Common use of Other Indemnification Matters Clause in Contracts

Other Indemnification Matters. The rights of the parties to indemnification pursuant to the provisions of Section 7.2(a) are subject to the following limitations: (a) Subject to the exceptions set forth in Sections 7.4(c) and 7.4(d) below, the Buyer Indemnitees shall not be entitled to recover Losses pursuant to Section 7.2(a)(i) until the total amount of such Losses exceeds Five Hundred Thousand Dollars ($500,000) (the “Threshold”) and then only for the excess over the Threshold. (b) Subject to the exceptions set forth in Sections 7.4(c) and 7.4(d) below, in no event shall the aggregate Liability of Seller and ADSC under Section 7.2(a) exceed fifteen percent (15%) of the Purchase Price (the “Limitation Amount”), and the Buyer Indemnitees shall not be entitled to recover Losses pursuant to Section 7.2(a) once the aggregate amount of Losses as to which the Buyer Indemnitees have recovered equals the Limitation Amount. (c) Notwithstanding anything to the contrary in this Agreement, any indemnification payments based upon or any Losses related to (i) adjustments to the Purchase Price pursuant to Section 1.3, (ii) any and all breaches of the representations and warranties in Sections 2.1, 2.2, 2.3, 2.10, 2.11, 2.15, 2.16 and 2.18, (iii) the Escrow Matters, (iv) the matters set forth on Schedule 2.8, and 2.12(a); and (v) any claim by any Buyer Indemnitee under Section 7.2(a)(iv) and Section 7.2(a)(v), shall not be subject to either the Threshold set forth in Section 7.4(a) or the Limitation Amount set forth in Section 7.4(b) and shall not be used in calculating whether the Limitation Amount set forth in Section 7.4(b) has been met, provided that any indemnification payments based upon or any Losses related to the foregoing shall not exceed the Purchase Price. (d) Notwithstanding anything to the contrary in this Agreement, any indemnification payments based upon or any Losses related to any and all claims of fraud shall not be subject to either the Threshold set forth in Section 7.4(a) or the Limitation Amount set forth in Section 7.4(b) and shall not be used in calculating whether the Limitation Amount set forth in Section 7.4(b) has been met. (e) Buyer and HPS shall not be required after the Closing to make any claim against the Company in respect of any representation, warranty, covenant or any other obligation of the Company, Seller or ADSC to Buyer or HPS hereunder or under any other certificate, document or instrument delivered in connection with herewith. Notwithstanding anything herein to the contrary, Buyer and HPS retain, and nothing contained in this Section 7.4(e) shall in any way waive or limit, its rights to bring claims against Seller or ADSC. (f) Notwithstanding anything herein to the contrary, in no event shall the aggregate Liability of Seller and ADSC for Losses related to the Escrow Matters exceed the Escrow Amount. (g) The amount of any and all Losses will be determined net of any amounts (i) actually recovered by the Indemnified Party under insurance policies with respect to such Losses (net of the collection costs thereof) provided, however, that (A) such Indemnified Party shall be obligated to use only the same efforts it would use to pursue collection under insurance policies for itself, consistent with past practices, (B) any obligation to seek insurance coverage shall not apply to any self-insurance programs or policies, and (C) the Indemnified Party shall not, under any circumstances, be obligated to pursue litigation against the applicable insurer and (ii) actually received by the Indemnified Party in respect of claims under any third party indemnification agreements (net of the collection costs thereof). The Indemnified Party shall promptly pay to the Indemnifying Party all amounts recovered from insurance policies (net of the collection costs thereof) in respect of Losses for which the Indemnified Party previously obtained recovery from the Indemnifying Party pursuant to ARTICLE 7. (h) The indemnification provisions in this ARTICLE 7 do not (a) waive or affect any claims for fraud or willful misconduct to which any party may be entitled or relieve or limit the Liability of any party from any Loss arising out of or resulting from fraud or willful misconduct in connection with the transactions contemplated by this Agreement or in connection with the delivery of any of the certificate, document or instrument referred to herein or (b) waive or affect any equitable remedies to which any party may be entitled. No Party hereto, shall have the right to seek contribution from the other Parties with respect to all or any part of any of its indemnification obligations under this ARTICLE 7.

