Common use of Other Indemnification Matters Clause in Contracts

Other Indemnification Matters. (a) The amount of any Damages payable by Seller Parties under this Article VIII or Article VII will be net of any amounts actually recovered by the Buyer Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor (net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation or any similar proceeding in connection therewith. If the Buyer Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by Seller Parties or Seller Representative, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing such indemnification payment up to the amount received by the Buyer Indemnified Party, net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount. (b) Any Damages for which any Person is entitled to indemnification under this Article VIII or Article VII shall be determined without duplication of recovery by reason of the state of facts giving rise to such Damages constituting a breach of more than one representation, warranty or covenant. No Person shall be entitled to indemnification under this Agreement for any Damages arising from a breach of any representation, warranty or covenant set forth herein (and the amount of any Damages incurred in respect of such breach shall not be included in the calculation of any limitations on indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4. (c) If a Seller Party fails to pay any amounts that they are obligated to pay to Buyer under this Agreement, including any amounts that they are obligated to pay pursuant to the indemnification obligations set forth in this Article VIII, then Buyer may, in addition to any other rights and remedies that may be available to it, set off all or any portion of such amounts against any amounts due and owing from Buyer or its Affiliates (including the Company) to the Seller Parties (including under the Collateral Agreements or with respect to any Earn-Out Payment, Bonus, or Closing Shares). Any amounts so set off shall be deemed to have been paid to Seller Parties as of the date on which written demand for payment of the amount in question was provided to Seller Representative. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement or any other Collateral Agreements. (d) The waiver of any closing condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants and obligations.

Other Indemnification Matters. (a) The amount of any Damages payable by Seller Parties under this Article VIII or Article VII will be net of any amounts actually recovered by the Buyer Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor (net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation or any similar proceeding in connection therewith. If the Buyer Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible Any claim for any Damages, subsequent to an indemnification payment by Seller Parties or Seller Representative, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing such indemnification payment up to the amount received by the Buyer Indemnified Party, net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount. (b) Any Damages for which any Person is entitled to indemnification under this Article VIII or Article VII shall X must be determined without duplication of recovery asserted by reason providing written notice to the other parties specifying the factual basis of the state of facts giving rise claim in reasonable detail to such Damages constituting a breach of more than one representation, warranty or covenantthe extent then known by the Person asserting the claim. No Person shall be entitled The right to indemnification under this Agreement for will not be affected by any Damages arising from a breach investigation conducted with respect to, or any Knowledge acquired (or capable of being acquired) at any time, whether before or after the date hereof, with respect to any representation, warranty warranty, covenant or covenant set forth herein (and agreement in this Agreement. THE INDEMNIFICATION PROVISIONS IN THIS ARTICLE X WILL BE ENFORCEABLE REGARDLESS OF WHETHER ANY PERSON ALLEGES OR PROVES THE SOLE, CONCURRENT, CONTRIBUTORY OR COMPARATIVE NEGLIGENCE OF THE PERSON SEEKING INDEMNIFICATION OR ITS AFFILIATES, OR THE SOLE OR CONCURRENT STRICT LIABILITY IMPOSED ON THE PERSON SEEKING INDEMNIFICATION OR ITS AFFILIATES. THE WAIVER OF ANY CONDITION BASED ON THE ACCURACY OF ANY REPRESENTATION OR WARRANTY, OR ON THE PERFORMANCE OF OR COMPLIANCE WITH ANY COVENANT OR AGREEMENT, WILL NOT AFFECT THE RIGHT TO INDEMNIFICATION, PAYMENT OF DAMAGES, OR OTHER REMEDY BASED ON ANY SUCH REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT. If any party liquidates or dissolves at any time when any Liability of such party with respect to this Article X may thereafter arise or be determined, then at the amount time of such liquidation or dissolution, such party will cause its shareholders, members, partners or other equity holders or distributees of such party’s assets, as the case may be, to take such assets subject to such Liabilities ratably in proportion to the assets received; provided, however, that the failure on behalf of any Damages incurred in respect of such breach shall not be included in party to comply with the calculation of any limitations on indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4. (c) If a Seller Party fails to pay any amounts that they are obligated to pay to Buyer under this Agreement, including any amounts that they are obligated to pay pursuant to the indemnification obligations covenant set forth in this Article VIII, then Buyer may, sentence will in addition to any other rights and remedies that may be available to it, set off all or any portion of no way reduce such amounts against any amounts due and owing from Buyer or its Affiliates (including the Company) to the Seller Parties (including under the Collateral Agreements or with respect to any Earn-Out Payment, Bonus, or Closing Shares). Any amounts so set off shall be deemed to have been paid to Seller Parties as of the date on which written demand for payment of the amount party’s obligations in question was provided to Seller Representative. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement or any other Collateral AgreementsAgreement. (d) The waiver of any closing condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants and obligations.

Other Indemnification Matters. (a) The indemnification provided in this Article IX shall be the sole and exclusive remedy for any inaccuracy or breach of any representation or warranty made by Sellers or Buyer in this Agreement or in any Ancillary Document. All amounts payable by one party in indemnification of the other (whether or not as provided in Section 9.04(d)) shall be considered an adjustment to the Purchase Price. (b) Upon making any payment to an Indemnified Party for any indemnification claim pursuant to this Article IX, the Indemnifying Party shall be subrogated, to the extent of such payment, to any rights which the Indemnified Party may have against any other parties with respect to the subject matter underlying such indemnification claim. (c) The amount of any Damages payable by Seller Parties under this Article VIII or Article VII will Losses shall be computed net of any amounts actually recovered insurance proceeds received by the Buyer Indemnified Party under applicable insurance policies Indemnitee or from any other Person alleged to be responsible therefor (net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation or any similar proceeding its Affiliates in connection therewith. If the Buyer Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by Seller Parties or Seller Representative, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing such indemnification payment up to the amount received by the Buyer Indemnified Party, net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount. (b) Any Damages for which any Person is entitled to indemnification under this Article VIII or Article VII shall be determined without duplication of recovery by reason of the state of facts giving rise to such Damages constituting a breach of more than one representation, warranty or covenant. No Person shall be entitled to indemnification under this Agreement for any Damages arising from a breach of any representation, warranty or covenant set forth herein (and the amount of any Damages incurred in respect of such breach shall not be included in the calculation of any limitations on indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4. (c) If a Seller Party fails to pay any amounts that they are obligated to pay to Buyer under this Agreement, including any amounts that they are obligated to pay pursuant to the indemnification obligations set forth in this Article VIII, then Buyer may, in addition to any other rights and remedies that may be available to it, set off all or any portion of such amounts against any amounts due and owing from Buyer or its Affiliates (including the Company) to the Seller Parties (including under the Collateral Agreements or with respect to any Earn-Out Payment, Bonus, or Closing Shares). Any amounts so set off shall be deemed to have been paid to Seller Parties as of the date on which written demand for payment of the amount in question was provided to Seller Representative. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement or any other Collateral Agreements. (d) The waiver amount of any closing condition based on the accuracy Losses shall be computed net of any representation tax benefit realized by the Indemnitee or warrantyits Affiliates as a result of such Loss, or the amount of any tax benefit realized by the Indemnitee as a result of any payment made. (e) Notwithstanding anything herein to the contrary, if either Seller shall have indemnification obligations pursuant to this Agreement, such payment shall be made 50% (or such other proportion as Buyer and Sellers may agree) in cash by immediately available funds and 50% (or such other proportion as Buyer and Sellers may agree) by transfer by such Seller of the number of shares having an aggregate market value equal to the indemnification obligation of Sellers. For purposes hereof, "market value" for a share of common stock of Buyer shall be the average closing price per share of common stock of Buyer for the 10 trading days immediately preceding the date on which Buyer reclaims such shares. If any future payment obligation pursuant to Section 1.03(c) shall be reduced pursuant to clause (ii) above, the performance amount so reduced shall be deemed "paid" for purposes of Section 1.03. (f) With respect to Sellers' liability for claims made under clause (b)(i) of Section 9.02: (i) Sellers shall have no liability for such claims until the aggregate amount of the Losses incurred by Buyer's Indemnified Group shall exceed $250,000, in which case Seller shall be liable only for the portion of the Losses exceeding $250,000 (the "Deductible"), and (ii) Sellers shall have no liability for such claims in excess of $2,500,000 (the "Cap"); provided, however, that claims for breaches of any representations or compliance warranties contained in Sections 2.01, 2.12, 2.14, 2.15 and 2.17 shall not be subject to the Deductible or the Cap. (g) The material adverse effect and materiality (or correlative meaning) qualifications included in the representations, warranties and covenants shall have no effect on any provisions in this Article IX concerning the indemnities of Sellers with any covenant or obligation, will not affect the right respect to indemnification, payment of Damages, or other remedy based on such representations, warrantieswarranties and covenants, covenants and obligationseach of which is given as though there were no material adverse effect or materiality (or correlative meaning) qualification for purposes of such indemnities.

Other Indemnification Matters. (a) The indemnification provided in this Article IX shall be the sole and exclusive remedy for any inaccuracy or breach of any representation or warranty made by Stockholders or Buyers in this Agreement or in any Ancillary Document. All amounts payable by one party in indemnification of the other (whether or not as provided in Section 9.04(d)) ------- shall be considered an adjustment to the Merger Consideration. (b) Upon making any payment to an Indemnified Party for any indemnification claim pursuant to this Article IX, the Indemnifying Party shall be subrogated, to the extent of such payment, to any rights which the Indemnified Party may have against any other parties with respect to the subject matter underlying such indemnification claim. (c) The amount of any Damages payable by Seller Parties under this Article VIII or Article VII will Losses shall be computed net of any amounts actually recovered insurance proceeds received by the Buyer Indemnified Party under applicable insurance policies Indemnitee or from any other Person alleged to be responsible therefor (net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation or any similar proceeding its Affiliates in connection therewith. If the Buyer Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by Seller Parties or Seller Representative, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing such indemnification payment up to the amount received by the Buyer Indemnified Party, net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount. (b) Any Damages for which any Person is entitled to indemnification under this Article VIII or Article VII shall be determined without duplication of recovery by reason of the state of facts giving rise to such Damages constituting a breach of more than one representation, warranty or covenant. No Person shall be entitled to indemnification under this Agreement for any Damages arising from a breach of any representation, warranty or covenant set forth herein (and the amount of any Damages incurred in respect of such breach shall not be included in the calculation of any limitations on indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4. (c) If a Seller Party fails to pay any amounts that they are obligated to pay to Buyer under this Agreement, including any amounts that they are obligated to pay pursuant to the indemnification obligations set forth in this Article VIII, then Buyer may, in addition to any other rights and remedies that may be available to it, set off all or any portion of such amounts against any amounts due and owing from Buyer or its Affiliates (including the Company) to the Seller Parties (including under the Collateral Agreements or with respect to any Earn-Out Payment, Bonus, or Closing Shares). Any amounts so set off shall be deemed to have been paid to Seller Parties as of the date on which written demand for payment of the amount in question was provided to Seller Representative. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement or any other Collateral Agreements. (d) The waiver Notwithstanding anything herein to the contrary, if Stockholders shall have indemnification obligations pursuant to this Agreement, ADS may, at his option, (i) require that such payment be made in cash by wire transfer of immediately available funds, (ii) reduce any future payment obligation to Stockholders pursuant to Section 1.05 on a ---- dollar-for-dollar basis, or (iii) if ADS is in possession of any certificate representing shares of ADS Stock issued pursuant to Section 1.05(b), take ------- back the number of shares represented by such certificate having an aggregate market value equal to the indemnification obligation of Stockholders. For purposes of clause (iii) above, "market value" for a share of common stock of ADS shall be the average closing condition based price per share of common stock of ADS for the 20 trading days immediately preceding the date on which ADS reclaims such shares. If any future payment obligation pursuant to Section 1.05(b) shall be reduced pursuant to clause (ii) above, the accuracy ------- amount so reduced shall be deemed "paid" for purposes of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants and obligations.Section 1.05. ----

Other Indemnification Matters. (a) The If Parent fully collects Losses from the Executing Stockholders, the Executing Option Holders or Non-Owner Participants (or the Indemnification Escrow Amount and/or Identified Matters Escrow Amount) in connection with indemnification obligations of the Executing Stockholders, the Executing Option Holders or Non-Owner Participants pursuant to this Agreement, and Parent subsequently collects any funds from a third party that were the basis for Parent’s claim for such indemnification, Parent shall remit the amount so collected to the applicable Executing Stockholder, Executing Option Holder or Non-Owner Participant for reimbursement from which the Losses were received, subject to satisfaction of any Damages payable other valid indemnification claims by Seller Parties Parent under this Article VIII or Article VII will be net of any amounts actually recovered by the Buyer Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor (net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation or any similar proceeding in connection therewithIX. If the Buyer Indemnified Party receives any amounts under applicable insurance policies, or Executing Stockholders fully collect Losses from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by Seller Parties or Seller Representative, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative Parent in connection with providing the indemnification obligations of Parent pursuant to this Agreement, and the Executing Stockholders subsequently collect any funds from a third party that were the basis for the Executing Stockholders’ claim for such indemnification payment up to indemnification, the Executing Stockholders shall remit the amount received by so collected to Parent for reimbursement from which the Buyer Indemnified Party, net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amountLosses were received. (b) Any Damages With respect to indemnification claims of a Parent Indemnified Party arising under this Article IX, if the Losses exceed the remaining Indemnification Escrow Amount and Identified Matters Escrow Amount available to provide indemnification for such claim, then Parent shall first set off against any and all payments due to the applicable Executing Stockholder, Executing Option Holder or Non-Owner Participant at the time of such indemnification claim, including, without limitation, an Executing Stockholder’s Pro Rata Share of any Tax refunds and any amounts payable to the Executing Stockholders pursuant to Section 7.11, any amount to which any Person Parent Indemnified Party is entitled to indemnification under this Article VIII be indemnified hereunder by such Executing Stockholder, Executing Option Holder or Article VII shall be determined without duplication of recovery by reason Non-Owner Participant that is in excess of the state of facts giving rise remaining Indemnification Escrow Amount and Identified Matters Escrow Amount available to provide indemnification for such Damages constituting a breach of more than one representationclaim, warranty or covenant. No Person shall be entitled prior to indemnification under this Agreement for any Damages arising from a breach of any representation, warranty or covenant set forth herein (and the amount of any Damages incurred in respect seeking payment of such breach Losses directly from such Executing Stockholder, Executing Option Holder or Non-Owner Participant; provided, however, that no Parent Indemnified Party shall not have a duty to delay its recovery with respect to an indemnification claim in expectation of a Tax refund or other payment against which such set off could be included in the calculation of any limitations on indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4made. (c) If a Seller Each Person entitled to indemnification hereunder shall take commercially reasonable steps to mitigate its Losses that are indemnifiable hereunder as required by applicable Law, provided that if such Indemnified Party fails does not take such steps required by this Section 9.6(c), such failure shall not prevent such Indemnified Party from being indemnified hereunder, however, the amount of Losses such Indemnified Party is indemnified for shall be limited to pay any amounts that they are obligated to pay to Buyer the amount of Losses such Indemnified Party would have incurred if it had not breached its obligation under this Agreement, including any amounts that they are obligated to pay pursuant to the indemnification obligations set forth in this Article VIII, then Buyer may, in addition to any other rights and remedies that may be available to it, set off all or any portion of such amounts against any amounts due and owing from Buyer or its Affiliates (including the Company) to the Seller Parties (including under the Collateral Agreements or with respect to any Earn-Out Payment, Bonus, or Closing SharesSection 9.6(c). Any amounts so set off shall be deemed to have been paid to Seller Parties as of the date on which written demand for payment of the amount in question was provided to Seller Representative. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement or any other Collateral Agreements. (d) The waiver Notwithstanding anything contained herein to the contrary Parent shall be entitled to rely on all representations and warranties of the Company and the Executing Stockholders, and any closing condition based on the accuracy of any representation evaluation or warranty, or on the performance of or compliance with any covenant or obligation, will investigation by Parent shall not affect the right representations and warranties made by the Executing Stockholders and/or the Company in this Agreement or the other Transaction Documents or the remedies of Parent for breaches of those representations and warranties. (e) Notwithstanding anything contained herein to indemnificationthe contrary, payment prior to the Adjustment Payment Date, Parent shall be entitled to recover any amounts owed by the Executing Stockholders, the Executing Option Holders and Non-Owner Participants to a Parent Indemnified Party and arising out of Damagesor resulting from Sections 9.2(a)(iii), 9.2(a)(iv) and 9.2(a)(vi) from the Adjustment Escrow Amount to the extent available in accordance with the terms and conditions of the Escrow Agreement prior to recovering such amount from the Indemnification Escrow Amount in accordance with the terms and conditions of the Escrow Agreement or other remedy based on such representationsdirectly from the Executing Stockholders, warranties, covenants the Executing Option Holders and obligationsNon-Owner Participants in accordance with this Article IX.

