Common use of Limits on Liability Clause in Contracts

Limits on Liability. (a) Except as set forth in Section 9.09 with respect to Fraud, notwithstanding anything to the contrary contained in this Agreement: (i) the total aggregate liability of the Sellers under or in connection with this Agreement or the transactions contemplated hereby shall not exceed an amount equal to the Purchase Price less the aggregate R&W Insurance Policy limit; (ii) the maximum liability of any Seller on account of any particular indemnifiable Loss arising under clause Section 9.02(ii) or Section 9.02(iv) shall not exceed such Seller’s Pro Rata Share of such Loss; and (iii) the maximum amount required to be paid by any Seller pursuant to Section 9.02 is the portion of the Purchase Price actually received by such Seller. (b) Notwithstanding anything herein to the contrary, no Seller shall have any indemnification obligations pursuant to Section 9.02 with respect to (i) a breach of any representation or warranty set forth in ARTICLE III made by or with respect to any other Seller, (ii) any other Seller’s individual covenants set forth in Section 6.06, (iii) Fraud committed by any other Seller of which such first Seller did not have actual knowledge; provided that, with respect to any breach or Fraud described in the foregoing clauses (i) or (ii), the indemnification obligation of the Seller who committed such breach or Fraud shall not be limited to their Pro Rata Share. (c) For purposes of this ARTICLE IX, other than with respect to the representations and warranties contained in Section 4.09(ii), in determining whether there has been a breach of any representation or warranty and the amount of any Losses that are the subject matter of a claim for indemnification hereunder, each representation and warranty shall be read without regard and without giving effect to any materiality qualifications contained therein (including the terms “material”, “material adverse effect”, “Material Adverse Effect” or any similar terms). (d) Notwithstanding anything herein to the contrary, any liability of the ESOP to indemnify a Purchaser Indemnified Party pursuant to and in accordance with this ARTICLE IX, but for this Section 9.05(d), shall be satisfied by the Principal Seller. (e) Notwithstanding any provision herein to the contrary, no party shall be liable for punitive damages unless paid or payable to third parties in respect of a Third Party Claim as contemplated under Section 9.06. (f) Notwithstanding any provision herein to the contrary: (i) the Certain Matters Escrow Amount shall be the sole and exclusive remedy of the Purchaser Indemnified Parties for any and all Losses that are sustained or incurred by any of the Purchaser Indemnified Parties by reason of, resulting from or arising out of the Certain Matters; and (ii) the maximum amount required to be paid by Sellers pursuant to the Certain Matters is the Certain Matters Escrow Amount.

Limits on Liability. The representations and warranties of Seller (ai) contained in Section 3.1 and Section 3.2 (the “Seller Fundamental Representations”) shall survive the Closing and shall remain in full force and effect indefinitely and (ii) that are not Seller Fundamental Representation shall survive the Closing and shall remain in full force and effect until the date that is one year after the Closing Date. The representations and warranties of Buyer (i) contained in Section 4.1 and Section 4.2 (the “Buyer Fundamental Representations”) shall survive the Closing and shall remain in full force and effect indefinitely and (ii) that are not Buyer Fundamental Representations shall survive the Closing and remain in full force and effect until the date that is one year after the Closing. Covenants survive in accordance with their terms. Except as expressly set forth herein, Buyer agrees and acknowledges that its sole and exclusive remedy for any inaccuracy or breach of any of the representations or warranties of Seller contained in Section 9.09 with this Agreement or for any non-fulfillment or breach of any of the covenants or agreements of Seller contained in this Agreement will be a claim for breach of contract (except that the foregoing shall not be deemed to limit any rights of Buyer in respect of intentional fraud); provided that (A) Seller will indemnify and hold Buyer harmless for any and all losses incurred by Buyer to Fraudthe extent relating to any Excluded Liabilities (provided that any attorneys fees are reasonable) and (B) Buyer will indemnify and hold, notwithstanding and hold Seller harmless for any and all losses incurred by Buyer to the extent relating to any Assumed Liabilities (provided that any attorneys fees are reasonable). Seller shall not be liable to Buyer for any claim for breach of contract related to a breach of the representations and warranties of Seller (other than Seller Fundamental Representations) until the aggregate amount of losses in respect of such claims exceeds $21,000, in which event Seller will only be responsible for losses in excess of such amount. The aggregate amount of all losses in respect of such claims for which Seller shall be liable will not exceed $160,000. Notwithstanding anything to the contrary contained set forth in this Agreement: , in no event shall Seller, CMSC, Strong or any of their respective Affiliates be liable for special, punitive, exemplary, incidental (i) other than reasonable attorneys’ fees and other damages to the total aggregate liability extent reasonably foreseeable), consequential, or indirect damages, loss of reputation or opportunity, loss of goodwill, diminution of value, or any damages based on any type of multiple, whether based in contract, tort, strict liability, or otherwise; provided, however, that this sentence shall not limit Buyer’s right to recover under this Section 6.16 for any losses to the Sellers under or extent that Buyer is required to pay such losses to a third party in connection with this Agreement or the transactions contemplated hereby shall not exceed an amount equal a matter for which Buyer is otherwise entitled to the Purchase Price less the aggregate R&W Insurance Policy limit; (ii) the maximum liability of any Seller on account of any particular indemnifiable Loss arising under clause Section 9.02(ii) or Section 9.02(iv) shall not exceed such Seller’s Pro Rata Share of such Loss; and (iii) the maximum amount required to be paid by any Seller pursuant to Section 9.02 is the portion of the Purchase Price actually received by such Seller. (b) Notwithstanding anything herein to the contrary, no Seller shall have any indemnification obligations pursuant to Section 9.02 with respect to (i) a breach of any representation or warranty set forth in ARTICLE III made by or with respect to any other Seller, (ii) any other Seller’s individual covenants set forth in Section 6.06, (iii) Fraud committed by any other Seller of which such first Seller did not have actual knowledge; provided that, with respect to any breach or Fraud described in the foregoing clauses (i) or (ii), the indemnification obligation of the Seller who committed such breach or Fraud shall not be limited to their Pro Rata Share. (c) For purposes of this ARTICLE IX, other than with respect to the representations and warranties contained in Section 4.09(ii), in determining whether there has been a breach of any representation or warranty and the amount of any Losses that are the subject matter of a claim for indemnification hereunder, each representation and warranty shall be read without regard and without giving effect to any materiality qualifications contained therein (including the terms “material”, “material adverse effect”, “Material Adverse Effect” or any similar terms). (d) Notwithstanding anything herein to the contrary, any liability of the ESOP to indemnify a Purchaser Indemnified Party pursuant to and monetary damages in accordance with this ARTICLE IX, but for this Section 9.05(d), shall be satisfied by the Principal Seller6.16. (e) Notwithstanding any provision herein to the contrary, no party shall be liable for punitive damages unless paid or payable to third parties in respect of a Third Party Claim as contemplated under Section 9.06. (f) Notwithstanding any provision herein to the contrary: (i) the Certain Matters Escrow Amount shall be the sole and exclusive remedy of the Purchaser Indemnified Parties for any and all Losses that are sustained or incurred by any of the Purchaser Indemnified Parties by reason of, resulting from or arising out of the Certain Matters; and (ii) the maximum amount required to be paid by Sellers pursuant to the Certain Matters is the Certain Matters Escrow Amount.