Other Indemnification Matters. The rights of the parties to indemnification pursuant to the provisions of Section 7.2(a) are subject to the following limitations: (a) Subject With respect to the exceptions set forth in Sections 7.4(cSeller's liability for claims made under clause (b)(i) and 7.4(d) belowof Section 9.02, the Buyer Indemnitees Seller shall not be entitled to recover Losses pursuant to Section 7.2(a)(i) have no liability for such claims until the total aggregate amount of such the Losses exceeds Five Hundred Thousand Dollars (incurred by Buyer's Indemnified Group shall exceed $500,000) (the “Threshold”) and then 2,500,000, in which case Seller shall be liable only for the excess over portion of the Threshold. Losses exceeding $2,500,000 (b) Subject to the exceptions set forth in Sections 7.4(c) "Deductible"), and 7.4(d) below, in no event shall Seller's liability for such claims exceed $75,000,000 in the aggregate Liability of Seller and ADSC under Section 7.2(a) exceed fifteen percent (15%) of the Purchase Price (the “Limitation Amount”"Cap"); provided, and the Buyer Indemnitees shall not be entitled to recover Losses pursuant to Section 7.2(a) once the aggregate amount of Losses as to which the Buyer Indemnitees have recovered equals the Limitation Amount. (c) Notwithstanding anything to the contrary in this Agreementhowever, any indemnification payments based upon or any Losses related to (i) adjustments to the Purchase Price pursuant to Section 1.3, (ii) any and all that claims for breaches of the any representations and or warranties contained in Sections 2.1, 2.2, 2.3, 2.10, 2.11, 2.15, 2.16 and 2.18, (iii) the Escrow Matters, (iv) the matters set forth on Schedule 2.8, and 2.12(a); and (v) any claim by any Buyer Indemnitee under Section 7.2(a)(iv) and Section 7.2(a)(v), 2.01 shall not be subject to either the Threshold set forth in Section 7.4(a) Deductible or the Limitation Amount set forth Cap, but will be limited in Section 7.4(b) and shall not be used in calculating whether the Limitation Amount set forth in Section 7.4(b) has been met, provided that any indemnification payments based upon or any Losses related aggregate to the foregoing shall not exceed an amount equal to the Purchase Price. (db) Notwithstanding anything to Solely for purposes of the contrary indemnification provisions contained in this Article IX, the word "material" (or correlative meanings thereof) contained in any individual representation or warranty contained in this Agreement, any indemnification payments based upon or any Losses related covenant or agreement contained in Section 4.02 of this Agreement, shall be deemed to mean individually or in the aggregate in excess of $500,000, and the words "material adverse effect" contained in any individual representation or warranty contained in this Agreement, or any covenant or agreement contained in Section 4.02 of this Agreement, shall be deemed to mean individually or in the aggregate an effect that exceeds $500,000. With respect to any and all claims breach or breaches of fraud shall not be subject to either the Threshold set forth any such individual representation or warranty contained in this Agreement, or any such covenant or agreement contained in Section 7.4(a) or 4.02 of this Agreement, which would not have been breached but for the Limitation Amount set forth provisions contained in Section 7.4(b) and shall not be used in calculating whether the Limitation Amount set forth in Section 7.4(b) has been met. (e) Buyer and HPS shall not be required after the Closing to make any claim against the Company in respect of any immediately preceding sentence, such representation, warranty, covenant or any other obligation agreement shall be deemed not to have been breached to the extent such breach is evident in, results from or is directly attributable to information that was not disclosed in the Schedules hereto but was disclosed in writing prior to the date hereof in the data room set up by Seller at the offices of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P. in Dallas, Texas for purposes of Buyer's due dilxxxxxx investigation of the Company, Seller or ADSC to Buyer or HPS hereunder or under any other certificate, document or instrument delivered in connection with herewith. Notwithstanding anything herein to the contrary, Buyer and HPS retain, and nothing The provisions contained in this Section 7.4(e) shall the immediately preceding sentence relate only to information actually contained in any way waive such data room, with no duty of due diligence or limit, its rights to bring claims against Seller or ADSC. (f) Notwithstanding anything herein to due inquiry on the contrary, in no event shall the aggregate Liability part of Seller and ADSC for Losses related to the Escrow Matters exceed the Escrow Amount. (g) The amount of any and all Losses will be determined net of any amounts (i) actually recovered by the Indemnified Party under insurance policies Buyer with respect to such Losses (net information. An index of all of the collection costs thereofdocuments contained in such data room is attached as Exhibit B hereto. The provisions of this Section 9.04(b) provided, however, that (A) such Indemnified Party shall be obligated have no effect with respect to use only the same