Common use of Other Indemnification by Seller Clause in Contracts

Other Indemnification by Seller. (a) Seller agrees to ------------------------------- indemnify and hold harmless each Buyer Group Member (other than any Losses or Expenses relating to Taxes, for which indemnification provisions are set forth in Section 11.1) from and against any and all Losses and Expenses incurred by ------------ such Buyer Group Member in connection with or arising from (i) any breach of any warranty or the inaccuracy of any representation of Seller contained or referred to in this Agreement or any Seller Ancillary Agreement or any certificate delivered by or on behalf of Seller pursuant hereto, it being acknowledged and agreed by Seller that for purposes of the right to indemnification pursuant to this clause (i), the representations and warranties of Seller contained herein shall not be deemed qualified by any references herein to materiality generally or to whether or not any such breach results or may result in a Material Adverse Effect, or (ii) any breach by Seller of, or failure by Seller to perform, any of its covenants or obligations contained in this Agreement or any Seller Ancillary Agreement, or (iii) any fees, expenses or other payments incurred or owed by Seller to any brokers, financial advisors or comparable other persons retained or employed by it in connection with the transactions contemplated by this Agreement or (iv) the matters described on Schedule 11.2(a)(iv); provided, however, that Seller shall be required to -------------------- -------- ------- indemnify and hold harmless under clause (i) of this Section 11.2(a) with --------------- respect to Losses and Expenses incurred by Buyer Group Members only to the extent that the aggregate amount of such Losses and Expenses exceeds $2,000,000; and provided, further, that the aggregate amount required to be paid by Seller -------- ------- pursuant to this Section 11.2(a) shall not exceed $320,000,000 provided further --------------- that the foregoing threshold amount and limit shall not apply to any Losses or Expenses arising out of the inaccuracy of any of the representations and warranties under any of the following provisions: Section 5.2(b) (Capital -------------- Structure), Section 5.3 (Subsidiaries and Investments), Section 5.17 (ERISA) or ------------ Section 5.20(e)(ii) (Employee Relations and Agreements - Worker Classification). ------------------- (b) The indemnification provided for in Section 11.2(a)(i) shall ------------------ terminate eighteen months after the Closing Date (and no claims shall be made by any Buyer Group Member under Section 11.2(a)(i) thereafter), except ------------------ that the indemnification by Seller shall continue as to: (i) the representation of Seller contained in Section 5.2(b) and 5.3, -------------- --- which shall survive indefinitely and the representation of Seller contained in Section 5.19, which shall survive for the term of any applicable statute ------------ of limitations; and (ii) any Losses or Expenses of which any Buyer Group Member has notified Seller in accordance with the requirements of Section 11.4 on or ------------ prior to the date such indemnification would otherwise terminate in accordance with this Section 11.2, as to which the obligation of Seller ------------ shall continue until the liability of Seller shall have been determined pursuant to this Article XI, and Seller shall have reimbursed all Buyer ---------- Group Members for the full amount of such Losses and Expenses in accordance with this Article XI. ----------

Other Indemnification by Seller. (a) Seller agrees to ------------------------------- indemnify and hold harmless each Buyer Group Member (other than any Losses or Expenses relating Except as relates to Taxes, for which the sole indemnification provisions are set forth is provided in Section 11.111.01, Seller shall indemnify Buyer, its Affiliates (including the Clairol Entities) and each of their respective officers, directors, employees, stockholders, agents and representatives against and hold them harmless from any loss, liability, claim, damage or expense (including reasonable legal fees and against any and all Losses and Expenses expenses) suffered or incurred by ------------ any such Buyer Group Member in connection with or indemnified party to the extent arising from (i) any breach of any representation or warranty or the inaccuracy of any representation of Seller contained or referred to in this Agreement or any Seller Ancillary Agreement or in any certificate delivered by or on behalf of Seller pursuant hereto, it being acknowledged and agreed by Seller that for purposes of in each case, which survives the right to indemnification pursuant to this clause (i)Closing, the representations and warranties of Seller contained herein shall not be deemed qualified by any references herein to materiality generally or to whether or not any such breach results or may result in a Material Adverse Effect, or (ii) any breach by of any covenant of Seller of, or failure by Seller to perform, any of its covenants or obligations contained in this Agreement or any Seller Ancillary AgreementOther Transaction Document, or (iii) any fees, expenses failure of Seller to perform or other payments incurred satisfy any employee benefit obligations or owed liabilities specifically retained by Seller to any brokersunder Article IX, financial advisors or comparable other persons retained or employed by it in connection with the transactions contemplated by this Agreement or (iv) all Excluded Liabilities or (v) any breach by Buyer or any of its Affiliates of the matters described on Schedule 11.2(a)(iv); providedAgreements set forth in Section 11.02(a)(v) of the Seller Disclosure Schedule. Notwithstanding the foregoing, however, that (A) Seller shall be required to -------------------- -------- ------- indemnify and hold harmless not have any liability under clause (i) or clause (ii) of this Section 11.2(a11.02(a) (in the case of clause (ii), only with --------------- respect to Losses breaches of covenants that occur prior to Closing) unless the aggregate of all losses, liabilities, costs and Expenses incurred by Buyer Group Members expenses relating thereto for which Seller would, but for this clause (A), be liable exceeds on a cumulative basis an amount equal to 1% of the Purchase Price, and then only to the extent that the aggregate amount of any such Losses and Expenses exceeds $2,000,000excess; and provided, further, that the aggregate amount required to be paid by (B) Seller -------- ------- pursuant to this Section 11.2(a) shall not exceed $320,000,000 provided further --------------- that the foregoing threshold amount and limit shall not apply to have any Losses or Expenses arising out of the inaccuracy of any of the representations and warranties liability under any of the following provisions: Section 5.2(b) (Capital -------------- Structure), Section 5.3 (Subsidiaries and Investments), Section 5.17 (ERISA) or ------------ Section 5.20(e)(ii) (Employee Relations and Agreements - Worker Classification). ------------------- (b) The indemnification provided for in Section 11.2(a)(i) shall ------------------ terminate eighteen months after the Closing Date (and no claims shall be made by any Buyer Group Member under Section 11.2(a)(i) thereafter), except ------------------ that the indemnification by Seller shall continue as to: clause (i) the representation of Seller contained in Section 5.2(b) and 5.3, -------------- --- which shall survive indefinitely and the representation of Seller contained in Section 5.19, which shall survive for the term of any applicable statute ------------ of limitations; and or clause (ii) any Losses or Expenses of which any Buyer Group Member has notified Seller this Section 11.02(a) (in accordance the case of clause (ii), only with the requirements respect to breaches of Section 11.4 on or ------------ covenants that occur prior to Closing) for any individual item or series of related items where the date loss, liability, cost or expense relating thereto is less than $250,000 and such indemnification would otherwise terminate in accordance with items shall not be aggregated for purposes of the foregoing clause (A) of this Section 11.2, as to which the obligation 11.02(a); (C) Seller's liability under clause (i) or clause (ii) of Seller ------------ shall continue until the liability of Seller shall have been determined pursuant to this Article XI, and Seller shall have reimbursed all Buyer ---------- Group Members for the full amount of such Losses and Expenses in accordance with this Article XI. ----------66