Limits on Liability. (a) Except No Claim may be asserted nor may any Action be commenced against a party hereto, in each case, pursuant to this Article VII, unless written notice of such Claim or Action is received by such party describing in reasonable detail the facts and circumstances with respect to the subject matter of such Claim or Action on or prior to the date on which the representation, warranty, covenant or agreement on which such Claim or Action is based ceases to survive as set forth in Section 9.09 with respect to Fraud7.01, notwithstanding as applicable. (b) Notwithstanding anything to the contrary contained in this Agreement: (i) the total aggregate liability of the Sellers under or in connection with this Agreement or the transactions contemplated hereby shall not exceed an amount equal to the Purchase Price less the aggregate R&W Insurance Policy limit; (ii) the maximum liability of any Seller on account of any particular indemnifiable Loss arising under clause Section 9.02(ii) or Section 9.02(iv) shall not exceed such Seller’s Pro Rata Share of such Loss; and (iii) the maximum amount required to be paid by any Seller pursuant to Section 9.02 is the portion of the Purchase Price actually received by such Seller. (b) Notwithstanding anything herein to the contrary, no Seller shall have any indemnification obligations pursuant to Section 9.02 with respect to (i) a breach of any representation or warranty set forth in ARTICLE III made by or with respect to any other Seller, (ii) any other Seller’s individual covenants set forth in Section 6.06, (iii) Fraud committed by any other Seller of which such first Seller did not have actual knowledge; provided that, with respect to any breach or Fraud described in the foregoing clauses (i) or (ii), the indemnification obligation of the Seller who committed such breach or Fraud shall not be limited to their Pro Rata Share. (c) For purposes of this ARTICLE IX, other than with respect to the representations and warranties contained in Section 4.09(ii), in determining whether there has been a breach of any representation or warranty and the amount of any Losses that are the subject matter of a claim for indemnification hereunder, each representation and warranty shall be read without regard and without giving effect to any materiality qualifications contained therein (including the terms “material”, “material adverse effect”, “Material Adverse Effect” or any similar terms). (d) Notwithstanding anything herein to the contrary, any liability of the ESOP to indemnify a Purchaser Indemnified Party pursuant to and in accordance with this ARTICLE IX, but for this Section 9.05(d), shall be satisfied by the Principal Seller. (e) Notwithstanding any provision herein to the contrary, no party shall be liable for punitive damages unless paid or payable to third parties in respect of a Third Party Claim as contemplated under Section 9.06. (f) Notwithstanding any provision herein to the contrary: (i) Parent shall not be liable for any Claims pursuant to Section 7.02(a) unless and until the Certain Matters Escrow Amount aggregate amount of indemnifiable Claims which may be recovered from Parent exceeds $7,500,000, whereupon Investor shall be entitled to indemnification for the sole and exclusive remedy full amount of the Purchaser Indemnified Parties for any and all Losses that are sustained or incurred by any of the Purchaser Indemnified Parties by reason of, resulting from or arising out of the Certain Matterssuch Claims; and (ii) the maximum amount required of indemnifiable Claims pursuant to Section 7.02(a) which may be recovered from Parent shall be an amount equal to $100,000,000; provided, that this Section 7.03(b) shall not apply with respect to any Claim arising out of or resulting from any breach of any Fundamental Representations or the representations and warranties set forth in Section 3.16 (Taxes). (c) Notwithstanding anything to the contrary contained in this Agreement, after the Closing, none of the parties hereto shall have any liability under any provision of this Agreement for any punitive, exemplary, treble, incidental, consequential, special or indirect damages (except, in each case, to the extent payable by an Indemnified Party to a third party), including loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, regardless of whether such damages were foreseeable; provided that nothing herein shall preclude the recovery for diminution of value or similar damages that may be suffered by Investor in respect of the Subscription Shares, the Employee Shares and the Officer Shares acquired hereunder. (d) For all purposes of this Article VII, “Losses” shall be determined net of (i) any amounts actually received by the Indemnified Party or any of its Affiliates in connection with the facts giving rise to the right of indemnification and after deduction of any reasonable costs and expenses (including any increase in premiums) incurred in connection with such recovery, and, if the Indemnified Party or any of its Affiliates receives such recovery after receipt of payment from the Indemnifying Party, then the amount of such recovery, net of reasonable costs and expenses (including any increase in premiums) incurred in obtaining such recovery, shall be paid by Sellers pursuant to the Certain Matters is Indemnifying Party; and (ii) any net Tax benefit actually realized by the Certain Matters Escrow AmountIndemnified Party or any of its Affiliates in the taxable year of the Loss (determined on a with-and-without basis) arising as a result of the accrual, incurrence or payment of any such Losses.

Limits on Liability. (a) Except as set forth in Section 9.09 with respect to Fraudclaims for equitable remedies and claims based on fraud, notwithstanding anything to following the contrary contained in this Agreement: (i) the total aggregate liability of the Sellers under or in connection with this Agreement or the transactions contemplated hereby shall not exceed an amount equal to the Purchase Price less the aggregate R&W Insurance Policy limit; (ii) the maximum liability of any Seller on account of any particular indemnifiable Loss arising under clause Section 9.02(ii) or Section 9.02(iv) shall not exceed such Seller’s Pro Rata Share of such Loss; and (iii) the maximum amount required to be paid by any Seller pursuant to Section 9.02 is the portion of the Purchase Price actually received by such Seller. (b) Notwithstanding anything herein to the contraryClosing Date, no Seller Indemnitor shall have an indemnification obligation for any amount for Losses arising out of or resulting from the causes enumerated in clause (a) of Section 10.2 or clause (a) of Section 10.3, as appropriate, in excess of one million five hundred thousand dollars ($1,500,000), and no Indemnitor shall have any indemnification obligations obligation for any amount of Losses arising out of or resulting from the causes enumerated in clause (a) of Section 10.2 or clause (a) of Section 10.3, as appropriate, Table of Contents until the total amount of resulting Losses exceeds one hundred thousand dollars ($100,000) (the “Threshold Amount”), after which time the Indemnitor shall be liable only for the amount of Losses in excess of the Threshold Amount. The amount of any Losses indemnifiable by either party pursuant to Section 9.02 with respect this Article X shall be adjusted to (i) a breach reflect the value of any representation insurance proceeds actually received (net of any deductibles, retention or warranty set forth self-insurance) by the Indemnitee or its successors or assigns in ARTICLE III made respect of such Losses; provided, however, that no Indemnitee shall have any obligation to pursue such insurance proceeds or recovery from third Persons. If any such proceeds or recoveries are received by or an Indemnitee with respect to any other Seller, (ii) any other Seller’s individual covenants set forth in Section 6.06, (iii) Fraud committed by any other Seller of which such first Seller did not have actual knowledge; provided that, Losses after a party hereto has made a payment to the Indemnitee with respect to any breach or Fraud described in the foregoing clauses (i) or (ii)such Losses, the indemnification obligation Indemnitee shall pay to such party the amount of such proceeds or recoveries (up to the Seller who committed amount of such breach or Fraud shall not be limited to their Pro Rata Share. (c) For purposes of this ARTICLE IX, other than party’s payment with respect to the representations such Losses). Claims for Losses made pursuant to clause (a) of Section 10.2 and warranties contained in of Section 4.09(ii), in determining whether there has been a breach of 10.3 may be made at any representation or warranty and the amount of any Losses that are the subject matter of a claim for indemnification hereunder, each representation and warranty shall be read without regard and without giving effect to any materiality qualifications contained therein (including the terms “material”, “material adverse effect”, “Material Adverse Effect” or any similar terms). (d) Notwithstanding anything herein time prior to the contrary, any liability of the ESOP to indemnify a Purchaser Indemnified Party Expiration Date and all other claims for Losses pursuant to and in accordance with this ARTICLE IXArticle X may be made indefinitely. IN NO EVENT SHALL ANY PARTY BE LIABLE FOR ANY INDIRECT, but for this Section 9.05(d)INCIDENTAL, shall be satisfied by the Principal SellerSPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (e) Notwithstanding any provision herein to the contrary, no party shall be liable for punitive damages unless paid or payable to third parties in respect of a Third Party Claim as contemplated under Section 9.06. (f) Notwithstanding any provision herein to the contrary: (i) the Certain Matters Escrow Amount shall be the sole and exclusive remedy of the Purchaser Indemnified Parties for any and all Losses that are sustained or incurred by any of the Purchaser Indemnified Parties by reason of, resulting from or arising out of the Certain Matters; and (ii) the maximum amount required to be paid by Sellers pursuant to the Certain Matters is the Certain Matters Escrow Amount.