efforts it would use to pursue collection under insurance policies for itself, consistent with past practices, (B) any obligation to seek insurance coverage shall not apply to any selfcovenants and agreements contained in Section 4.02 of this Agreement following the 18-insurance programs or policies, and (C) the Indemnified Party shall not, under any circumstances, be obligated to pursue litigation against the applicable insurer and (ii) actually received by the Indemnified Party in respect of claims under any third party indemnification agreements (net month anniversary of the collection costs thereof). The Indemnified Party shall promptly pay to the Indemnifying Party all amounts recovered from insurance policies (net of the collection costs thereof) in respect of Losses for which the Indemnified Party previously obtained recovery from the Indemnifying Party pursuant to ARTICLE 7Closing Date. (hc) The indemnification provisions liability for claims made under clause (b)(v) of Section 9.02 shall in this ARTICLE 7 do not (a) waive or affect any claims for fraud or willful misconduct to which any party may be entitled or relieve or limit the Liability of any party from any Loss arising out of or resulting from fraud or willful misconduct in connection with the transactions contemplated by this Agreement or in connection with the delivery of any of the certificate, document or instrument referred to herein or (b) waive or affect any equitable remedies to which any party may be entitled. No Party hereto, shall have the right to seek contribution from the other Parties with respect to all or any part of any of its indemnification obligations under this ARTICLE 7no event exceed $2,000,000.

Other Indemnification Matters. (a) Except for claims of fraud or intentional misrepresentation: (i) The rights Parties agree that their respective remedies under Sections 5.3, 5.4, 5.5 and 5.6 of this Agreement are their exclusive remedies under this Agreement (other than Section 8 of this Agreement), including without limitation, any matter based on the inaccuracy, untruth, incompleteness or breach of any representation or warranty of any Party contained herein or based on the failure of any covenant, agreement or undertaking herein, and the Parties hereby waive any claims with respect to any other right of contribution or indemnity available against any Indemnifying Party in such capacity on the basis of common law, statute or otherwise beyond the express terms of this Agreement; and (ii) Notwithstanding any other provision of this Agreement, the liability for indemnification of any Indemnifying Party under this Agreement (other than liability under Section 5.3(b) and 5.4(b)) shall not exceed the actual damages of the parties party entitled to indemnification and shall not otherwise include incidental, consequential, indirect, special, punitive, exemplary or other similar damages, other than compensatory damages. (i) Any indemnification claim made by an Indemnified Party under this Section 5 shall be made in writing to the Indemnifying Party. Any controversy, claim or dispute arising out of, relating to, or in connection with, any such indemnification claim (a "DISPUTE"), including any question regarding the existence, validity, scope or termination of this Section 5.6(b), and not resolved pursuant to the provisions of Section 7.2(a5.6(b)(ii) are subject to shall be settled by binding arbitration in New York City in accordance with the following limitations: (a) Subject to rules and practices, then obtaining, of the exceptions set forth American Arbitration Association under its International Arbitration Rules, and any judgment upon any such arbitration or an award rendered may be entered as a final judgment in Sections 7.4(c) and 7.4(d) below, the Buyer Indemnitees shall not be entitled to recover Losses pursuant to Section 7.2(a)(i) until the total amount any court of such Losses exceeds Five Hundred Thousand Dollars ($500,000) (the “Threshold”) and then only for the excess over the Thresholdcompetent jurisdiction. (bii) Subject to the exceptions set forth in Sections 7.4(cWithin thirty (30) and 7.4(d) below, in no event shall the aggregate Liability days of Seller and ADSC under Section 7.2(a) exceed fifteen percent (15%) its receipt of the Purchase Price (indemnification claim or notification of a Third Party Claim, the “Limitation Amount”), and the Buyer Indemnitees shall not be entitled to recover Losses pursuant to Section 7.2(a) once the aggregate amount of Losses as to which the Buyer Indemnitees have recovered equals the Limitation Amount. (c) Notwithstanding anything to the contrary in this Agreement, any indemnification payments based upon or any Losses related to (i) adjustments to the Purchase Price pursuant to Section 1.3, (ii) any and all breaches of the representations and warranties in Sections 2.1, 2.2, 2.3, 2.10, 2.11, 2.15, 2.16 and 2.18, (iii) the Escrow Matters, (iv) the matters set forth on Schedule 2.8, and 2.12(a); and (v) any claim by any Buyer Indemnitee under Section 7.2(a)(iv) and Section 7.2(a)(v), shall not be subject to either the Threshold set forth in Section 7.4(a) or the Limitation Amount set forth in Section 7.4(b) and shall not be used in calculating whether the Limitation Amount set forth in Section 7.4(b) has