8 (No Brokers), 4.9 (Accredited Status), 5.1 (Organization), 5.2 (Authorization), and 5.3 (No Conflict or Violation) (collectively, the “Fundamental Representations”)Section 7.2.

Limitations on Indemnity. Neither BuyerNotwithstanding any other provision of this Agreement: (a) The representations and warranties contained in Articles III and IV of this Agreement shall survive the Closing Date for a period of eighteen (18) months (the “Claim Period”), on the one hand, nor any Seller Party, on the other hand, after which they shall expire and be liable under this ARTICLE VIII for any Damages until the aggregate amount otherwise due the party being indemnified exceeds an accumulated total of $150,000no effect; provided, however, that this limitation shall apply only to the extent a party is entitled to indemnification exclusively under Sections 8.2(a)(i) or 8.2(b)(i) hereof and shall not apply to breaches of the Fundamental Representations or in the case of fraud. Once the aggregate amount of Damages exceeds such threshold amount, then the indemnified party shall have the right to recover all Damages without regard to such threshold, provided that the maximum amount of Damages which Buyer shall be liable to Seller Parties under Section 8.2(b)(i) hereof shall be $2,500,000 and the maximum amount of Damages which Seller Parties shall be liable to Buyer under Section 8.2(a)(i) hereof shall be $2,500,000, provided that such limitations shall not apply (i) in the case of fraud, or (ii) to inaccuracies in or breaches of any of the representations and warranties contained in Sections the first sentence of Section 3.1 (Organization), 3.2 Section 3.3 (SubsidiariesEnforceable Agreement), 3.3 Section 3.5 (Good Title to Shares), Section 3.6 (Capitalization), 3.4 Section 4.1 (Authorization), 3.11 Organization of Buyer) and Section 4.2 (No Conflict or Violation), 3.16(aAuthority) (Labor Matters), 3.22 (Tax Matters), 3.27 (No Brokers), 4.1 (Organization), 4.2 (Authorization), 4.3 (No Conflict or Violation), 4.5 (Title to Units), 4.8 (No Brokers), 4.9 (Accredited Status), 5.1 (Organization), 5.2 (Authorization), and 5.3 (No Conflict or Violation) (collectively, the “Fundamental Representations”), shall survive indefinitely and not expire, and the representations and warranties contained in Section 3.14 (Taxes) and Section 3.28 (Specific Tax Matters) shall survive until the expiration of the applicable statute of limitations. Any claim for indemnification under this Agreement based upon a breach of or an inaccuracy in a representation or warranty (other than a breach of or an inaccuracy in a Fundamental Representation or involving actual and intentional fraud) may only be made on or before the expiration of the Claim Period or the expiration of the applicable statute of limitations (with respect to breaches or inaccuracies of Section 3.14 and Section 3.28). (b) Sellers shall not have any liability for indemnification under Section 5.1(a)(i) or Section 5.1(c) until the aggregate amount of all of the Buyer Indemnified Losses that are Qualifying Losses incurred by Buyer Indemnified Parties which are subject to indemnification under Section 5.1(a)(i) and Section 5.1(c) exceeds Seven Hundred Fifty Thousand Dollars ($750,000) (the “Basket Amount”), at which time Sellers shall (subject to the other limitations set forth in this Article V) be liable for all Buyer Indemnified Losses that are Qualifying Losses, including the Basket Amount. The limitation set forth in this Section 5.5(b) shall not apply with respect to an indemnification claim based upon a breach of or an inaccuracy in a Fundamental Representation or involving actual and intentional fraud. (c) Buyer shall not have any liability for indemnification under Section 5.2(a) until the aggregate amount of all Seller Indemnified Losses that are Qualifying Losses incurred by Seller Indemnified Parties exceeds the Basket Amount, at which time Buyer shall (subject to the other limitations set forth in this Article V) be liable for all Seller Indemnified Losses that are Qualifying Losses, including the Basket Amount. The limitation set forth in this Section 5.5(c) shall not apply with respect to an indemnification claim based upon a breach of or an inaccuracy in a Fundamental Representation or involving actual and intentional fraud. (d) Sellers shall not have any liability for indemnification under Section 5.1(a)(i), Section 5.1(c), Section 5.1(d), or Section 5.1(e) once the aggregate amount of the Buyer Indemnified Losses actually indemnified by Sellers exceeds Twenty Million Dollars ($20,000,000) (the “Cap Amount”). The limitation set forth in this Section 5.5(d) shall not apply with respect to an indemnification claim based upon a breach of or an inaccuracy in a Fundamental Representation or involving actual and intentional fraud. (e) Buyer shall not have any liability for indemnification under Section 5.2(a) once the aggregate amount of Seller Indemnified Losses actually indemnified by Buyer exceeds the Cap Amount. The limitation set forth in this Section 5.5(e) shall not apply with respect to an indemnification claim