Limits on Liability. (a) Except as The Indemnified Parties shall not be entitled to be indemnified for any Indemnified Representation Losses unless and until the aggregate amount of all Indemnified Representation Losses exceeds $150,000 (the “Threshold”); provided, however, that Indemnified Representation Losses with respect to any single claim (or series of related claims or claims arising from similar facts and circumstances), that do not exceed $5,000 (“De Minimis Claims”) shall not be taken into account in determining whether the Threshold has been reached or exceeded; provided further, however, that after the aggregate amount of all Indemnified Representation Losses exceeds the Threshold, the Indemnified Parties shall be entitled to be indemnified against the entire amount of any Indemnified Representation Losses, including the Threshold and any De Minimis Claims, subject to the limitations on recovery set forth in Section 9.09 10.6(b); and provided further, however, that this Section 10.6(a) shall not apply to (i) Fundamental Claims or (ii) claims in connection with, based upon, resulting from, attributable to, related to, or arising out of fraud (with respect knowledge of, or reckless disregard as to, falsity), intentional misrepresentation or willful breach. (b) Subject to FraudSection 10.6(d), notwithstanding anything the Indemnifying Parties’ liability for Indemnified Representation Losses (other than Fundamental Claims) shall be limited to the contrary contained Holdback Cash Consideration; provided, however, that this Section 10.6(b) shall not apply to claims in this Agreementconnection with, based upon, resulting from, attributable to, related to, or arising out of fraud (with knowledge of, or reckless disregard as to, falsity), intentional misrepresentation or willful breach. (c) Subject to Section 10.6(d), the Indemnifying Parties’ aggregate liability for: (i) the total aggregate liability all Indemnified Representation Losses (including Fundamental Claims) (other than as described in Section 10.6(d)); (ii) all Indemnified Tax Losses; (iii) claims described in clause (c)(i) of the Sellers under or definition of Indemnified Losses (other than as described in connection with this Agreement or Section 10.6(d)); (iv) claims described in clause (c)(ii) of the transactions contemplated hereby definition of Indemnified Losses; (v) claims described in clause (c)(iii) of the definition of Indemnified Losses; and (vi) Indemnified Losses described in Section 10.6(e); shall not exceed be limited to an amount equal to the Purchase Price less the aggregate R&W Insurance Policy limit; (ii) the maximum liability of any Seller on account of any particular indemnifiable Loss arising under clause Section 9.02(ii) or Section 9.02(iv) shall not exceed such Seller’s Pro Rata Share of such Loss; and (iii) the maximum amount required to be paid by any Seller pursuant to Section 9.02 is the portion of the Purchase Price actually received by such Seller. (b) Notwithstanding anything herein to the contrary, no Seller shall have any indemnification obligations pursuant to Section 9.02 with respect to (i) a breach of any representation or warranty set forth in ARTICLE III made by or with respect to any other Seller, (ii) any other Seller’s individual covenants set forth in Section 6.06, (iii) Fraud committed by any other Seller of which such first Seller did not have actual knowledge; provided that, with respect to any breach or Fraud described in the foregoing clauses (i) or (ii), the indemnification obligation of the Seller who committed such breach or Fraud shall not be limited to their Pro Rata Share. (c) For purposes of this ARTICLE IX, other than with respect to the representations and warranties contained in Section 4.09(ii), in determining whether there has been a breach of any representation or warranty and the amount of any Losses that are the subject matter of a claim for indemnification hereunder, each representation and warranty shall be read without regard and without giving effect to any materiality qualifications contained therein (including the terms “material”, “material adverse effect”, “Material Adverse Effect” or any similar terms)Adjusted Merger Consideration. (d) Notwithstanding anything herein Section 10.6(b) or Section 10.6(c), (i) each Equityholder’s liability for such Equityholder’s own fraud (with knowledge of, or reckless disregard as to, falsity), intentional misrepresentation or willful breach, (ii) each Equityholder’s liability for any breach by such Equityholder of any covenant in this Agreement or any Transaction Document to which such Equityholder is a party (excluding, for the avoidance of doubt, covenants made by the Company under this Agreement), and (iii) each Significant Owner’s liability for any breach by such Significant Owner of the covenants made in such Significant Owner’s Significant Owner Agreement shall not be limited by the provisions of this Agreement; provided, however, that each Equityholder’s obligations pursuant to Section 10.1 shall otherwise be subject to the contrary, any liability of the ESOP to indemnify a Purchaser Indemnified Party pursuant to and limitations in accordance with this ARTICLE IX, but for this Section 9.05(d), shall be satisfied by the Principal Seller10.6. (e) Notwithstanding Section 10.1 or any provision herein of this Section 10.6 to the contrary, each Significant Owner shall be jointly and severally liable for breaches of another Significant Owner’s covenants of non-competition or non-solicitation made in such other Significant Owner’s Significant Owner Agreement. Other than as set forth in Section 10.1 and this Section 10.6(e), no party shall Equityholder will be liable for punitive damages unless paid a breach of any representation, warranty or payable covenant of any other Equityholder under this Agreement or any other Transaction Document (provided, however, that the indemnification obligations of the Indemnifying Parties shall be joint and several, and not subject to third parties in respect limitation or apportionment, to the extent satisfied out of a Third Party Claim as contemplated under Section 9.06the Holdback Cash Consideration). (f) Notwithstanding any provision herein of this Agreement to the contrary: , all references in this Agreement and the Exhibits and Schedules hereto to “material,” “material respects” and “Material Adverse Effect” (and similar materiality qualifications) shall be disregarded for purposes of determining (i) the Certain Matters Escrow Amount shall be the sole and exclusive remedy whether there has been a breach or failure of the Purchaser a representation, warranty, covenant or agreement for which an Indemnified Parties for any and all Losses that are sustained or incurred by any of the Purchaser Indemnified Parties by reason of, resulting from or arising out of the Certain Matters; Party is entitled to indemnification under this Agreement and (ii) the maximum amount required of any Indemnified Loss that is the subject of indemnification hereunder. (g) The amount of any Indemnified Losses recoverable by any Indemnified Party under this Article X shall be calculated net of any insurance proceeds actually received under the E&O Tail Policy or the D&O Tail Policy by such Indemnified Party in respect of such Indemnified Losses. If an Indemnified Party receives any amounts under such insurance policies subsequent to be paid its receipt of an indemnification payment by Sellers pursuant the Indemnifying Parties, then such Indemnified Party will, without duplication, promptly reimburse the Indemnifying Parties for any payment made by such Indemnifying Parties up to the Certain Matters is amount received by the Certain Matters Escrow AmountIndemnified Party. For the avoidance of doubt, the provisions of this Section 10.6(g) shall only apply with respect to amounts received under the E&O Tail Policy and the D&O Tail Policy, and not any other insurance maintained by Parent or the Company. (h) Any liability for indemnification under this Article X shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach or other violation of more than one representation, warranty, covenant, agreement, certificate or certification. In addition, if and solely to the extent that an amount of Indemnifiable Losses in connection with an indemnifiable matter was already taken into account in connection with calculation of the Adjusted Merger Consideration, the same amount of such Indemnifiable Losses may not be recovered under this Article X. (i) The Parent acknowledges and agrees that no attorney-client privileged communications between the Company and outside legal counsel to the Company may be used as the sole basis for an indemnification claim under this Article X.