Other Indemnification by Seller. (a) From and after the Closing and subject to the other provisions of this Article IX, Seller agrees to ------------------------------- shall indemnify and defend each Purchaser Indemnitee against and hold it harmless each Buyer Group Member from any loss, liability, claim, damage or expense including reasonable legal fees and expenses (collectively, “Losses”) suffered or incurred by such Purchaser Indemnitee (other than any Losses or Expenses Loss relating to Taxes, for which indemnification provisions are set forth in Section 11.19.01(a)) from and against any and all Losses and Expenses incurred by ------------ such Buyer Group Member in connection with or to the extent arising from or relating to: (ia) any the breach of any representation or warranty of Seller, PB Energy or the inaccuracy of any representation of Seller Company that is contained or referred to in this Agreement or Agreement, in any Seller Ancillary Agreement or in any certificate delivered by or on behalf of Seller pursuant hereto; (b) the breach or non-performance of any covenant or agreement made and to be performed by Seller, it being acknowledged and agreed by Seller that for purposes of PB Energy or, prior to the right to indemnification pursuant to this clause (i)Closing, the representations and warranties of Seller contained herein shall not be deemed qualified by any references herein to materiality generally Company in this Agreement; (c) Seller’s or to whether PB Energy’s fraud and/or willful misconduct; (d) all claims or not any such breach results counterclaims that (A) the defendant in the matter described in or may result set forth on Schedule 4.12(e) (the “Defendant”) has asserted in the Proceeding described thereon, including if the Defendant asserts claims or counterclaims in a Material Adverse Effect, subsequent Proceeding that are substantively identical to the claims or (ii) any breach by Seller of, or failure by Seller to perform, any of its covenants or obligations contained counterclaims made in this Agreement or any Seller Ancillary Agreement, or (iii) any fees, expenses or other payments incurred or owed by Seller to any brokers, financial advisors or comparable other persons retained or employed by it in connection with the transactions contemplated by this Agreement or (iv) the matters Proceeding described on Schedule 11.2(a)(iv4.12(e); providedor (B) the Defendant could have but did not assert against the named plaintiff or Seller in the Proceeding described in Schedule 4.12(e) as of the Closing Date, however, provided that Seller shall be required to -------------------- -------- ------- indemnify and hold harmless under clause (i) of this Section 11.2(a) with --------------- respect to Losses and Expenses incurred by Buyer Group Members only to the extent that the aggregate amount of such Losses and Expenses exceeds $2,000,000; and provided, further, that the aggregate amount required unasserted claims relate to be paid by Seller -------- ------- pursuant to this Section 11.2(a) shall not exceed $320,000,000 provided further --------------- that the foregoing threshold amount and limit shall not apply to any Losses or Expenses arising arise out of the inaccuracy of any of the representations and warranties under any of the following provisions: Section 5.2(b) Business Intellectual Property at issue in such Proceeding (Capital -------------- Structure), Section 5.3 (Subsidiaries and Investments), Section 5.17 (ERISA) as such Business Intellectual Property exists on or ------------ Section 5.20(e)(ii) (Employee Relations and Agreements - Worker Classification). ------------------- (b) The indemnification provided for in Section 11.2(a)(i) shall ------------------ terminate eighteen months after existed before the Closing Date (and no claims shall be made by any Buyer Group Member under Section 11.2(a)(i) thereafter), except ------------------ that the indemnification by Seller shall continue as to: (i) the representation of Seller contained in Section 5.2(bDate) and 5.3the facts, -------------- --- which shall survive indefinitely and the representation of Seller contained in Section 5.19, which shall survive for the term of any applicable statute ------------ of limitationsevents or allegations underlying such Proceeding; and (iie) any Losses or Expenses of which any Buyer Group Member has notified Seller in accordance with the requirements of Section 11.4 on or ------------ prior to the date such indemnification would otherwise terminate in accordance with this Section 11.2, as to which the obligation of Seller ------------ shall continue until the liability of Seller shall have been determined pursuant to this Article XI, and Seller shall have reimbursed all Buyer ---------- Group Members for the full amount of such Losses and Expenses in accordance with this Article XI. ----------Excluded Liabilities.

Other Indemnification by Seller. Except with respect to Environmental Losses for which Seller is obligated to indemnify Buyer pursuant to Section 10.1 hereof, Seller shall indemnify Buyer, its Affiliates and each of their respective officers, directors, employees, unitholders, agents and representatives against and hold them harmless from any loss, liability, claim, damage or expense (including, without limitation, reasonable legal fees and expenses, including costs of investigation) suffered or incurred by any such indemnified party to the extent arising from, relating to or otherwise in respect of: (a) Seller agrees to ------------------------------- indemnify and hold harmless each Buyer Group Member (other than any Losses or Expenses relating to Taxes, for which indemnification provisions are set forth in Section 11.1) from and against any and all Losses and Expenses incurred by ------------ such Buyer Group Member in connection with or arising from (i) any breach of any representation or warranty or the inaccuracy of any representation of Seller which survives the Closing contained or referred to in this Agreement or any Seller Ancillary Agreement or in any certificate delivered by or on behalf of Seller pursuant hereto, hereto (it being agreed and acknowledged and agreed by Seller the Parties that for purposes of the Buyer’s right to indemnification pursuant to this clause (i), Section 10.2 the representations and warranties of Seller contained herein shall not be deemed qualified by any references herein to materiality generally or to whether or not any such breach results or may result in a Material Adverse Effect, or ), (iib) any breach by of any covenant of Seller of, or failure by Seller to perform, any of its covenants or obligations contained in this Agreement or any Seller Ancillary Agreement, (c) all Retained Liabilities, or and (iiid) any fees, expenses or other payments incurred or owed by Seller to any brokers, financial advisors or comparable other persons retained or employed by it in connection with the transactions contemplated by this Agreement or (iv) the matters described on Schedule 11.2(a)(iv)Excluded Assets; provided, however, that Seller shall be required to -------------------- -------- ------- indemnify and hold harmless not have any liability under clause (ia) above unless the aggregate of all losses, liabilities, costs and expenses relating thereto for which Seller would, but for this Section 11.2(aproviso, be liable exceeds on a cumulative basis an amount equal to $100,000, which shall be considered a deductible and shall not be deemed a liability of Seller (the “Threshold Amount”); and provided further, however, that Seller’s liability under clause (a) above shall in no event exceed $15,000,000 (the “Indemnification Cap”) (except that neither the Threshold Amount nor the Indemnification Cap shall apply to any breach of Sections 5.1, 5.2, 5.3, 5.4(b) or 5.7, or a breach of any representations or warranties of Seller that were made with --------------- an intent to mislead or defraud or with a reckless disregard of the accuracy thereof). In no event shall Seller be obligated to indemnify Buyer or any other Person with respect to Losses and Expenses incurred by Buyer Group Members only any matter to the extent that the aggregate amount of Seller has already provided indemnity for such Losses and Expenses exceeds $2,000,000; and provided, further, that the aggregate amount required to be paid by Seller -------- ------- matter pursuant to this Section 11.2(a) shall not exceed $320,000,000 provided further --------------- that the foregoing threshold amount and limit shall not apply to any Losses or Expenses arising out of the inaccuracy of any of the representations and warranties under any of the following provisions: Section 5.2(b) (Capital -------------- Structure), Section 5.3 (Subsidiaries and Investments), Section 5.17 (ERISA) or ------------ Section 5.20(e)(ii) (Employee Relations and Agreements - Worker Classification). ------------------- (b) The indemnification provided for in Section 11.2(a)(i) shall ------------------ terminate eighteen months after the Closing Date (and no claims shall be made by any Buyer Group Member under Section 11.2(a)(i) thereafter), except ------------------ that the indemnification by Seller shall continue as to: (i) the representation of Seller contained in Section 5.2(b) and 5.3, -------------- --- which shall survive indefinitely and the representation of Seller contained in Section 5.19, which shall survive for the term of any applicable statute ------------ of limitations; and (ii) any Losses or Expenses of which any Buyer Group Member has notified Seller in accordance with the requirements of Section 11.4 on or ------------ prior to the date such indemnification would otherwise terminate in accordance with this Section 11.2, as to which the obligation of Seller ------------ shall continue until the liability of Seller shall have been determined pursuant to this Article XI, and Seller shall have reimbursed all Buyer ---------- Group Members for the full amount of such Losses and Expenses in accordance with this Article XI. ----------Agreement.