Other Indemnification Matters. (ai) All indemnification payments made pursuant to this Section 9.1 will be treated as an adjustment to the Merger Consideration unless otherwise required by applicable Law. (ii) The Indemnified Party will take all commercially reasonable steps to mitigate any Losses for which such Indemnified Party seeks indemnification hereunder. (iii) The amount of any Damages payable by Seller Parties Losses subject to indemnification under this Article VIII or Article VII Section 9.1 will be calculated net of any amounts actually recovered by the Buyer Indemnified Party under applicable insurance policies or from proceeds received and any other Person alleged to be responsible therefor payments from third parties received (net of the present value of reduced by any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred in collection of such amounts by such Buyer the Indemnified Party in collecting such amount(or any of its Affiliates); provided that in no event shall any Buyer ) by the Indemnified Party be required to institute litigation on account of such Losses. In the event that an insurance or other recovery is received by any similar proceeding in connection therewith. If the Buyer Indemnified Party receives with respect to any amounts under applicable insurance policies, or from Losses for which any other such Person alleged to be responsible for any Damages, subsequent to an indemnification payment by Seller Parties or Seller Representativehas been indemnified hereunder, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing such indemnification payment up a refund equal to the amount received by the Buyer Indemnified Party, net of the present value of recovery (reduced by any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred in collection of such amounts by such Buyer the Indemnified Party in collecting (or any of its Affiliates)) will be made promptly to the Indemnifying Party that made or directed such amountindemnification payments to such Indemnified Party. (biv) Except: (A) with respect to claims based upon Fraud; (B) for remedies that cannot be waived as a matter of Law; (C) injunctive and provisional relief in accordance with the terms of this Agreement; (D) the dispute resolution mechanisms set forth in the Exchange Rights Agreement, Lockup Agreements, the Coattail Agreement, the Registration Rights Agreement and the Investor Rights Agreement with respect to claims arising thereunder; and (E) the dispute resolution mechanisms set forth in Section 2.17, if the Closing occurs, this Section 9.1 will be the sole and exclusive remedy for breach of, inaccuracy in, or failure to comply with, any representation, warranty, or covenant contained in this Agreement, or otherwise in respect of the transactions contemplated by this Agreement. (v) No Seller will have any liability for any Losses to the extent that an allowance, provision or reserve covering such Losses is included in the final calculation of the Closing Merger Consideration as determined pursuant to Section 2.18. Any Damages for which any Person is entitled indemnification provided pursuant to indemnification under this Article VIII or Article VII Section 9.1 shall be determined without duplication of recovery by reason of the state of facts giving rise so applied as to such Damages constituting a breach of more than one representation, warranty or covenant. No Person avoid any double counting and no Indemnified Party shall be entitled to obtain indemnification under this Agreement more than once for any Damages arising from the same matter or Losses. (vi) In the event of indemnification for Losses suffered or incurred by a breach of any representationnon-wholly-owned Acquired Subsidiary, warranty or covenant set forth herein (and the amount of any Damages such Losses incurred by such Acquired Subsidiary which are indemnifiable by the Sellers pursuant to this Section 9.1 shall be calculated in respect a manner proportional to the relative direct or indirect ownership interest of Buyer in such Acquired Subsidiary as of the date such Losses are suffered or incurred (e.g., if a non-wholly-owned Acquired Subsidiary incurs Losses of $100,000 which are otherwise indemnifiable pursuant to this Section 9.1 and Buyer’s direct or indirect ownership interest in such Acquired Subsidiary is 75% at the time such Losses are suffered or incurred, the Losses of such breach shall not Acquired Subsidiary which are indemnifiable pursuant to this Section 9.1 would be included in the calculation of any limitations on indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4equal to $75,000). (cvii) If a Seller Party fails In the event that Buyer and its related indemnitees are entitled to pay any amounts that they are obligated to pay to Buyer under this Agreement, including any amounts that they are obligated to pay indemnification for Losses pursuant to this Section 9.1, then, subject to the indemnification obligations applicable limitations set forth in this Article VIIISection 9.1, then Buyer may, in addition to any other rights and remedies that may be available to it, set off all or any portion such indemnitees shall satisfy the amount of such amounts Losses (i) first, by offset against any amounts due and owing from Buyer or its Affiliates Exchangeable Shares (including or, if previously exchanged, SPAC Subordinate Voting Shares) held by the Company) to respective Sellers at the Seller Parties time of such offset (including under the Collateral Agreements or or, with respect to any EarnNon-Out PaymentAccredited Sellers, Bonusdirectly from such Non-Accredited Sellers on a several but not joint basis), or Closing Sharesand (ii) thereafter, directly from the Sellers on a several but not joint basis. For purposes of the offset contemplated by clause (i). Any amounts so set off , (A) each Buyer Exchangeable Share shall be deemed to have been paid a value equal to Seller Parties (x) the number of SPAC Subordinate Voting Shares into which such Buyer Exchangeable Share is convertible as of the date on which written demand that Buyer and its related indemnitees became entitled to indemnification for payment the applicable Losses pursuant to this Section 9.1 multiplied by (y) the VWAP as of the amount in question was provided date that Buyer and its related indemnitees became entitled to Seller Representative. The exercise indemnification for the applicable Losses pursuant to this Section 9.1, and (B) each SPAC Subordinate Voting Share shall be valued at the VWAP as of such right of set off in good faith, whether or not ultimately determined the date that Buyer and its related indemnitees made a claim for indemnification for the applicable Losses pursuant to be justified, will not constitute a breach or default under this Agreement or any other Collateral AgreementsSection 9.1. (d) The waiver of any closing condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants and obligations.

Other Indemnification Matters. (a) Any amount paid under Article X will be treated as an adjustment to the Merger Consideration unless a final determination that is not subject to further appeal, review or modification through proceedings or otherwise or a change in applicable Legal Requirements (including a revenue ruling or other similar pronouncement) causes any such amount not to constitute an adjustment to the Merger Consideration for United States federal income Tax purposes. (b) The amount of any Damages payable by Seller Parties Losses subject to indemnification under this Article VIII or Article VII will X shall be calculated net of any amounts actually recovered by the Buyer any Parent Indemnified Party Person under applicable insurance policies (but taking into account any deductible or from any other retention and premium increase resulting therefrom), and each Parent Indemnified Person alleged agrees to use its commercially reasonable efforts to make or cause to be responsible therefor (net of made all reasonable claims for insurance under such policies that may be applicable to the present value of matter giving rise to the indemnification claim hereunder. In the event that any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Parent Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation Person or any similar proceeding in connection therewith. If the Buyer Indemnified Party receives of its Affiliates actually realizes a Tax benefit with respect to any amounts under applicable insurance policiesTax period as a consequence of, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by Seller Parties or Seller Representative, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing the circumstances giving rise to, any indemnification claim hereunder that has been satisfied in full, then such indemnification payment Parent Indemnified Person shall pay an amount equal to the amount of such Tax benefit (up to the amount received by such Parent Indemnified Person with respect to the Buyer fully satisfied indemnification claim) to the Escrow Agent to be added to the Escrow Cash (or if the Escrow Cash has been finally distributed, to the Stockholders’ Committee for distribution to the Eligible Earnout Recipients based on Sections 2.06(a)(iii), 2.06(b)(iv), 2.06(c)(iv), 2.08(b)(ii)(C), 2.08(b)(iii)(C) and 2.09(b)(C); provided that such payment shall be made only at such time or times and to the extent that such Tax benefit is actually realized (i.e., calculated on the basis of the actual reduction in cash payments or increase in cash refunds for Taxes); provided, further, that if such Parent Indemnified PartyPerson actually realizes such a Tax benefit on or prior to the date on which the associated indemnification payment from the Escrow Cash is due or the associated reduction in the Earnout Payment is applied, the indemnification payment or reduction in the Earnout Payment will be made net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amountTax benefit. (bc) Any Damages No party hereto shall be liable to the other for punitive damages claimed by such other party resulting from such first party’s breach of its obligations, agreements, representations or warranties hereunder; provided that nothing under this Section 10.05(c) shall preclude any claim for indemnification by a Parent Indemnified Person for Third Party Claims asserting such damages. (d) Each Parent Indemnified Person shall use commercially reasonable efforts to mitigate Losses for which any Person is entitled to it seeks indemnification under this Article VIII or Article VII hereunder. (e) No party hereto shall be determined without duplication of recovery by reason of liable for more than the state of facts giving rise to other party’s total Losses resulting from any specific facts, omissions or circumstances notwithstanding the fact that such Damages constituting a facts, omissions or circumstances may constitute the breach of more than one representation, warranty warranty, covenant, or covenant. No Person shall be entitled agreement, or cause an adjustment to indemnification under this Agreement for any Damages arising from a breach of any representation, warranty or covenant set forth herein (and the amount of any Damages incurred in respect of such breach shall not be included in the calculation of any limitations on indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Upfront Purchase Price pursuant to Section 1.43.01. (cf) If any of the Parent Indemnified Persons seeks to make a Seller Party fails to pay any amounts that they are obligated to pay to Buyer under this Agreement, including any amounts that they are obligated to pay claim for indemnification pursuant to the indemnification obligations set forth in this Article VIIIX, then Buyer maythen, in addition to the procedures set forth herein, such Parent Indemnified Person shall be required to submit such claim in accordance with the terms of the Escrow Agreement, and any other rights and remedies that may be available to it, set off all or any portion of such amounts against any amounts due and owing from Buyer or its Affiliates (including the Company) to the Seller Parties (including under the Collateral Agreements or disputes with respect to any Earn-Out Payment, Bonus, or Closing Shares). Any amounts so set off such claim shall be deemed to have been paid to Seller Parties as resolved in accordance with the terms of the date on which written demand for payment of the amount in question was provided to Seller Representative. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement or any other Collateral Agreementsand the Escrow Agreement. Indemnification claims shall be paid in accordance with the terms of this Agreement the Escrow Agreement. (d) The waiver of any closing condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants and obligations.

Other Indemnification Matters. (a) The amount No Party shall be entitled to receive indemnification hereunder from any other Party to the extent that any Loss has been taken into account in connection with the determination of any Damages payable the Cash Payment pursuant to Article 1 hereof. (b) To the extent permitted by Seller Parties Law, all indemnification payments made under this Article VIII or 6 will be deemed for Tax purposes to be adjustments to the Cash Payment. (c) With respect to each indemnification obligation contained in this Article VII will 6, all Losses shall be net of any amounts actually recovered by the Buyer Indemnified Party under applicable third party insurance policies or from any other Person alleged to be responsible therefor proceeds (net of the present value after deduction of any related deductible, increase to insurance in premiums, any reasonable attorneys’ fees, and or other out of pocket costs or expenses incurred by such Buyer it in procuring recovery) actually paid to the Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation or any similar proceeding in connection therewith. If the Buyer Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by Seller Parties or Seller Representative, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing such indemnification payment up to the amount received by the Buyer Indemnified Party, net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount. (b) Any Damages for which any Person is entitled to indemnification under this Article VIII or Article VII shall be determined without duplication of recovery by reason of the state of facts giving rise to such Damages constituting a breach the right of more than one representation, warranty or covenantindemnification hereunder. No Person Each Party shall be entitled have the right to indemnification under this Agreement for any Damages arising from a breach of any representation, warranty or covenant set forth herein (withhold and the amount of any Damages incurred in respect of such breach shall not be included in the calculation of any limitations on indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4. (c) If a Seller Party fails to pay any amounts that they are obligated to pay to Buyer under this Agreement, including any amounts that they are obligated to pay pursuant to the indemnification obligations set forth in this Article VIII, then Buyer may, in addition to any other rights and remedies that may be available to it, set off all or any portion of such amounts against any amounts due and owing from Buyer or its Affiliates (including the Company) to be paid to the Seller Parties (including under other Party against any amount owed to it by the Collateral Agreements or with respect other Party pursuant to any Earn-Out Payment, Bonus, or Closing Shares). Any amounts so set off shall be deemed to have been paid to Seller Parties as of the date on which written demand for payment of the amount in question was provided to Seller Representative. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default an indemnification obligation under this Agreement Article 6 that has been finally adjudicated or any other Collateral Agreementsotherwise settled or agreed to. (d) The waiver In the event a Proceeding for indemnification under this Article 6 shall have been finally determined, the amount due to an Indemnified Party in accordance with such final determination shall be paid to the Indemnified Party, on demand in immediately available funds. A Proceeding, and the Liability for and amount of damages therefor, shall be deemed to be “finally determined” for purposes of this Article 6 when the Parties to such Proceeding have so determined by mutual agreement or, if disputed, when a final nonappealable order shall have been entered by a court of competent jurisdiction. (e) Each of the Parties shall, and shall cause its applicable Affiliates, directors, officers, employees, advisors, agents, attorneys, consultants, accountants and other representatives to, take all reasonable steps to mitigate their respective Losses upon and after becoming aware of any closing event or condition based on the accuracy of that would reasonably be expected to give rise to any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants and obligationsLosses that are indemnifiable hereunder.

Other Indemnification Matters. (a) The Payments by an Indemnifying Party pursuant to Article 11 in Article 11 in respect of any Damages shall be limited to the amount of any Damages payable by Seller Parties under this Article VIII or Article VII will be net of that remain after deducting therefrom any amounts insurance proceeds actually recovered by the Buyer Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor received (net of the present value of reasonable out-of-pocket expenses incurred in obtaining such recovery and any increase in insurance premiums to insurance premiums, any reasonable attorneys’ fees, and other out the extent directly attributable to the payment of pocket costs such cash recovery or expenses incurred the existence of such Damages) by such Buyer the Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation or any similar proceeding in connection therewith. If the Buyer Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by Seller Parties or Seller Representative, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing such indemnification payment up to the amount received by the Buyer Indemnified Party, net of the present value respect of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amountclaim. (b) Any With respect to any Damages for which or any Person is entitled Damages reasonably likely to indemnification be incurred, any Indemnified Party shall, and to the extent possible shall cause their respective Affiliates to, take all commercially reasonable efforts to mitigate such Damages or Damages reasonably likely to be incurred. (c) Seller shall not be liable under this Article VIII or Article VII shall be determined without duplication of recovery by reason of the state of facts giving rise to such Damages constituting a breach of more than one representation, warranty or covenant. No Person shall be entitled to indemnification under this Agreement 11 for any Damages based upon or arising from a out of any inaccuracy in or breach of any representations or warranties of Seller, the Company or any Subsidiary contained in this Agreement if Buyer had actual knowledge of such inaccuracy or breach prior to the date hereof. Buyer shall not be liable under this Article 11 for any Damages based upon or arising out of any inaccuracy in or breach of any representations or warranties of Buyer contained in this Agreement if Seller had actual knowledge of such inaccuracy or breach prior to the date hereof. (d) Seller shall not be required to indemnify Buyer for those portions of any Damages reflected as a liability in calculating the Final Working Capital and paid for by Seller through any Working Capital Adjustment Amount payment pursuant to Section 2.05. (e) Notwithstanding anything to the contrary set forth herein, except in the case of actual fraud, no party shall be liable for any consequential damages (including loss or diminution in value of assets or securities) or punitive, special, exemplary or indirect damages or any damages based upon multiples of earnings or any other similar value metrics (unless such punitive, special, exemplary or indirect damages are awarded to any third party by any court or arbitrator) relating to any breach of representation, warranty or covenant set forth herein (and the amount of any Damages incurred contained in respect of such breach shall not be included in the calculation of any limitations on indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4. (c) If a Seller Party fails to pay any amounts that they are obligated to pay to Buyer under this Agreement, including any amounts that they are obligated to pay pursuant to the indemnification obligations set forth in this Article VIII, then Buyer may, in addition to any other rights and remedies that may be available to it, set off all or any portion of such amounts against any amounts due and owing from Buyer or its Affiliates (including the Company) to the Seller Parties (including under the Collateral Agreements or with respect to any Earn-Out Payment, Bonus, or Closing Shares). Any amounts so set off shall be deemed to have been paid to Seller Parties as of the date on which written demand for payment of the amount in question was provided to Seller Representative. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement or any other Collateral Agreements. (d) The waiver of any closing condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants and obligations.

Other Indemnification Matters. (a) The amount of any Damages payable by Seller Parties under indemnification provided in this Article VIII or Article VII will IX shall be net of any amounts actually recovered by the Buyer Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor (net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, sole and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation or any similar proceeding in connection therewith. If the Buyer Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible exclusive remedy for any Damages, subsequent to an indemnification payment by Seller Parties inaccuracy or Seller Representative, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing such indemnification payment up to the amount received by the Buyer Indemnified Party, net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount. (b) Any Damages for which any Person is entitled to indemnification under this Article VIII or Article VII shall be determined without duplication of recovery by reason of the state of facts giving rise to such Damages constituting a breach of more than one representation, warranty or covenant. No Person shall be entitled to indemnification under this Agreement for any Damages arising from a breach of any representation, warranty or covenant set forth herein made by Stockholders or Buyers in this Agreement or in any Ancillary Document (except that the Stockholders shall be entitled to specific performance and other equitable relief with respect to any breach by ADS under the amount Registration Rights Agreement). All amounts payable by one party in indemnification of any Damages incurred in respect of such breach shall the other (whether or not be included in the calculation of any limitations on indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.49.04(d)) shall be considered an adjustment to the Merger Consideration. (b) Upon making any payment to an Indemnified Party for any indemnification claim pursuant to this Article IX, the Indemnifying Party shall be subrogated, to the extent of such payment, to any rights which the Indemnified Party may have against any other parties with respect to the subject matter underlying such indemnification claim. (c) If a Seller Party fails to pay The amount of any amounts that they are obligated to pay to Buyer under this AgreementLosses shall be computed net of any insurance proceeds, including any amounts that they are obligated to pay tax benefits and recoveries from third parties other than insurance proceeds (whether pursuant to cross-claims, counterclaims or otherwise) received by the indemnification obligations set forth in this Article VIII, then Buyer may, in addition to any other rights and remedies that may be available to it, set off all or any portion of such amounts against any amounts due and owing from Buyer Indemnitee or its Affiliates (including the Company) to the Seller Parties (including under the Collateral Agreements or with respect to any Earn-Out Payment, Bonus, or Closing Shares). Any amounts so set off shall be deemed to have been paid to Seller Parties as of the date on which written demand for payment of the amount affiliates in question was provided to Seller Representative. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement or any other Collateral Agreementsconnection therewith. (d) The waiver Notwithstanding anything herein to the contrary, if Principal Stockholders shall have a payment obligation pursuant to this Article IX, the Principal Stockholders may, at their option, (i) make such payment in cash by wire transfer of immediately available funds, (ii) reduce any future payment obligation to Stockholders pursuant to Section 1.05 on a dollar-for-dollar basis, or (iii) if ADS is in possession of any certificate representing shares of ADS Stock issued pursuant to Section 1.05(a), allow ADS to take back the number of shares represented by such certificate having an aggregate market value equal to the indemnification obligation of Stockholders. For purposes of clause (iii) above, "market value" for a share of common stock of ADS shall be the average closing condition based price per share of common stock of ADS for the 20 trading days immediately preceding the date on which ADS reclaims such shares. If any future payment obligation pursuant to Section 1.05(a) shall be reduced pursuant to clause (ii) above, the accuracy amount so reduced shall be deemed "paid" for purposes of Section 1.05. (e) Notwithstanding anything to the contrary contained herein, no claim shall be asserted by the Indemnified Party for any representation Losses unless and until the aggregate of all Losses incurred by that Indemnified Party (collectively, in the case of the Stockholders) exceeds $250,000. Furthermore, in no event whatsoever shall the aggregate liability of either of the Indemnified Parties (collectively, in the case of the Stockholders) for all Losses exceed an aggregate of an amount equal to no more than 80% of the Merger Consideration received or warranty, or on entitled to be received by the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants and obligationsStockholders.