Limits on Liability. No Buyer Indemnified Party shall seek reimbursement or indemnification from Sellers for Losses under Section 10.1(a) until the Buyer Indemnified Parties, as a group, have suffered among them aggregate Losses under Section 10.1(a) in excess of $159,000 (athe “Basket”), in which event the Buyer Indemnified Parties, as a group, may seek reimbursement or indemnification from Sellers severally (and not jointly) Except as set forth solely for the amount of such Losses in Section 9.09 with respect to Fraud, notwithstanding anything to the contrary contained in this Agreement: (i) the total aggregate liability excess of the Sellers under or in connection Basket, with this Agreement or the transactions contemplated hereby shall not exceed each Seller obligated for an amount equal to the Purchase Price less amount of such Losses in excess of the aggregate R&W Insurance Policy limit; (ii) the maximum liability of any Seller on account of any particular indemnifiable Loss arising under clause Section 9.02(ii) or Section 9.02(iv) shall not exceed Basket multiplied by such Seller’s Seller Pro Rata Share Percentage set forth on Schedule I. No Seller shall have any obligation under Section 10.1(a) to pay by way of such Loss; and indemnification any amounts exceeding twenty percent (iii20%) the maximum amount required to be paid by any Seller pursuant to Section 9.02 is of the portion of the Purchase Price actually received by paid to such Seller. Seller (b) the “Cap”). Notwithstanding anything herein to the contraryforegoing, no Seller the Basket and Cap shall have any indemnification obligations pursuant to Section 9.02 with respect to not apply to: (i) a breach of Losses resulting from breaches of, or any representation or warranty set forth in ARTICLE III made by or with respect to any other Sellerinaccuracies in, (ii) any other Seller’s individual covenants set forth in Section 6.06, (iii) Fraud committed by any other Seller of which such first Seller did not have actual knowledge; provided that, with respect to any breach or Fraud described in the foregoing clauses (i) or (ii), the indemnification obligation of the Seller who committed such breach or Fraud shall not be limited to their Pro Rata Share. (c) For purposes of this ARTICLE IX, other than with respect to the representations and warranties contained in Section 4.09(ii4.1 (Organization of the Company), in determining whether there has been a breach of any representation or warranty Section 4.2 (Capital Stock), Section 4.3 (Authorization), Section 4.4 (Subsidiaries), Section 4.13 (No Brokers), Section 4.14 (Intellectual Property and the amount of any Losses that are the subject matter of a claim for indemnification hereunderTechnology), each representation Section 4.15 (Taxes), Section 4.18 (Receivables) and warranty shall be read without regard and without giving effect to any materiality qualifications contained therein (including the terms “material”Section 4.20(c), “material adverse effect”, “Material Adverse Effect” or any similar terms). (d) and (f) (Labor Matters); (ii) Losses described in Section 11.2(a); (iii) Losses resulting from the failure to perform or comply with the obligations and covenants of a Seller or the Company in this Agreement; (iv) any Losses resulting from the Unpaid Company Transaction Expenses; or (v) any Losses resulting from fraud or intentional misrepresentation. Notwithstanding anything herein to the contrarycontrary in this Agreement, any (A) except for fraud, intentional misrepresentation or willful breach, and subject to the limitations set forth herein, the aggregate liability of any Seller for Losses shall be equal to the ESOP to indemnify a Purchaser Indemnified Party aggregate amount of all payments actually received by such Seller pursuant to Article 2 hereof and in accordance with this ARTICLE IX, but for this Section 9.05(d), shall be satisfied by the Principal Seller. (eB) Notwithstanding any provision herein to the contrary, no party Seller shall be liable for punitive damages unless paid the willful or payable to third parties in respect intentional breach of a Third Party Claim as contemplated under Section 9.06. (f) Notwithstanding any provision herein to the contrary: (i) the Certain Matters Escrow Amount shall be the sole and exclusive remedy of the Purchaser Indemnified Parties another Seller, or for any and all Losses that are sustained or incurred act of fraud committed by any of the Purchaser Indemnified Parties by reason of, resulting from or arising out of the Certain Matters; and (ii) the maximum amount required to be paid by Sellers pursuant to the Certain Matters is the Certain Matters Escrow Amountanother Seller.