Other Indemnification by Seller. (a) From and after the Closing and subject to the limitations set forth in Section 10.02(b), Seller agrees to ------------------------------- and Degussa, jointly and severally, shall indemnify each Purchaser Indemnitee against and hold them harmless each Buyer Group Member from any Loss suffered or incurred by such Purchaser Indemnitee (other than any Losses or Expenses Loss relating to Taxes, for which indemnification provisions are set forth in Section 11.110.01) from and against any and all Losses and Expenses incurred by ------------ such Buyer Group Member in connection with or to the extent arising from from: (i) any breach of any warranty or the inaccuracy of any representation or warranty of Seller Seller, the Company or Degussa which survives the Closing contained in this Agreement; (ii) any breach of, or referred any failure to perform, any covenant of Seller, the Company or Degussa contained in this Agreement requiring performance by it; (iii) the Argyll Road Carve-Out or Seller’s ownership and operation of the Argyll Road Property, including environmental liabilities associated therewith, whether arising before, at or after the Closing; (iv) the Retained Asset and Liability Transfer and any Seller Ancillary liabilities arising out of the projects set forth in Schedule 7.12(c), whether before, at or after the Closing, except for liabilities and obligations related to or arising out of the Clover Bar Manufacturing Agreement, the Argyll Road Manufacturing Agreement or the Argyll Road Employee Services Agreement; (v) product liability and warranty claims based on products delivered to any certificate delivered by Company customer (other than Purchaser and its Affiliates) before the Closing Date; and (vi) any event, condition or on behalf circumstance first disclosed in an Updated Schedule. (b) Neither Degussa nor Seller shall be required to indemnify any Purchaser Indemnitee, nor shall they have any liability: (i) under Section 10.02(a)(i) and Section 10.02(a)(ii) unless the aggregate of all Losses for which Seller pursuant heretowould, it being acknowledged and agreed by Seller that but for purposes of the right to indemnification pursuant to this clause (i), be liable thereunder exceeds on a cumulative basis an amount equal to [ * ] (the representations “Threshold Amount”), and warranties then for the full amount of Seller contained herein shall not be deemed qualified by all such Losses and any references herein to materiality generally or to whether or not any such breach results or may result in a Material Adverse Effect, or (ii) any breach by Seller of, or failure by Seller to perform, any of its covenants or obligations contained in this Agreement or any Seller Ancillary Agreement, or (iii) any fees, expenses or other payments incurred or owed by Seller to any brokers, financial advisors or comparable other persons retained or employed by it in connection with the transactions contemplated by this Agreement or (iv) the matters described on Schedule 11.2(a)(iv)future Losses; provided, however, that Seller shall be required to -------------------- -------- ------- indemnify and hold harmless under (A) this clause (i) of this Section 11.2(a) with --------------- respect to Losses and Expenses incurred by Buyer Group Members only to the extent that the aggregate amount of such Losses and Expenses exceeds $2,000,000; and provided, further, that the aggregate amount required to be paid by Seller -------- ------- pursuant to this Section 11.2(a) shall not exceed $320,000,000 provided further --------------- that the foregoing threshold amount and limit shall not apply to any Losses or Expenses claim for indemnification arising out of a breach or an alleged breach of Sections 3.01, 3.02, 3.03, 4.01, 4.02, 4.03, 5.01, 5.02 or 5.03 (the inaccuracy “Excluded Representations”) and (B) in calculating the Threshold Amount, any individual Loss or series of any related Losses arising out of the representations common facts and warranties circumstances for which Degussa and Seller shall be obligated to provide indemnification under any of the following provisions: Section 5.2(b10.02(a)(i) and Section 10.02(a)(ii) (Capital -------------- Structureother than with respect to the Excluded Representations or the covenants set forth in Sections 2.04, 7.12, 7.13, 7.21 or 7.22), which is (A) less than [ * ] with respect to a breach or alleged breach relating to the physical condition of Assets or (B) less than [ * ] with respect to all other matters (“De Minimis Losses”) shall be excluded in its or their entirety from the Threshold Amount and Degussa and Seller shall have no liability hereunder for any such De Minimis Losses; [ ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (ii) under Section 10.02(a)(i), Section 5.3 (Subsidiaries 10.02(a)(ii) and InvestmentsSection 10.02(a)(vi), with respect to Losses in excess of [ * ] provided, however, that this clause (ii) shall not apply to any claim for indemnification arising out of a breach or an alleged breach of the Excluded Representations or in respect of a breach or inaccuracy of Section 5.17 (ERISA) or ------------ Section 5.20(e)(ii) (Employee Relations and Agreements - Worker Classification). -------------------5.16; (biii) The indemnification provided for under Section 10.02(a)(i) in respect of a breach or inaccuracy of Section 11.2(a)(i5.16 in excess of [ * ]; (iv) under Section 10.02(a) to the extent the liability or obligation arises as a result of any action taken or omitted to be taken by Purchaser or any of its Affiliates; provided, however, that this clause (iv) shall ------------------ terminate eighteen months after not apply to any claim for indemnification arising out of a breach or an alleged breach of the Closing Date Excluded Representations; (v) the maximum aggregate amount of indemnifiable Losses which may be recovered from an Indemnified Party arising out of or resulting from the causes set forth in any Section of this Agreement, including Sections 10.01 and no claims 10.02, other than Sections 10.02(a)(iii) and 10.02(a)(iv), shall be made by any Buyer Group Member under Section 11.2(a)(i) thereafter)an amount equal to the Purchase Price, except ------------------ that notwithstanding anything to the indemnification by Seller shall continue as to: (i) the representation of Seller contrary contained in Section 5.2(b) and 5.3, -------------- --- which shall survive indefinitely and the representation of Seller contained in Section 5.19, which shall survive for the term of any applicable statute ------------ of limitationsthis Agreement; and (iivi) under Section 10.02(a)(vi) for any Losses or Expenses that do not exceed on a cumulative basis [ * ] (the “Schedules Basket”) and then only for amounts in excess of which any Buyer Group Member has notified Seller in accordance with the requirements of Section 11.4 on or ------------ prior to the date such indemnification would otherwise terminate in accordance with this Section 11.2, as to which the obligation of Seller ------------ shall continue until the liability of Seller shall have been determined pursuant to this Article XI, and Seller shall have reimbursed all Buyer ---------- Group Members for the full amount of such Losses and Expenses in accordance with this Article XI. ----------Schedules Basket.

Other Indemnification by Seller. Seller shall indemnify Buyer, -------------------------------- its affiliates (aincluding the Company) Seller agrees to ------------------------------- indemnify and each of their respective officers, directors, employees, stockholders, agents and representatives against and hold them harmless each Buyer Group Member from any loss, liability, claim, damage or expense (including reasonable legal fees and expenses) suffered or incurred by any such indemnified party (other than any Losses or Expenses relating to TaxesTaxes and environmental matters, for which indemnification provisions are set forth in Section 11.1Sections 11(a) from and against any and all Losses and Expenses incurred by ------------ such Buyer Group Member 11(b), respectively) to the extent arising from, relating to or otherwise in connection with or arising from respect of (i) any breach of any representation or warranty or the inaccuracy of any representation of Seller which survives the Closing contained or referred to in this Agreement or any Seller Ancillary Agreement or in any certificate delivered by or on behalf of Seller pursuant hereto, hereto (it being agreed and acknowledged and agreed by Seller the parties that for purposes of the Buyer's right to indemnification pursuant to this clause (i), Section 11(c) the representations and warranties of Seller contained herein shall not be deemed qualified by any references herein to materiality generally or to whether or not any such breach results or may result in a Seller Material Adverse Effect), or (ii) any breach by of any covenant of Seller of, or failure by Seller to perform, any of its covenants or obligations contained in this Agreement or any Seller Ancillary Agreement, or and (iii) any fees, expenses or other payments incurred or owed by Seller to any brokers, financial advisors or comparable other persons retained or employed by it in connection with the transactions contemplated by this Agreement or (iv) the matters described on Schedule 11.2(a)(iv)all Retained Liabilities; provided, however, that Seller shall be required to -------------------- not have any -------- ------- indemnify and hold harmless liability under clause (i) of this Section 11.2(a) with --------------- respect to Losses and Expenses incurred by Buyer Group Members only to the extent that above unless the aggregate of all losses, liabilities, costs and expenses relating thereto for which Seller would, but for this proviso, be liable exceeds on a cumulative basis an amount of such Losses and Expenses exceeds equal to $2,000,0001,600,000 (in which case Seller shall be liable for the full amount thereof); and provided, provided further, however, that Seller shall not have any liability under clause ---------------- ------- (i) above for any individual items where the aggregate amount required to loss, liability, cost or expense relating thereto is less than $10,000 and such items shall not be paid by Seller -------- ------- pursuant aggregated for purposes of the first proviso to this Section 11.2(a11(c); and provided further, ---------------- however, that Seller's liability under clause (i) above shall not in no event exceed ------- $320,000,000 provided further --------------- 16,000,000 (except that the foregoing threshold amount and limit this proviso shall not apply to any Losses or Expenses arising out of the inaccuracy wilful breach of any of the representations and warranties under any of the following provisions: Section 5.2(b) (Capital -------------- Structure), Section 5.3 (Subsidiaries and Investments), Section 5.17 (ERISA) or ------------ Section 5.20(e)(ii) (Employee Relations and Agreements - Worker Classificationcovenant by Seller). ------------------- (b) The indemnification provided for in Section 11.2(a)(i) In no event shall ------------------ terminate eighteen months after the Closing Date (and no claims shall Seller be made by obligated to indemnify Buyer or any Buyer Group Member under Section 11.2(a)(i) thereafter), except ------------------ that the indemnification by Seller shall continue as to: (i) the representation of Seller contained in Section 5.2(b) and 5.3, -------------- --- which shall survive indefinitely and the representation of Seller contained in Section 5.19, which shall survive for the term of other person with respect to any applicable statute ------------ of limitations; and (ii) any Losses or Expenses of which any Buyer Group Member has notified Seller in accordance with the requirements of Section 11.4 on or ------------ prior matter to the date extent that (A) Seller has already provided indemnity for such indemnification would otherwise terminate in accordance with this Section 11.2, as to which the obligation of Seller ------------ shall continue until the liability of Seller shall have been determined matter pursuant to this Article XI, and Seller shall have reimbursed all Buyer ---------- Group Members for Agreement or (B) such matter was reflected in the full amount calculation of such Losses and Expenses in accordance with this Article XI. ----------Closing Net Working Capital pursuant to Section 2(b).