based upon a breach of or an inaccuracy in a Fundamental Representation or involving actual and intentional fraud. (f) If the same claim for indemnification may be brought as a result of a breach of more than one representation or warranty contained in this Agreement, the Indemnified Party may choose the representation or warranty under which to pursue the indemnification claim, and the fact that such indemnification claim may be limited or barred if brought pursuant to a breach of one particular representation or warranty contained in this Agreement shall not impact or limit an Indemnified Party’s ability to bring the same claim for breach of another representation or warranty to which such limitation does not apply. In addition, the limitations set forth in this Section 5.5 do not limit the obligation of any party to indemnify the other party from and against any claim arising from any breach of a covenant, even if such breach also constitutes a breach of a representation or warranty; provided, that in no event shall any Indemnified Party be entitled to double recovery under this Agreement (in particular, in the event any circumstances giving rise to a Loss constitute a breach of more than one representation and warranty or covenant on the part of any Indemnifying Party, the Indemnified Party shall only be entitled to be indemnified once in respect of such Loss). (g) For purposes of (i) calculating the amount of any Losses incurred in connection with any inaccuracy in or breach of any representation or warranty set forth in this Agreement and (ii) determining whether any inaccuracy or breach of any representation or warranty of any Seller or the Company contained in Section 3.14(a), Section 3.14(b) or Section 3.17(d) has occurred for purposes of Section 5.1(a)(i), any and all references to “material” or “material adverse effect” or “MAC” (or other correlative or similar terms or qualifiers) shall be disregarded. Notwithstanding anything to the contrary contained in this Agreement, Sellers or Buyer, as the case may be, shall only be liable for any individual Loss or group of related Losses in excess of Twenty-Five Thousand Dollars ($25,000) (“Qualifying Losses”); provided, however, that the foregoing limitation shall not apply to any Losses under Section 5.1(f).

Limitations on Indemnity. Neither Buyer, on (i) None of the one hand, nor any Seller Party, on the other hand, Buyer Indemnitees shall be liable entitled to assert any right to indemnification under Section 12.1(a) for any breach of a representation or warranty under this ARTICLE VIII for Agreement unless (x) the Losses arising from any Damages until individual breach of a representation or warranty in the aggregate amount otherwise due case of a representation or warranty which is not qualified by a Material Adverse Effect or materiality qualifier exceed $100,000, (y) the party being indemnified exceeds an accumulated total Losses arising from any individual breach of a representation or warranty in the case of a representation or warranty which is qualified by a Material Adverse Effect or materiality qualifier exceed $150,000; provided350,000 and (z) the Losses arising from all breaches exceed the Deductible Amount, however, that this limitation shall apply and then only to the extent a party is entitled to indemnification exclusively under Sections 8.2(a)(isuch Losses exceed, in the aggregate, the Deductible Amount. (ii) or 8.2(b)(iThe foregoing provisions of Section 12.1(c)(i) hereof and shall not apply to breaches any claim arising from a breach of the Fundamental Representations any covenants or in the case obligations of fraud. Once the aggregate amount of Damages exceeds such threshold amount, then the indemnified party shall have the right to recover all Damages without regard to such threshold, provided that the maximum amount of Damages which Buyer shall be liable to Seller Parties under Section 8.2(b)(i) hereof shall be $2,500,000 and the maximum amount of Damages which Seller Parties shall be liable to Buyer under Section 8.2(a)(i) hereof shall be $2,500,000, provided that such limitations shall not apply (i) in the case of fraudthis Agreement, or (ii) to inaccuracies in or breaches any breach of any of the representations and warranties contained representation or warranty set forth in Sections 3.1 (Organization), 3.2 (Subsidiaries), 3.3 (Capitalization), 3.4 (Authorization), 3.11 (No Conflict or Violation), 3.16(a) (Labor Matters), 3.22 (Tax Matters), 3.27 (No Brokers), 4.1 (Organization), 4.2 4.2(a) (AuthorizationList of Companies), 4.3 4.2(c) (Encumbrances to Ownership), 4.2(d) (Options), 4.2(e) (Ownership), 4.4 (Authority), 4.5(a) (No Conflict or ViolationConflict), 4.5 4.10 (Taxes), 4.13(e) (Title to UnitsWorking Gas), 4.8 4.15(a)(iv) (No BrokersEmployment and Labor Matters), 4.9 or 4.18 (Accredited StatusBrokerage Fees) (collectively the "Special Provisions"). (iii) Notwithstanding the foregoing, with respect to any breach of the representation or warranty set forth in Section 4.8(c), 5.1 no claim shall be made by any Buyer Indemnitee for indemnification under Section 