Limits on Liability. (a) Except as set forth in Section 9.09 with respect to Fraud, notwithstanding Notwithstanding anything to the contrary contained in this Agreement: (a) in no event shall either Party be liable to the other under this Agreement for any exemplary, punitive, remote, speculative, consequential, indirect, special or incidental damages or loss of profits; provided that, if either Carrier or TEML is held liable to a third party for any such damages and the indemnifying party is obligated to indemnify such indemnitee for the matter that gave rise to such damages, the indemnifying party shall be liable for, and obligated to reimburse such indemnitee for, such third party damages; (b) in no event shall TEML be liable to Carrier for any act or omission undertaken or omitted to be undertaken by or on behalf of TEML in accordance with its obligations hereunder that: (i) was undertaken or omitted to be undertaken at the total aggregate liability request of or with the Sellers under or in connection with this Agreement or the transactions contemplated hereby shall not exceed an amount equal to the Purchase Price less the aggregate R&W Insurance Policy limitwritten consent of Carrier; (ii) arises from matters or things for which TEML is entitled to indemnification pursuant to Section 9.1, including without limitation, Carrier’s breach of its obligations to measure, monitor and report the maximum liability aggregate quality of any Seller on account volumes of any particular indemnifiable Loss arising under clause Section 9.02(ii) or Section 9.02(iv) shall not exceed such Seller’s Pro Rata Share Crude Petroleum delivered to and from the Pipeline System and its obligation to use commercially reasonable efforts to minimize the acceptance of such LossCrude Petroleum from Shippers that varies from the quality specifications set forth in the Rules; andor (iii) the maximum amount required to be paid by any Seller pursuant to Section 9.02 is the portion arises as a result of the Purchase Price actually received by such Seller. (b) Notwithstanding anything herein to the contrary, no Seller shall have any indemnification obligations pursuant to Section 9.02 with respect to (i) a breach gross negligence or wilful misconduct of any representation or warranty set forth in ARTICLE III made by or with respect to any other Seller, (ii) any other Seller’s individual covenants set forth in Section 6.06, (iii) Fraud committed by any other Seller of which such first Seller did not have actual knowledge; provided that, with respect to any breach or Fraud described in the foregoing clauses (i) or (ii), the indemnification obligation of the Seller who committed such breach or Fraud shall not be limited to their Pro Rata ShareCarrier. (c) For purposes in no event shall TEML’s liability for breach of its obligations under this ARTICLE IX, other than with respect Agreement exceed the aggregate of the lease amounts paid to TEML during the 12 months prior to the representations and warranties contained in Section 4.09(ii), in determining whether there has been a breach date of any representation or warranty and the amount of any Losses that are the subject matter of a claim for indemnification hereunder, each representation and warranty shall be read without regard and without giving effect to any materiality qualifications contained therein (including the terms “material”, “material adverse effect”, “Material Adverse Effect” or any similar terms)such breach. (d) Notwithstanding anything herein in no event shall Carrier be liable to the contrary, any liability of the ESOP to indemnify a Purchaser Indemnified Party pursuant to and in accordance with this ARTICLE IX, but for this Section 9.05(d), shall be satisfied by the Principal Seller.TEML for: (ei) Notwithstanding any provision herein to the contrary, no party shall be liable for punitive damages unless paid or payable to third parties Losses incurred by TEML in respect of a Third Party Claim as contemplated under Section 9.06. (f) Notwithstanding any provision herein to the contrary: (i) the Certain Matters Escrow Amount shall be the sole and exclusive remedy market based commodity price exposure of the Purchaser Indemnified Parties for any and all Losses that are sustained Line Fill or incurred by any from the changing market value of the Purchaser Indemnified Parties by reason of, resulting from or arising out of the Certain Matters; and Line Fill; (ii) Transportation Charges (as such term is defined in the maximum amount required to be paid by Sellers pursuant Rules), including for equalization obligations, negative shipper balance positions and loss allowances pertaining to the Certain Matters is Line Fill on the Certain Matters Escrow AmountPipeline System and the addition or removal of Line Fill from time to time; or (iii) Losses that arise as a result of the gross negligence or wilful misconduct of TEML.

Limits on Liability. (a) Except as set forth in Section 9.09 with respect The Indemnified Parties shall not be entitled to Fraudbe indemnified for any Indemnified Representation Losses unless and until the aggregate amount of all Indemnified Losses exceeds $1,500,000 (the “Threshold”), notwithstanding anything and then only to the contrary contained extent in excess of the Threshold; provided, however, that this Agreement: Section 9.7(a) shall not apply to (i) the total aggregate liability of the Sellers under Fundamental Claims or in connection with this Agreement or the transactions contemplated hereby shall not exceed an amount equal to the Purchase Price less the aggregate R&W Insurance Policy limit; (ii) the maximum liability claims in connection with, based upon, resulting from, attributable to, related to, or arising out of fraud, intentional misrepresentation or willful misconduct (although any Seller on account of any particular indemnifiable Loss arising under clause Section 9.02(iiLosses incurred relating to (i) or Section 9.02(ivand (ii) shall not exceed such Seller’s Pro Rata Share of such Loss; and (iii) count towards the maximum amount required to be paid by any Seller pursuant to Section 9.02 is the portion of the Purchase Price actually received by such SellerThreshold). (b) Notwithstanding anything herein to the contrarycontrary in this Agreement, there shall be no Seller shall have any indemnification obligations pursuant to Section 9.02 with respect to limit on the Indemnifying Parties’ liability for claims in connection with, based upon, resulting from, attributable to, related to, or arising out of (i) a breach of Liabilities for any representation legal proceedings based on facts or warranty set forth in ARTICLE III made by or with respect circumstances that occurred prior to any other Sellerthe Closing, (ii) any other Seller’s individual covenants set forth in Section 6.06Excluded Liability, (iii) Fraud committed the ownership, control or operation of the Purchased Assets or the Business prior to the Closing, (iv) any breach of covenant by any other Seller of which such first Seller did not have actual knowledge; provided thatParty, with respect to any breach Hospitality Subsidiary or Fraud described in the foregoing clauses (i) Representative, or (ii)v) fraud, the indemnification obligation of the Seller who committed such breach intentional misrepresentation or Fraud shall not be limited to their Pro Rata Sharewillful breach. (c) For purposes of this ARTICLE IX, other than Any claim by an Indemnified Party shall be limited such that no Indemnified Party shall be entitled to duplicate recovery with respect to any Losses that result from the representations breach of more than one representation, warranty, covenant or agreement. (d) Notwithstanding any provision of this Agreement to the contrary, all references in this Agreement and warranties contained in Section 4.09(ii), in the Exhibits and Schedules hereto to “material,” “material respects” and “Material Adverse Effect” (and similar materiality qualifications) shall be disregarded for purposes of determining (i) whether there has been a breach of any representation or warranty and the amount of any Losses that are the subject matter failure of a claim representation, warranty, covenant or agreement for indemnification hereunder, each representation and warranty shall be read without regard and without giving effect to any materiality qualifications contained therein (including the terms “material”, “material adverse effect”, “Material Adverse Effect” or any similar terms). (d) Notwithstanding anything herein to the contrary, any liability of the ESOP to indemnify a Purchaser which an Indemnified Party pursuant is entitled to and in accordance with indemnification under this ARTICLE IX, but for this Section 9.05(d), shall be satisfied by the Principal Seller. (e) Notwithstanding any provision herein to the contrary, no party shall be liable for punitive damages unless paid or payable to third parties in respect of a Third Party Claim as contemplated under Section 9.06. (f) Notwithstanding any provision herein to the contrary: (i) the Certain Matters Escrow Amount shall be the sole and exclusive remedy of the Purchaser Indemnified Parties for any and all Losses that are sustained or incurred by any of the Purchaser Indemnified Parties by reason of, resulting from or arising out of the Certain Matters; Agreement and (ii) the maximum amount required to be paid by Sellers pursuant to the Certain Matters of any Indemnified Loss that is the Certain Matters Escrow Amountsubject of indemnification hereunder.