Other Indemnification by Seller. (a) Seller agrees to ------------------------------- shall indemnify the Buyer Indemnitees against and hold them harmless each from any loss, liability, claim, damage or expense (including reasonable legal fees and expenses) ("LOSSES") suffered or incurred by any such Buyer Group Member Indemnitee (other than (i) any Losses or Expenses relating to Taxes, for which indemnification provisions are set forth in Section 11.19.01, and (ii) from and against any and all Losses and Expenses incurred by ------------ such Buyer Group Member relating to a breach of Section 3.18, for which remediation provisions are set forth in connection with or Section 3.18(f)) to the extent arising from (i) any breach of any representation or warranty or the inaccuracy of any representation of Seller contained or referred to in this Agreement or any Seller Ancillary Agreement or any certificate delivered by or on behalf of Seller pursuant heretoSeller, it being acknowledged and agreed by Seller that for purposes of the right to indemnification pursuant to this clause (i), the representations and warranties of Seller contained herein shall not be deemed qualified by any references herein to materiality generally or to whether or not any such breach results or may result in a Material Adverse Effect, or (ii) any breach by Seller of, or failure by Seller to perform, any of its covenants or obligations contained in this Agreement or any Seller Ancillary certificates or other documents required to be delivered pursuant to this Agreement, or which survives the Closing and (iiiii) any fees, expenses or other payments incurred or owed by breach of any covenant of Seller to any brokers, financial advisors or comparable other persons retained or employed by it contained in connection with the transactions contemplated by this Agreement or (iv) another Transaction Document requiring performance after the matters described on Schedule 11.2(a)(iv)Closing Date; providedPROVIDED, howeverHOWEVER, that Seller shall be required to -------------------- -------- ------- indemnify and hold harmless not have any liability under clause (i) of this Section 11.2(a9.02(a) (other than with --------------- respect to Losses a breach by Seller of Section 3.07(d)) unless the aggregate of all losses, liabilities, costs and Expenses incurred by Buyer Group Members expenses relating thereto for which Seller would, but for this proviso, be liable exceeds on a cumulative basis an amount equal to 1% of the Adjusted Purchase Price, and then only to the extent that the aggregate amount of any such Losses and Expenses exceeds $2,000,000excess; and providedPROVIDED FURTHER, furtherHOWEVER, that Seller's liability under clause (i) of this Section 9.02(a) shall not exceed the aggregate amount required to be paid by Adjusted Purchase Price. (b) All indemnification obligations of Seller -------- ------- pursuant to this Section 11.2(a9.02 may be made or assumed by an Affiliate of Seller to the extent deemed necessary or desirable by Seller in its sole discretion; PROVIDED, HOWEVER, that Seller shall remain fully liable for such obligations to the same extent as if Seller had not assigned such obligations hereunder. (c) shall not exceed $320,000,000 provided further --------------- that Buyer acknowledges and agrees that, should the foregoing threshold amount Closing occur, its sole and limit shall not apply exclusive remedy with respect to any Losses or Expenses arising out of and all claims relating to this Agreement, the inaccuracy of any of other Transaction Documents, the representations transactions contemplated hereby and warranties under any of thereby and the following provisions: Section 5.2(b) (Capital -------------- Structure), Section 5.3 (Transferred Subsidiaries and Investments)their respective assets, Section 5.17 liabilities and business (ERISA) or ------------ Section 5.20(e)(ii) (Employee Relations and Agreements - Worker Classification). ------------------- (b) The indemnification provided for in Section 11.2(a)(i) shall ------------------ terminate eighteen months after the Closing Date (and no claims shall be made by any Buyer Group Member under Section 11.2(a)(i) thereafter), except ------------------ that the indemnification by Seller shall continue as to: other than (i) the representation claims of, or causes of Seller contained in Section 5.2(b) and 5.3action arising from, -------------- --- which shall survive indefinitely and the representation of Seller contained in Section 5.19fraud, which shall survive for the term of any applicable statute ------------ of limitations; and (ii) any Losses a breach after Closing of covenants hereunder or Expenses of which any Buyer Group Member has notified Seller in accordance with under the requirements of other Transaction Documents or (iii) claims pursuant to Section 11.4 on or ------------ prior 3.18) shall be pursuant to the date such indemnification would otherwise terminate provisions set forth in accordance with this Section 11.2Article IX. In furtherance of the foregoing, as Buyer hereby waives, from and after the Closing, to which the obligation fullest extent permitted under applicable law, any and all rights, claims and causes of Seller ------------ shall continue until action (other than (i) claims of, or causes of action arising from, fraud, (ii) a breach after Closing of covenants hereunder or under the liability of Seller shall have been determined other Transaction Documents or (iii) claims pursuant to Section 3.18) it or the Transferred Subsidiaries may have against Seller and its Affiliates arising under or based upon any Federal, state, local or foreign statute, law, ordinance, rule or regulation or otherwise (except pursuant to the indemnification provisions set forth in this Article XI, and Seller shall have reimbursed all Buyer ---------- Group Members for the full amount of such Losses and Expenses in accordance with this Article XI. ----------IX).

Other Indemnification by Seller. (a) Subject to the limitations set forth in Section 7.05 or Section 7.06, from and after the Closing, Seller agrees to ------------------------------- indemnify shall indemnify, defend and hold harmless each Buyer Group Member the Purchaser Indemnitees against any and all claims, losses, damages, liabilities, obligations or expenses, including (x) reasonable legal fees and expenses of outside counsel and (y) to the extent required to comply with Environmental Laws or by any Governmental Entity pursuant to Environmental Laws, reasonable fees and expenses of outside environmental consultants, and costs of sampling, testing, investigation, removal, treatment and remediation of contamination (collectively, "Losses") (other than any Losses or Expenses Loss relating to TaxesTaxes to the extent that indemnification payments for such Loss have been made pursuant to Section 7.01), for which indemnification provisions are set forth in Section 11.1) to the extent arising or resulting from and against any and all Losses and Expenses incurred by ------------ such Buyer Group Member in connection with or arising from of the following: (i) any breach of any representation or warranty or the inaccuracy of any representation of Seller contained or referred to in this Agreement or any Seller Ancillary Agreement or any in the certificate delivered by or on behalf of Seller pursuant hereto, it being acknowledged and agreed by Seller that for purposes of the right to indemnification pursuant to this clause (iSection 5.02(a), the representations and warranties of Seller contained herein shall not be deemed qualified by any references herein to materiality generally or to whether or not any such breach results or may result in a Material Adverse Effect, or ; (ii) any breach of any covenant or agreement made by Seller of, or failure by Seller to perform, any of its covenants or obligations contained in this Agreement or any Seller Ancillary Agreement, or in the certificate delivered pursuant to Section 5.02(b); (iii) any fees, expenses or other payments incurred or owed by Seller to any brokersagent, financial advisors broker, investment banker or comparable other persons firm or person retained or employed by it in connection with the transactions contemplated by this Agreement or Agreement; (iv) any Taxes (other than Income Taxes) of the matters Acquired Company or any of its subsidiaries attributable to the Pre-Closing Tax Period, but only to the extent such Taxes attributable to the Pre-Closing Tax Period exceed the aggregate amount of Taxes attributable to the Pre-Closing Tax Period shown on the Statement; (v) the Receivables Facility; (vi) any Seller Benefit Plan except to the extent expressly assumed by Purchaser under Section 4.06; (vii) the offsite disposal, treatment or storage (or arrangement for such disposal, treatment or storage) of any Hazardous Substances by or in connection with the operation of the Acquired Company and its subsidiaries prior to Closing, including to the extent arising or resulting from the offsite locations described on in Schedule 11.2(a)(iv2.15(b) ("Offsite Environmental Losses"); and (viii) the Excluded Liabilities (as defined in Section 9.05(b)); provided, however, that Seller shall be required to -------------------- -------- ------- indemnify and hold harmless under clause (i) of this Section 11.2(a) with --------------- respect to Losses and Expenses incurred by Buyer Group Members only to the extent that the aggregate amount of such Losses and Expenses exceeds $2,000,000; and provided, further, that the aggregate amount required to be paid by Seller -------- ------- pursuant to this Section 11.2(a) shall not exceed $320,000,000 provided further --------------- that the foregoing threshold amount and limit shall not apply to any Losses or Expenses arising out of the inaccuracy breach of any of the representations and warranties under any of the following provisions: Section 5.2(b) (Capital -------------- Structure), Section 5.3 (Subsidiaries and Investments), Section 5.17 (ERISA) representation or ------------ Section 5.20(e)(ii) (Employee Relations and Agreements - Worker Classification). ------------------- (b) The indemnification provided for in Section 11.2(a)(i) shall ------------------ terminate eighteen months after the Closing Date (and no claims shall be made by any Buyer Group Member under Section 11.2(a)(i) thereafter), except ------------------ that the indemnification by Seller shall continue as to: (i) the representation warranty of Seller contained in Section 5.2(b2.12(f) and 5.3, -------------- --- which shall survive indefinitely and without regard to the representation of Seller materiality qualification contained in Section 5.19, which shall survive for the term of any applicable statute ------------ of limitations; and (ii) any Losses such representation or Expenses of which any Buyer Group Member has notified Seller in accordance with the requirements of Section 11.4 on or ------------ prior to the date such indemnification would otherwise terminate in accordance with this Section 11.2, as to which the obligation of Seller ------------ shall continue until the liability of Seller shall have been determined pursuant to this Article XI, and Seller shall have reimbursed all Buyer ---------- Group Members for the full amount of such Losses and Expenses in accordance with this Article XI. ----------warranty.