4.8(c) unless Losses arising from breaches of Section 4.8(c) reach $1,000,000 in the aggregate and then only to the extent such Losses exceed $1,000,000 in the aggregate. For purposes of clarity, a $1,200,000 indemnification claim under Section 4.8(c) would only entitle Buyer to make a $200,000 claim and (Organizationsubject to Section 7.4(b)) such $200,000 amount would have to be applied against the Deductible Amount before any recovery would be made by Buyer against Seller. (iv) In no event shall Seller ever be required to indemnify the Buyer Indemnitees for Losses under Section 12.1(a), 5.2 or to pay any other amount in connection with or with respect to the transactions contemplated by this Agreement (Authorizationexcluding the Related Agreements and the transactions contemplated thereby) in any amount exceeding, in the aggregate (x) ten percent (10%) of the Base Purchase Price other than in the case of a breach of any of the Special Provisions or (y) the Base Purchase Price in the case of breaches of the Special Provisions. (v) Notwithstanding anything to the contrary, the indemnification obligations of Seller in Sections 12.1(a)(iii), (iv) and 5.3 (No Conflict v) shall not be subject to or Violation) (collectively, limited by the “Fundamental Representations”provisions of this Section 12(c). (vi) The amount of any Loss for which a Buyer Indemnitee claims indemnification shall be reduced by: (A) any insurance proceeds actually received by Buyer or a Tejas Company with respect to a Loss; and (B) the value of any net cash tax benefit realized by Buyer in connection with the Loss.

Limitations on Indemnity. Neither Buyer(a) Shareholders shall not have any liability or obligation to Merger Sub or the Surviving Corporation whatsoever, on the one hand, nor any Seller Party, on the other hand, and no claim shall be liable asserted against Shareholders, for indemnification under this ARTICLE VIII for any Damages Section 8.1(a) unless and until the aggregate amount otherwise due of Losses incurred by Merger Sub and/or the party being indemnified Surviving Corporation as a result thereof exceeds an accumulated total $50,000, and then only to the extent the aggregate amount of such Losses exceeds $150,00050,000 and is less THAN $5,500,000; provided, however, that the limitations set forth above in this limitation shall apply only to the extent a party is entitled to indemnification exclusively under Sections 8.2(a)(iSection 8.3(a) or 8.2(b)(i) hereof and shall not apply to breaches of the Fundamental Representations or in the case of fraud. Once the aggregate amount of Damages exceeds such threshold amount, then the indemnified party shall have the right to recover all Damages without regard to such threshold, provided that the maximum amount of Damages which Buyer shall be liable to Seller Parties under Section 8.2(b)(i) hereof shall be $2,500,000 and the maximum amount of Damages which Seller Parties shall be liable to Buyer under Section 8.2(a)(i) hereof shall be $2,500,000, provided that such limitations shall not apply (i) in any breach or inaccuracy of Shareholders' representations or warranties of which any Shareholder had knowledge at any time prior to or on the case of frauddate hereof, or (ii) to inaccuracies in claims for the breach or breaches of any inaccuracy of the representations and warranties contained set forth in Sections 3.1 (Organization), 3.2 (Subsidiaries), 3.3 (Capitalization), 3.4 (Authorization), 3.11 (No Conflict or Violation), 3.16(a4.1(a) (Labor Matters), 3.22 (Tax Matters), 3.27 (No Brokers), 4.1 (Organization), 4.2 (Authorization), 4.3 (No Conflict or ViolationValidity; Binding Effect), 4.5 4.5(a) (Title to UnitsShares) and 4.18 (Broker's Fees) (the matters described in clauses (i) and (ii) above, collectively, "Carve-Out Claims"). For the avoidance of doubt, the limitations set forth above in this Section 8.3(a) shall not apply to claims for indemnification arising under Sections 8.1(b) through (d). (b) All representations and warranties in this Agreement, the Schedules and the certificates and other documents delivered pursuant hereto shall survive the Closing and be enforceable against the party making the same for a period of two (2) years from the Closing Date at which time they shall expire and be of no further force or effect; provided, however, that (i) Carve-Out Claims shall survive indefinitely, (ii) the representations and warranties set forth in Section 4.15 (Employee Benefits) shall survive for five (5) years from the Closing Date, and (iii) the representations and warranties set forth in Sections 4.8 (No Brokers), 4.9 Taxes) and 4.11 (Accredited Status), 5.1 (Organization), 5.2 (Authorization), Environmental) shall survive for the period of the statute of limitations applicable to such representations and 5.3 (No Conflict or Violation) (collectively, the “Fundamental Representations”)warranties. Any claim for indemnification with respect to any such matter which is not asserted by a notice given as herein provided within such period of survival may not be pursued and shall be thereafter forever barred.