Limits on Liability. (a) Except as set forth in Section 9.09 with respect to Fraud, notwithstanding Notwithstanding anything to the contrary contained in this Agreement: : (ia) Other than with respect to claims for Fraud or for breaches of Seller Fundamental Representations (other than the total aggregate liability of representations in Section 4.23), the Sellers under or in connection with this Agreement or Seller and the transactions contemplated hereby Principal Seller Members shall not exceed an amount equal to the Purchase Price less the aggregate R&W Insurance Policy limit; (ii) the maximum liability of any Seller on account of any particular indemnifiable Loss arising under clause Section 9.02(ii) or Section 9.02(iv) shall not exceed such Seller’s Pro Rata Share of such Loss; and (iii) the maximum amount required to be paid by any Seller pursuant to Section 9.02 is the portion of the Purchase Price actually received by such Seller. (b) Notwithstanding anything herein to the contrary, no Seller shall have liable for any indemnification obligations pursuant to Section 9.02 with respect to (i) a breach of any representation or warranty set forth in ARTICLE III made by or with respect to any other Seller, (ii) any other Seller’s individual covenants set forth in Section 6.06, (iii) Fraud committed by any other Seller of which such first Seller did not have actual knowledge; provided that, with respect to any breach or Fraud described in the foregoing clauses (i9.02(i) or (ii), Section 9.02(ii) unless and until the indemnification obligation aggregate amount of indemnifiable Losses which may be recovered from the Seller who committed such breach or Fraud shall not be limited to their Pro Rata Share. (c) For purposes of this ARTICLE IX, other than with respect to the representations and warranties contained in Section 4.09(ii), in determining whether there has been a breach of any representation or warranty and the amount of any Losses that are the subject matter of a claim for indemnification hereunder, each representation and warranty shall be read without regard and without giving effect to any materiality qualifications contained therein (including the terms “material”, “material adverse effect”, “Material Adverse Effect” or any similar terms). (d) Notwithstanding anything herein to the contrary, any liability of the ESOP to indemnify a Purchaser Indemnified Party Principal Seller Members pursuant to and in accordance with this ARTICLE IXSection 9.02(i) or Section 9.02(ii), but for this Section 9.05(d9.05(a), equals or exceeds an amount equal to Six Hundred Twenty-Five Thousand Dollars ($625,000) (the “Deductible”), after which the Seller and the Principal Seller Members shall be satisfied by liable, and the Principal Seller. (e) Notwithstanding any provision herein Purchaser Indemnified Parties shall be entitled to indemnification, thereunder, only for those Losses in excess of the Deductible and, thereafter, solely to the contraryextent of and solely from the Indemnity Escrow Amount. To the extent the Indemnity Escrow Amount has been fully released from escrow or is otherwise no longer available, no party shall be liable for punitive damages unless paid or payable to third parties in respect of a Third Party Claim as contemplated under Section 9.06. (f) Notwithstanding any provision herein to the contrary: (i) the Certain Matters Escrow Amount R&W Insurance Policy shall thereafter be the sole and exclusive remedy of the Purchaser Indemnified Parties for any and all Losses that are sustained or incurred by any of the Purchaser Indemnified Parties by reason of, resulting from or arising out of any breach of or inaccuracy in any of the Certain MattersCompany’s or any Principal Seller Member’s representations or warranties contained in this Agreement or in any certificate or other instrument delivered pursuant to this Agreement, other than with respect to claims for Fraud or for breaches of Seller Fundamental Representations (other than the representations in Section 4.23), and (ii) the Seller and the Principal Seller Members shall not have any direct or indirect liability (derivative or otherwise) to any Purchaser Indemnified Party with respect to any breach of such representations and warranties of the Company, the Seller or the Principal Seller Members. The preceding sentence shall apply regardless of whether (A) Purchaser continues to maintain the R&W Insurance Policy following the Closing, (B) the R&W Insurance Policy is revoked, cancelled or modified in any manner after issuance, (C) any claim made by Purchaser under such R&W Insurance Policy is denied by the issuer thereof or (D) Purchaser fails or refuses to make a claim, or fails to comply with the required claims procedures, under such R&W Insurance Policy. (b) Any Losses for which the Purchaser Indemnified Parties are entitled to indemnification pursuant to Section 9.02(i) or Section 9.02(ii) (other than claims for Fraud) shall be satisfied: (i) first, from the Indemnity Escrow Amount; and (ii) second, to the extent the Indemnity Escrow Amount has been fully released from escrow or is otherwise no longer available, by recovery under the R&W Insurance Policy up to the policy limit. With respect to claims for Fraud and, after satisfaction of the immediately preceding sentence, with respect to claims for breaches of Seller Fundamental Representations, Purchaser Indemnified Parties may pursue recovery directly from the Seller and the Principal Seller Members. (c) The maximum amount required to be paid by Sellers liability of any Principal Seller Member on account of any particular indemnifiable Loss arising from a breach or non-fulfillment of a Seller Fundamental (d) No Principal Seller Member shall have any indemnification obligations pursuant to the Certain Matters Section 9.02 with respect to (i) a breach of any representation or warranty set forth in Article III made by or with respect to any other Principal Seller Member (other than those representations and warranties set forth in Section 3.04, which shall not be subject to this Section 9.05(d)), (ii) any other Principal Seller Member’s individual covenants set forth in Section 6.06, or (iii) Fraud committed by any other Principal Seller Member of which such first Principal Seller Member did not have actual knowledge. (e) The maximum liability of any Principal Seller Member pursuant to Section 9.02 is the Certain Matters Escrow Amountportion of the Purchase Price actually received by such Principal Seller Member. (f) No party shall be liable for exemplary or punitive damages (unless such damages are caused by Fraud) of any kind, loss of enterprise value, whether based on contract, tort, strict liability, other law or otherwise and whether or not arising from any other party’s sole, joint or concurrent negligence, strict liability or other fault except to the extent such Losses are awarded to a third-party in the context of a Third-Party Claim. (g) For purposes of this Article IX, for purposes of determining the amount of Losses and for purposes of determining whether there has been any inaccuracy in or breach of any representation or warranty, any qualifications as to materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty shall be disregarded; provided, however, the foregoing shall not apply to clause (ii) of the first sentence of Section 4.08. Section 9.06