Other Indemnification by Seller. If the Closing occurs, except with respect to Environmental Losses for which Seller is obligated to indemnify Buyer pursuant to Section 10.1 hereof, Seller shall indemnify Buyer, its Affiliates and each of their respective officers, directors, employees, unitholders, agents and representatives against and hold them harmless from any loss, Liability, Claim, damage or expense, including, without limitation, reasonable legal fees and expenses, including costs of investigation (collectively, a “Loss”), suffered or incurred by any such indemnified party to the extent arising from, relating to or otherwise in respect of: (a) Seller agrees to ------------------------------- indemnify and hold harmless each Buyer Group Member (other than any Losses or Expenses relating to Taxes, for which indemnification provisions are set forth in Section 11.1) from and against any and all Losses and Expenses incurred by ------------ such Buyer Group Member in connection with or arising from (i) any breach of any representation or warranty or the inaccuracy of any representation of Seller which survives the Closing contained or referred to in this Agreement or any Seller Ancillary Agreement or in any certificate delivered by or on behalf of Seller pursuant hereto, hereto (it being agreed and acknowledged and agreed by Seller the Parties that for purposes of the Buyer’s right to indemnification pursuant to this clause Section 10.2 (i), ) the representations and warranties of Seller contained herein shall not be deemed qualified by any references herein to materiality generally or to whether or not any such breach results or may result in a Material Adverse Effect, or Effect and (ii) the representations and warranties contained in Section 5.16(b) shall be deemed to be qualified by reference to Permitted Encumbrances only to the extent that such Permitted Encumbrances are (A) described in clauses (iii), (iv) or (xi) of the definition thereof or (B) relate to liabilities or obligations that under the terms of this Agreement are assumed by Buyer and not to Retained Liabilities), (b) any breach by of any covenant of Seller of, or failure by Seller to perform, any of its covenants or obligations contained in this Agreement or any Seller Ancillary Agreement, (c) all Retained Liabilities, or and (iiid) any fees, expenses or other payments incurred or owed by Seller to any brokers, financial advisors or comparable other persons retained or employed by it in connection with the transactions contemplated by this Agreement or (iv) the matters described on Schedule 11.2(a)(iv)Excluded Assets; provided, however, that Seller shall be required to -------------------- -------- ------- indemnify and hold harmless not have any liability under clause (ia) above unless the aggregate of all Losses relating thereto for which Seller would, but for this Section 11.2(aproviso, be liable exceeds on a cumulative basis an amount equal to $500,000, which shall be considered a deductible and shall not be deemed a liability of Seller (the “Threshold Amount”); and provided further, however, that Seller’s liability under clause (a) above shall in no event exceed $15,000,000 (the “Indemnification Cap”) (except that neither the Threshold Amount nor the Indemnification Cap shall apply to any breach of Sections 5.1, 5.2, 5.3, 5.4(b), 5.7 or 5.16(b)(as described in clause (a) above) or a breach of any representations or warranties of Seller that were made with --------------- an intent to mislead or defraud or with a reckless disregard of the accuracy thereof). In no event shall Seller be obligated to indemnify Buyer or any other Person with respect to Losses and Expenses incurred by Buyer Group Members only any matter to the extent that the aggregate amount of Seller has already provided indemnity for such Losses and Expenses exceeds $2,000,000; and provided, further, that the aggregate amount required to be paid by Seller -------- ------- matter pursuant to this Section 11.2(a) shall not exceed $320,000,000 provided further --------------- that the foregoing threshold amount and limit shall not apply to any Losses or Expenses arising out of the inaccuracy of any of the representations and warranties under any of the following provisions: Section 5.2(b) (Capital -------------- Structure), Section 5.3 (Subsidiaries and Investments), Section 5.17 (ERISA) or ------------ Section 5.20(e)(ii) (Employee Relations and Agreements - Worker Classification). ------------------- (b) The indemnification provided for in Section 11.2(a)(i) shall ------------------ terminate eighteen months after the Closing Date (and no claims shall be made by any Buyer Group Member under Section 11.2(a)(i) thereafter), except ------------------ that the indemnification by Seller shall continue as to: (i) the representation of Seller contained in Section 5.2(b) and 5.3, -------------- --- which shall survive indefinitely and the representation of Seller contained in Section 5.19, which shall survive for the term of any applicable statute ------------ of limitations; and (ii) any Losses or Expenses of which any Buyer Group Member has notified Seller in accordance with the requirements of Section 11.4 on or ------------ prior to the date such indemnification would otherwise terminate in accordance with this Section 11.2, as to which the obligation of Seller ------------ shall continue until the liability of Seller shall have been determined pursuant to this Article XI, and Seller shall have reimbursed all Buyer ---------- Group Members for the full amount of such Losses and Expenses in accordance with this Article XI. ----------Agreement.