been met, provided that any indemnification payments based upon or any Losses related to the foregoing shall not exceed the Purchase Price. (d) Notwithstanding anything to the contrary in this Agreement, any indemnification payments based upon or any Losses related to any and all claims of fraud shall not be subject to either the Threshold set forth in Section 7.4(a) or the Limitation Amount set forth in Section 7.4(b) and shall not be used in calculating whether the Limitation Amount set forth in Section 7.4(b) has been met. (e) Buyer and HPS shall not be required after the Closing to make any claim against the Company in respect of any representation, warranty, covenant or any other obligation of the Company, Seller or ADSC to Buyer or HPS hereunder or under any other certificate, document or instrument delivered in connection with herewith. Notwithstanding anything herein to the contrary, Buyer and HPS retain, and nothing contained in this Section 7.4(e) shall in any way waive or limit, its rights to bring claims against Seller or ADSC. (f) Notwithstanding anything herein to the contrary, in no event shall the aggregate Liability of Seller and ADSC for Losses related to the Escrow Matters exceed the Escrow Amount. (g) The amount of any and all Losses will be determined net of any amounts (i) actually recovered by the Indemnified Party under insurance policies with respect to such Losses (net of the collection costs thereof) provided, however, that (A) such Indemnified Indemnifying Party shall be obligated to use only the same efforts it would use to pursue collection under insurance policies for itself, consistent with past practices, (B) any obligation to seek insurance coverage shall not apply to any self-insurance programs or policies, and (C) the Indemnified Party shall not, under any circumstances, be obligated to pursue litigation against the applicable insurer and (ii) actually received by notify the Indemnified Party in respect of claims under any third party indemnification agreements (net of the collection costs thereof). The Indemnified Party shall promptly pay to the Indemnifying Party all amounts recovered from insurance policies (net of the collection costs thereof) in respect of Losses for which the Indemnified Party previously obtained recovery from the Indemnifying Party pursuant to ARTICLE 7. (h) The indemnification provisions in this ARTICLE 7 do not (a) waive or affect any claims for fraud or willful misconduct to which any party may be entitled or relieve or limit the Liability writing of any party from any Loss Dispute (or other disagreement arising out of or resulting from fraud or willful misconduct in connection with the transactions contemplated by this Agreement of, relating to, or in connection with such Third Party Claim not subject to an indemnification claim), such notice to contain sufficient detail to provide the Indemnified Party with notice as to the nature of the Dispute or other disagreement (the "DISPUTE NOTICE"). The Parties agree to use their reasonable efforts to resolve any Dispute through good faith business negotiation, which shall be a condition precedent to the institution of any arbitration proceedings. The good faith business negotiations must take place for at least sixty (60) days after the date that the Dispute Notice is delivered to the Indemnified Party. Any Dispute not resolved during such sixty-day period shall be subject to arbitration as herein provided. (iii) If the Parties are unable to agree upon an arbitrator or arbitrators within ten (10) days following the delivery of any the responsive pleading in the arbitration, then three arbitrators or two arbitrators and one umpire, each with experience as an arbitrator in at least ten international arbitrations shall be appointed by the American Arbitration Association (of New York City), as it may determine, in accordance with the rules and practices, then obtaining, of such association. The tribunal shall render its award within 365 days after the appointment of the certificate, document or instrument referred to herein or (b) waive or affect any equitable remedies to which any party last arbitrator. Such time limitation may be entitled. No Party heretoextended either at the request of the tribunal or jointly by the Parties. (iv) Each party shall be entitled to discovery of the other, which discovery shall have consist of, but not be limited to, an exchange of all documents in the right possession of a party that are relevant to seek contribution from the other Parties factual issues in the case including all documents it intends to rely upon in the arbitration. (v) The language of the Arbitration shall be English. (vi) The parties waive all rights of appeal or recourse to any court except such rights as cannot be so waived according to the law of the state of New York. (vii) The parties to any arbitration hereunder shall maintain strict confidentiality with respect to all aspects of the arbitration and shall not, without the prior written consent of each other party to the arbitration, disclose the fact, conduct or any part outcome of any of its indemnification obligations under this ARTICLE 7the arbitration except to the extent required by applicable law or to the extent necessary to enforce a final award in the arbitration.