Limits on Liability. (a) Except as set forth in Section 9.09 with respect to Fraud, notwithstanding anything to In the contrary contained in this Agreementevent that Closing occurs: (i) the total aggregate liability of the Sellers under or in connection with this Agreement or the transactions contemplated hereby shall not exceed an amount equal to the Purchase Price less the aggregate R&W Insurance Policy limit; (ii) the maximum liability of any Seller on account of any particular indemnifiable Loss arising under clause Section 9.02(ii) or Section 9.02(iv) shall not exceed such Seller’s Pro Rata Share of such Loss; and (iii) the maximum amount required to be paid by any Seller pursuant to Section 9.02 is the portion of the Purchase Price actually received by such Seller. (ba) Notwithstanding anything herein to the contrary, no : (i) Seller shall have any indemnification obligations pursuant to no obligation or liability under Section 9.02 11.2(a) with respect to (i) a breach inaccuracies or breaches of any representation or warranty set forth in ARTICLE III made by or Seller Non-Fundamental Representations with respect to any other Seller, Damages suffered by Purchaser Indemnitees that individually do not exceed One Hundred Thousand Dollars ($100,000.00); (ii) any other Seller’s individual covenants set forth Seller shall have no obligation or liability under Section 11.2(a) with respect to inaccuracies or breaches of Seller Non-Fundamental Representations (excluding those contained in Section 6.063.18 and Section 3.19, which are subject to the applicable provisions of Article VIII), unless and until the aggregate amount of Damages suffered by the Purchaser Indemnitees exceeds Two Million Seven Hundred Thousand Dollars ($2,700,000.00) (the “Indemnity Deductible”); provided, however, that once the amount of Damages suffered by Purchaser Indemnitees with respect to inaccuracies or breaches of such Seller Non-Fundamental Representations exceeds the Indemnity Deductible, Seller shall be obligated to indemnify Purchaser only for such Damages in excess of the Indemnity Deductible, it being understood that the Indemnity Deductible represents a deductible and not a threshold; (iii) Fraud committed Seller shall have no obligation or liability under Section 11.2(a), for Damages suffered by any other the Purchaser Indemnitees with respect to inaccuracies or breaches of Seller Non-Fundamental Representations (excluding those contained in Section 3.18 and Section 3.19, which are subject to the applicable provisions of which such first Article VIII) in the aggregate in excess of twenty percent (20%) of the unadjusted Purchase Price; and (iv) Seller did not shall have actual knowledge; provided that, no obligation or liabilities under Section 11.2(a) with respect to any breach or Fraud described Damages suffered by Purchaser Indemnitees that in the foregoing clauses aggregate exceed one hundred percent (i100%) or (ii), the indemnification obligation of the Seller who committed such breach or Fraud shall not be limited to their Pro Rata Shareunadjusted Purchase Price. (cb) For purposes of this ARTICLE IX, other than with respect No Party shall have any obligations hereunder to indemnify any Person for any Damages to the representations and warranties contained in Section 4.09(ii), in determining whether there has been a breach of any representation or warranty and extent the amount of any Losses that are the subject matter of a claim for indemnification hereunder, each representation and warranty shall be read without regard and without giving effect to any materiality qualifications contained therein (including the terms “material”, “material adverse effect”, “Material Adverse Effect” or any similar terms). (d) Notwithstanding anything herein such Damages was taken into account as an adjustment to the contraryCash Consideration under Section 1.3; provided, any liability of the ESOP to indemnify a Purchaser Indemnified Party pursuant to and however, that nothing in accordance with this ARTICLE IX, but for this Section 9.05(d), 11.10 shall be satisfied by the Principal Sellerrelieve any Party from any obligation or liability for such Party’s actual fraud. (e) Notwithstanding any provision herein to the contrary, no party shall be liable for punitive damages unless paid or payable to third parties in respect of a Third Party Claim as contemplated under Section 9.06. (f) Notwithstanding any provision herein to the contrary: (i) the Certain Matters Escrow Amount shall be the sole and exclusive remedy of the Purchaser Indemnified Parties for any and all Losses that are sustained or incurred by any of the Purchaser Indemnified Parties by reason of, resulting from or arising out of the Certain Matters; and (ii) the maximum amount required to be paid by Sellers pursuant to the Certain Matters is the Certain Matters Escrow Amount.

Limits on Liability. (a) Except as set forth in The Indemnified Parties shall not be entitled to be indemnified for any Indemnifiable Losses unless and until the aggregate amount of all Indemnifiable Losses exceeds $100,000 (the “Threshold”); provided, however, that after the aggregate amount of Indemnifiable Losses exceeds the Threshold, the Indemnified Parties shall be entitled to be indemnified against the entire amount of any Indemnifiable Losses, including the Threshold; and provided further, however, that this Section 9.09 with respect 9.7(a) shall not apply to Fraud, notwithstanding anything to the contrary contained in this Agreement: (i) the total aggregate liability Fundamental Claims, (ii) claims arising out of Fraud or willful breach of the Sellers under Indemnifying Parties, or (iii) breaches of covenants in connection with this Agreement or any Ancillary Agreement. (b) Subject to Section 9.7(d), the transactions contemplated hereby Indemnifying Parties’ maximum aggregate liability for Indemnifiable Losses shall not exceed be limited to an amount equal to the Purchase Price less the aggregate R&W Insurance Policy limit; (ii) the maximum liability of any Seller on account of any particular indemnifiable Loss arising under clause Section 9.02(ii) or Section 9.02(iv) shall not exceed such Seller’s Pro Rata Share of such Loss; and (iii) the maximum amount required to be paid by any Seller pursuant to Section 9.02 is the portion of the Purchase Price actually received by such SellerPrice. (bc) Notwithstanding anything herein to the contrary, no Seller shall have any indemnification obligations pursuant Subject to Section 9.02 9.7(a) and Section 9.7(d), the Indemnifying Parties’ maximum liability for Indemnifiable Losses other than with respect to (i) a breach of any representation or warranty set forth in ARTICLE III made by or with respect to any other SellerFundamental Claims, (ii) any other Seller’s individual covenants set forth in Section 6.06Excluded Liability, or (iii) Fraud committed any breach of covenant made pursuant to this Agreement or any Ancillary Agreement by any other Seller of which such first Seller did not have actual knowledge; provided thatParty shall be limited, in aggregate, to an amount equal to the Holdback Cash Consideration. (d) Notwithstanding anything to the contrary in this Agreement, there shall be no limit under this Agreement on the Indemnifying Parties’ liability for claims arising with respect to any breach or Fraud described in the foregoing clauses (i) any Excluded Liability, or (ii) Fraud or willful breach. (e) The Indemnified Parties shall exercise commercially reasonable efforts to mitigate the amount of any Indemnifiable Losses. Without limiting the foregoing, Indemnifiable Losses shall be calculated net of actual recoveries under existing insurance policies and contractual indemnification or contribution provisions (in each case calculated net of any actual collection costs and reserves, deductibles, premium adjustments and retrospectively rated premiums); provided, that, in the event that an Indemnified Party first recovers from the Holdback Cash Consideration for any particular Losses and thereafter recovers for the same Indemnifiable Losses pursuant to any existing insurance policies and/or contractual indemnification obligation of or contribution provisions, then the amount recovered pursuant to such existing insurance policies and/or contractual indemnification or contribution provisions (up to the amount first recovered from the Holdback Cash Consideration) shall be credited back to the Holdback Cash Consideration or paid to the Seller who committed Parties, as applicable. (f) Indemnifiable Losses shall exclude punitive damages, unless actually paid to a third party by any Indemnified Party. (g) Notwithstanding any provision of this Agreement to the contrary, all references in this Agreement and the Exhibits and Schedules hereto to “material,” “material respects” and “Material Adverse Effect” (and similar materiality qualifications) shall be disregarded solely for purposes of determining