Other Indemnification by Seller. Except with respect to Environmental Losses which are covered by Section 10.1 hereof, Seller shall indemnify Buyer, its Affiliates and each of their respective officers, directors, employees, unitholders, agents and representatives against and hold them harmless from any loss, liability, claim, damage or expense (including, without limitation, reasonable legal fees and expenses) suffered or incurred by any such indemnified party to the extent arising from, relating to or otherwise in respect of: (a) Seller agrees to ------------------------------- indemnify and hold harmless each Buyer Group Member (other than any Losses or Expenses relating to Taxes, for which indemnification provisions are set forth in Section 11.1) from and against any and all Losses and Expenses incurred by ------------ such Buyer Group Member in connection with or arising from (i) any breach of any representation or warranty or the inaccuracy of any representation of Seller which survives the Closing contained or referred to in this Agreement or any Seller Ancillary Agreement or in any certificate delivered by or on behalf of Seller pursuant hereto, hereto (it being agreed and acknowledged and agreed by Seller the Parties that for purposes of the Buyer’s right to indemnification pursuant to this clause (i), Section 10.2 the representations and warranties of Seller contained herein shall not be deemed qualified by any references herein to materiality generally or to whether or not any such breach results or may result in a Material Adverse Effect, or ), (iib) any breach by of any covenant of Seller of, or failure by Seller to perform, any of its covenants or obligations contained in this Agreement or any Seller Ancillary Agreement, (c) all Retained Liabilities, or and (iiid) any fees, expenses or other payments incurred or owed by Seller to any brokers, financial advisors or comparable other persons retained or employed by it in connection with the transactions contemplated by this Agreement or (iv) the matters described on Schedule 11.2(a)(iv)Excluded Assets; provided, however, that Seller shall be required to -------------------- -------- ------- indemnify and hold harmless not have any liability under clause (ia) above unless the aggregate of all losses, liabilities, costs and expenses relating thereto for which Seller would, but for this Section 11.2(aproviso, be liable exceeds on a cumulative basis an amount equal to $100,000, which shall be considered a deductible and shall not be deemed a liability of Seller (the “Threshold Amount”); and provided further, however, that Seller’s liability under clause (a) above shall in no event exceed $2,500,000 (the “Cap”) (except that neither the Threshold Amount nor the Cap shall apply to any breach of Sections 5.1, 5.2, 5.3, or 5.4(b), or a breach of any representations or warranties of Seller that were made with --------------- an intent to mislead or defraud or with a reckless disregard of the accuracy thereof). In no event shall Seller be obligated to indemnify Buyer or any other Person with respect to Losses and Expenses incurred by Buyer Group Members only any matter to the extent that the aggregate amount of Seller has already provided indemnity for such Losses and Expenses exceeds $2,000,000; and provided, further, that the aggregate amount required to be paid by Seller -------- ------- matter pursuant to this Section 11.2(a) shall not exceed $320,000,000 provided further --------------- that the foregoing threshold amount and limit shall not apply to any Losses or Expenses arising out of the inaccuracy of any of the representations and warranties under any of the following provisions: Section 5.2(b) (Capital -------------- Structure), Section 5.3 (Subsidiaries and Investments), Section 5.17 (ERISA) or ------------ Section 5.20(e)(ii) (Employee Relations and Agreements - Worker Classification). ------------------- (b) The indemnification provided for in Section 11.2(a)(i) shall ------------------ terminate eighteen months after the Closing Date (and no claims shall be made by any Buyer Group Member under Section 11.2(a)(i) thereafter), except ------------------ that the indemnification by Seller shall continue as to: (i) the representation of Seller contained in Section 5.2(b) and 5.3, -------------- --- which shall survive indefinitely and the representation of Seller contained in Section 5.19, which shall survive for the term of any applicable statute ------------ of limitations; and (ii) any Losses or Expenses of which any Buyer Group Member has notified Seller in accordance with the requirements of Section 11.4 on or ------------ prior to the date such indemnification would otherwise terminate in accordance with this Section 11.2, as to which the obligation of Seller ------------ shall continue until the liability of Seller shall have been determined pursuant to this Article XI, and Seller shall have reimbursed all Buyer ---------- Group Members for the full amount of such Losses and Expenses in accordance with this Article XI. ----------Agreement.

Other Indemnification by Seller. Seller shall indemnify Buyer and its affiliates (aincluding the Company and the Subsidiaries) Seller agrees to ------------------------------- indemnify against any loss, liability, claim, damage, or expense (including reasonable legal fees and hold harmless each Buyer Group Member expenses, except as otherwise provided in Section 11(f)) suffered or incurred by any such indemnified party (other than any Losses or Expenses those relating to Taxes, for which indemnification provisions are Income Taxes covered by Section 11(a) or resulting from a breach of any representation or warranty relating to Income Taxes set forth in Section 11.14(h)) from and against any and all Losses and Expenses incurred by ------------ such Buyer Group Member in connection with or arising from as a result of: (i) any breach of any representation or warranty or the inaccuracy of any representation of Seller contained or referred to in this Agreement or any Seller Ancillary Agreement (other than those set forth in Section 4(h) relating to Income Taxes) or any certificate signed by Seller and delivered by or on behalf of Seller pursuant hereto, it being acknowledged and agreed by Seller that for purposes of the right to indemnification pursuant to this clause (i), the representations and warranties of Seller contained herein shall not be deemed qualified by any references herein to materiality generally or to whether or not any such breach results or may result in a Material Adverse Effect, or ; (ii) any breach by of any covenant or agreement of Seller of, or failure by Seller to perform, any of its covenants or obligations contained in this Agreement or any Seller Ancillary Agreement, or ; (iii) any feesliability for Taxes of the Company or the Subsidiaries for the Pre-Closing Tax Period excluding the Closing Date (except to the extent such liability has been included in the final determination of Closing Net Working Capital and taken into account in the calculation of Adjusted Purchase Price); and (iv) any claim, action, lawsuit or proceeding that, before the Closing Date, was pending against the Company or any of the Subsidiaries before any court or governmental agency, including pending litigation set forth in the Disclosure Schedule; provided, however, that (A) Seller shall not have any liability under Section 11(b)(i) arising from a breach of any representation or warranty (except for breaches of Section 4(a), Section 4(c), the first two sentences of Section 4(d) or Section 4(e)) or under Section 11(b)(iii) unless the aggregate of all losses, liabilities, claims, damages, and expenses for which Seller would, but for this clause (A), be liable exceeds on a cumulative basis an amount equal to 1% of the Adjusted Purchase Price, and then only to the extent of any such excess, (B) Seller shall not have any liability under Section 11(b)(i) (except for breaches of Section 4(a), Section 4(c), the first two sentences of Section 4(d) or Section 4(e)) to the extent the aggregate of all losses, liabilities, claims, damages, and expenses for which Seller would, but for the provisions of this clause (B), be liable exceeds on a cumulative basis an amount equal to 10% of the Adjusted Purchase Price, and (C) Seller shall not have any liability for any loss, liability, claim, damage, or expense to the extent such loss, liability, claim, damage, or expense has been included in the final determination of Closing Net Working Capital. Except as provided in Section 26, Buyer’s sole and exclusive remedy with respect to any and all claims relating to the subject matter of this Agreement (including claims for breaches of representations, warranties, covenants and agreements contained in this Agreement) shall be under the indemnification provisions set forth in this Section 11; provided, that nothing contained herein shall be construed as limiting or impairing the rights and remedies that Buyer may have to bring actions or claims based on fraud under federal, state or other payments incurred applicable law. In furtherance of the foregoing, Buyer hereby waives, to the fullest extent permitted under applicable law, all rights, claims, and causes of action any of Buyer, the Company or owed the Subsidiaries may have against Seller or under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulation or arising under or based upon common law or otherwise, except to the extent provided with respect to Seller in Section 11(a) and this Section 11(b). In the case of any Straddle Period relating to Taxes other than Income Taxes, the taxes of the Company and the Subsidiaries for the Pre-Closing Tax Period excluding the Closing Date (which are subject to indemnification to the extent set forth in this Section 11(b)) shall be equal to the amount of such Taxes payable for the entire Straddle Period multiplied by Seller a fraction, the numerator of which is the number of calendar days in the Straddle Period up to and including the day preceding the Closing Date and the denominator of which is the number of days in the entire Straddle Period; provided, that if any brokersproperty, financial advisors asset or comparable other persons retained right of the Company or employed by it in connection with any of the transactions Subsidiaries is sold or otherwise transferred prior to the Closing Date, then ad valorem Taxes pertaining to such property, asset or other right shall be attributed entirely to the Pre–Closing Tax Period. Notwithstanding the foregoing, any transaction or event (i) that occurs on the Closing Date and that is contemplated by this Agreement or (iv) the matters described on Schedule 11.2(a)(iv); provided, however, that Seller shall be required to -------------------- -------- ------- indemnify and hold harmless under clause (i) of this Section 11.2(a) with --------------- respect to Losses and Expenses incurred by Buyer Group Members only to the extent that the aggregate amount of such Losses and Expenses exceeds $2,000,000; and provided, further, that the aggregate amount required to be paid by Seller -------- ------- pursuant to this Section 11.2(a) shall not exceed $320,000,000 provided further --------------- that the foregoing threshold amount and limit shall not apply to any Losses or Expenses arising out of the inaccuracy of any of the representations and warranties under any of the following provisions: Section 5.2(b) (Capital -------------- Structure), Section 5.3 (Subsidiaries and Investments), Section 5.17 (ERISA) or ------------ Section 5.20(e)(ii) (Employee Relations and Agreements - Worker Classification). ------------------- (b) The indemnification provided for in Section 11.2(a)(i) shall ------------------ terminate eighteen months after the Closing Date (and no claims shall be made by any Buyer Group Member under Section 11.2(a)(i) thereafter), except ------------------ that the indemnification by Seller shall continue as to: (i) the representation of Seller contained in Section 5.2(b) and 5.3, -------------- --- which shall survive indefinitely and the representation of Seller contained in Section 5.19, which shall survive for the term of any applicable statute ------------ of limitations; and (ii) any Losses that occurs at Seller’s direction at or Expenses of which any Buyer Group Member has notified Seller in accordance with the requirements of Section 11.4 on or ------------ prior to the date such indemnification would otherwise terminate Closing and that is not in accordance with this Section 11.2, as the ordinary course of business of the Company or the applicable Subsidiary shall be deemed to which occur in the obligation of Seller ------------ shall continue until the liability of Seller shall have been determined pursuant to this Article XI, and Seller shall have reimbursed all Buyer ---------- Group Members for the full amount of such Losses and Expenses in accordance with this Article XI. ----------Pre-Closing Tax Period.