Other Indemnification Matters. The rights of the parties to indemnification pursuant to the provisions of Section 7.2(a) are subject to the following limitations: (a) Subject to the exceptions set forth in Sections 7.4(cAbsent actual fraud by any Seller or Principal: (i) and 7.4(d) below, the Buyer Purchaser Indemnitees shall not be entitled to recover Losses for any individual claim made pursuant to Section 7.2(a)(i9.2(a) until unless the total amount of Losses for such Losses exceeds Five Hundred Thousand Dollars individual claim ($500,000) (the “Threshold”) and then only for the excess over the Threshold. (b) Subject to the exceptions set forth in Sections 7.4(c) and 7.4(d) below, in no event shall or the aggregate Liability amount of Seller and ADSC Losses for all claims arising from the same or a related matter, event or circumstance) is at least $25,000; provided that any such disregarded Losses for claims made pursuant to Section 9.2(a) shall nonetheless count towards the Basket under this Section 7.2(a9.6(a) exceed fifteen percent if such Basket has not then already been exceeded; (15%ii) of the Purchase Price (the “Limitation Amount”), and the Buyer Purchaser Indemnitees shall not be entitled to recover Losses for claims made pursuant to Section 7.2(a9.2(a) once in respect of any breach of or inaccuracy in any representation or warranty (other than the representations and warranties contained in Section 4.1(a) (Organization), Section 4.2(a) (Title to Assets), Section 4.3 (Authority), Section 4.15 (Tax Matters), Section 4.16 (Brokers), and Section 4.18 (Transactions with Affiliates)) until the aggregate amount of all such Losses thereunder exceeds $500,000 (the “Basket”), at which point Purchaser Indemnitees shall, subject to the provisions of this Article 9, be entitled to seek indemnification for all such Losses thereunder in excess of the Basket (but not for the amount of the Basket); (iii) the aggregate liability of Sellers for claims made pursuant to Section 9.2(a) in respect of breaches of or inaccuracies in representations or warranties other than Fundamental Representations shall not exceed $500,000 (the “Cap”); and (iv) the aggregate liability of Sellers for all claims made pursuant to Section 9.2 (including in respect of breaches of or inaccuracies in Fundamental Representations) shall not exceed the Base Purchase Price. (b) Absent actual fraud by Malibu or Purchaser: (i) Seller Indemnitees shall not be entitled to recover Losses for any individual claim made pursuant to Section 9.3(a) unless the amount of Losses for such individual claim (or the aggregate amount of Losses as for all claims arising from the same or a related matter, event or circumstance) is at least $25,000; provided that any such disregarded Losses for claims made pursuant to Section 9.3(a) shall nonetheless count towards the Basket under this Section 9.6(b) if such Basket has not then already been exceeded; (ii) Seller Indemnitees shall not be entitled to recover Losses for claims made pursuant to Section 9.3(a) in respect of any breach of or inaccuracy in any representation or warranty (other than Fundamental Representations) until the aggregate amount of all such Losses thereunder exceeds the Basket, at which point Seller Indemnitees shall, subject to the Buyer Indemnitees have recovered equals provisions of this Article 9, be entitled to seek indemnification for all such Losses thereunder in excess of the Limitation AmountBasket (but not for the amount of the Basket); (iii) the aggregate liability of Purchaser and Malibu for claims made pursuant to Section 9.3(a) in respect of breaches of or inaccuracies in representations or warranties other than Fundamental Representations shall not exceed 10% of the Base Purchase Price; and (iv) the aggregate liability of Purchaser and Malibu for all claims made pursuant to Section 9.3 (including in respect of breaches of or inaccuracies in Fundamental Representations) shall not exceed the Base Purchase Price. (c) Notwithstanding anything For purposes of determining the amount of any Losses arising out of, relating to the contrary or resulting from any breach of or inaccuracy in any representation or warranty made in this Agreement, any indemnification payments based upon and for purposes of determining whether or any Losses related to (i) adjustments to the Purchase Price pursuant to Section 1.3not such breach or inaccuracy has occurred, (ii) any and all breaches of the such representations and warranties shall be considered without giving effect to any limitation or qualification as to “material”, “materially”, “in Sections 2.1all material respects”, 2.2, 2.3, 2.10, 2.11, 2.15, 2.16 and 2.18, (iii) the Escrow Matters, (iv) the matters set