Other Indemnification Matters. (a) The amount of any Damages payable by Seller Parties under this Article VIII or Article VII will be net of any amounts actually recovered by the Buyer Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor (net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation or any similar proceeding in connection therewith. If the Buyer Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible Any claim for any Damages, subsequent to an indemnification payment by Seller Parties or Seller Representative, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing such indemnification payment up to the amount received by the Buyer Indemnified Party, net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount. (b) Any Damages for which any Person is entitled to indemnification under this Article VIII X must be asserted by providing written notice to the Sellers’ Representative (or Article VII shall be determined without duplication the Buyer, in the case of recovery a claim by reason any Seller) specifying the factual basis of the state of facts giving rise claim in reasonable detail to such Damages constituting a breach of more than one representation, warranty or covenantthe extent then known by the Person asserting the claim. No Person shall All indemnification payments under this Article X will be entitled deemed adjustments to the Purchase Price. The right to indemnification under this Agreement for will not be affected by any Damages arising from a breach investigation conducted with respect to, or any Knowledge acquired (or capable of being acquired) at any time, whether before or after the date hereof, with respect to any representation, warranty warranty, covenant or covenant set forth herein (and agreement in this Agreement. THE INDEMNIFICATION PROVISIONS IN THIS ARTICLE X WILL BE ENFORCEABLE REGARDLESS OF WHETHER ANY PERSON ALLEGES OR PROVES THE SOLE, CONCURRENT, CONTRIBUTORY OR COMPARATIVE NEGLIGENCE OF THE PERSON SEEKING INDEMNIFICATION OR ITS AFFILIATES, OR THE SOLE OR CONCURRENT STRICT LIABILITY IMPOSED ON THE PERSON SEEKING INDEMNIFICATION OR ITS AFFILIATES. THE WAIVER OF ANY CONDITION BASED ON THE ACCURACY OF ANY REPRESENTATION OR WARRANTY, OR ON THE PERFORMANCE OF OR COMPLIANCE WITH ANY COVENANT OR AGREEMENT, WILL NOT AFFECT THE RIGHT TO INDEMNIFICATION, PAYMENT OF DAMAGES, OR OTHER REMEDY BASED ON ANY SUCH REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT. If any Seller liquidates or dissolves at any time when any Liability of such Seller with respect to this Article X may thereafter arise or be determined, then at the amount time of such liquidation or dissolution, such Seller will cause its shareholders, members, partners or other equity holders or distributees of such Seller’s assets, as the case may be, to take such assets subject to such Liabilities ratably in proportion to the assets received; provided, however, that the failure on behalf of any Damages incurred in respect of such breach shall not be included in Seller to comply with the calculation of any limitations on indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4. (c) If a Seller Party fails to pay any amounts that they are obligated to pay to Buyer under this Agreement, including any amounts that they are obligated to pay pursuant to the indemnification obligations covenant set forth in this Article VIII, then Buyer may, sentence will in addition to any other rights and remedies that may be available to it, set off all or any portion of no way reduce such amounts against any amounts due and owing from Buyer or its Affiliates (including the Company) to the Seller Parties (including under the Collateral Agreements or with respect to any Earn-Out Payment, Bonus, or Closing Shares). Any amounts so set off shall be deemed to have been paid to Seller Parties as of the date on which written demand for payment of the amount Seller’s obligations in question was provided to Seller Representative. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement or any other Collateral AgreementsAgreement. (d) The waiver of any closing condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants and obligations.

Other Indemnification Matters. (a) The amount of any Damages payable by Seller Parties under this Article VIII or Article VII will be net of any amounts actually recovered by the Buyer Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor (net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation or any similar proceeding in connection therewith. If the Buyer Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible Any claim for any Damages, subsequent to an indemnification payment by Seller Parties or Seller Representative, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing such indemnification payment up to the amount received by the Buyer Indemnified Party, net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount. (b) Any Damages for which any Person is entitled to indemnification under this Article VIII or Article VII shall X must be determined without duplication of recovery asserted by reason providing written notice to Seller with a copy of the state same notice (modified mutatis mutandis) provided to the Escrow Agent (for as long as the Escrow Funds have not been released in full) (or Buyer, in the case of facts giving rise a claim by any Seller Party) specifying the factual basis of the claim in reasonable detail to such Damages constituting a breach of more than one representation, warranty or covenantthe extent then known by the Person asserting the claim. No Person shall All indemnification payments under this Article X (and Article XI as identified below) will be entitled deemed adjustments to the Purchase Price. The right to indemnification under this Agreement for any Damages arising from a breach of any representation, warranty or covenant set forth herein (and the amount of any Damages incurred in respect of such breach shall will not be included in the calculation of affected by any limitations on indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4. (c) If a Seller Party fails to pay any amounts that they are obligated to pay to Buyer under this Agreementinvestigation conducted with respect to, including any amounts that they are obligated to pay pursuant to the indemnification obligations set forth in this Article VIII, then Buyer may, in addition to any other rights and remedies that may be available to it, set off all or any portion knowledge acquired (or capable of such amounts against being acquired) at any amounts due and owing from Buyer time, whether before or its Affiliates (including after the Company) to Effective Date or the Seller Parties (including under the Collateral Agreements or Second Closing Date, with respect to any Earn-Out Paymentrepresentation, Bonuswarranty, covenant or Closing Shares)agreement in this Agreement. Any amounts so set off shall be deemed to have been paid to Seller Parties as For the sole purpose of the date on which written demand determining Losses (and not for payment of the amount in question was provided to Seller Representative. The exercise of such right of set off in good faith, determining whether or not ultimately determined any breaches of representations or warranties in Article III and Article IV have occurred), the representations and warranties of Target subject to the Basket shall not be justified, will not constitute a breach deemed qualified by any references to materiality or default under this Agreement or any other Collateral Agreements. (d) to Material Adverse Effect. The waiver of any closing condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligationagreement, will not affect the right to indemnification, payment of Damagesdamages, or other remedy based on any such representationsrepresentation, warrantieswarranty, covenants and obligationscovenant or agreement. If any Seller liquidates or dissolves at any time when any Liability of such Seller with respect to this Article X may thereafter arise or be determined, then at the time of such liquidation or dissolution, such Seller will cause its shareholders, members, partners or other equity holders or distributees of such Seller’s assets, as the case may be, to take such assets subject to such Liabilities ratably in proportion to the assets received; provided, however, that the failure on behalf of any Seller to comply with the covenant set forth in this sentence will in no way reduce such Seller’s obligations in this Agreement.

Other Indemnification Matters. (a) An Indemnifying Party shall not have any liability under Section 7.2(a)(i) or Section 7.2(b)(i) hereof unless the aggregate amount of Losses to the Indemnified Party finally determined to arise thereunder based upon, attributable to or resulting from the failure of any representation or warranty to be true and correct, other than the Fundamental Representations, exceeds $750,000 (the “Threshold”) and, in such event, the Indemnifying Party shall be required to pay the entire amount of such Losses from the first dollar thereof. Sellers’ aggregate liability in respect of claims for indemnification pursuant to Section 7.2(a)(i) will not exceed $15,000,000; provided, however that the foregoing limitation shall not apply to claims for indemnification pursuant to Section 7.2(a)(i) in respect of the failure to be true and correct of the Fundamental Representations. Notwithstanding the foregoing, Sellers’ aggregate liability in respect of claims for indemnification pursuant to Section 7.2(a)(i) in respect of the failure to be true and correct of the Fundamental Representations shall not exceed the Purchase Price. Notwithstanding anything to the contrary in this Agreement, in no event shall Sellers or Purchaser, in each case, have any liability or indemnification obligation in the aggregate for any Losses arising from or relating to Section 7.2 of this Agreement in excess of the Purchase Price. (b) No indemnification shall be payable to an Indemnified Party with respect to any claims asserted by such Indemnified Party after the applicable Survival Date. (c) Each Indemnified Party shall be responsible for taking or causing to be taken Commercially Reasonable Efforts to mitigate its Losses upon and after becoming aware of any event that would reasonably be expected to give rise to Losses that may be indemnifiable under this Article 7. (d) In no event shall a Purchaser Indemnified Party be entitled to indemnification pursuant to this Article 7 with respect to a specific Loss to the extent the amount of the item giving rise to such Loss is included in and accounted for in the calculation of Actual Net Working Capital, Actual Indebtedness, or Actual Company Expenses (it being understood and agreed, however, that Sellers shall be liable and shall indemnify the Purchaser Indemnified Parties for any Losses in excess of such specific item). (e) An Indemnifying Party shall not be obligated to indemnify the Indemnified Party for a particular Loss to the extent such indemnification would result in the duplication of Losses arising from the matter giving rise thereto. (f) The amount of any Damages Losses payable by Seller Parties and Indemnifying Party under this Article VIII or Article VII will 7 shall be net of any of: (i) amounts actually recovered received by the Buyer Indemnified Party under its applicable insurance policies or from with respect to such Loss (determined after giving effect to any other Person alleged to be responsible therefor (increase in premiums resulting therefrom and net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses liabilities incurred by such Buyer Indemnified Party in or any of its Affiliates as a result of such Claim and out-of-pocket costs of collecting such amountinsurance proceeds); provided that in no event shall , and (ii) any Buyer amounts received by the Indemnified Party be required to institute litigation or any similar proceeding in connection therewithfrom other sources. If the Buyer an Indemnified Party receives any amounts under applicable insurance policies, policies or from any other Person alleged to be responsible for any Damages, another source subsequent to its receipt of an indemnification payment by Seller Parties or Seller Representativethe Indemnifying Party, then Buyer shall such Indemnified Party shall, without duplication, promptly reimburse Seller Representative the Indemnifying Party for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing such indemnification payment Indemnifying Party up to the amount received by the Buyer Indemnified Party; provided, net however, that the aggregate amount of reimbursement payments to the present value Indemnifying Parties in respect of any increase to insurance premiums, such Loss shall not in any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred event exceed the aggregate indemnification payment received by such Buyer the Indemnified Party in collecting from the Indemnifying Parties with respect to such amountLoss. (bg) Any Damages for which any Person is entitled to indemnification under this Article VIII or Article VII shall be determined without duplication of recovery by reason of the state of facts giving rise to such Damages constituting a breach of more than one representation, warranty or covenant. No Person shall be entitled to indemnification under this Agreement for any Damages arising from a breach of any representation, warranty or covenant set forth herein (and the amount of any Damages incurred in respect of such breach shall not be included in the calculation of any limitations on indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4. (c) If a Seller Party fails to pay any amounts that they are obligated to pay to Buyer under this Agreement, including any amounts that they are obligated to pay pursuant Notwithstanding anything to the indemnification obligations contrary set forth in this Article VIIIAgreement, then Buyer may, nothing in addition to any other rights and remedies that may be available to it, set off all or any portion of such amounts against any amounts due and owing from Buyer or its Affiliates (including the Company) to the Seller Parties (including under the Collateral Agreements or with respect to any Earn-Out Payment, Bonus, or Closing Shares). Any amounts so set off shall be deemed to have been paid to Seller Parties as of the date on which written demand for payment of the amount in question was provided to Seller Representative. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement shall limit the Liability of any Person in respect of Losses resulting or any other Collateral Agreementsarising from Fraud. (dh) The waiver For purposes of calculating the amount of Losses arising out of or resulting from any closing condition based on the accuracy such breach, inaccuracy, or failure to be true and correct of any representation or warrantywarranty in Article 3 or Article 4 of this Agreement, all references to materiality or on Material Adverse Effect shall be disregarded. (i) No Seller may assert any right of indemnification under the performance Governing Documents of any Acquired Entity (or compliance with any covenant successor entity thereto) for any Loss for which any Purchaser Indemnified Party is or obligationseeks to be indemnified under this Agreement. (j) No indemnification shall be payable to an Indemnified Party for any punitive or exemplary damages, will not affect except to the right extent actually paid to indemnification, payment a third party as a result of Damages, or other remedy based on such representations, warranties, covenants and obligationsa Third-Party Claim.

Other Indemnification Matters. (a) An Indemnifying Party shall not have any liability under Section 7.2(a)(i) or Section 7.2(b)(i) hereof unless the aggregate amount of Losses to the Indemnified Party finally determined to arise thereunder based upon, attributable to or resulting from the failure of any representation or warranty to be true and correct, other than the Fundamental Representations, exceeds $400,000 (the “Threshold”) and, in such event, the Indemnifying Party shall be required to pay the entire amount of such Losses from the first dollar thereof. Sellers’ aggregate liability in respect of claims for indemnification pursuant to Section 7.2(a)(i) will not exceed $8,000,000; provided, however that the foregoing limitation shall not apply to claims for indemnification pursuant to Section 7.2(a)(i) in respect of the failure to be true and correct of the Fundamental Representations. Notwithstanding the foregoing, Sellers’ aggregate liability in respect of claims for indemnification pursuant to Section 7.2(a)(i) in respect of the failure to be true and correct of the Fundamental Representations shall not exceed the Purchase Price. (b) No indemnification shall be payable to an Indemnified Party with respect to any claims asserted by such Indemnified Party after the applicable Survival Date. (c) Each Indemnified Party shall be responsible for taking or causing to be taken Commercially Reasonable Efforts to mitigate its Losses upon and after becoming aware of any event that would reasonably be expected to give rise to Losses that may be indemnifiable under this Article 7. (d) In no event shall a Purchaser Indemnified Party be entitled to indemnification pursuant to this Article 7 with respect to a specific Loss to the extent the amount of the item giving rise to such Loss is included in and accounted for in the calculation of Actual Net Working Capital, Actual Indebtedness, or Actual Company Expenses (it being understood and agreed, however, that Sellers shall be liable and shall indemnify the Purchaser Indemnified Parties for any Losses in excess of such specific item). (e) An Indemnifying Party shall not be obligated to indemnify the Indemnified Party for a particular Loss to the extent such indemnification would result in the duplication of Losses arising from the matter giving rise thereto. (f) The amount of any Damages Losses payable by Seller Parties and Indemnifying Party under this Article VIII or Article VII will 7 shall be net of any of: (i) amounts actually recovered received by the Buyer Indemnified Party under its applicable insurance policies or from with respect to such Loss (determined after giving effect to any other Person alleged to be responsible therefor (increase in premiums resulting therefrom and net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses liabilities incurred by such Buyer Indemnified Party in or any of its Affiliates as a result of such Claim and out-of-pocket costs of collecting such amountinsurance proceeds); provided that in no event shall , and (ii) any Buyer amounts received by the Indemnified Party be required to institute litigation or any similar proceeding in connection therewithfrom other sources. If the Buyer an Indemnified Party receives any amounts under applicable insurance policies, policies or from any other Person alleged to be responsible for any Damages, another source subsequent to its receipt of an indemnification payment by Seller Parties or Seller Representativethe Indemnifying Party, then Buyer shall such Indemnified Party shall, without duplication, promptly reimburse Seller Representative the Indemnifying Party for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing such indemnification payment Indemnifying Party up to the amount received by the Buyer Indemnified Party; provided, net however, that the aggregate amount of reimbursement payments to the present value Indemnifying Parties in respect of any increase to insurance premiums, such Loss shall not in any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred event exceed the aggregate indemnification payment received by such Buyer the Indemnified Party in collecting from the Indemnifying Parties with respect to such amountLoss. (bg) Any Damages for which any Person is entitled to indemnification under this Article VIII or Article VII shall be determined without duplication of recovery by reason of the state of facts giving rise to such Damages constituting a breach of more than one representation, warranty or covenant. No Person shall be entitled to indemnification under this Agreement for any Damages arising from a breach of any representation, warranty or covenant set forth herein (and the amount of any Damages incurred in respect of such breach shall not be included in the calculation of any limitations on indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4. (c) If a Seller Party fails to pay any amounts that they are obligated to pay to Buyer under this Agreement, including any amounts that they are obligated to pay pursuant Notwithstanding anything to the indemnification obligations contrary set forth in this Agreement, nothing in this Agreement shall limit the Liability of any Person in respect of Losses resulting or arising from Fraud. (h) For purposes of determining the breach, inaccuracy, or failure to be true and correct of any representation or warranty in Article VIII3 or Article 4 of this Agreement or calculating the amount of Losses arising out of or resulting from any such breach, then Buyer mayinaccuracy, or failure to be true and correct, all references to materiality or Material Adverse Effect shall be disregarded (other than (i) any breach of any representation or warranty set forth in addition to any other rights the second sentence of Section 3.13 and remedies that may be available to itclauses (a) and (b) of Section 3.27, set off all or any portion of such amounts against any amounts due and owing from Buyer or its Affiliates (including the Companyii) to the Seller Parties (including under the Collateral Agreements or with respect to any Earn-Out Payment, Bonusreference to a Material Contract, or Closing Shares(iii) solely when determining whether a representation or warranty contained herein has been breached in connection with a Claim by Purchaser for Fraud by a Seller). Any amounts so set off shall be deemed to have been paid to Seller Parties as of the date on which written demand for payment of the amount in question was provided to Seller Representative. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement or any other Collateral Agreements. (di) The waiver No Seller may assert any right of indemnification under the Governing Documents of any closing condition based on Acquired Entity (or any successor entity thereto) for any Loss for which any Purchaser Indemnified Party is or seeks to be indemnified under this Agreement. (j) No indemnification shall be payable to an Indemnified Party for any punitive or exemplary damages, except to the accuracy extent actually paid to a third party as a result of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants and obligationsa Third-Party Claim.