Other Indemnification by Seller. Seller shall indemnify Buyer, its affiliates (aincluding the Companies and the Subsidiaries) Seller agrees to ------------------------------- indemnify and each of their respective officers, directors, employees, stockholders, agents and representatives against and hold them harmless each Buyer Group Member from any loss, liability, claim, damage or expense (including reasonable legal fees and expenses) suffered or incurred by any such indemnified party (other than any Losses or Expenses relating to Taxes, for which indemnification provisions are set forth in Section 11.112(a)) from and against any and all Losses and Expenses incurred by ------------ such Buyer Group Member in connection with or to the extent arising from (i) any breach of any representation or warranty or the inaccuracy of any representation of Seller which survives the Closing contained or referred to in this Agreement or any Seller Ancillary Agreement or in any certificate delivered by or on behalf of Seller pursuant hereto, it being acknowledged hereto and agreed by Seller that for purposes of the right to indemnification pursuant to this clause (i), the representations and warranties of Seller contained herein shall not be deemed qualified by any references herein to materiality generally or to whether or not any such breach results or may result in a Material Adverse Effect, or (ii) any breach by of any covenant of Seller of, or failure by Seller to perform, any of its covenants or obligations contained in this Agreement or any Seller Ancillary Agreement, or (iii) any fees, expenses or other payments incurred or owed by Seller to any brokers, financial advisors or comparable other persons retained or employed by it in connection with requiring performance after the transactions contemplated by this Agreement or (iv) the matters described on Schedule 11.2(a)(iv)Closing Date; provided, however, that Seller shall be required to -------------------- -------- ------- indemnify and hold harmless not have any liability under clause clauses (i) and (ii) above until the aggregate of all losses, liabilities, costs and expenses relating thereto for which Seller would, but for this proviso, be liable exceeds on a cumulative basis $500,000 (the "Basket"), at which xxxx Xxxxxx shall be liable for all such losses, liabilities, costs and expenses, in excess of the Basket; and provided further, however, that Seller shall not have any liability under clauses (i) and (ii) above for any breach if Buyer had knowledge of such breach at the time of the Closing; and provided further, however, that Seller's liability under clauses (i) and (ii) above shall in no event exceed $5.0 million (except that this proviso shall not apply to (x) any wilful breach of any covenant by Seller, (y) any breach of any representation or warranty contained in Section 5(c), 5(e) or 5(f), or (z) any liability asserted against the Companies or the Subsidiaries for actions taken by Seller or its affiliates relating solely to Seller or its affiliates (not including the Companies and the Subsidiaries) based upon a "piercing the corporate veil" theory of liability); and provided further, however, that Seller shall not have any liability under this Section 11.2(a12(b) with --------------- respect to Losses and Expenses incurred by Buyer Group Members only to the extent that the aggregate amount liability or obligation arises as a result of such Losses and Expenses exceeds $2,000,000; and provided, further, that the aggregate amount required any action taken or omitted to be paid taken by Buyer or any of its affiliates (including any officers or employees of the Companies and the Subsidiaries that are intended to have an equity interest or rights or options to obtain an equity interest in Buyer or its affiliates, including the Companies, following the Closing). For purposes of the indemnification provided by Seller -------- ------- pursuant to this Section 11.2(a12(b) only and for no other purpose, the determination of whether there has been a breach of a representation or warranty shall not exceed $320,000,000 provided further --------------- that be made without reference to the foregoing threshold amount word "material" and limit shall not apply to any Losses the words "Material Adverse Effect" contained in such representation or Expenses arising out of the inaccuracy of any of warranty. Buyer acknowledges and agrees that, (i) other than the representations and warranties under any of the following provisions: Section 5.2(b) (Capital -------------- Structure), Section 5.3 (Subsidiaries and Investments), Section 5.17 (ERISA) or ------------ Section 5.20(e)(ii) (Employee Relations and Agreements - Worker Classification). ------------------- (b) The indemnification provided for in Section 11.2(a)(i) shall ------------------ terminate eighteen months after the Closing Date (and no claims shall be made by any Buyer Group Member under Section 11.2(a)(i) thereafter), except ------------------ that the indemnification by Seller shall continue as to: (i) the representation of Seller specifically contained in Section 5.2(b) and 5.3this Agreement, -------------- --- which shall survive indefinitely and the representation there are no representations or warranties of Seller contained in Section 5.19either expressed or implied with respect to the transactions contemplated hereby, which shall survive for the term of any applicable statute ------------ of limitations; and Companies, the Subsidiaries or their respective assets, liabilities and business and (ii) any Losses or Expenses of which any Buyer Group Member has notified Seller in accordance with the requirements of Section 11.4 on or ------------ prior to the date such indemnification would otherwise terminate in accordance with this Section 11.2, as to which the obligation of Seller ------------ shall continue until the liability of Seller it shall have been determined no claim or right to indemnification pursuant to this Article XISection 12 with respect to any information, documents or materials furnished by Seller or any of its officers, directors, employees, agents or advisors to Buyer, including the DLJ Confidential Memorandum and Seller shall have reimbursed all any information, documents or material made available to Buyer ---------- Group Members for in certain "data rooms", management presentations or any other form in expectation of the full amount of such Losses and Expenses in accordance with this Article XI. ----------transactions contemplated hereby.

Other Indemnification by Seller. (a) Seller agrees to ------------------------------- shall be liable for, and shall indemnify each Purchaser Indemnitee against and hold it harmless each Buyer Group Member from, any loss, liability, claim, damage or expense including reasonable legal fees and expenses (collectively, “Losses”), suffered or incurred by such Purchaser Indemnitee (other than any Losses or Expenses Loss subject to indemnification under Section 8.01) arising from, relating to Taxes, for which indemnification provisions are set forth or otherwise in Section 11.1) from and against any and all Losses and Expenses incurred by ------------ such Buyer Group Member in connection with or arising from respect of: (i) any breach of any representation or warranty or the inaccuracy of any representation of Seller contained or referred to in this Agreement or Agreement, in any Seller Ancillary Agreement or in any certificate delivered by or on behalf of Seller pursuant hereto, hereto (it being agreed and acknowledged and agreed by Seller the parties that for purposes of the right to indemnification pursuant to this clause (i), ) the representations and warranties of Seller contained herein shall not be deemed qualified by any references herein to materiality generally or to whether or not any such breach results or may result in a Seller Material Adverse Effect or a Company Material Adverse Effect); (ii) any breach of any covenant of Seller contained in this Agreement; (iii) any liability of the Company arising on or before the Closing Date under ERISA; (iv) any liability of the Company arising on or before the Closing Date under any Applicable Law relating to the payment of wages; and (v) any other liability of the Company arising on or before the Closing Date that is not reflected or reserved against in the Balance Sheet. (b) No amount shall be payable by Seller to any Purchaser Indemnitee pursuant to clause (i) of Section 8.02(a) unless the aggregate of all Losses for which Seller would, but for this Section 8.02(b), be liable thereunder exceeds an amount equal to $200,000 (the “Basket”), at which point Seller shall become liable for all such Losses, including the Losses reflected in the Basket. Additionally, the cap on liability for the above breaches shall be $4,000,000. The foregoing limitations shall not apply to any Seller indemnification obligation arising from, relating to or otherwise in respect of (i) fraud or intentional misrepresentation by Seller; or (ii) any breach by Seller of, or failure by Seller to perform, any of its covenants or obligations contained Fundamental Representation (as defined in this Agreement or any Seller Ancillary Agreement, or (iii) any fees, expenses or other payments incurred or owed by Seller to any brokers, financial advisors or comparable other persons retained or employed by it in connection with the transactions contemplated by this Agreement or (iv) the matters described on Schedule 11.2(a)(ivSection 8.06(a); provided, however, that ). Seller shall be required to -------------------- -------- ------- indemnify and hold harmless not have any liability for Losses under clause (iSection 8.02(a) of this Section 11.2(a) with --------------- respect to Losses and Expenses incurred by Buyer Group Members only to the extent that any matter forming the aggregate amount of basis for such Losses and Expenses exceeds $2,000,000; and provided, further, that the aggregate amount required to be paid by Seller -------- ------- pursuant to this Section 11.2(a) shall not exceed $320,000,000 provided further --------------- that the foregoing threshold amount and limit shall not apply to any Losses or Expenses arising out of the inaccuracy of any of the representations and warranties under any of the following provisions: Section 5.2(b) (Capital -------------- Structure), Section 5.3 (Subsidiaries and Investments), Section 5.17 (ERISA) or ------------ Section 5.20(e)(ii) (Employee Relations and Agreements - Worker Classification). ------------------- (b) The indemnification provided for in Section 11.2(a)(i) shall ------------------ terminate eighteen months after was considered when calculating the Closing Date (Working Capital, and no claims Losses related thereto shall be made by any Buyer Group Member under Section 11.2(a)(i) thereafter), except ------------------ that aggregated for purposes of calculating the indemnification by Seller shall continue as to: (i) the representation of Seller contained in Section 5.2(b) and 5.3, -------------- --- which shall survive indefinitely and the representation of Seller contained in Section 5.19, which shall survive for the term of any applicable statute ------------ of limitations; and (ii) any Losses or Expenses of which any Buyer Group Member has notified Seller in accordance with the requirements of Section 11.4 on or ------------ prior to the date such indemnification would otherwise terminate in accordance with this Section 11.2, as to which the obligation of Seller ------------ shall continue until the liability of Seller shall have been determined pursuant to this Article XI, and Seller shall have reimbursed all Buyer ---------- Group Members for the full amount of such Losses and Expenses in accordance with this Article XI. ----------Basket.