the amount of any Indemnifiable Losses that is the subject of indemnification hereunder. For purposes of clarity, such breach or Fraud qualifications shall not be limited to their Pro Rata Share. (c) For disregarded for purposes of this ARTICLE IX, other than with respect to the representations and warranties contained in Section 4.09(ii), in determining whether there has been a breach of any representation or warranty and the amount of any Losses that are the subject matter failure of a claim representation, warranty, covenant or agreement for which an Indemnified Party is entitled to indemnification hereunder, each representation and warranty shall be read without regard and without giving effect to any materiality qualifications contained therein (including the terms “material”, “material adverse effect”, “Material Adverse Effect” or any similar terms)under this Agreement. (dh) The right to rely on, and the right to indemnification or any other remedy based on representations, warranties, covenants and agreements in this Agreement, or any of the Ancillary Agreements, shall not be affected by any investigation conducted at any time, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of, or compliance with, any such representation, warranty, covenant or agreement. (i) Notwithstanding anything herein to the contrarycontrary herein, any liability other than claims for Fraud or willful breach, the indemnification under this Article 9 shall be the exclusive right and remedy of the ESOP Indemnified Parties from and after the Closing Date for Indemnifiable Losses or other damages under this Agreement; provided, however, that nothing in this Section 9.7(i) shall limit or affect the right of the Indemnified Parties to indemnify a Purchaser Indemnified Party pursuant to seek specific performance under this Agreement and under the Ancillary Agreements in accordance with this ARTICLE IX, but for this Section 9.05(d), shall be satisfied by the Principal Sellertheir terms. (e) Notwithstanding any provision herein to the contrary, no party shall be liable for punitive damages unless paid or payable to third parties in respect of a Third Party Claim as contemplated under Section 9.06. (f) Notwithstanding any provision herein to the contrary: (i) the Certain Matters Escrow Amount shall be the sole and exclusive remedy of the Purchaser Indemnified Parties for any and all Losses that are sustained or incurred by any of the Purchaser Indemnified Parties by reason of, resulting from or arising out of the Certain Matters; and (ii) the maximum amount required to be paid by Sellers pursuant to the Certain Matters is the Certain Matters Escrow Amount.

Limits on Liability. (a) Except as set forth in Section 9.09 with respect to Fraud, notwithstanding anything to 8.5.1 The liabilities of Seller or Purchaser under the contrary contained in this Agreement: Warranties shall cease twelve 12 months after Closing Date except: (i) all representations and warranties of Seller contained in Clause 4 of Schedule 7 (“Tax and Tax Returns”), Clause 7.8 of Schedule 7 (“Creation”), and Clause 13 of Schedule 7 (“Employee Benefit Plans”), (ii) those relating to or arising from the total aggregate Wachovia Credit, and (iii) Seller’s obligation to indemnify the Purchaser for any Losses based upon or related to fraud, criminal wrongdoing, willful misconduct or knowing misrepresentation of Seller or any Group Company, shall survive until expiration of the applicable statute of limitations; and (iv) matters which have been the subject of a written claim against Losses with reasonable supporting evidence (where available to the Indemnitee) made before such date by the Indemnitee to the Indemnitor, which shall survive until final resolution of such claim. 8.5.2 Seller shall not have any obligation to indemnify Purchaser unless the Losses are provided in writing with supporting evidence (where available to Purchaser) and the amount of liability of the Sellers Seller to the Purchaser in respect of any one Claim exceeds US$5,000 (the “Minimum Claim Amount”), in which event the Seller shall be liable for the full amount of the Claim, provided, however, there shall be no liability for any Claims until the aggregate of all Claims exceeds US$40,000 (the “Threshold”), after which time Purchaser may recover Claims from the first dollar, but, subject to Section 8.5.3, in no event including any Claims which are under or in connection with the Minimum Claim Amount. 8.5.3 The aggregate amount of the Seller’ liability for all Losses under this Agreement or the transactions contemplated hereby shall not exceed be limited to an amount equal to the Purchase Price less Consideration; provided, however, notwithstanding the aggregate R&W Insurance Policy limit; provisions of Section 8.5.2, any Losses arising from or relating to the (iia) the maximum liability Capitalization-related Warranties (Clause 2 of any Seller on account of any particular indemnifiable Loss arising under clause Section 9.02(ii) or Section 9.02(iv) shall not exceed such Seller’s Pro Rata Share of such Loss; and (iii) the maximum amount required to be paid by any Seller pursuant to Section 9.02 is the portion of the Purchase Price actually received by such Seller. Schedule 7 “Capital Structure”), (b) Notwithstanding anything herein Tax-related Warranties (Clause 4 of Schedule 7 “Tax and Tax Returns”), (c) Employee-related Warranties (Clause 13 of Schedule 7 “Employee Benefit Plans”); (d) the Wachovia Credit, (e) the Closing Date Debt, or (f) fraud, criminal wrongdoing, willful misconduct or knowing misrepresentation of the Company or Seller shall be subject to indemnification in full, on a first-dollar basis, without regard to the contrary, no Seller shall have any indemnification obligations pursuant to Section 9.02 with respect to (i) Threshold or the Minimum Claim Amount. 8.5.4 In determining whether a breach of any representation or warranty set forth in ARTICLE III made by or with respect to any other Seller, (ii) any other Seller’s individual covenants set forth in has been breached for purposes of indemnification under this Section 6.06, (iii) Fraud committed by any other Seller of which such first Seller did not have actual knowledge; provided that, with respect to any breach or Fraud described in the foregoing clauses (i) or (ii)8, the indemnification obligation of the Seller who committed such breach or Fraud shall not be limited to their Pro Rata Share. (c) For purposes of this ARTICLE IX, other than with respect to the representations and warranties contained in Section 4.09(ii), in determining whether there has been a breach of any representation or warranty and the amount of any Losses that are the subject matter of a claim for indemnification hereunder, each representation and warranty shall be read without regard and without giving effect to any materiality qualifications contained therein (including the terms word “material”, “material adverse effect”, ” and “Material Adverse Effect” (or any similar terms). (dvariations thereof) Notwithstanding anything herein to the contrary, any liability of the ESOP to indemnify a Purchaser Indemnified Party pursuant to and in accordance with this ARTICLE IX, but for this Section 9.05(d), shall be satisfied by disregarded, and the Principal Sellerphrase “resulting in Losses in excess of $5,000 individually or $40,000 in the aggregate” (or substantially similar variations thereof) shall, as a measure of materiality, also be disregarded. (e) Notwithstanding any provision herein to the contrary, no party shall be liable for punitive damages unless paid or payable to third parties in respect of a Third Party Claim as contemplated under Section 9.06. (f) Notwithstanding any provision herein to the contrary: (i) the Certain Matters Escrow Amount shall be the sole and exclusive remedy of the Purchaser Indemnified Parties for any and all Losses that are sustained or incurred by any of the Purchaser Indemnified Parties by reason of, resulting from or arising out of the Certain Matters; and (ii) the maximum amount required to be paid by Sellers pursuant to the Certain Matters is the Certain Matters Escrow Amount.