forth on Schedule 2.8, and 2.12(a); and (v) any claim by any Buyer Indemnitee under Section 7.2(a)(iv) and Section 7.2(a)(v), shall not be subject to either the Threshold set forth in Section 7.4(a) or the Limitation Amount set forth in Section 7.4(b) and shall not be used in calculating whether the Limitation Amount set forth in Section 7.4(b) has been met, provided that any indemnification payments based upon “Material Adverse Effect” or any Losses related other derivation of the word “material”, in any case, other than with respect to the foregoing shall not exceed use of the Purchase Priceword “material” in the term “Material Contract” itself. (d) Notwithstanding anything None of the Principals or Sellers nor any of their respective members, managers, Affiliates, employees or agents (as applicable) shall have any right of contribution, right of indemnity or other right or remedy against Purchaser or any other Person who owns, controls or operates the Purchased Assets or the Business after the Closing in connection with any indemnification obligation or any other Liability to the contrary which it may become subject under or in connection with this Agreement, any indemnification payments based upon or any Losses related to any it being understood and all claims agreed that the representations, warranties, covenants and agreements of fraud shall not be subject to either Sellers and Principals are solely for the Threshold set forth in Section 7.4(a) or benefit of Purchaser and the Limitation Amount set forth in Section 7.4(b) and shall not be used in calculating whether the Limitation Amount set forth in Section 7.4(b) has been metother Purchaser Indemnitees. (e) Buyer and HPS shall not be required after Without limiting the Closing other limitations of this Section 9.6, to make any claim against the Company extent that coverage is available under the RWI Policy in respect of a claim for indemnification, no Seller will have any representationliability pursuant to Section 9.2(a) or Section 9.2(c) in respect of such claim, warranty, covenant or any other obligation than for the then remaining portion of the CompanyRetention (as such term is defined in the RWI Policy), Seller unless and until the Limit of Liability (as such term is defined in the RWI Policy) is met or ADSC to Buyer or HPS hereunder or exceeded; provided that, for clarity, a notice of a claim under this Article 9 may nonetheless be given at any other certificate, document or instrument delivered time under and in connection accordance with herewith. Notwithstanding anything herein (and subject to the contrary, Buyer and HPS retain, and nothing contained in requirements of) this Section 7.4(e) shall in any way waive or limit, its rights to bring claims against Seller or ADSCArticle 9. (f) Notwithstanding anything herein To the extent coverage is or may be available under the RWI Policy with respect to any particular Losses pursuant to Section 9.2, the contraryPurchaser Indemnitee shall use commercially reasonable efforts to pursue such claim against the RWI Policy (but, in no event for clarity, the Purchaser Indemnitee shall not be under any obligation to institute any suit, action or other proceeding against the aggregate Liability of Seller and ADSC for Losses related to the Escrow Matters exceed the Escrow Amountinsurers under such RWI Policy). (g) The amount of any and all Losses for which indemnification is provided to a Purchaser Indemnitee under this Article 9 will be determined reduced by any amounts actually received by Purchaser Indemnitee as a result of any indemnification, contribution, insurance, or other payment by any third party, net of any amounts (i) actually recovered by actual, out-of-pocket expenses of any Purchaser Indemnitee related to the Indemnified Party under insurance policies receipt of such amount, with respect to such Losses. The amount of any Losses (net of the collection costs thereof) provided, however, that (A) such Indemnified Party shall for which indemnification is provided to a Seller Indemnitee under this Article 9 will be obligated to use only the same efforts it would use to pursue collection under insurance policies for itself, consistent with past practices, (B) reduced by any obligation to seek insurance coverage shall not apply to any self-insurance programs or policies, and (C) the Indemnified Party shall not, under any circumstances, be obligated to pursue litigation against the applicable insurer and (ii) amounts actually received by the Indemnified Party in respect Seller Indemnitee as a result of claims under any indemnification, contribution, insurance, or other payment by any third party indemnification agreements (party, net of the collection costs