Limitations on Indemnity. Neither Buyer11.4.1. Notwithstanding anything to the contrary contained in this Agreement, on the one hand, nor any no indemnification for Losses may be recovered from Seller Party, on the other hand, shall be liable under Section 11.2.1 of this ARTICLE VIII for any Damages Agreement unless and until the aggregate amount otherwise due of such indemnifiable Losses to the party being indemnified Buyer under Section 11.2.1 exceeds an accumulated total $100,000. The aggregate amount of indemnification for Losses which may be recovered from Seller shall not exceed the amount of $150,0001,900,000; provided, provided however, that this limitation shall apply only to the extent a party is entitled to indemnification exclusively under Sections 8.2(a)(i) or 8.2(b)(i) hereof and such maximum limit shall not apply to breaches (a) claims made under Section 11.2.1(a) for the representations and warranties set forth in Section 5.2 (solely as it applies to authorization); Section 5.4 (solely as it applies to title of assets (other than Real Property)); Section 5.8 (Environmental Matters); and Section 5.13 (Taxes); (b) any claims made under Section 11.2.1(c), irrespective of whether such claims also constitute claims under Section 11.2.1(a), or (c) the Fundamental Representations or obligation to pay post-Closing adjustments pursuant to Section 3.3. 11.4.2. Notwithstanding anything to the contrary contained in the case this Agreement, no indemnification for Losses may be recovered from Buyer under Section 11.3.1 of fraud. Once this Agreement unless and until the aggregate amount of Damages such indemnifiable Losses to the Seller under Section 11.3.1 exceeds such threshold amount, then the indemnified party shall have the right to recover all Damages without regard to such threshold, provided that the maximum $100,000. The aggregate amount of Damages indemnification for Losses which may be recovered from Buyer shall be liable to Seller Parties under Section 8.2(b)(i) hereof shall be $2,500,000 and not exceed the maximum amount of Damages which Seller Parties shall be liable to Buyer under Section 8.2(a)(i) hereof shall be $2,500,0001,900,000; provided however, provided that such limitations maximum limit shall not apply to (ia) in the case of fraud, or claims made under Section 11.3.1 (iia) to inaccuracies in or breaches of any of for the representations and warranties contained set forth in Sections 3.1 Section 6.2 (Organizationsolely as it applies to authorization); (b) any claims made under Section 11.3.1(b), 3.2 (Subsidiariesirrespective of whether such claims also constitute claims under Section 11.3.1(a), 3.3 or (Capitalization), 3.4 (Authorization), 3.11 (No Conflict or Violation), 3.16(ac) (Labor Matters), 3.22 (Tax Matters), 3.27 (No Brokers), 4.1 (Organization), 4.2 (Authorization), 4.3 (No Conflict or Violation), 4.5 (Title the obligation to Units), 4.8 (No Brokers), 4.9 (Accredited Status), 5.1 (Organization), 5.2 (Authorization), and 5.3 (No Conflict or Violation) (collectively, the “Fundamental Representations”)pay post-Closing adjustments pursuant to Section 3.3.

Limitations on Indemnity. Neither BuyerThe indemnification provided for in Sections 8.2(a) and 8.2(b) above is subject to the following limitations: (i) No Party shall be liable hereunder with respect to claims referred to in Section 8.2(a)(i) or Section 8.2(b)(i) above unless the other Party gives written notice thereof within the Applicable Limitation Date. Notwithstanding any implication to the contrary contained in this Agreement, so long as a Party delivers written notice of a claim no later than the Applicable Limitation Date, the other Party shall be required to indemnify hereunder for all Losses that such Party may incur in respect of the matters that are the subject of such claim, regardless of when incurred. (ii) Except as otherwise set forth in this Section 8.2(c)(ii), no Party shall be liable to the other Party for any Loss arising under Section 8.2(a) or Section 8.2(b) above (1) until the aggregate amount of all Losses incurred by a Party exceeds $1,237,500 (the “Basket”), in which case a Party shall be liable for all such Losses in excess of the Basket or (2) to the extent that the aggregate amount of all such Losses exceeds $14,000,000 (the “Cap”). The Basket shall not apply with respect to any Loss arising from or related to a breach of (A) any covenants of any party hereto or (B) the representations and warranties set forth in Sections 2.1 through 2.4, 2.15, 2.17, 3.1, 3.2, and 3.6. (iii) The rights of any Company Stockholder Parties or Buyer Parties to recover any amounts pursuant to this Article 8 shall be the sole and exclusive remedy of the Company Stockholder Parties and Buyer Parties, respectively, for any breaches of any representation or warranty or provision of this Agreement or other agreement entered into in connection with this Agreement or any claim against any Company Stockholder Parties or Buyer Parties related to the Transactions. (iv) For purposes of this Article 8, in determining whether there has occurred a breach of a representation or warranty of the Company, on the one hand, nor any Seller Partyor WuXi and Holdco, on the other hand, contained in or made in writing pursuant to this Agreement, as well as the amount of Losses resulting therefrom, the provisions of Article 2 and Article 3 that are qualified by a Material Adverse Effect or any other materiality qualifier shall be liable read