Other Indemnification Matters. (a) The amount Promptly after receipt by any Person (the “Indemnified Person”) of notice of any Damages payable by Seller Parties under this Article VIII demand, claim or Article VII will be net circumstances which would or might give rise to a claim or the commencement of any amounts actually recovered by action, Proceeding or investigation in respect of which indemnity may be sought pursuant to Section 8.02 or Section 8.03, such Indemnified Person will give notice thereof to the Buyer Person or Persons against whom such indemnity may be sought (the “Indemnifying Person”). Notwithstanding the foregoing, the failure to give prompt notice to such Person shall not relieve such Indemnifying Person from liability, except to the extent such failure or delay materially prejudices such Indemnifying Person. The Indemnifying Person shall be entitled to participate in any such action and to assume the defense thereof, at the Indemnifying Person’s expense and with counsel reasonably satisfactory to the Indemnified Party under applicable insurance policies Person. After notice from the Indemnifying Person to such Indemnified Person of its election so to assume the defense thereof, the Indemnified Person shall have the right to participate in such action and to retain its own counsel, but the Indemnifying Person shall not be liable to such Indemnified Person hereunder for any legal expenses of other counsel or from any other Person alleged to be responsible therefor (net of the present value of any increase to insurance premiumsexpenses, any reasonable attorneys’ feesin each case, and other out of pocket costs or expenses subsequently incurred by such Buyer Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation or any similar proceeding in connection therewith. If the Buyer Indemnified Party receives any amounts under applicable insurance policiesPerson, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by Seller Parties or Seller Representative, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing the defense thereof other than reasonable costs of investigation, unless (a) the Indemnifying Person has agreed to pay such indemnification payment up fees and expenses, (b) the Indemnifying Person shall have failed to employ counsel reasonably satisfactory to the amount received Indemnified Person in a timely manner or (c) the Indemnified Person shall have been advised by outside counsel that representation of the Indemnified Person by counsel provided by the Buyer Indemnifying Person pursuant to the foregoing would be inappropriate due to an actual or potential conflicting interest between the Indemnifying Person and the Indemnified PartyPerson, net including situations in which there are one or more legal defenses available to the Indemnified Person that are different from or additional to those available to the Indemnifying Person; provided, however, that the Indemnifying Person shall not, in connection with any one such action or Proceeding or separate but substantially similar actions or Proceedings arising out of the present value same general allegations, be liable for the fees and expenses of more than one firm of attorneys at one time for any Indemnified Person and its Affiliates. Furthermore, the Parties agree to render to each other, without compensation (other than reasonable documented out-of-pocket expenses), such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any increase such action, whether or not subject to insurance premiums, any reasonable attorneys’ feesindemnification hereunder, and other out of pocket costs or expenses incurred each Party agrees to, and to cause counsel selected by it to, defend any such Buyer Indemnified Party action diligently and in collecting such amountgood faith. (b) Any Damages Except as set forth in Section 9.06 or in the case of fraud, or with respect to matters for which any Person is entitled the remedy of specific performance or injunctive relief or other equitable remedies are appropriate or available, the respective rights to indemnification under as provided for in this Article VIII Section 8.04 will constitute each Party’s sole remedy and no Party will have any other liability or Article VII shall damages to any other Party; provided, however, that nothing contained herein will prevent the Indemnified Person from pursuing remedies as may be determined without duplication available Table of recovery by reason of the state of facts giving rise Contents to such Damages constituting a breach of more than one representation, warranty or covenant. No Person shall be entitled to indemnification Party under this Agreement for any Damages arising from a breach of any representation, warranty or covenant set forth herein (and the amount of any Damages incurred in respect of such breach shall not be included applicable law in the calculation event of any limitations on an Indemnifying Person’s failure to comply with its indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4obligations hereunder. (c) If In the event of any Damages the amount of which (i) is undisputed by the Indemnifying Person, (ii) is finally determined through settlement of any third-party action or claim or (iii) was disputed but as to which (x) a Seller Party fails to pay any amounts that they are obligated to pay to Buyer under this Agreementfinal, including any amounts that they are obligated to pay pursuant non-appealable award has been rendered by a court of competent jurisdiction or (y) an agreement has been reached between the Indemnifying Person and the Indemnified Person, such amount (after taking into account the provisos in Section 8.02 and Section 8.03) shall conclusively be deemed a liability of the Indemnifying Person hereunder and shall be paid to the indemnification obligations set forth Indemnified Person within ten days of being so deemed in this Article VIIIcash by wire transfer of immediately available funds, then Buyer may, in addition to any other rights and remedies shall finally and conclusively resolve the matter that may be available to it, set off all or any portion was the subject of such amounts against any amounts due and owing from Buyer or its Affiliates (including the Company) to the Seller Parties (including under the Collateral Agreements or with respect to any Earn-Out Payment, Bonus, or Closing Shares). Any amounts so set off shall be deemed to have been paid to Seller Parties as of the date on which written demand for payment of the amount in question was provided to Seller Representative. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement or any other Collateral Agreementsindemnification. (d) The waiver of any closing condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants and obligations.

Other Indemnification Matters. (a) The amount of any Damages payable by Seller Parties for which indemnification is provided under this Article VIII or Article VII will 8 shall be computed net of any amounts insurance or other proceeds actually recovered received by the Buyer indemnified Person in connection with such Damages. Each of the Regency Indemnified Party Persons and each of the Partner Indemnified Persons shall pursue in good faith claims under any applicable insurance policies or from any and against other Person alleged to third parties who may reasonably be responsible therefor (net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation or any similar proceeding in connection therewith. If the Buyer Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged expected to be responsible for such Damages. A Party subject to indemnifying another Person under this Agreement may defer such payment obligation pending resolution of any Damagesclaims that are still being pursued by such indemnified party as contemplated in the immediately preceding sentence; however, subsequent if any such claim is still being pursued one year after the date of the Closing, such indemnifying Party shall nonetheless make, or cause to an indemnification payment by Seller Parties or Seller Representativebe made, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing such indemnification payment, which payment up shall be subject to prompt reimbursement to the amount received by the Buyer Indemnified Party, net extent of the present value of any increase to insurance premiumsamount, any reasonable attorneys’ feesif any, and other out of pocket costs or expenses incurred ultimately collected by such Buyer Indemnified Party in collecting such amountindemnified person prior to December 31, 2011. (b) Any Damages for which any Person is entitled Except as may otherwise be agreed in writing, the rights of Regency under Section 1.9 as it relates to the Escrow Fund, the indemnification under provisions in this Article VIII or 8, and the provisions in Article VII 9 shall be determined without duplication of recovery by reason represent the exclusive remedies of the state of facts giving rise to such Damages constituting a breach of more than one representation, warranty or covenant. No Person shall be entitled to indemnification Parties under this Agreement after the Closing. Notwithstanding anything to the contrary herein, except as specified in the immediately preceding sentence (including as may otherwise be agreed in writing) or for fraud, after Closing, no Party shall have any liability, and no Party shall make any claim, for any Damages arising from a breach of any representation, warranty or covenant set forth herein other matter (and Regency, Merger Sub, CDM and the amount Partners hereby waive any right of any Damages incurred in respect contribution against the other), under or arising out of such breach shall not be included in this Agreement or the calculation of any limitations on indemnification set forth hereinMerger. EXCEPT AS MAY OTHERWISE BE AGREED EXPRESSLY IN WRITING, NOTWITHSTANDING ANYTHING THAT MAY BE EXPRESSED OR IMPLIED TO THE CONTRARY HEREIN OR UNDER ANY LEGAL CONSTRUCT, NO RECOURSE UNDER OR BY REASON OF THIS AGREEMENT SHALL BE HAD AGAINST ANY FORMER, CURRENT OR FUTURE OWNER, PARTNER, MEMBER, MANAGER, AFFILIATE (OTHER THAN CDM) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4OR ASSIGNEE OF THE PARTNERS OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, AGENTS, EMPLOYEES OR AFFILIATES OR ANY OTHER PERSON RELATED TO OR ASSOCIATED WITH ANY OF THE FOREGOING, DIRECTLY OR INDIRECTLY, WHETHER BY THE ENFORCEMENT OF ANY ASSESSMENT OR BY ANY LEGAL OR EQUITABLE PROCEEDING, OR BY VIRTUE OF ANY STATUTE, REGULATION OR OTHER APPLICABLE LAWS, IT BEING EXPRESSLY AGREED AND ACKNOWLEDGED THAT NO PERSONAL LIABILITY WHATSOEVER SHALL ATTACH TO, BE IMPOSED ON OR OTHERWISE BE INCURRED BY ANY FORMER, CURRENT OR FUTURE OWNER, PARTNER, MEMBER, MANAGER, AFFILIATE (OTHER THAN CDM) OR ASSIGNEE OF THE PARTNERS OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, AGENTS, EMPLOYEES OR AFFILIATES OR ANY OTHER PERSON RELATED TO OR ASSOCIATED WITH ANY OF THE FOREGOING, DIRECTLY OR INDIRECTLY, AS SUCH, FOR ANY OBLIGATIONS OF THE PARTNERS HEREUNDER. (c) If a Seller Party fails to pay any amounts that they are obligated to pay to Buyer under this AgreementNOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, including any amounts that they are obligated to pay pursuant to the indemnification obligations set forth in this Article VIIINO PARTY SHALL BE LIABLE FOR SPECIAL, then Buyer mayPUNITIVE, in addition to any other rights and remedies that may be available to itEXEMPLARY, set off all CONSEQUENTIAL OR INDIRECT DAMAGES, LOST PROFITS OR LOST BENEFITS, LOSS OF ENTERPRISE VALUE, DIMINUTION IN VALUE OF ANY BUSINESS, DAMAGE TO REPUTATION OR LOSS TO GOODWILL, 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; PROVIDED, HOWEVER, THAT THIS SECTION 8.4(c) SHALL NOT LIMIT A PARTY’S RIGHT TO RECOVERY UNDER ARTICLE 8 FOR ANY SUCH DAMAGES TO THE EXTENT SUCH PARTY IS REQUIRED TO PAY SUCH DAMAGES TO AN UNAFFILIATED THIRD PARTY IN CONNECTION WITH A MATTER FOR WHICH SUCH PARTY IS OTHERWISE ENTITLED TO INDEMNIFICATION UNDER THIS ARTICLE 8 AND PROVIDED, FURTHER, HOWEVER, THAT THIS SECTION 8.4(c) SHALL NOT LIMIT A PARTY’S RIGHT TO RECOVERY UNDER ARTICLE 8 FOR ANY DAMAGES TO THE EXTENT THAT THEY RELATE TO A BREACH OF SECTION 3.7(a) or any portion of such amounts against any amounts due and owing from Buyer or its Affiliates (including the Companyb) to the Seller Parties OR SECTION 4.6(b), PROVIDED THAT ANY SUCH DAMAGES SHALL BE CALCULATED, (including under the Collateral Agreements or with respect to any Earn-Out PaymentA) WITH RESPECT TO ANY SUCH BREACH BY CDM AND THE PARTNERS, BonusTO EQUAL THE DIFFERENCE IN VALUE THAT REGENCY PAID FOR THE PARTNERSHIP INTERESTS ASSUMING NO SUCH BREACH AND THE VALUE THAT A REASONABLY PRUDENT PERSON WOULD HAVE ATTRIBUTED TO THE PARTNERSHIP INTERESTS AFTER TAKING INTO ACCOUNT SUCH BREACH, or Closing Shares). Any amounts so set off shall be deemed to have been paid to Seller Parties as of the date on which written demand for payment of the amount in question was provided to Seller Representative. The exercise of such right of set off in good faithASSUMING ALL OTHER FACTORS ARE THE SAME IN VALUING THE PARTNERSHIP INTERESTS AND ASSUMING THE SAME VALUATION METHODS AND MULTIPLES AS REASONABLY UTILIZED BY REGENCY AND (B) WITH RESPECT TO ANY SUCH BREACH BY REGENCY OR MERGER SUB, whether or not ultimately determined to be justifiedTO EQUAL THE DIFFERENCE IN VALUE OF A COMMON UNIT IN CALCULATING THE DISCOUNTED AVERAGE PRICE, will not constitute a breach or default under this Agreement or any other Collateral AgreementsWITHOUT ANY SUCH DISCOUNT APPLIED THEREON, AND THE VALUE THAT A REASONABLY PRUDENT PERSON WOULD HAVE ATTRIBUTED TO THE VALUE OF THE COMMON UNITS AS OF THE CLOSING DATE AFTER TAKING INTO ACCOUNT SUCH BREACH, ASSUMING THE SAME IMPLIED TRADING MULTIPLE FOR THE COMMON UNITS ON THE BASIS OF EBITDA OF REGENCY AS OF SEPTEMBER 30, 2007. (d) The waiver NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IT IS THE EXPLICIT INTENT OF EACH PARTY HERETO, AND THE PARTIES HEREBY AGREE, THAT NONE OF THE PARTIES, NOR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES, HAS MADE OR IS MAKING ANY REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING ANY IMPLIED REPRESENTATION OR WARRANTY AS TO THE CONDITION, MERCHANTABILITY, USAGE, SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE PARTNERSHIP INTERESTS, THE CLASS D COMMON UNITS, THE COMMON UNITS, CDM, REGENCY OR ANY OF THEIR RESPECTIVE ASSETS, OR ANY PART THEREOF, EXCEPT THOSE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, AND WITHOUT IN ANY WAY LIMITING THE FOREGOING, NO REPRESENTATION OR WARRANTY IS MADE WITH RESPECT TO ANY FINANCIAL PROJECTIONS OR FORECASTS. (e) Notwithstanding any of the other provisions of this Agreement, none of the Partners or any closing condition based on of the accuracy of other Partner Indemnified Parties shall be entitled to any representation recovery under the CDM Partnership Agreement or warranty, otherwise against CDM or on the performance of Surviving Company for any breach by a Partner or compliance with any covenant or obligation, will not affect CDM under this Agreement and for which the right to indemnification, payment of Damages, Partners are liable for indemnification or other remedy based on payment under this Agreement, and each of the Partners and the Partner Indemnified Parties hereby waives and relinquishes any such representations, warranties, covenants rights to make such claims. (f) The rights and obligationsobligations under this Article 8 shall apply only after the Closing.

Other Indemnification Matters. (a) The amount Effective from and after the consummation of the Lazard Italy Contribution: (1) the JV Company hereby agrees to indemnify Lazard and its Representatives against, and hold Lazard and its Representatives harmless from, any Damages payable and all Losses incurred by Seller Parties Lazard and its Representatives to the extent arising out of or resulting from the Lazard Italy Liabilities, and (2) Lazard hereby agrees to indemnify the JV Company and its Representatives against, and hold the JV Company and its Representatives harmless from, any and all Losses incurred by the JV Company and its Representatives to the extent arising out of or resulting from the Excluded Liabilities. For the purposes of this Section 8.12, “Loss” means any claim, damage, cost, expense (including reasonable legal fees), penalty, fine, interest charge, payment, obligation or other liability, net of (A) all reductions in net tax liabilities arising from the Loss realized by the Party entitled to indemnification under this Article VIII or Article VII will be net Section 8.12(a) and its Representatives (it being assumed that tax liabilities are reduced for the year in which the reduction is realized, irrespective of whether any cash liability is affected), (B) all amounts actually recovered under insurance policies with respect to such Loss by the Party entitled to indemnification under this Section 8.12(a) and its Representatives, and (C) all amounts recovered by the Buyer Indemnified Party entitled to indemnification under applicable insurance policies this Section 8.12(a) and its Representatives in respect of such Excluded Liabilities or from any other Person alleged Lazard Italy Liabilities, respectively, pursuant to be responsible therefor (net the Deed of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount)Contribution; provided that in no any event “Loss” shall not include any Buyer Indemnified Party be required to institute litigation lost profit or any exemplary, punitive, consequential or other similar proceeding in connection therewith. If the Buyer Indemnified Party receives damages and shall not be determined through any amounts under applicable insurance policies, multiple of earnings approach or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by Seller Parties or Seller Representative, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing such indemnification payment up to the amount received by the Buyer Indemnified Party, net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amountvariant thereof. (b) Any Damages for which any Person is entitled to indemnification under this Article VIII or Article VII Lazard hereby agrees, in its capacity as the indirect controlling person of Lazard Real Estate and Lazard Italy, that in the event that (i) Lazard Real Estate and Lazard Italy shall be determined without duplication of recovery by reason obliged to indemnify the JV Company pursuant to Article 4 of the state Deed of facts giving rise Contribution and (ii) Lazard Italy and Lazard Real Estate shall fail to pay any amount to the JV Company that such Damages constituting a breach persons are required to pay pursuant to respective indemnity obligations under Article 4 of more than one representation, warranty or covenant. No Person the Deed of Contribution (the amount that Lazard Real Estate and Lazard Italy shall be entitled obligated to indemnification under this Agreement for any Damages arising from a breach of any representation, warranty or covenant pay to the JV Company pursuant to and calculated in accordance with Lazard Real Estate’s and Lazard Italy’s indemnity obligations set forth herein (and in such Article 4 of the amount Deed of any Damages incurred Contribution, less amounts paid to the JV Company by or on behalf of Lazard Italy or Lazard Real Estate in respect of such breach indemnity obligation, the “Indemnity Shortfall”), Lazard shall not be included in indemnify the calculation of any limitations on indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4. (c) If a Seller Party fails to pay any amounts that they are obligated to JV Company against, and pay to Buyer under this Agreementthe JV Company in a prompt and timely manner, including any amounts that they are obligated to pay pursuant an amount equal to the indemnification obligations set forth in this Article VIII, then Buyer may, in addition to any other rights and remedies that may be available to it, set off all or any portion of such amounts against any amounts due and owing from Buyer or its Affiliates (including the Company) to the Seller Parties (including under the Collateral Agreements or with respect to any Earn-Out Payment, Bonus, or Closing Shares). Any amounts so set off shall be deemed to have been paid to Seller Parties as of the date on which written demand for payment of the amount in question was provided to Seller Representative. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement or any other Collateral AgreementsIndemnity Shortfall. (d) The waiver of any closing condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants and obligations.