thereof). The Indemnified Party shall promptly pay any actual, out-of-pocket expenses of any Seller Indemnitee related to the Indemnifying Party all amounts recovered from insurance policies (net receipt of the collection costs thereof) in such amount, with respect of Losses for which the Indemnified Party previously obtained recovery from the Indemnifying Party pursuant to ARTICLE 7such Losses. (h) Each Party agrees to use commercially reasonable efforts in accordance with the requirements of applicable Law to mitigate Losses for which another Party would otherwise be required to provide indemnification pursuant to the terms and conditions of this Article 9. (i) The right of any Purchaser Indemnitee to indemnification provisions 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 execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any representation, warranty, covenant or agreement set forth in this ARTICLE 7 do not Agreement. (aj) waive The Parties agree to treat any indemnification payments made pursuant to this Agreement as an adjustment to the purchase price for all Tax purposes, except to the extent otherwise required by applicable Law as reasonably determined by the Tax advisors of the Indemnified Party. (k) The Parties agree that, other than claims for specific performance, injunctive relief or affect any other equitable remedies and claims for fraud and other than claims in respect of post-Closing covenants, from and after the Closing, the remedies provided in this Article 9 shall be the sole and exclusive remedies for a breach of representations, warranties or willful misconduct to which covenants of any party may be entitled Seller, Malibu or relieve or Purchaser contained in this Agreement. Notwithstanding the foregoing, nothing in this Agreement shall limit the Liability right of any party from Purchaser Indemnitee to make claims against the RWI Policy. (l) Notwithstanding anything to the contrary herein, for clarity, nothing in this Article 9 shall limit any Loss arising out of or claim resulting from fraud or willful misconduct in connection with the transactions contemplated by this Agreement or in connection with the delivery of any of the certificate, document or instrument referred to herein or (b) waive or affect any equitable remedies to which any party may be entitled. No Party hereto, shall have the right to seek contribution from the other Parties with respect to all or any part of any of its indemnification obligations under this ARTICLE 7actual fraud.

Other Indemnification Matters. The rights of the parties to indemnification pursuant to the provisions of Section 7.2(a) are subject to the following limitations: (a) Subject to In determining the exceptions set forth in amount of Adverse Consequences for purposes of Sections 7.4(c) 5.3, 5.4 and 7.4(d) below5.5 of this Agreement, the Buyer Indemnitees Parties shall not be entitled to recover Losses pursuant to Section 7.2(a)(imake appropriate adjustments for tax effects and insurance coverage and take into account the time cost of money (using the prime commercial lending rate for Citibank, NA (New York) until plus 2% as the total amount of such Losses exceeds Five Hundred Thousand Dollars ($500,000) (the “Threshold”) and then only for the excess over the Thresholddiscount rate). (b) Subject to Except for claims of fraud or intentional misrepresentation, the exceptions set forth in Parties agree that their respective remedies under Sections 7.4(c) 5.3, 5.4, 5.5 and 7.4(d) below5.6 of this Agreement are their exclusive remedies under this Agreement (other than Section 8 of this Agreement), in no event shall including without limitation, any matter based on the aggregate Liability inaccuracy, untruth, incompleteness or breach of Seller and ADSC under Section 7.2(a) exceed fifteen percent (15%) any representation or warranty of any Party contained herein or based on the Purchase Price (the “Limitation Amount”)failure of any covenant, agreement or undertaking herein, and the Buyer Indemnitees shall not be entitled Parties hereby waive any claims with respect to recover Losses pursuant to Section 7.2(a) once any other right of contribution or indemnity available on the aggregate amount basis of Losses as to which common law, statute or otherwise beyond the Buyer Indemnitees have recovered equals the Limitation Amountexpress terms of this Agreement. (c) Notwithstanding anything to the contrary in any other provision of this Agreement, the liability of any indemnification payments based upon or any Losses related to indemnifying party under this Agreement (i) adjustments to the Purchase Price pursuant to Section 1.3, (ii) any and all breaches of the representations and warranties in Sections 2.1, 2.2, 