and interpreted as if such qualification was not included therein. (v) Notwithstanding anything in this Agreement to the contrary, (A) WuXi’s (and any Buyer Parties) sole and exclusive recourse against the Company Stockholders with respect to any right to indemnification hereunder or other claims arising after the Closing with respect to the Merger or otherwise arising under or with respect to this ARTICLE VIII for any Damages until Agreement shall be in the aggregate amount otherwise due the party being indemnified exceeds an accumulated total of $150,000; provided, however, that this limitation shall apply only expressly limited to the extent a party is entitled to indemnification exclusively under Sections 8.2(a)(iIndemnification Escrow Fund and (B) nothing contained in this Article 8 shall in any way limit, impair, modify or 8.2(b)(i) hereof and otherwise affect the rights of an Indemnified Party nor shall not apply to breaches there be any limitation of liability of an Indemnifying Party in connection with any of such rights of the Fundamental Representations Indemnified Party (1) to bring any claim, demand, suit or in cause of action otherwise available to the case of fraud. Once the aggregate amount of Damages exceeds such threshold amount, then the indemnified party shall have the right to recover all Damages without regard to such threshold, provided Indemnified Party based upon an allegation or allegations that the maximum amount Indemnifying Party, or any of Damages which Buyer shall be liable them, had an intent to Seller Parties under Section 8.2(b)(i) hereof shall be $2,500,000 defraud or made a willful misrepresentation or willful omission of a material fact in connection with this Agreement and the maximum amount of Damages transactions contemplated hereby which Seller Parties shall be liable to Buyer under Section 8.2(a)(i) hereof shall be $2,500,000, provided that such limitations shall not apply (i) in the case of fraud, was relied upon by WuXi or Holdco or (ii2) to inaccuracies enforce any order of a court of competent jurisdiction which finds or determines that the Indemnifying Party had an intent to defraud or made a willful misrepresentation or willful omission of a material fact in or breaches of any of connection with this Agreement and the representations and warranties contained in Sections 3.1 (Organization), 3.2 (Subsidiaries), 3.3 (Capitalization), 3.4 (Authorization), 3.11 (No Conflict or Violation), 3.16(a) (Labor Matters), 3.22 (Tax Matters), 3.27 (No Brokers), 4.1 (Organization), 4.2 (Authorization), 4.3 (No Conflict or Violation), 4.5 (Title to Units), 4.8 (No Brokers), 4.9 (Accredited Status), 5.1 (Organization), 5.2 (Authorization), and 5.3 (No Conflict or Violation) (collectively, Transactions which was relied upon by the “Fundamental Representations”)Indemnified Party.

Limitations on Indemnity. Neither (a) The Buyer Indemnified Parties and the F-M Indemnified Parties agree not to seek recourse against, and shall not recover from Federal-Mogul or the Buyer, on as the one handcase may be, nor any Seller Party, on the other hand, shall be liable under this ARTICLE VIII for Section 9 on account of any Damages until Loss with respect to Claims made pursuant to Section 9.03(a)(i) or Section 9.04(a), as the aggregate amount otherwise due the party being indemnified exceeds an accumulated total of $150,000; providedcase may be, howeveruntil, that this limitation shall apply and then only to the extent a party is entitled to indemnification exclusively under Sections 8.2(a)(i) or 8.2(b)(i) hereof that, the cumulative and shall not apply to breaches of the Fundamental Representations or in the case of fraud. Once the aggregate amount of Damages exceeds all such threshold amountindividual Losses of the Buyer Indemnified Parties or the F-M Indemnified Parties, then as the indemnified party shall have the right to recover all Damages without regard to such thresholdcase may be, provided that the maximum amount of Damages which Buyer shall be liable to Seller Parties recoverable under Section 8.2(b)(i9.03(a)(i) hereof shall or Section 9.04(a), as the case may be, exceeds $1.5 million. (b) The aggregate liability of Federal-Mogul or the Buyer, as the case may be, under Sections 9.03(a)(i) and (ii) or Sections 9.04(a) and (b), as the case may be $2,500,000 (other than with respect to Federal-Mogul's representations and the maximum amount of Damages which Seller Parties shall be liable warranties relating to Buyer under title to Assets contained in Section 8.2(a)(i4.04) hereof shall be $2,500,000, provided that such limitations shall not apply exceed an amount equal to 20% of the Purchase Price, as adjusted pursuant to Section 2.07. The aggregate liability of Federal-Mogul under Federal-Mogul's representations and warranties relating to title to Assets contained in Section 4.04 shall not exceed an amount equal to the Purchase Price, as adjusted pursuant to Section 2.07. (c) The obligations of any party hereto to indemnify, defend and hold harmless any other party pursuant to (i) in Section 9.03(a)(i) and Section 9.04(a), shall terminate when the case of fraudapplicable representation or warranty expires pursuant to Section 9.02, or (ii) to inaccuracies in or breaches of any of the representations and warranties contained in Sections 3.1 (Organization9.03(a)(ii), 3.2 (Subsidiaries), 3.3 (Capitalization), 3.4 (Authorization), 3.11 (No Conflict or Violation), 3.16(a) (Labor Matters), 3.22 (Tax Matters), 3.27 (No Brokers), 4.1 (Organization), 4.2 (Authorization), 4.3 (No Conflict or Violation), 4.5 (Title to Units), 4.8 (No Brokers), 4.9 (Accredited Status), 5.1 (Organization), 5.2 (Authorization9.03(a)(iii), and 5.3 9.03(a)(iv) and Sections 9.04(b), (No Conflict or Violationc), and (d), shall terminate on the date which is three years from the Closing Date and (iii) (collectivelySection 9.03(c), shall survive the “Fundamental Representations”)Closing Date without time limitation.