Other Indemnification Matters. (a) The amount Promptly after receipt by any Person (the “Indemnified Person”) of notice of any Damages payable by Seller Parties under this Article VIII demand, claim or Article VII will be net circumstances which would or might give rise to a claim or the commencement of any amounts actually recovered by action, Proceeding or investigation in respect of which indemnity may be sought pursuant to Section 8.02 or Section 8.03, such Indemnified Person will give notice thereof to the Buyer Person or Persons against whom such indemnity may be sought (the “Indemnifying Person”). Notwithstanding the foregoing, the failure to give prompt notice to such Person shall not relieve such Indemnifying Person from liability, except to the extent such failure or delay materially prejudices such Indemnifying Person. The Indemnifying Person shall be entitled to participate in any such action and to assume the defense thereof, at the Indemnifying Person’s expense and with counsel reasonably satisfactory to the Indemnified Party under applicable insurance policies Person. After notice from the Indemnifying Person to such Indemnified Person of its election so to assume the defense thereof, the Indemnified Person shall have the right to participate in such action and to retain its own counsel, but the Indemnifying Person shall not be liable to such Indemnified Person hereunder for any legal expenses of other counsel or from any other Person alleged to be responsible therefor (net of the present value of any increase to insurance premiumsexpenses, any reasonable attorneys’ feesin each case, and other out of pocket costs or expenses subsequently incurred by such Buyer Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation or any similar proceeding in connection therewith. If the Buyer Indemnified Party receives any amounts under applicable insurance policiesPerson, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by Seller Parties or Seller Representative, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing the defense thereof other than reasonable costs of investigation, unless (i) the Indemnifying Person has agreed to pay such indemnification payment up fees and expenses, (ii) the Indemnifying Person shall have failed to employ counsel reasonably satisfactory to the amount received Indemnified Person in a timely manner or (iii) the Indemnified Person shall have been advised by outside counsel that representation of the Indemnified Person by counsel provided by the Buyer Indemnifying Person pursuant to the foregoing would be inappropriate due to an actual or potential conflicting interest between the Indemnifying Person and the Indemnified PartyPerson, net including situations in which there are one or more legal defenses available to the Indemnified Person that are different from or additional to those available to the Indemnifying Person; provided, however, that the Indemnifying Person shall not, in connection with any one such action or Proceeding or separate but substantially similar actions or Proceedings arising out of the present value same general allegations, be liable for the fees and expenses of more than one firm of attorneys at one time for any Indemnified Person and its Affiliates. Furthermore, the Parties Table of Contents agree to render to each other, without compensation (other than reasonable documented out-of-pocket expenses), such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any increase such action, whether or not subject to insurance premiums, any reasonable attorneys’ feesindemnification hereunder, and other out of pocket costs or expenses incurred each Party agrees to, and to cause counsel selected by it to, defend any such Buyer Indemnified Party action diligently and in collecting such amountgood faith. (b) Any Damages Except in the case of fraud, or with respect to matters for which any Person is entitled the remedy of specific performance or injunctive relief or other equitable remedies are appropriate or available, the respective rights to indemnification under as provided for in this Article VIII Section 8.04 will constitute each Party’s sole remedy and no Party will have any other liability or Article VII shall damages to any other Party; provided, however, that nothing contained herein will prevent the Indemnified Person from pursuing remedies as may be determined without duplication of recovery by reason of the state of facts giving rise available to such Damages constituting a breach of more than one representation, warranty or covenant. No Person shall be entitled to indemnification Party under this Agreement for any Damages arising from a breach of any representation, warranty or covenant set forth herein (and the amount of any Damages incurred in respect of such breach shall not be included applicable law in the calculation event of any limitations on an Indemnifying Person’s failure to comply with its indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4obligations hereunder. (c) If In the event of any Damages the amount of which (i) is undisputed by the Indemnifying Person, (ii) is finally determined through settlement of any third-party action or claim or (iii) was disputed but as to which (x) a Seller Party fails to pay any amounts that they are obligated to pay to Buyer under this Agreementfinal, including any amounts that they are obligated to pay pursuant non-appealable award has been rendered by a court of competent jurisdiction or (y) an agreement has been reached between the Indemnifying Person and the Indemnified Person, such amount (after taking into account the provisos in Section 8.02 and Section 8.03) shall conclusively be deemed a liability of the Indemnifying Person hereunder and shall be paid to the indemnification obligations set forth Indemnified Person within ten days of being so deemed in this Article VIIIcash by wire transfer of immediately available funds, then Buyer may, in addition to any other rights and remedies shall finally and conclusively resolve the matter that may be available to it, set off all or any portion was the subject of such amounts against any amounts due and owing from Buyer or its Affiliates (including the Company) to the Seller Parties (including under the Collateral Agreements or with respect to any Earn-Out Payment, Bonus, or Closing Shares). Any amounts so set off shall be deemed to have been paid to Seller Parties as of the date on which written demand for payment of the amount in question was provided to Seller Representative. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement or any other Collateral Agreementsindemnification. (d) The waiver of any closing condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants and obligations.

Other Indemnification Matters. (a) The amount of any Damages payable by Seller Parties under this Article VIII or Article NOTWITHSTANDING ANYTHING CONTAINED TO THE CONTRARY IN ANY OTHER PROVISION OF THIS AGREEMENT OTHER THAN THIS SECTION 7.08, THE PARTIES AGREE THAT THE INDEMNIFICATION OBLIGATIONS OF THE PARTIES, AND THE RECOVERY BY A INDEMNIFIED PARTY OF ANY DAMAGES SUFFERED OR INCURRED BY IT AS A RESULT OF INDEMNIFICATION UNDER THIS ARTICLE VII will be net of any amounts actually recovered by the Buyer Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor (net of the present value of any increase to insurance premiumsINCLUDING FOR ANY BREACH OR NONFULFILLMENT BY A PARTY OF ANY OF ITS REPRESENTATIONS, any reasonable attorneys’ feesWARRANTIES, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amountCOVENANTS, AGREEMENTS OR OTHER OBLIGATIONS UNDER THIS AGREEMENT OR ANY TRANSACTION DOCUMENT); provided that in no event shall any Buyer Indemnified Party be required to institute litigation or any similar proceeding in connection therewith. If the Buyer Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any DamagesSHALL, subsequent to an indemnification payment by Seller Parties or Seller RepresentativeEXCEPT IN THE CASE OF COMMON LAW FRAUD OR INTENTIONAL FRAUD, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing such indemnification payment up to the amount received by the Buyer Indemnified PartyBE LIMITED TO ACTUAL DAMAGES AND SHALL NOT INCLUDE OR APPLY TO, net of the present value of any increase to insurance premiumsNOR SHALL ANY INDEMNIFIED PERSON BE ENTITLED TO RECOVER, any reasonable attorneys’ feesANY INDIRECT, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amountCONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES SUFFERED OR INCURRED BY SUCH INDEMNIFIED PERSON. (b) Notwithstanding Section 7.08(a), for purposes of the foregoing, actual damages may, however, include indirect, consequential, special, exemplary or punitive damages to the extent (i) the injuries or losses resulting in or giving rise to such damages are incurred or suffered by a third party who is not a Buyer Indemnified Party or Seller Indemnified Party, and (ii) such damages are recovered against a Buyer Indemnified Party or Seller Indemnified Party by a Person that is a third party who is not a Buyer Indemnified Party or Seller Indemnified Party. This Section 7.08 shall operate only to limit a party’s liability and shall not operate to increase or expand any contractual obligation of a party hereunder. (c) Any Damages liability for which any Person is entitled to indemnification under this Article VIII or Article VII shall be determined without duplication of recovery by reason of the state of facts giving rise to such Damages liability constituting a breach of more than one representation, warranty or covenant. No Person shall be entitled to indemnification under this Agreement for any Damages arising from a breach of any representation, warranty or covenant set forth herein (and the amount of any Damages incurred in respect of such breach shall not be included in the calculation of any limitations on indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4. (c) If a Seller Party fails to pay any amounts that they are obligated to pay to Buyer under this Agreement, including any amounts that they are obligated to pay pursuant to the indemnification obligations set forth in this Article VIII, then Buyer may, in addition to any other rights and remedies that may be available to it, set off all or any portion of such amounts against any amounts due and owing from Buyer or its Affiliates (including the Company) to the Seller Parties (including under the Collateral Agreements or with respect to any Earn-Out Payment, Bonus, or Closing Shares). Any amounts so set off shall be deemed to have been paid to Seller Parties as of the date on which written demand for payment of the amount in question was provided to Seller Representative. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement or any other Collateral Agreements. (d) The waiver of any closing condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants and obligationsagreement.

Other Indemnification Matters. (a) The amount of any Damages payable by Seller Parties for which indemnification is provided under this Article VIII or Article VII will IX shall be computed net of any amounts actually recovered insurance or other proceeds received by the Buyer Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor (net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation or any similar proceeding in connection therewith. If the Buyer Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by Seller Parties or Seller Representative, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative indemnified party in connection with providing such indemnification payment up to the amount received by the Buyer Indemnified Party, net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amountDamages. (b) Any Damages for which any Person is entitled The indemnities in Sections 9.2 and 9.3 shall survive Closing. The indemnities provided in Sections 9.2 and 9.3 and in Section 11.18 and the provisions of Section 11.22 shall, from and after Closing, be the sole and exclusive remedy of the Seller Indemnified Parties against Buyer and the Buyer Indemnified Parties against Seller at law or in equity relating to indemnification under this Agreement in the transactions contemplated hereby; provided that no limitations set forth in this Article VIII IX shall apply to any claim for Damages arising from actual fraud or Article VII shall be determined without duplication of recovery by reason of the state of facts giving rise criminal acts. The parties agree to such Damages constituting a breach of more than one representation, warranty or covenant. No Person shall be entitled to indemnification treat any indemnity payment made under this Agreement for any Damages arising from as an adjustment to the Final Purchase Price unless otherwise required pursuant to a breach “determination” within the meaning of any representation, warranty or covenant set forth herein (and Section 1313(a) of the amount of any Damages incurred in respect of such breach shall not be included in the calculation of any limitations on indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4Code. (c) If a Seller Party fails to pay any amounts The parties agree that they are obligated to pay to Buyer under this Agreement, including any amounts that they are obligated to pay pursuant to the indemnification obligations provisions set forth in this Article VIII, then Buyer may, in addition Agreement shall not apply to any other rights and remedies that may be available to it, set off all or any portion of such amounts against any amounts due and owing from Buyer or its Affiliates (including the Company) Damages to the Seller Parties (including under extent such Damages are accounted for in the Collateral Agreements or with respect to any Earn-Out Payment, Bonus, or Closing Shares). Any amounts so set off shall be deemed to have been paid to Seller Parties as calculations of the date on which written demand for payment of the amount purchase price adjustments set forth in question was provided to Seller Representative. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement or any other Collateral AgreementsSection 2.2. (d) The waiver Each of the Seller Indemnified Parties and Buyer Indemnified Parties shall use its commercially reasonable efforts to mitigate any Damages in respect of any closing condition claim for which it is seeking indemnification in connection with this Agreement. Without limiting the foregoing, the amount of Damages for which indemnification is provided under Section 9.2(a)(ii) arising out of a breach of the representations and warranties contained in Section 4.18(a) shall be calculated based on the accuracy cost to procure the requisite pad gas by the least costly method available to Buyer at the time in question (including park and loan transactions for a period of any representation or warranty, or on time consistent with historic business practices of the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants and obligationsCompany).

Other Indemnification Matters. (a) Except as specifically described in Section 4.05 of this Agreement, the indemnification provided in this Article IX shall be the sole and exclusive remedy for any inaccuracy or breach of any representation or warranty made by Stockholders or Buyers in this Agreement or in any Ancillary Document. All amounts payable by one party in indemnification of the other (whether or not as provided in Section 9.04(d)) shall be considered an adjustment to the Merger Consideration. (b) Upon making any payment to an Indemnified Party for any indemnification claim pursuant to this Article IX, the Indemnifying Party shall be subrogated, to the extent of such payment, to any rights which the Indemnified Party may have against any other parties with respect to the subject matter underlying such indemnification claim. (c) The amount of any Damages payable by Seller Parties under this Article VIII or Article VII will Losses shall be computed net of any amounts actually recovered insurance proceeds received by the Buyer Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor (net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation or any similar proceeding its affiliates in connection therewith. If the Buyer Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by Seller Parties or Seller Representative, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing such indemnification payment up to the amount received by the Buyer Indemnified Party, net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount. (b) Any Damages for which any Person is entitled to indemnification under this Article VIII or Article VII shall be determined without duplication of recovery by reason of the state of facts giving rise to such Damages constituting a breach of more than one representation, warranty or covenant. No Person shall be entitled to indemnification under this Agreement for any Damages arising from a breach of any representation, warranty or covenant set forth herein (and the amount of any Damages incurred in respect of such breach shall not be included in the calculation of any limitations on indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4. (c) If a Seller Party fails to pay any amounts that they are obligated to pay to Buyer under this Agreement, including any amounts that they are obligated to pay pursuant to the indemnification obligations set forth in this Article VIII, then Buyer may, in addition to any other rights and remedies that may be available to it, set off all or any portion of such amounts against any amounts due and owing from Buyer or its Affiliates (including the Company) to the Seller Parties (including under the Collateral Agreements or with respect to any Earn-Out Payment, Bonus, or Closing Shares). Any amounts so set off shall be deemed to have been paid to Seller Parties as of the date on which written demand for payment of the amount in question was provided to Seller Representative. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement or any other Collateral Agreements. (d) The waiver Notwithstanding anything herein to the contrary, if Stockholders shall have indemnification obligations pursuant to this Agreement, Stockholders may, at their option, (i) make such payment in cash by wire transfer of immediately available funds, (ii) reduce any future payment obligation to Stockholders pursuant to Section 1.05 on a dollar-for-dollar basis, or (iii) if ADS is in possession of any closing condition based certificate representing shares of ADS Common Stock issued pursuant to Section 1.05(b), give back the number of shares represented by such certificate having an aggregate market value equal to the indemnification obligation of Stockholders. For purposes of clause (iii) above, "market value" for a share of common stock of ADS shall be the Closing Valuation Price. If any future payment obligation pursuant to Section 1.05(b) shall be reduced pursuant to clause (ii) above, the amount so reduced shall be deemed "paid" for purposes of Section 1.05. (e) The indemnification obligations of the Stockholders shall be limited to an aggregate amount equal to the Merger Consideration received by the Principal Stockholders, less the Closing Cash Payment received by the Principal Stockholders. The Stockholders shall have no liability for Losses unless and until the aggregate amount of all Losses for all claims asserted by the Buyer's Indemnified Group exceeds $600,000 (the "Deductible"); provided, however, after exceeding such amount, only Losses in excess of such amount shall be recoverable by such Buyer's Indemnified Group. Notwithstanding anything else provided hereinabove to the contrary (a) any indemnification obligation pursuant to Section 9.02(b)(iii)and (b) any indemnification obligation pursuant to Section 4.05(b) shall not be subject to Deductible and shall be recoverable on a dollar for dollar basis. (f) Any indemnification paid by an Indemnifying Party with respect to Losses calculated for purposes of Section 9.01(a) will be reduced by any offsetting net federal, state, local or foreign tax benefit to the accuracy Indemnified Party with respect to such Losses. (g) Notwithstanding the foregoing, the indemnification obligations of any Indemnifying Party shall not be applicable to any Losses suffered or incurred by an Indemnified Party that resulted from a breach of a representation or warranty, or on and warranty that was known to exist by the performance of or compliance with any covenant or obligation, will not affect Indemnified Party prior to the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants and obligationsClosing.

Other Indemnification Matters. (a) The amount Promptly after receipt by any Person (the “Indemnified Person”) of notice of any Damages payable by Seller Parties under this Article VIII demand, claim or Article VII will be net circumstances which would or might give rise to a claim or the commencement of any amounts actually recovered by action, Proceeding or investigation in respect of which indemnity may be sought pursuant to Section 8.02 or Section 8.03, such Indemnified Person will give notice thereof to the Buyer Person or Persons against whom such indemnity may be sought (the “Indemnifying Person”). Notwithstanding the foregoing, the failure to give prompt notice to such Person shall not relieve such Indemnifying Person from liability, except to the extent such failure or delay materially prejudices such Indemnifying Person. The Indemnifying Person shall be entitled to participate in any such action and to assume the defense thereof, at the Indemnifying Person’s expense and with counsel reasonably satisfactory to the Indemnified Party under applicable insurance policies Person. After notice from the Indemnifying Person to such Indemnified Person of its election so to assume the defense thereof, the Indemnified Person shall have the right to participate in such action and to retain its own counsel, but the Indemnifying Person shall not be liable to such Indemnified Person hereunder for any legal expenses of other counsel or from any other Person alleged to be responsible therefor (net of the present value of any increase to insurance premiumsexpenses, any reasonable attorneys’ feesin each case, and other out of pocket costs or expenses subsequently incurred by such Buyer Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation or any similar proceeding in connection therewith. If the Buyer Indemnified Party receives any amounts under applicable insurance policiesPerson, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by Seller Parties or Seller Representative, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing the defense thereof other than reasonable costs of investigation, unless (i) the Indemnifying Person has agreed to pay such indemnification payment up fees and expenses, (ii) the Indemnifying Person shall have failed to employ counsel reasonably satisfactory to the amount received Indemnified Person in a timely manner or (iii) the Indemnified Person shall have been advised by outside counsel that representation of the Indemnified Person by counsel provided by the Buyer Indemnifying Person pursuant to the foregoing would be inappropriate due to an actual or potential conflicting interest between the Indemnifying Person and the Indemnified PartyPerson, net including situations in which there are one or more legal defenses available to the Indemnified Person that are different from or additional to those available to the Indemnifying Person; provided, however, that the Indemnifying Person shall not, in connection with any one such action or Proceeding or separate but substantially similar actions or Proceedings arising out of the present value same general allegations, be liable for the fees and expenses of more than one firm of attorneys at one time for any Indemnified Person and its Affiliates. Furthermore, the Parties agree to render to each other, without compensation (other than reasonable documented out-of- pocket expenses), such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any increase such action, whether or not subject to insurance premiums, any reasonable attorneys’ feesindemnification hereunder, and other out of pocket costs or expenses incurred each Party agrees to, and to cause counsel selected by it to, defend any such Buyer Indemnified Party action diligently and in collecting such amountgood faith. (b) Any Damages Except in the case of fraud, or with respect to matters for which any Person is entitled the remedy of specific performance or injunctive relief or other equitable remedies are appropriate or available, the respective rights to indemnification under as provided for in this Article VIII Section 8.04 will constitute each Party’s sole remedy and no Party will have any other liability or Article VII shall damages to any other Party; provided, however, that nothing contained herein will prevent the Indemnified Person from pursuing remedies as may be determined without duplication of recovery by reason of the state of facts giving rise available to such Damages constituting a breach of more than one representation, warranty or covenant. No Person shall be entitled to indemnification Party under this Agreement for any Damages arising from a breach of any representation, warranty or covenant set forth herein (and the amount of any Damages incurred in respect of such breach shall not be included applicable law in the calculation event of any limitations on an Indemnifying Person’s failure to comply with its indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4obligations hereunder. (c) If In the event of any Damages the amount of which (i) is undisputed by the Indemnifying Person, (ii) is finally determined through settlement of any third-party action or claim or (iii) was disputed but as to which (x) a Seller Party fails to pay any amounts that they are obligated to pay to Buyer under this Agreementfinal, including any amounts that they are obligated to pay pursuant non-appealable award has been rendered by a court of competent jurisdiction or (y) an agreement has been reached between the Indemnifying Person and the Indemnified Person, such amount (after taking into account the provisos in Section 8.02 and Section 8.03) shall conclusively be deemed a liability of the Indemnifying Person hereunder and shall be paid to the indemnification obligations set forth Indemnified Person within ten days of being so deemed in this Article VIIIcash by wire transfer of immediately available funds, then Buyer may, in addition to any other rights and remedies shall finally and conclusively resolve the matter that may be available to it, set off all or any portion was the subject of such amounts against any amounts due and owing from Buyer or its Affiliates (including the Company) to the Seller Parties (including under the Collateral Agreements or with respect to any Earn-Out Payment, Bonus, or Closing Shares). Any amounts so set off shall be deemed to have been paid to Seller Parties as of the date on which written demand for payment of the amount in question was provided to Seller Representative. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement or any other Collateral Agreementsindemnification. (d) The waiver of any closing condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants and obligations.