2.3, 2.10, 2.11, 2.15, 2.16 and 2.18, (iii) the Escrow Matters, (iv) the matters set forth on Schedule 2.8, and 2.12(a); and (v) any claim by any Buyer Indemnitee other than liability under Section 7.2(a)(iv) and Section 7.2(a)(v), shall not be subject to either the Threshold set forth in Section 7.4(a5.3(b)(iii) or the Limitation Amount set forth in Section 7.4(b5.3(b)(iv)) and shall not be used in calculating whether the Limitation Amount set forth in Section 7.4(b) has been met, provided that any indemnification payments based upon or any Losses related to the foregoing shall not exceed the Purchase Priceactual damages of the party entitled to indemnification and shall not otherwise include incidental, consequential, indirect, special, punitive, exemplary or other similar damages, other than compensatory damages. (d) Notwithstanding anything Any indemnification claim made by an indemnified party under this Section 5 shall be made in writing to the contrary in this Agreementindemnifying party. If a controversy, claim or dispute arises out of, or relating to, any such indemnification payments based upon or any Losses related to any and all claims claim (the "Dispute"), within thirty (30) days of fraud shall not be subject to either the Threshold set forth in Section 7.4(a) or the Limitation Amount set forth in Section 7.4(b) and shall not be used in calculating whether the Limitation Amount set forth in Section 7.4(b) has been met. (e) Buyer and HPS shall not be required after the Closing to make any claim against the Company in respect of any representation, warranty, covenant or any other obligation its receipt of the Companyindemnification claim, Seller or ADSC the indemnifying party shall notify the indemnified party in writing of the Dispute containing sufficient detail to Buyer or HPS hereunder or under any other certificate, document or instrument delivered in connection provide the indemnified party with herewith. Notwithstanding anything herein sufficient notice as to the contrary, Buyer and HPS retain, and nothing contained in this Section 7.4(e) shall in any way waive or limit, its rights to bring claims against Seller or ADSC. Dispute (f) Notwithstanding anything herein to the contrary, in no event shall the aggregate Liability of Seller and ADSC for Losses related to the Escrow Matters exceed the Escrow Amount. (g) The amount of any and all Losses will be determined net of any amounts (i) actually recovered by the Indemnified Party under insurance policies with respect to such Losses (net of the collection costs thereof) provided, however, that (A) such Indemnified Party shall be obligated to use only the same efforts it would use to pursue collection under insurance policies for itself, consistent with past practices, (B) any obligation to seek insurance coverage shall not apply to any self-insurance programs or policies, and (C) the Indemnified Party shall not, under any circumstances, be obligated to pursue litigation against the applicable insurer and (ii) actually received by the Indemnified Party in respect of claims under any third party indemnification agreements (net of the collection costs thereof"Dispute Notice"). The Indemnified Party parties agree to use their reasonable efforts to resolve the Dispute through good faith business negotiation, which shall promptly pay be a condition precedent to the Indemnifying Party all amounts recovered from insurance policies institution of any arbitration proceedings. The good faith business negotiations must take place for at least sixty (net 60) days after the date that the Dispute Notice is sent to the indemnified party. Any Dispute not resolved during such sixty (60) day period shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the collection costs thereof) in respect of Losses for which American Arbitration Association and the Indemnified Party previously obtained recovery from the Indemnifying Party pursuant to ARTICLE 7. (h) The indemnification provisions in this ARTICLE 7 do not (a) waive or affect any claims for fraud or willful misconduct to which any party arbitration award may be entitled or relieve or limit the Liability entered as a final judgment in any court of any party from any Loss arising out of or resulting from fraud or willful misconduct in connection with the transactions contemplated by this Agreement or in connection with the delivery of any of the certificate, document or instrument referred to herein or (b) waive or affect any equitable remedies to which any party may be entitled. No Party hereto, shall have the right to seek contribution from the other Parties with respect to all or any part of any of its indemnification obligations under this ARTICLE 7competent jurisdiction.