Limitations on Indemnity. Neither BuyerNotwithstanding the foregoing provisions of Section 8.1 and any other provision of this Agreement: (a) Any claim that has been timely asserted by an Indemnified Party (as hereinafter defined) in accordance with Section 8.5 hereof within the applicable time period specified in Section 8 shall survive past the applicable time limits set forth in Section 3.29 and Section 4.9 until the final resolution of the claim. (b) Notwithstanding anything in this Section 8 to the contrary, on the one hand, nor any Seller Party, on Company Indemnifying Parties shall not have liability to the other hand, shall be liable SPG Indemnified Parties under this ARTICLE VIII Section 8.1(a)(i) for any Damages individual Loss or series of related Losses arising from a breach of the representations and warranties in Section 3 (other than the representations and warranties in Sections 3.1, 3.2, 3.3, 3.4, 3.9, 3.12, 3.26, 3.27 and 3.28) in an amount less than $25,000 and until the sum of the aggregate amount otherwise due of the party being indemnified Losses exceeds $1,000,000 (the “Basket Amount”) in which case the SPG Indemnified Parties shall be entitled to losses in an accumulated total of amount up to $150,000; 10,000,000 (the “Cap Amount”), provided, however, that this limitation shall apply only to the extent a party is entitled to indemnification exclusively under Sections 8.2(a)(i) or 8.2(b)(i) hereof and shall not apply to breaches of the Fundamental Representations or in the case of fraud. Once the aggregate amount of Damages exceeds such threshold amount, then the indemnified party shall have the right to recover all Damages without regard to such threshold, provided that the maximum amount of Damages which Buyer shall be liable to Seller Parties under Section 8.2(b)(i) hereof shall be $2,500,000 and the maximum amount of Damages which Seller Company Indemnifying Parties shall be liable only for the amount by which all Losses (up to Buyer the Cap Amount) exceed the Basket Amount up to the Cap Amount. Notwithstanding anything in this Section 8 to the contrary, the SPG Indemnifying Parties shall not have liability to the Company Indemnified Parties under Section 8.2(a)(i) hereof shall be $2,500,000, provided that such limitations shall not apply (i) in the case of fraud, or (ii) to inaccuracies in or breaches of 8.1 for any individual Loss arising from a breach of the representations and warranties contained in Section 4 (other than the representations and warranties in Sections 3.1 4.1, 4.2, 4.3 and 4.7 ) in an amount less than $25,000 and until the sum of the aggregate amount of the Losses exceeds the Basket Amount in which case the Company Indemnified Parties shall be entitled to losses in an amount up to the Cap Amount, provided, however, that the SPG Indemnifying Parties shall be liable only for the amount by which all Losses (Organizationup to the Cap Amount) exceed the Basket Amount. For purposes of this Section 8.2, all Losses arising from the same facts, circumstances or event shall be deemed to constitute a single individual Loss. The Basket Amount and the Cap Amount shall not be applicable to (i) any Losses resulting from any representation and warranty specifically related to ownership or title of the Company’s assets and properties, (ii) to any Losses arising under or in connection with any defined benefit, defined contribution or welfare plan maintained by Hercules, WSP or any of their Affiliates, including any such plan listed on Schedule 3.20(a) or Schedule 3.20(d), 3.2 regardless of when occurred, (Subsidiariesiii) to any Losses arising under Section 8.1(a)(ii) through (ix), 3.3 (CapitalizationSection 8.1(b) or Section 8.1(c), 3.4 (Authorization), 3.11 iv) to any extent that the particular Company Indemnifying Party has engaged in fraud or willful misrepresentation or (No Conflict v) to any extent that the SPG Indemnifying Party has engaged in fraud or Violation), 3.16(a) willful misrepresentation. The Basket Amount and Cap Amount shall not be applicable to any Losses resulting from any breach of a covenant or other agreement by SPG made in this Agreement (Labor Matters), 3.22 (Tax Matters), 3.27 (No Brokers), 4.1 (Organization), 4.2 (Authorization), 4.3 (No Conflict whether for actions taken or Violation), 4.5 (Title to Units), 4.8 (No Brokers), 4.9 (Accredited Status), 5.1 (Organization), 5.2 (Authorization), and 5.3 (No Conflict or Violation) (collectively, the “Fundamental Representations”not taken). (c) For purposes of determining whether any representation or warranty subject to indemnification has been breached and in calculating the amount of Losses relating thereto, such representations and warranties alleged to have been breached shall be construed as if any qualification or limitation with respect to Material Adverse Effect were omitted from the text of such representations (other than the reference to Material Adverse Effect in the first sentence of Section 3.6).