Other Indemnification Matters. (a) The amount of any Damages All indemnification payments payable by Seller Parties under this Article VIII or Article VII will be net of any amounts actually recovered by the Buyer Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor (net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation or any similar proceeding in connection therewith. If the Buyer Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by Seller Parties or Seller Representative, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing such indemnification payment up to the amount received by the Buyer Indemnified Party, net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount. (b) Any Damages for which any Person is entitled to indemnification under this Article VIII or Article VII shall be determined without duplication of recovery by reason of the state of facts giving rise to such Damages constituting a breach of more than one representation, warranty or covenant. No Person shall be entitled to indemnification under this Agreement for any Damages arising from a breach of any representation, warranty or covenant set forth herein (and the amount of any Damages incurred in respect of such breach shall not be included in the calculation of any limitations on indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4. (c) If a Seller Party fails to pay any amounts that they are obligated to pay to Buyer under this Agreement, including any amounts that they are obligated to pay pursuant 0 will be deemed adjustments to the Purchase Price. The right to indemnification obligations set forth in this Article VIIIwill not be affected by any investigation conducted with respect to, then Buyer may, in addition to any other rights and remedies that may be available to it, set off all or any portion Knowledge acquired (or capable of such amounts against being acquired) at any amounts due and owing from Buyer time, whether before or its Affiliates (including after the Company) to the Seller Parties (including under the Collateral Agreements or date hereof, with respect to any Earn-Out Paymentrepresentation, Bonuswarranty, covenant or Closing Shares)agreement in this Agreement. Any amounts so set off shall be deemed to have been paid to Seller Parties as of the date on which written demand for payment of the amount in question was provided to Seller Representative. The exercise of such right of set off in good faithTHE INDEMNIFICATION PROVISIONS IN THIS ARTICLE XI WILL BE ENFORCEABLE REGARDLESS OF WHETHER ANY PERSON ALLEGES OR PROVES THE SOLE, whether or not ultimately determined to be justifiedCONCURRENT, will not constitute a breach or default under this Agreement or any other Collateral Agreements. (d) The CONTRIBUTORY OR COMPARATIVE NEGLIGENCE OF THE PERSON SEEKING INDEMNIFICATION OR ITS AFFILIATES, OR THE SOLE OR CONCURRENT STRICT LIABILITY IMPOSED ON THE PERSON SEEKING INDEMNIFICATION OR ITS AFFILIATES.The waiver of any closing condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligationagreement, will not affect the right to indemnification, payment of Damagesdamages, or other remedy based on any such representationsrepresentation, warrantieswarranty, covenants covenant or agreement. Any person or entity claiming indemnification hereunder is hereinafter referred to as the “Indemnified Party” and obligationsany person against whom such claims are asserted hereunder is hereinafter referred to as the “Indemnifying Party.” In the event that any Losses are asserted against or sought to be collected from an Indemnified Party by a third party, said Indemnified Party shall with reasonable promptness notify the Indemnifying Party of the Losses, specifying the nature of and specific basis for such Losses and the amount or the estimated amount thereof to the extent then feasible (the “Claim Notice”); provided, however, that any failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party is materially prejudiced by such failure. The Indemnifying Party shall have 30 days from the personal delivery or receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party (i) whether or not it disputes the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such Losses and (ii) whether or not it desires, at the sole cost and expense of the Indemnifying Party, to defend the Indemnified Party against such Losses; provided, however, that any Indemnified Party is hereby authorized prior to and during the Notice Period to file any motion, answer or other pleading that it shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party (and of which it shall have given notice and opportunity to comment to the Indemnifying Party) and not prejudicial to the Indemnifying Party. In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against such Losses and except as hereinafter provided, the Indemnifying Party shall have the right to defend by all appropriate proceedings, and with counsel of its own choosing which such counsel shall be reasonably satisfactory to the Indemnified Party, which proceedings shall be promptly settled or prosecuted by them to a final conclusion. If the Indemnified Party desires to participate in, but not control, any such defense or settlement it may do so at its sole cost and expense. In such case, (A) if requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any Losses that the Indemnifying Party elects to contest, or, if appropriate and related to the claim in question, in making any counterclaim against the person asserting the third party Losses, or any cross-complaint against any person and (B) the subject claims may be settled or otherwise compromised only with the prior written consent of the Indemnified Party which consent will not be withheld unreasonably. If the Indemnified Party does not so choose to defend the Indemnified Party against such Losses the Indemnified Party shall be entitled to defend against, and consent to the entry of any judgment or enter into any settlement with respect to, such claims in any manner it may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, the Indemnifying Party in connection therewith), and (X) the Indemnifying Party will reimburse the Indemnified Party promptly and periodically (but no less often than monthly) for the costs of defending against such claims, including attorneys’ fees and expenses, and (Y) the Indemnifying Party will remain responsible for any Losses the Indemnified Party may incur relating to or arising out of the Third-Party Claim to the fullest extent provided in this 0.

Other Indemnification Matters. (a) The right to Indemnification for any Losses will not be affected by any investigation conducted by any Party or its Representatives with respect to, or any knowledge acquired (or capable of being acquired) at any time, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant, or obligation. For purposes of determining whether a breach of any representation or warranty of any of the Parties under this Agreement has occurred and determining the dollar amount of Losses attributable to such breach, all qualifications or exceptions in any representation or warranty relating to or referring to Knowledge of Holdings or the terms “material,” “in all material respects,” “Material Adverse Effect” or any similar term or phrase shall be disregarded. (b) The amount of any Damages payable by Seller Parties Losses subject to Indemnification under this Article VIII or Article VII will be net of any amounts actually recovered by the Buyer Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor (net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation or any similar proceeding in connection therewith. If the Buyer Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by Seller Parties or Seller Representative, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing such indemnification payment up to the amount received by the Buyer Indemnified Party, net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount. (b) Any Damages for which any Person is entitled to indemnification under this Article VIII or Article VII shall be determined without duplication calculated net of any insurance or other proceeds or any indemnity, contribution or similar payment recovered or recoverable by the applicable Buyer Indemnitee for such Losses, net of all reasonable and documented costs of collection, net of any insurance premium increase that results from the assertion of such claim. Each Buyer Indemnitee shall use, and shall cause its Affiliates to use, commercially reasonable efforts (which the Parties agree does not require any Party to commence any Proceeding) to seek recovery under all insurance or other agreements covering such Losses to the same extent as it would if such Losses were not subject to indemnification hereunder. In the event that an insurance or other recovery is actually made by a Buyer Indemnitee with respect to any Losses for which such Buyer Indemnitee has been indemnified hereunder and such insurance or other recovery would result in duplicative recovery by reason such Buyer Indemnitee, then a refund equal to the aggregate amount of the state of facts giving rise to such Damages constituting a breach of more than one representation, warranty insurance or covenant. No Person other recovery shall be entitled made promptly, but in no event any later than five (5) Business Days from receipt, by such Buyer Indemnitee to indemnification under this Agreement the Disbursing Agent (for any Damages arising from a breach the benefit of any representationthe Members), warranty or covenant set forth herein (net of all reasonable and the amount documented costs of any Damages incurred in respect of such breach shall not be included in the calculation of any limitations on indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4collection. (c) If a Seller Party fails The Parties agree to pay treat any amounts that they are obligated to pay to Buyer under this Agreement, including any amounts that they are obligated to pay recovery or indemnity payments made pursuant to the indemnification obligations set forth in Article V or this Article VIII, then Buyer may, in addition to any other rights and remedies that may be available to it, set off all or any portion of such amounts against any amounts due and owing from Buyer or its Affiliates (including the Company) VII as an adjustment to the Seller Parties (including Purchase Price for all Tax purposes, except to the extent otherwise required under the Collateral Agreements or with respect to any Earn-Out Payment, Bonus, or Closing Shares). Any amounts so set off shall be deemed to have been paid to Seller Parties as of the date on which written demand for payment of the amount in question was provided to Seller Representative. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement or any other Collateral AgreementsApplicable Law. (d) The waiver of any closing condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants and obligations.

Other Indemnification Matters. (a) The amount of any Damages payable by Seller Parties under this Article VIII or Article VII will be net of any amounts actually recovered by the Buyer Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor (net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation or any similar proceeding in connection therewith. If the Buyer Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible Any claim for any Damages, subsequent to an indemnification payment by Seller Parties or Seller Representative, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing such indemnification payment up to the amount received by the Buyer Indemnified Party, net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount. (b) Any Damages for which any Person is entitled to indemnification under this Article VIII VII must be asserted by providing written notice to the Seller (or the Buyer, in the case of a claim by the Seller) specifying the factual basis of the claim in reasonable detail to the extent then known by the Person asserting the claim. Each Party agrees to treat all indemnification payments under this Article VII as adjustments to the Purchase Price, including for Tax purposes to the extent permitted by Law. The Seller shall be determined without duplication of recovery by reason of the state of facts giving rise have no obligation to such Damages constituting a breach of more than one representation, warranty or covenant. No Person shall be entitled to make any indemnification payments under this Agreement for any Damages arising from a breach of any representation, warranty or covenant set forth herein (and Article VII prior to the amount of any Damages incurred third Business Day following the date upon which the registration statement to be filed by Primo Parent in respect of such breach shall not be included in the calculation of any limitations on indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4. (c) If a Seller Party fails to pay any amounts that they are obligated to pay to Buyer under this Agreement, including any amounts that they are obligated to pay Share Consideration pursuant to the Registration Rights Agreement is first declared effective by the SEC; provided, that the foregoing shall in no way limit the Seller’s indemnification obligations set forth in under this Article VIIIVII except with respect to the timing of such indemnification payment. The right to indemnification will not be affected by any investigation conducted with respect to, then Buyer may, in addition to any other rights and remedies that may be available to it, set off all or any portion Knowledge acquired (or capable of such amounts against being acquired) at any amounts due and owing from Buyer time, whether before or its Affiliates (including after the Company) to the Seller Parties (including under the Collateral Agreements or date hereof, with respect to any Earn-Out Paymentrepresentation, Bonuswarranty, covenant or Closing Shares)agreement in this Agreement. Any amounts so set off shall be deemed to have been paid to Seller Parties as of the date on which written demand for payment of the amount in question was provided to Seller RepresentativeTHE INDEMNIFICATION PROVISIONS IN THIS ARTICLE VII WILL BE ENFORCEABLE REGARDLESS OF WHETHER ANY PERSON ALLEGES OR PROVES THE SOLE, CONCURRENT, CONTRIBUTORY OR COMPARATIVE NEGLIGENCE OF THE PERSON SEEKING INDEMNIFICATION OR ITS AFFILIATES, OR THE SOLE OR CONCURRENT STRICT LIABILITY IMPOSED ON THE PERSON SEEKING INDEMNIFICATION OR ITS AFFILIATES. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement or any other Collateral Agreements. (d) The waiver of any closing condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligationagreement, will not affect the right to indemnification, payment of Damagesdamages, or other remedy based on any such representationsrepresentation, warrantieswarranty, covenants and obligationscovenant or agreement.

Other Indemnification Matters. (a) The amount of any Damages payable by If a Purchaser Indemnitee or a Seller Parties Indemnitee (each, an “Indemnified Party”), believes that a claim, demand or other circumstance exists that has given or may reasonably be expected to give rise to a right for indemnification under this Article VIII or Article VII will be net of any amounts actually recovered by the Buyer ARTICLE VIII, such Indemnified Party under applicable insurance policies shall assert its claim for indemnification by giving written notice thereof (a “Claim Notice”) to the Party (or, in the event indemnification is sought from Sellers, the Sellers’ Representative) from which indemnification is sought (the “Indemnifying Party”) (i) if the event or from occurrence giving rise to such claim for indemnification is, or relates to, a claim or Action brought by a Person that is not a Party or affiliated with any other Person alleged to be responsible therefor Party (net a “Third Party”), within ten Business Days following receipt of the present value notice of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs such claim or expenses incurred Action by such Buyer Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation or any similar proceeding in connection therewith. If the Buyer Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by Seller Parties or Seller Representative, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing such indemnification payment up to the amount received by the Buyer Indemnified Party, net or (ii) if the event or occurrence giving rise to such claim for indemnification is not, or does not relate to, a claim or Action brought by a Third Party, as promptly as practicable after the discovery by the Indemnified Party of the present value circumstances giving rise to such claim for indemnity; provided, however, that in each of any increase the cases in clauses (i) and (ii), that the failure to insurance premiumsnotify or delay in notifying Sellers’ Representative or the Purchaser, any as the case may be, shall not relieve the Indemnifying Party of its obligations pursuant to this ARTICLE VIII, except to the extent that such Indemnifying Party is materially prejudiced as a result thereof. Each Claim Notice shall describe the claim in reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amountdetail. (b) Any Damages for which any Person is entitled to indemnification under this Article VIII Upon receipt by an Indemnifying Party of a Claim Notice in respect of an action or Article VII shall be determined without duplication claim of recovery by reason of a Third Party, the state of facts giving rise to such Damages constituting a breach of more than one representation, warranty or covenant. No Person Indemnifying Party shall be entitled to indemnification under this Agreement for any Damages arising from a breach assume and have sole control over the defense of such action or claim at its sole cost and expense. If the Indemnifying Party assumes the defense of any representationsuch claim or Action arising therefrom, warranty the Indemnified Party shall reasonably cooperate in the defense or covenant set forth herein prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information that are reasonably requested by the amount Indemnifying Party or that are reasonably relevant to such claim or Action, and making employees available on a mutually convenient basis during normal business hours to provide reasonable additional information and explanation of any Damages incurred in respect material provided hereunder. If the Indemnifying Party assumes the defense of such breach claim or Action, the Indemnified Party may participate in such defense at the Indemnified Party’s expense, which shall include counsel of its choice. If the Indemnifying Party assumes the defense of such a Third Party Action or claim, the Indemnifying Party shall be entitled to negotiate a settlement or compromise of such Action or claim; provided, however, that (x) such settlement or compromise shall only involve the payment of monetary damages by the Indemnifying Party (without any admission of guilt or equitable remedy) and shall include a full and unconditional waiver and release by the Third Party of all Indemnified Parties, and (y) any such settlement or compromise that does not satisfy the requirements of clause (x) shall be permitted only with the written consent of the Indemnified Party, which consent shall not be included in the calculation unreasonably withheld, conditioned or delayed. If, within 30 days of receipt from an Indemnified Party of any limitations on indemnification set forth hereinClaim Notice with respect to a Third Party Action or claim, the Indemnifying Party (i) if advises such Damages were already taken into account Indemnified Party in calculating writing that the final Closing Cash Payment Indemnifying Party shall not elect to defend, settle or compromise such action or claim or (ii) is not entitled to assume and control the defense of such Action or claims, such Indemnified Party may, at its option, defend, settle or otherwise compromise or pay such action or claim; provided, however, that any such settlement or compromise shall be permitted only with the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. Each Indemnified Party shall make available to the Indemnifying Party all information reasonably available to such Indemnified Party relating to such action or claim, except as provided may be prohibited by applicable Law. In addition, the Parties shall render to each other such assistance as may reasonably be requested in Section 1.4order to ensure the proper and adequate defense of any such Action or claim. The Party in charge of the defense shall keep the other Parties fully apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. (c) If a Seller Party fails With respect to pay any amounts that they are obligated to pay to Buyer claim for indemnification under this AgreementARTICLE VIII that arises from, or relates to, Taxes, the applicable indemnification payment shall not be due to, or recoverable by (including any amounts by an offset), the Indemnified Party earlier than two days before the applicable Tax is due to the Governmental Authority (it being understood, for the avoidance of doubt, that they are obligated a Tax is not due or payable to pay the extent that such Tax may be contested prior to payment by the means selected by the Person entitled to control such Tax Contest pursuant to Section 6.4(d)), and in the indemnification obligations set forth case of a Tax that is contested in this Article VIIIaccordance with the provisions of Section 6.4(d), then Buyer may, in addition payment of the Tax to any other rights and remedies the appropriate Governmental Authority will be considered to be due no earlier than the earlier of (A) the date paid to the applicable Governmental Authority (to the extent that the applicable Tax must be prepaid or deposited before the applicable Tax Contest may be available contested by the Party entitled to it, set off all control such Tax Contest under Section 6.4(d)) or any portion (B) the date of such amounts against any amounts due and owing from Buyer or its Affiliates (including the Company) to the Seller Parties (including under the Collateral Agreements or a Final Determination with respect to any Earn-Out Payment, Bonus, or Closing Sharesthe applicable Tax). Any amounts so set off shall be deemed to have been paid to Seller Parties as of the date on which written demand for payment of the amount in question was provided to Seller Representative. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement or any other Collateral Agreements. (d) The waiver Any qualifications as to “materiality,” “in all material respects,” “Material Adverse Effect,” “material adverse effect” or words of any closing condition based on similar import contained or otherwise applicable to the accuracy relevant representation or warranty in this Agreement shall be disregarded for purposes of (i) determining whether there has been a breach of any representation or warrantywarranty in this Agreement and (ii) calculating the amount of any Losses that are subject to indemnification under this Agreement. (e) If any Seller liquidates or dissolves at any time when any Liability of such Seller with respect to this ARTICLE VIII may thereafter arise or be determined, then at the time of such liquidation or dissolution, such Seller will cause its shareholders, members, partners or other equityholders or distributees of such Seller’s assets, as the case may be, to take such assets subject to such Liabilities ratably in proportion to the assets received; provided, however, that the failure on behalf of such Seller to comply with the performance covenant set forth in this Section 8.6(e) will in no way reduce the such Seller’s obligations in this Agreement. (f) Notwithstanding any other provision set forth in this Section 8.6, the rights to conduct the defense of any Third Party Action or compliance claim set forth herein shall in all events be subject to the rights of the insurer under the R&W Insurance Policy to conduct the defense of any Third Party Action or claim covered by the R&W Insurance Policy. The Parties acknowledge and agree that if a Third Party Action or claim results in a claim for indemnification being brought by any Purchaser Indemnitee that includes or involves a claim against the R&W Insurance Policy, with any covenant respect to which the Indemnifying Party has elected to assume the defense under Section 8.6(b) (an “Insured Claim”), then the insurer or obligation, will not affect its representatives shall have the right to indemnificationassociate effectively in the defense of the Insured Claim, payment of Damages, or other remedy based on and the Sellers’ Representative and its Affiliates shall provide the insurer such representations, warranties, covenants cooperation and obligationsinformation as the R&W Insurance Policy insurer may reasonably require in connection therewith.