Other Indemnification by Seller. After the Closing, Seller shall indemnify Buyer, its affiliates (aincluding Valero, the Company and their respective affiliates) Seller agrees to ------------------------------- indemnify and each of their respective officers, directors, employees, stockholders, agents and representatives against and hold them harmless each from any loss, liability, claim, damage or expense, including reasonable legal fees and expenses (each, a "Buyer Group Member Loss"), suffered or incurred by any such indemnified party (other than any Losses or Expenses relating to Taxes, for which indemnification provisions are set forth in Section 11.111(a), or to any matter arising under any Environmental Law or otherwise relating to Hazardous Materials, for which indemnification provisions are set forth in Section 11(c)) from and against any and all Losses and Expenses incurred by ------------ such Buyer Group Member in connection with or to the extent arising from from: (i) any breach as of any warranty or the inaccuracy Closing Date of any representation or warranty of Seller contained or referred to in this Agreement or any Seller Ancillary Agreement or any certificate delivered by or on behalf of Seller pursuant hereto, it being acknowledged and agreed by Seller that for purposes of which survives the right to indemnification pursuant to this clause (i), the representations and warranties of Seller contained herein shall not be deemed qualified by any references herein to materiality generally or to whether or not any such breach results or may result in a Material Adverse Effect, or (ii) any breach by Seller of, or failure by Seller to perform, any of its covenants or obligations Closing contained in this Agreement or any Seller Ancillary Agreement, ; (ii) any breach of any covenant of Seller contained in this Agreement or any Ancillary Agreement requiring performance after the Closing; (iii) any fees, expenses Excluded Liability or other payments incurred obligation or owed by Seller liability with respect to any brokers, financial advisors or comparable other persons retained or employed by it in connection with the transactions contemplated by this Agreement or Excluded Assets; (iv) the matters described on Schedule 11.2(a)(iv)failure to collect any Indemnified Exchange Imbalances within 90 days after the Closing Date to the extent, in the case of Indemnified Exchange Imbalances that are differential exchange imbalances, not offset by a corresponding accounts payable included in Current Liabilities for such differential exchange imbalance; provided, however, that on and after the date Seller makes a payment under this Section 11(b)(iv) for any such Indemnified Exchange Imbalance, such Indemnified Exchange Imbalance shall be considered an Excluded Asset for purposes of this Agreement and the provisions of Section 8(i) applicable to Seller Receivables shall also be applicable to such Indemnified Exchange Imbalance; (v) any obligation or liability described in Section 9 as the responsibility of Seller; (vi) the covenant of the Company not to compete identified in Schedule 4(l); or (vii) any obligation or liability of the Company, contingent or otherwise, to the extent (I) existing, or arising out of any state of facts existing, on or prior to the Closing and (II) attributable to the time prior to the Closing, other than (A) any such obligation or liability for which indemnification is provided for under clause (iii), (iv), (v) or (vi) above, (B) any Current Liability, (C) any such obligation or liability pursuant to any contract, agreement or other instrument to which the Company is a party on the Closing Date, (D) except as otherwise provided in Section 9, any such obligation or liability contained in the Benefit Plans set forth in Schedule 4(o) or any plan, fund, program, policy, contract or arrangement described in Section 4(o) but not required to be set forth in Schedule 4(o) (collectively, together with the Benefit Plans, the "Plans") and (E) any such obligation or liability under this Agreement or any Ancillary Agreement. Seller shall be required not have any liability under clauses (i) and (vii) of the immediately preceding paragraph: (x) for any individual items where the Buyer Loss relating thereto is less than $25,000; provided, however, that, in the case of clause (vii) of the immediately preceding paragraph, the limitation set forth in this clause (x) shall not apply to -------------------- -------- ------- indemnify any such Buyer Loss with respect to which Seller has received a written claim from Buyer (specifying in reasonable detail the basis for such claim) prior to January 1, 1998; and hold harmless (y) in excess of, together with all Environmental Losses (as defined in Section 11(c)) for which Seller shall have liability under Section 11(c)(i), $215,000,000 in the aggregate. Seller shall also not have any liability under clause (i) of the immediately preceding paragraph unless the aggregate of all Buyer Losses relating thereto for which Seller would, but for this sentence, be liable exceeds on a cumulative basis $500,000, in which case Seller shall be liable for all such Buyer Losses other than as provided in the immediately preceding sentence. Buyer, Valero and the Company acknowledge and agree that, should the Closing occur, their sole and exclusive remedy with respect to any and all claims relating to this Agreement or any Ancillary Agreement, the transactions contemplated hereby or thereby, the Company and its properties, assets, liabilities, operations and business shall be pursuant to the indemnification provisions set forth in this Section 11.2(a) with --------------- respect to Losses 11, in Section 2.06 of each of the Stockholder Agreements and Expenses incurred in any underwriting agreement entered into by Buyer Group Members only or Valero pursuant to the Stockholder Agreements. In furtherance of the foregoing, each of Buyer, Valero and the Company hereby waives, from and after the Closing, to the fullest extent that the aggregate amount permitted under Applicable Law, any and all rights, claims and causes of such Losses action it may have against Seller and Expenses exceeds $2,000,000; and providedits affiliates arising under or based upon any Federal, furtherstate, that the aggregate amount required to be paid by Seller -------- ------- local or foreign statute, law, ordinance, rule or regulation or otherwise, including any Environmental Law (except pursuant to this Section 11.2(a) shall not exceed $320,000,000 provided further --------------- that the foregoing threshold amount and limit shall not apply to any Losses or Expenses arising out of the inaccuracy of any of the representations and warranties under any of the following provisions: Section 5.2(b) (Capital -------------- Structure), Section 5.3 (Subsidiaries and Investments), Section 5.17 (ERISA) or ------------ Section 5.20(e)(ii) (Employee Relations and Agreements - Worker Classification). ------------------- (b) The indemnification provided for in Section 11.2(a)(i) shall ------------------ terminate eighteen months after the Closing Date (and no claims shall be made by any Buyer Group Member under Section 11.2(a)(i) thereafter), except ------------------ that the indemnification by Seller shall continue as to: (i) provisions referred to in the representation of Seller contained in Section 5.2(b) and 5.3, -------------- --- which shall survive indefinitely and the representation of Seller contained in Section 5.19, which shall survive for the term of any applicable statute ------------ of limitations; and (ii) any Losses or Expenses of which any Buyer Group Member has notified Seller in accordance with the requirements of Section 11.4 on or ------------ prior to the date such indemnification would otherwise terminate in accordance with this Section 11.2, as to which the obligation of Seller ------------ shall continue until the liability of Seller shall have been determined pursuant to this Article XI, and Seller shall have reimbursed all Buyer ---------- Group Members for the full amount of such Losses and Expenses in accordance with this Article XI. ----------immediately preceding sentence).