Limitations on Indemnity. Neither Buyer(a) The Shareholders shall not have any liability or obligation to Purchaser or the Company whatsoever, on the one hand, nor any Seller Party, on the other hand, and no claim shall be liable asserted against the Shareholders, for indemnification under this ARTICLE VIII for any Damages Section 8.1(a) unless and until the aggregate amount otherwise due of Losses incurred by Purchaser and/or the party being indemnified Company as a result thereof exceeds an accumulated total $100,000, and then only to the extent the aggregate amount of such Losses exceeds $150,000100,000 and is less than Four Million Seven Hundred and Fifty Thousand Dollars ($4,750,000); provided, however, that the limitations set forth above in this limitation shall apply only to the extent a party is entitled to indemnification exclusively under Sections 8.2(a)(iSection 8.3(a) or 8.2(b)(i) hereof and shall not apply to breaches of the Fundamental Representations or in the case of fraud. Once the aggregate amount of Damages exceeds such threshold amount, then the indemnified party shall have the right to recover all Damages without regard to such threshold, provided that the maximum amount of Damages which Buyer shall be liable to Seller Parties under Section 8.2(b)(i) hereof shall be $2,500,000 and the maximum amount of Damages which Seller Parties shall be liable to Buyer under Section 8.2(a)(i) hereof shall be $2,500,000, provided that such limitations shall not apply (i) in any intentional breach of the case Shareholders’ representations or warranties of fraudwhich any Shareholder had knowledge at any time prior to or on the date hereof, or (ii) to inaccuracies in claims for indemnification resulting from the breach or breaches of any inaccuracy of the representations and warranties contained set forth in Sections 3.1 (Organization4.5(a), 3.2 4.6(g) and 4.8. In addition and for the avoidance of doubt, the limitations set forth above in this Section 8.3(a) shall not apply to claims for indemnification arising under Sections 8.1(b) and/or 8.1(c). (Subsidiaries)b) All representations and warranties in this Agreement, 3.3 the Schedules and the certificates and other documents delivered pursuant hereto shall survive the Closing and be enforceable against the party making the same for a period of one (Capitalization)1) year from the Closing Date at which time they shall expire and be of no further force or effect; provided, 3.4 however, that (Authorization)i) the representations and warranties set forth in Section 4.5(a) shall survive for a period of two (2) years, 3.11 (No Conflict or Violation), 3.16(aii) the representations and warranties set forth in Section 4.10 shall survive for a period of eighteen (Labor Matters), 3.22 (Tax Matters), 3.27 (No Brokers), 4.1 (Organization), 4.2 (Authorization), 4.3 (No Conflict or Violation), 4.5 (Title to Units), 4.8 (No Brokers), 4.9 (Accredited Status), 5.1 (Organization), 5.2 (Authorization)18) months, and 5.3 (No Conflict iii) the representations and warranties set forth in Section 4.8 shall survive for the period of the statute of limitations applicable to such representations and warranties. Any claim for indemnification with respect to any such matter which is not asserted by a notice given as herein provided within such period of survival may not be pursued and shall be thereafter forever barred. Indemnification pursuant to this Article 8 shall be the sole remedy of Shareholders and Purchaser for a breach of a representation or Violation) (collectively, the “Fundamental Representations”)warranty made pursuant to this Agreement; other than fraudulent breaches of representations or warranties for which common law remedies are available.