Other Indemnification Matters. (a) The amount of any Damages payable by If a Purchaser Indemnitee or a Seller Parties Indemnitee (each, an “Indemnified Party”), believes that a claim, demand or other circumstance exists that has given or may reasonably be expected to give rise to a right for indemnification under this Article VIII or Article VII will be net of any amounts actually recovered by the Buyer ARTICLE VIII, such Indemnified Party under applicable insurance policies shall assert its claim for indemnification by giving written notice thereof (a “Claim Notice”) to the Party (or, in the event indemnification is sought from Sellers, the Sellers’ Representative) from which indemnification is sought (the “Indemnifying Party”) (i) if the event or from occurrence giving rise to such claim for indemnification is, or relates to, a claim or Action brought by a Person that is not a Party or affiliated with any other Person alleged to be responsible therefor Party (net a “Third Party”), within ten Business Days following receipt of the present value notice of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs such claim or expenses incurred Action by such Buyer Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation or any similar proceeding in connection therewith. If the Buyer Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by Seller Parties or Seller Representative, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing such indemnification payment up to the amount received by the Buyer Indemnified Party, net or (ii) if the event or occurrence giving rise to such claim for indemnification is not, or does not relate to, a claim or Action brought by a Third Party, as promptly as practicable after the discovery by the Indemnified Party of the present value circumstances giving rise to such claim for indemnity; provided, however, that in each of any increase the cases in clauses (i) and (ii), that the failure to insurance premiumsnotify or delay in notifying Sellers’ Representative or the Purchaser, any as the case may be, shall not relieve the Indemnifying Party of its obligations pursuant to this ARTICLE VIII, except to the extent that such Indemnifying Party is materially prejudiced as a result thereof. Each Claim Notice shall describe the claim in reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amountdetail. (b) Any Damages for which any Person is entitled to indemnification under this Article VIII Upon receipt by an Indemnifying Party of a Claim Notice in respect of an action or Article VII shall be determined without duplication claim of recovery by reason of a Third Party, the state of facts giving rise to such Damages constituting a breach of more than one representation, warranty or covenant. No Person Indemnifying Party shall be entitled to indemnification under this Agreement for any Damages arising from a breach assume and have sole control over the defense of such action or claim at its sole cost and expense. If the Indemnifying Party assumes the defense of any representationsuch claim or Action arising therefrom, warranty the Indemnified Party shall reasonably cooperate in the defense or covenant set forth herein prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information that are reasonably requested by the amount Indemnifying Party or that are reasonably relevant to such claim or Action, and making employees available on a mutually convenient basis during normal business hours to provide reasonable additional information and explanation of any Damages incurred in respect material provided hereunder. If the Indemnifying Party assumes the defense of such breach claim or Action, the Indemnified Party may participate in such defense at the Indemnified Party’s expense, which shall include counsel of its choice. If the Indemnifying Party assumes the defense of such a Third Party Action or claim, the Indemnifying Party shall be entitled to negotiate a settlement or compromise of such Action or claim; provided, however, that (x) such settlement or compromise shall only involve the payment of monetary damages by the Indemnifying Party (without any admission of guilt or equitable remedy) and shall include a full and unconditional waiver and release by the Third Party of all Indemnified Parties, and (y) any such settlement or compromise that does not satisfy the requirements of clause (x) shall be permitted only with the written consent of the Indemnified Party, which consent shall not be included in the calculation unreasonably withheld, conditioned or delayed. If, within 30 days of receipt from an Indemnified Party of any limitations on indemnification set forth hereinClaim 54 Notice with respect to a Third Party Action or claim, the Indemnifying Party (i) if advises such Damages were already taken into account Indemnified Party in calculating writing that the final Closing Cash Payment Indemnifying Party shall not elect to defend, settle or compromise such action or claim or (ii) is not entitled to assume and control the defense of such Action or claims, such Indemnified Party may, at its option, defend, settle or otherwise compromise or pay such action or claim; provided, however, that any such settlement or compromise shall be permitted only with the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. Each Indemnified Party shall make available to the Indemnifying Party all information reasonably available to such Indemnified Party relating to such action or claim, except as provided may be prohibited by applicable Law. In addition, the Parties shall render to each other such assistance as may reasonably be requested in Section 1.4order to ensure the proper and adequate defense of any such Action or claim. The Party in charge of the defense shall keep the other Parties fully apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. (c) If a Seller Party fails With respect to pay any amounts that they are obligated to pay to Buyer claim for indemnification under this AgreementARTICLE VIII that arises from, or relates to, Taxes, the applicable indemnification payment shall not be due to, or recoverable by (including any amounts by an offset), the Indemnified Party earlier than two days before the applicable Tax is due to the Governmental Authority (it being understood, for the avoidance of doubt, that they are obligated a Tax is not due or payable to pay the extent that such Tax may be contested prior to payment by the means selected by the Person entitled to control such Tax Contest pursuant to Section 6.4(d)), and in the indemnification obligations set forth case of a Tax that is contested in this Article VIIIaccordance with the provisions of Section 6.4(d), then Buyer may, in addition payment of the Tax to any other rights and remedies the appropriate Governmental Authority will be considered to be due no earlier than the earlier of (A) the date paid to the applicable Governmental Authority (to the extent that the applicable Tax must be prepaid or deposited before the applicable Tax Contest may be available contested by the Party entitled to it, set off all control such Tax Contest under Section 6.4(d)) or any portion (B) the date of such amounts against any amounts due and owing from Buyer or its Affiliates (including the Company) to the Seller Parties (including under the Collateral Agreements or a Final Determination with respect to any Earn-Out Payment, Bonus, or Closing Sharesthe applicable Tax). Any amounts so set off shall be deemed to have been paid to Seller Parties as of the date on which written demand for payment of the amount in question was provided to Seller Representative. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement or any other Collateral Agreements. (d) The waiver Any qualifications as to “materiality,” “in all material respects,” “Material Adverse Effect,” “material adverse effect” or words of any closing condition based on similar import contained or otherwise applicable to the accuracy relevant representation or warranty in this Agreement shall be disregarded for purposes of (i) determining whether there has been a breach of any representation or warrantywarranty in this Agreement and (ii) calculating the amount of any Losses that are subject to indemnification under this Agreement. (e) If any Seller liquidates or dissolves at any time when any Liability of such Seller with respect to this ARTICLE VIII may thereafter arise or be determined, then at the time of such liquidation or dissolution, such Seller will cause its shareholders, members, partners or other equityholders or distributees of such Seller’s assets, as the case may be, to take such assets subject to such Liabilities ratably in proportion to the assets received; provided, however, that the failure on behalf of such Seller to comply with the performance covenant set forth in this Section 8.6(e) will in no way reduce the such Seller’s obligations in this Agreement. (f) Notwithstanding any other provision set forth in this Section 8.6, the rights to conduct the defense of any Third Party Action or compliance claim set forth herein shall in all events be subject to the rights of the insurer under the R&W Insurance Policy to conduct the defense of any Third Party Action or claim covered by the R&W Insurance Policy. The Parties acknowledge and agree that if a Third Party Action or claim results in a claim for indemnification being brought by any 55 Purchaser Indemnitee that includes or involves a claim against the R&W Insurance Policy, with any covenant respect to which the Indemnifying Party has elected to assume the defense under Section 8.6(b) (an “Insured Claim”), then the insurer or obligation, will not affect its representatives shall have the right to indemnificationassociate effectively in the defense of the Insured Claim, payment of Damages, or other remedy based on and the Sellers’ Representative and its Affiliates shall provide the insurer such representations, warranties, covenants cooperation and obligationsinformation as the R&W Insurance Policy insurer may reasonably require in connection therewith.

Other Indemnification Matters. (ai) For purposes of determining whether there has been any misrepresentation or a breach of a representation or warranty, and the amount of Losses resulting therefrom, all qualifications or exceptions in any representation or warranty relating to or referring to the terms “material”, “materiality”, “in all material respects” or any similar term or phrase shall be disregarded, it being the understanding of the parties hereto that for purposes of determining liability under this Section 5, the representations and warranties of the parties hereto contained in this Agreement shall be read as if such terms and phrases were not included in them. (ii) The amount Buyer Indemnified Parties shall take commercially reasonable steps to mitigate Losses for which indemnification may be claimed by them pursuant to this Agreement upon and after becoming aware of any Damages payable by Seller Parties under this Article VIII or Article VII will event that could reasonably be net of expected to give rise to any amounts actually recovered by the such Losses. In order to avoid double counting, no Buyer Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor (net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation or any similar proceeding in connection therewith. If the Buyer Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by Seller Parties or Seller Representative, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing such indemnification payment up to the amount received by the Buyer Indemnified Party, net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount. (b) Any Damages for which any Person is entitled to indemnification under this Article VIII or Article VII shall be determined without duplication of recovery by reason of the state of facts giving rise to such Damages constituting a breach of more than one representation, warranty or covenant. No Person shall be entitled to indemnification under this Agreement hereunder for any Damages arising from a breach of any representation, warranty or covenant set forth herein Loss (and the amount of any Damages Loss incurred in respect of such breach shall not be included in the calculation of any limitations on indemnification set forth herein) if to the extent that such Damages were already taken into account Loss is included as a Current Liability in calculating the final Closing calculation of the Final Cash Payment as provided Purchase Price in accordance with Section 1.41(f). Any liability for indemnification under this Section 5 shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement. (ciii) If The amount of any Loss subject to indemnification under Section 5(b) shall be calculated net of (A) any insurance proceeds received by any Buyer Indemnified Party on account of such Loss, net of the cost of recovery under the applicable insurance policy and net of any premium increase attributable to such claim, and (B) any indemnification payments received by any Buyer Indemnified Party from a Seller third party on account of any such Loss. The Buyer Indemnified Party fails shall use commercially reasonable efforts to recover under all insurance policies covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder and shall submit all claims underlying any demand for indemnity under this Section 5 to the applicable insurance carrier under each policy listed on Schedule 2(t), to the extent such claim may be made under such policy and to the extent requested to do so by the Sellers. In any case where a Buyer Indemnified Party recovers, under insurance policies or from other collateral sources, any amount in respect of a matter for which such Buyer Indemnified Party was indemnified pursuant to Section 5(b) (net of collection fees and expenses, and other related costs), such Buyer Indemnified Party shall promptly pay to the Person or Persons that actually made such indemnification payment the amount so recovered (net of collection fees and expenses, and other related costs), and subject to off-set in the event of any other amounts that they are obligated may then be owed to pay to any Buyer Indemnified Party by Sellers under this Agreement, including any amounts that they are obligated to pay pursuant to the indemnification obligations set forth in this Article VIII, then Buyer may, in addition to any other rights and remedies that may be available to it, set off all or any portion of such amounts against any amounts due and owing from Buyer or its Affiliates (including the Company) to the Seller Parties (including under the Collateral Agreements or with respect to any Earn-Out Payment, Bonus, or Closing Shares). Any amounts so set off shall be deemed to have been paid to Seller Parties as of the date on which written demand for payment of the amount in question was provided to Seller Representative. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement or any other Collateral Agreements. (d) The waiver of any closing condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants and obligations.

Other Indemnification Matters. (a) The amount of any Damages payable by Seller Parties under this Article VIII or Article VII will Except with respect to matters involving fraud, the indemnity provided herein shall be net of any amounts actually recovered by the Buyer Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor (net sole and exclusive remedy of the present value of parties hereto, their Affiliates, successors and assigns with respect to any increase to insurance premiums, any reasonable attorneys’ fees, and other all Claims for losses sustained or incurred arising out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation or any similar proceeding in connection therewith. If the Buyer Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by Seller Parties or Seller Representative, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing such indemnification payment up to the amount received by the Buyer Indemnified Party, net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount. (b) Any Damages for which any Person is entitled to indemnification under this Article VIII or Article VII shall be determined without duplication of recovery by reason of the state of facts giving rise to such Damages constituting a breach of more than one representation, warranty or covenant. No Person shall be entitled to indemnification under this Agreement and the transactions contemplated herby; except that, nothing contained herein shall limit the right of Buyer to seek contribution from Seller for any Damages arising from a breach out of any representationExcluded Liabilities after the expiration of the indemnification obligations under this Article 8. Notwithstanding the other provisions of this Article 8, warranty Buyer agrees that prior to seeking any indemnification payment from Seller for a specific matter for which Seller is obligated to indemnify Buyer hereunder (each an "Indemnification Claim"), Buyer will first use commercially reasonable efforts (which shall not include expending any funds to third parties or covenant set forth herein pursuing litigation, arbitration or any other dispute resolution process) to seek payment of the Indemnification Claim under any insurance policies (except self-insurance policies) under which coverage of the Indemnification Claim is available to Buyer; provided, however; that in the event that Seller shall be unable, because of lack of privity, because Seller is not a named insured or additional insured under an applicable insurance policy or because Seller does not otherwise have the legal right, to seek payment under an insurance policy of the Indemnification Claim, Seller shall have the right, at Seller's sole cost and expense, and subject to the succeeding sentences hereof, to commence proceedings against an applicable insurance company that has refused to provide payment of an amount that is the subject of an Indemnification Claim. Buyer agrees to cooperate with Seller in connection with a claim brought by Seller as provided in the previous clause against any Damages incurred such insurance company in respect of such breach any commercially reasonable manner requested by Seller provided that Buyer shall not be included required to incur any cost in the calculation of any limitations on indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4. (c) If a doing so. Seller Party fails to pay any amounts that they are obligated to pay to Buyer under this Agreement, including any amounts that they are obligated to pay pursuant to the indemnification obligations set forth in this Article VIII, then Buyer may, in addition to any other rights and remedies that may be available to it, set off all or any portion of such amounts against any amounts due and owing from Buyer or its Affiliates (including the Company) to the Seller Parties (including under the Collateral Agreements or with respect to any Earn-Out Payment, Bonus, or Closing Shares). Any amounts so set off shall be deemed to have been paid to Seller Parties as of the date on which written demand for payment of the amount in question was provided to Seller Representative. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement or any other Collateral Agreements. (d) The waiver of any closing condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnificationtake any such action against such insurance company in Buyer's name and, payment for that purpose and only to such extent, all of Damagesthe rights of Buyer to enforce the obligations of such insurance company related to such Indemnified Claim are hereby conferred upon and conditionally assigned to Seller; provided, further, however, that Seller shall only have such rights if prior to the commencement of any such action Seller provides such security (in the form of a guaranty, deposit or other remedy based on arrangement) to Buyer as Buyer reasonably deems necessary to secure Seller's obligation to fund the expenses of any such representationsaction and to indemnify Buyer for the Insurance Indemnification (as later defined). Seller shall indemnify and hold Buyer harmless from and against any and all losses, warrantiescosts, covenants liability, claims, damages, expenses, penalties and obligationsfines which Buyer may incur in connection with or arising out of the taking of any such action by Seller (the "Insurance Indemnification"). Notwithstanding the foregoing, if Seller proceeds against an insurance company as contemplated in the foregoing sentences, Seller shall pay the Indemnification Claim to Buyer prior to commencing such proceedings.

Other Indemnification Matters. (ai) All indemnification payments made pursuant to this Section 10 will be treated as an adjustment to the Purchase Price unless otherwise required by Applicable Law. (ii) The amount foregoing indemnification provisions are Seller’s exclusive remedy for Claims against Xxxxx and Xxxxx’s exclusive remedy for Claims against Seller, NRM or either Company, excluding Claims for equitable relief specifically permitted hereunder. For the avoidance of doubt, nothing contained herein shall limit any Damages payable Claims by Xxxxx against a Seller Parties under this Article VIII or Article VII will be net of any amounts actually recovered by the Buyer Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor (net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation Executive or any similar proceeding remedies at law or in connection therewith. If the equity available to Buyer Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by Seller Parties or Seller Representative, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing such indemnification payment up to the amount received by the Buyer Indemnified Party, net of the present value of Claims against any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amountSeller Executive. (biii) Any Damages Seller hereby agrees that Seller will not make any demand for which indemnification, reimbursement, contribution or any Person is entitled to indemnification under this Article VIII or Article VII shall be determined without duplication of recovery by reason of the state of facts giving rise to such Damages constituting a breach of more than one representation, warranty or covenant. No Person shall be entitled to indemnification under this Agreement for any Damages arising other amount whatsoever from a breach of any representation, warranty or covenant set forth herein (and the amount of any Damages incurred Merger Sub nor either Company in respect of such breach shall not be included in the calculation of any limitations on indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4. (c) If a Seller Party fails to pay any amounts that they are obligated to pay to Buyer under this Agreement, including any amounts that they are obligated to pay pursuant to the connection with Seller’s indemnification obligations set forth in this Article VIIISection 10, then Buyer mayand neither Merger Sub nor either Company shall have any obligation to indemnify, in addition to reimburse, contribute or pay any other rights and remedies that may be available to it, set off all or any portion of such amounts against any amounts due and owing from Buyer or its Affiliates (including the Company) to the Seller Parties (including under the Collateral Agreements or with respect to any Earn-Out Payment, Bonus, or Closing Shares). Any amounts so set off shall be deemed to have been paid amount to Seller Parties as of the date on which written demand for payment of the amount in question was provided to Seller Representative. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement or any other Collateral AgreementsPerson in connection with Seller’s indemnification obligations under this Section 10. (div) The waiver Subject to the provisions of Section 10(h), all indemnification payments made pursuant to this Section 10 shall be paid by wire transfer of immediately available funds. (v) Seller shall only be responsible for any closing condition based on the accuracy Adverse Consequences suffered by a Buyer Party in connection with a breach of Section 8(g) by Seller, and not for breaches by any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants and obligationsSeller Executives.

Other Indemnification Matters. (a) The amount of any Damages payable by Seller Parties under this Article VIII or Article VII will be net of any amounts actually recovered by the Buyer Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor (net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation or any similar proceeding in connection therewith. If the Buyer Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible Any claim for any Damages, subsequent to an indemnification payment by Seller Parties or Seller Representative, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing such indemnification payment up to the amount received by the Buyer Indemnified Party, net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount. (b) Any Damages for which any Person is entitled to indemnification under this Article VIII X must be asserted by providing written notice to the Selling Shareholders’ Representative (or Article VII shall be determined without duplication the Buyer, in the case of recovery a claim by reason any Seller) specifying the factual basis of the state of facts giving rise claim in reasonable detail to such Damages constituting a breach of more than one representation, warranty or covenantthe extent then known by the Person asserting the claim. No Person shall All indemnification payments under this Article X will be entitled deemed adjustments to the Purchase Price. The right to indemnification under this Agreement for will not be affected by any Damages arising from a breach investigation conducted with respect to, or any Knowledge acquired (or capable of being acquired) at any time, whether before or after the date hereof, with respect to any representation, warranty warranty, covenant or covenant set forth herein (and agreement in this Agreement. THE INDEMNIFICATION PROVISIONS IN THIS ARTICLE X WILL BE ENFORCEABLE REGARDLESS OF WHETHER ANY PERSON ALLEGES OR PROVES THE SOLE, CONCURRENT, CONTRIBUTORY OR COMPARATIVE NEGLIGENCE OF THE PERSON SEEKING INDEMNIFICATION OR ITS AFFILIATES, OR THE SOLE OR CONCURRENT STRICT LIABILITY IMPOSED ON THE PERSON SEEKING INDEMNIFICATION OR ITS AFFILIATES. THE WAIVER OF ANY CONDITION BASED ON THE ACCURACY OF ANY REPRESENTATION OR WARRANTY, OR ON THE PERFORMANCE OF OR COMPLIANCE WITH ANY COVENANT OR AGREEMENT, WILL NOT AFFECT THE RIGHT TO INDEMNIFICATION, PAYMENT OF DAMAGES, OR OTHER REMEDY BASED ON ANY SUCH REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT. If any Seller liquidates or dissolves at any time when any Liability of such Seller with respect to this Article X may thereafter arise or be determined, then at the amount time of such liquidation or dissolution, such Seller will cause its shareholders, members, partners or other equity holders or distributees of such Seller’s assets, as the case may be, to take such assets subject to such Liabilities ratably in proportion to the assets received; provided, however, that the failure on behalf of any Damages incurred in respect of such breach shall not be included in Seller to comply with the calculation of any limitations on indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4. (c) If a Seller Party fails to pay any amounts that they are obligated to pay to Buyer under this Agreement, including any amounts that they are obligated to pay pursuant to the indemnification obligations covenant set forth in this Article VIII, then Buyer may, sentence will in addition to any other rights and remedies that may be available to it, set off all or any portion of no way reduce such amounts against any amounts due and owing from Buyer or its Affiliates (including the Company) to the Seller Parties (including under the Collateral Agreements or with respect to any Earn-Out Payment, Bonus, or Closing Shares). Any amounts so set off shall be deemed to have been paid to Seller Parties as of the date on which written demand for payment of the amount Seller’s obligations in question was provided to Seller Representative. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement or any other Collateral AgreementsAgreement. (d) The waiver of any closing condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants and obligations.

Other Indemnification Matters. (a) The In calculating any amount indemnifiable hereunder in respect of any Damages payable Losses, Losses shall be reduced by Seller Parties under this Article VIII or Article VII will be net of any amounts actually recovered by the Buyer Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor (net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation or any similar proceeding in connection therewith. If the Buyer Indemnified Party receives any amounts under applicable available insurance policies, pursuant to indemnification obligations, or from any other Person alleged to be responsible for any DamagesLosses (including, subsequent in the case of any claims made by the Purchaser Indemnified Parties, any recovery pursuant to the terms of the R&W Insurance Policy), net of (i) any increase in related premiums based on retrospective or reinstatement premium adjustments or other similar adjustments, (ii) any deductible and (iii) any other reasonable and necessary out-of-pocket expense incurred by the Indemnified Party in obtaining such recovery. If an Indemnified Party or its Affiliates receive any such recovery described in the immediately preceding sentence after an indemnification payment by Seller Parties or Seller Representativethe Indemnifying Party has been made, then Buyer such Indemnified Party or its Affiliates shall promptly reimburse Seller Representative the Indemnifying Party for any payment made or expense incurred by Seller Parties or Seller Representative made, but not in connection with providing excess of such indemnification payment up to the amount received by the Buyer Indemnified Party, net Party or its Affiliates. In the event of the present value occurrence of any increase to insurance premiumsLosses for which indemnification is available under this Section 9, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer the Indemnified Party in collecting shall use commercially reasonable efforts to seek recovery under any available third-party insurance policies or third-party indemnification obligations or other rights of recovery with respect to such amountLosses. (b) Any Damages for which The parties agree to treat any Person is entitled to indemnification indemnity payment made under this Article VIII Agreement as an adjustment to the Purchase Price for U.S. federal, state, local and foreign income tax purposes (unless there is a contrary “determination” (within the meaning of Section 1313(a) of the Code or Article VII any similar state or local tax provision)). (c) Any liability for any Loss shall be determined without duplication of recovery by reason of the state of facts giving rise to such Damages Loss constituting a breach of more than one representation, warranty warranty, covenant or covenant. No Person shall be entitled to indemnification under this Agreement for any Damages arising from a breach agreement of any representation, warranty or covenant set forth herein (and the amount of any Damages incurred in respect of such breach shall not be included in the calculation of any limitations on indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4. (c) If a Seller Party fails to pay any amounts that they are obligated to pay to Buyer under this Agreement, including any amounts that they are obligated to pay pursuant to the indemnification obligations set forth in this Article VIII, then Buyer may, in addition to any other rights and remedies that may be available to it, set off all or any portion of such amounts against any amounts due and owing from Buyer or its Affiliates (including the Company) to the Seller Parties (including under the Collateral Agreements or with respect to any Earn-Out Payment, Bonus, or Closing Shares). Any amounts so set off shall be deemed to have been paid to Seller Parties as of the date on which written demand for payment of the amount in question was provided to Seller Representative. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement or any other Collateral Agreements. (d) The waiver Notwithstanding anything to the contrary in this Agreement, for purposes of (i) determining whether there has been a breach or inaccuracy giving rise to an indemnification obligation under this Section 9 and (ii) calculating the amount of Losses resulting from any breach or inaccuracy of a representation or warranty in this Agreement, all “material,” “materially,” “in all material respects,” “Material Adverse Effect” and other like qualifications shall be disregarded. (e) Notwithstanding any other provision herein to the contrary, the right of any closing party hereto to seek indemnification and to payment of Losses pursuant to this Section 9 shall not be affected in any way by any investigation conducted (or omitted), or any knowledge (whether actual, constructive or imputed) acquired (or capable of being acquired), by such party hereto at any time with respect to the accuracy or inaccuracy of or compliance with or performance of any representation, warranty, covenant, agreement or obligation. The waiver, other than a written waiver, of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will shall not affect the right to indemnification, payment of Damages, or other remedy indemnification based on such representations, warranties, covenants covenants, agreements and obligations. (f) Notwithstanding any other provision herein to the contrary, Section 9.3(c) shall be the sole and exclusive provision in this Agreement under which the Purchaser Indemnified Parties shall be entitled to make any claim or recover any Losses resulting from, arising out of or based upon any matter constituting Leakage, and no Purchaser Indemnified Party shall be entitled to any recovery under this Agreement in respect of Leakage under Section 9.2(a) (including where any such matter could also constitute a breach of any representation or warranty in this Agreement) or any other provision of this Section 9.

Other Indemnification Matters. (a) For purposes of determining the amount of Losses resulting from a breach of a representation or warranty, all qualifications or exceptions in any representation or warranty relating to or referring to the terms “material”, “materiality”, “in all material respects”, “Material Adverse Effect” or any similar term or phrase shall be disregarded, it being the understanding of the Parties that for purposes of determining the amount of Losses under this Article 9, the representations and warranties of the Parties contained in this Agreement shall be read as if such terms and phrases were not included in them. (b) Each Indemnified Party shall take, and cause each of its Affiliates to take, commercially reasonable steps to mitigate any Losses to the extent required under applicable Law as soon as reasonably practicable after becoming aware of any event or circumstance that would reasonably be expected to, or does, give rise thereto; provided, however, in no event shall any Indemnified Party be required to maintain or cause any Person to maintain or carry any specific type or level of insurance coverage following the Closing. (c) The amount of any Damages payable by Seller Parties under Losses for which indemnification is provided pursuant to this Article VIII or Article VII 9 will be net of any amounts of any insurance proceeds, indemnification payments, contribution payments or reimbursements, in each case that were actually recovered received by or paid to the Buyer Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor (net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation or any similar proceeding in connection therewith. If the Buyer Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by Seller Parties or Seller Representative, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing such indemnification payment up to the amount received by the Buyer Indemnified Party, net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount. (b) Any Damages for which any Person is entitled to indemnification under this Article VIII or Article VII shall be determined without duplication of recovery by reason of the state of facts giving rise to such Damages constituting a breach of more than one representation, warranty or covenant. No Person shall be entitled to indemnification under this Agreement for any Damages arising from a breach of any representation, warranty or covenant set forth herein (and the amount of any Damages incurred in respect of such breach shall not be included in the calculation of any limitations on indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4. (c) If a Seller Party fails to pay any amounts that they are obligated to pay to Buyer under this Agreement, including any amounts that they are obligated to pay pursuant to the indemnification obligations set forth in this Article VIII, then Buyer may, in addition to any other rights and remedies that may be available to it, set off all or any portion of such amounts against any amounts due and owing from Buyer or its Affiliates (including the Company) to the Seller Parties (including under the Collateral Agreements or with respect to such Losses or any Earn-Out Payment, Bonus, of the circumstances giving rise thereto on or Closing Shares). Any amounts so set off shall be deemed prior to have been paid to Seller Parties as of the date on which written demand for any indemnification payment would otherwise be due hereunder (net of any deductibles and other costs and expenses paid by the Indemnified Party or any of its Affiliates to collect or recover any such proceeds, payments or reimbursements or increase to premiums or other similar amounts that result from or are reasonably related to the facts or circumstances that gave rise to the applicable Losses) (such amounts, collectively, “Insurance Proceeds”). In connection therewith, if, at any time following any indemnification payment pursuant to this Agreement, the Indemnified Party actually receives any Insurance Proceeds, the Indemnified Party will promptly remit to the Indemnifying Party such Insurance Proceeds in an amount not to exceed the amount of the amount corresponding indemnification payment made by the Indemnifying Party (the “Reimbursement Cap”); provided, in question all cases in which (i) Buyer or an Affiliate thereof is the Indemnified Party and (ii) the indemnification payment by Sellers was provided to Seller Representative. The exercise made, in accordance with Section 9.8, through the redemption by Parent for $0, for cancellation, of such right a portion of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement or the Closing Equity Purchase Price from Sellers (including any other Collateral Agreements. (d) The waiver transferee of any closing condition based on Seller), having an aggregate value equal to the accuracy indemnifiable Losses at a value per Parent Common Unit equal to the Closing Equity Value, then Buyer or its applicable Affiliate may, in such Indemnified Party’s sole discretion, elect to satisfy its obligation to remit Insurance Proceeds pursuant to the foregoing sentence by causing Parent to reissue to the Indemnifying Party a number of any representation or warrantyParent Common Units, or on at a value per Parent Common Unit equal to the performance Closing Equity Value, having an aggregate value equal to the lesser of or compliance with any covenant or obligation, will not affect (x) the right to indemnification, payment aggregate amount of Damages, or other remedy based on such representations, warranties, covenants Insurance Proceeds and obligations(y) the Reimbursement Cap.

Other Indemnification Matters. (a) The amount of any Damages payable by Seller Parties under this Article VIII or Article VII will be net of any amounts actually recovered by the Buyer Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor (net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation or any similar proceeding in connection therewith. If the Buyer Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible Any claim for any Damages, subsequent to an indemnification payment by Seller Parties or Seller Representative, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing such indemnification payment up to the amount received by the Buyer Indemnified Party, net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount. (b) Any Damages for which any Person is entitled to indemnification under this Article VIII X must be asserted by providing written notice to the Sellers’ Representative (or Article VII shall be determined without duplication the Buyer, in the case of recovery a claim by reason any Seller) specifying the factual basis of the state claim in reasonable detail to the extent then known by the Person asserting the claim. All indemnification payments under this Article X will be deemed adjustments to the Purchase Price. THE INDEMNIFICATION PROVISIONS IN THIS ARTICLE X WILL BE ENFORCEABLE REGARDLESS OF THE SOLE OR CONCURRENT STRICT LIABILITY IMPOSED ON THE PERSON SEEKING INDEMNIFICATION OR ITS AFFILIATES. THE WAIVER OF ANY CONDITION BASED ON THE ACCURACY OF ANY REPRESENTATION OR WARRANTY, OR ON THE PERFORMANCE OF OR COMPLIANCE WITH ANY COVENANT OR AGREEMENT, WILL NOT AFFECT THE RIGHT TO INDEMNIFICATION, PAYMENT OF DAMAGES, OR OTHER REMEDY BASED ON ANY SUCH REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT. If any Seller liquidates or dissolves at any time when any Liability of facts giving rise such Seller with respect to this Article X may thereafter arise or be determined, then at the time of such liquidation or dissolution, such Seller will cause its shareholders, members, partners or other equity holders or distributees of such Seller’s assets, as the case may be, to take such assets subject to such Damages constituting a breach of more than one representationLiabilities ratably in proportion to the assets received; provided, warranty or covenant. No Person shall be entitled to indemnification under this Agreement for any Damages arising from a breach however, that the failure on behalf of any representation, warranty or Seller to comply with the covenant set forth herein (and the amount of any Damages incurred in respect of such breach shall not be included in the calculation of any limitations on indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4. (c) If a Seller Party fails to pay any amounts that they are obligated to pay to Buyer under this Agreement, including any amounts that they are obligated to pay pursuant to the indemnification obligations set forth in this Article VIII, then Buyer may, sentence will in addition to any other rights and remedies that may be available to it, set off all or any portion of no way reduce such amounts against any amounts due and owing from Buyer or its Affiliates (including the Company) to the Seller Parties (including under the Collateral Agreements or with respect to any Earn-Out Payment, Bonus, or Closing Shares). Any amounts so set off shall be deemed to have been paid to Seller Parties as of the date on which written demand for payment of the amount Seller’s obligations in question was provided to Seller Representative. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement or any other Collateral AgreementsAgreement. (d) The waiver of any closing condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Damages, or other remedy based on such representations, warranties, covenants and obligations.

Other Indemnification Matters. (a) The amount Any claim for indemnification under this Article VIII must be asserted by providing written notice to the Sellers’ Representative or Buyer, as applicable, specifying the factual basis of any Damages payable the claim in reasonable detail to the extent then known by Seller Parties the Person asserting the claim. (b) All indemnification payments under this Article VIII or Article VII IX will be net of any amounts actually recovered by the Buyer Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor (net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount); provided that in no event shall any Buyer Indemnified Party be required to institute litigation or any similar proceeding in connection therewith. If the Buyer Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by Seller Parties or Seller Representative, then Buyer shall promptly reimburse Seller Representative for any payment made or expense incurred by Seller Parties or Seller Representative in connection with providing such indemnification payment up deemed adjustments to the amount received by the Buyer Indemnified Party, net of the present value of any increase to insurance premiums, any reasonable attorneys’ fees, and other out of pocket costs or expenses incurred by such Buyer Indemnified Party in collecting such amount. (b) Any Damages for which any Person is entitled to indemnification under this Article VIII or Article VII shall be determined without duplication of recovery by reason of the state of facts giving rise to such Damages constituting a breach of more than one representation, warranty or covenant. No Person shall be entitled to indemnification under this Agreement for any Damages arising from a breach of any representation, warranty or covenant set forth herein (and the amount of any Damages incurred in respect of such breach shall not be included in the calculation of any limitations on indemnification set forth herein) if such Damages were already taken into account in calculating the final Closing Cash Payment as provided in Section 1.4Purchase Price. (c) If a Seller Party fails to pay any amounts that they are obligated to pay to Buyer under this Agreement, including any amounts that they are obligated to pay pursuant to the indemnification obligations set forth in For purposes of this Article VIII, then Buyer maythe representations and warranties in Article III, in addition to any other rights Article IV and remedies that may be available to it, set off all or any portion of such amounts against any amounts due and owing from Buyer or its Affiliates (including the Company) to the Seller Parties (including under the Collateral Agreements or with respect to any Earn-Out Payment, Bonus, or Closing Shares). Any amounts so set off Article V shall not be deemed qualified by any references to have been paid to Seller Parties as of the date on which written demand for payment of the amount in question was provided to Seller Representative. The exercise of such right of set off in good faith, whether or not ultimately determined to be justified, will not constitute a breach or default under this Agreement or any other Collateral Agreementsmateriality. (d) The right to indemnification will not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the Closing Date, with respect to any representation, warranty, covenant or agreement in this Agreement or by reason of the Indemnified Party’s waiver of any closing condition based on set forth in Section 7.1or Section 7.2, as the accuracy case may be. (e) Each Buyer Indemnitee shall take, and cause its Affiliates to take, reasonable steps to mitigate any Loss upon becoming aware of any representation event or warrantycircumstance that would be reasonably expected to, or does, give rise thereto; provided, however that the Buyer Indemnitees shall not be required to pursue any claims against any third parties relating to such Loss or to otherwise seek recovery therefrom, but in such case, Sellers will be subrogated to any such claims of the Buyer Indemnitees. (f) If any Seller liquidates or dissolves at any time when any Liability of such Seller with respect to this Article VIII may thereafter arise or be determined, then at the time of such liquidation or dissolution, such Seller will cause its shareholders, members, partners or other equityholders or distributees of such Seller’s assets, as the case may be, to take such assets subject to such Liabilities ratably in proportion to the assets received; provided, however, that the failure on behalf of any Seller to comply with the performance covenant set forth in this sentence will in no way reduce such Seller’s obligations in this Agreement. (g) The calculation of any Losses will reflect the amount of any net proceeds actually received by Buyer Indemnitees from any third party (including any insurer) in respect of such Losses (giving effect to any insurance deductibles, self-insured or compliance co-insurance payments made, retroactive or prospective premium adjustments, chargebacks related to insurance, any loss or reduction in insurance coverage as a result of a claim, and other related payments, costs or expenses), less all costs and expenses incurred by Buyer Indemnitees in pursuing or recovering such proceeds. (h) The calculation of any Losses will reflect the amount of any net Tax benefit received or to be received by any Buyer Indemnitee on account of such Losses in or prior to the Tax year of the indemnification payment or any the first Tax year immediately after the Tax year of the indemnification payment (and such net Tax benefit will be determined by first taking into account all other Taxable income and Taxable loss items of Buyer Indemnitees and then calculating the Tax benefit, if any, associated with such Losses). (i) No Buyer Indemnitee will be entitled to indemnification for any covenant or obligationLoss to the extent such Loss is included in the calculation of Indebtedness, will not affect the right to indemnification, payment of DamagesTransaction Costs, or other remedy based on such representations, warranties, covenants and obligationsWorking Capital (which includes the amount of the aggregate reserves included in Working Capital that relate to the matter or Liability at issue) or to the extent already recovered against any Seller.