Limitations on Indemnity. Neither Buyer(a) Notwithstanding any other provision in this Agreement to the contrary, on the one hand, nor any Seller Party, on the other hand, CEI Indemnified Parties shall not be liable under this ARTICLE VIII for any Damages entitled to indemnification pursuant to Section 10.2(a) unless and until the aggregate amount of Damages to the CEI Indemnified Parties with respect to such matters under Section 10.2(a) exceeds one million dollars ($1,000,000) (the “Deductible”), and then only to the extent such Damages exceed the Deductible; provided, however, the Deductible shall not apply with respect to Damages claimed as a result of any breach of Section 6.1(b) or with respect to the Actions specifically referred to in Section 10.2(a)(i). The aggregate amount of Damages payable by the Allied Parties to the CEI Indemnified Parties with respect to such matters under Section 10.2(a) (excluding the Actions specifically referred to in Section 10.2(a)(i)) shall not exceed two hundred million dollars ($200,000,000) (the “Cap”) unless the Damages arise from or otherwise due relate to the breach of any of Sections 4.1, 4.2, 4.3, 4.4(f), 4.10, 4.12, 4.13, 4.14, 4.16, 4.17, 4.18 or 6.1(b) by the Allied Parties in which event the maximum amount for which the Allied Parties are liable shall equal the Purchase Price. (b) Notwithstanding any other provision in this Agreement to the contrary, the Allied Parties shall not be liable to, or indemnify the CEI Indemnified Parties for, any Damages claimed under this Agreement that are punitive (except to the extent constituting third-party being indemnified punitive claims), special, consequential, incidental, exemplary, lost profits or otherwise not actual damages. The CEI Indemnified Parties shall not use “multiple of profits” or “multiple of cash flow” or any similar valuation methodology in calculating the amount of any Damages. If the Closing occurs, this Article X constitutes the CEI Parties’ sole and exclusive remedy for any and all Damages or other claims relating to or arising from this Agreement and the Transactions contemplated hereby. (c) Notwithstanding any other provision in this Agreement to the contrary, no Allied Party shall be entitled to indemnification pursuant to Section 10.3 unless and until the aggregate amount of Damages with respect to such matters under Section 10.3 exceeds an accumulated total of $150,000the Deductible, and then only to the extent such Damages exceed the Deductible; provided, however, that this limitation shall apply only to the extent a party is entitled to indemnification exclusively under Sections 8.2(a)(i) or 8.2(b)(i) hereof and shall not apply to breaches of the Fundamental Representations or in the case of fraud. Once the aggregate amount of Damages exceeds such threshold amountpayable by any CEI Party to the Allied Parties hereunder shall not exceed the Cap unless the Damages arise from or otherwise relate to the breach of any of Sections 5.1, then 5.2, 5.3, 5.4, 5.6, 5.7, 5.10, 5.13, 5.14, 5.15 or 5.21 by the indemnified party shall have the right to recover all Damages without regard to such thresholdCEI Parties, provided that in which event the maximum amount of Damages for which Buyer the CEI Parties are liable shall equal the Purchase Price. (d) Notwithstanding any other provision in this Agreement to the contrary, CEI shall not be liable to, or be required to Seller indemnify any Allied Indemnified Parties for, any Damages claimed under Section 8.2(b)(ithis Agreement that are punitive (except to the extent constituting third-party punitive claims), special, consequential, incidental, exemplary or otherwise not actual damages or (iii) hereof that are in the nature of lost profits or any diminution in value of property or equity. The Allied Parties shall be $2,500,000 not use “multiple of profits” or “multiple of cash flow” or any similar valuation methodology in calculating the amount of any Damages. If the Closing occurs, this Article X constitutes the Allied Parties’ sole and exclusive remedy for any and all Damages or other claims relating to or arising from this Agreement and the maximum amount of Damages which Seller Parties shall be liable to Buyer under Section 8.2(a)(i) hereof shall be $2,500,000, provided that such limitations shall not apply (i) in the case of fraud, or (ii) to inaccuracies in or breaches of any of the representations and warranties contained in Sections 3.1 (Organization), 3.2 (Subsidiaries), 3.3 (Capitalization), 3.4 (Authorization), 3.11 (No Conflict or Violation), 3.16(a) (Labor Matters), 3.22 (Tax Matters), 3.27 (No Brokers), 4.1 (Organization), 4.2 (Authorization), 4.3 (No Conflict or Violation), 4.5 (Title to Units), 4.8 (No Brokers), 4.9 (Accredited Status), 5.1 (Organization), 5.2 (Authorization), and 5.3 (No Conflict or Violation) (collectively, the “Fundamental Representations”)Transactions contemplated hereby.