Common use of Seller’s Agreement to Indemnify Clause in Contracts

Seller’s Agreement to Indemnify. Subject to the terms and conditions set forth herein, from and after the Closing, Seller shall indemnify and hold harmless Buyer, Company and Subsidiaries and their respective directors, officers, employees, affiliates, controlling persons, agents and representatives and their successors and assigns (collectively, the "Buyer Indemnitees") from and against all liability, demands, claims, actions or causes of action, assessments, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) (collectively "Buyer Damages") arising out of or caused by, directly or indirectly, any or all of the following: (i) any misrepresentation, breach or failure of any warranty or representation made by the Seller in or pursuant to this Agreement; (ii) any failure or refusal by Seller to satisfy or perform in all material respects any covenant, term or condition of this Agreement required to be satisfied or performed by the Seller; (iii) any claim against Company under any guaranty or surety by Company of the obligations or liabilities of Seller or its subsidiaries; (iv) any claims asserted by Allegheny Health, Education and Research Foundation, Allegheny University of the Health Sciences, Allegheny University Medical Partners, Allegheny Hospitals, Centennial and Allegheny University Hospital -- East, or its agents, trustees or assigns (collectively, "Allegheny") against Buyer Indemnitees which arise from or relate to payments received by the Company or Subsidiaries from Allegheny prior to the date when Allegheny filed its petition for relief under Chapter 11 in the United States Bankruptcy Court for the Western District of Pennsylvania, Case Nos. 98-25773 through 98-25777, inclusive; and (v) any Proceeding against any Buyer Indemnitee by any person arising out of the foregoing.

Seller’s Agreement to Indemnify. Subject to the terms and conditions limitations set forth hereinin this Article VII, from and after the Closing, Seller shall indemnify and hold harmless Buyerthe Buyer and its Affiliates (and the officers, Company and Subsidiaries and their respective directors, officersmanagers, employeesequity holders, affiliatesemployees and agents of each of them) for, controlling personsand shall pay to such Persons and reimburse such Persons for, agents any and representatives and their successors and assigns (collectively, the "Buyer Indemnitees") from and against all liability, demands, claims, actions or causes of action, assessments, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) (collectively "Buyer Damages") arising out of or caused byDamages arising, directly or indirectly, from or in connection with: (a) any breach or all alleged breach of any representation or warranty of the following: (i) Seller contained in this Agreement, the Disclosure Schedule, any misrepresentation, breach supplement to the Disclosure Schedule or failure of in any warranty certificate or representation made by the Seller in or document delivered pursuant to this Agreement; provided, that for these purposes, each qualification and exception regarding materiality or Material Adverse Effect in Article III shall be disregarded and given no effect, so that Damages are determined without regard to such qualifications and exceptions; (iib) any failure inaccuracy or refusal by alleged inaccuracy in any representation or warranty of the Seller to satisfy or perform contained in all material respects any covenant, term or condition of this Agreement required as of the Closing Date, without giving any effect to any supplement to the Disclosure Schedules delivered pursuant to Section 5.5(a), other than any disclosure in any such supplement that causes the condition in Section 6.2(a) not to be satisfied satisfied; provided, that for these purposes, each qualification and exception regarding materiality or performed by the Seller; Material Adverse Effect in Article III shall be disregarded and given no effect, so that Damages are determined without regard to such qualifications and exceptions; (iiic) any claim against Company under breach or alleged breach of any guaranty covenant or surety by Company agreement of the obligations Seller contained in this Agreement or liabilities in any agreement or instrument executed and delivered pursuant to this Agreement; (d) any liability or obligation of the Seller or its subsidiaries; (iv) any claims asserted by Allegheny Health, Education liability or obligation associated with the Product Line and Research Foundation, Allegheny University of the Health Sciences, Allegheny University Medical Partners, Allegheny Hospitals, Centennial and Allegheny University Hospital -- East, or its agents, trustees or assigns (collectively, "Allegheny") against Buyer Indemnitees which arise from or relate to payments received by the Company or Subsidiaries from Allegheny arising prior to the date when Allegheny filed its petition for relief Effective Time (including without limitation any of the liabilities described in Section 2.3 as not being assigned by the Buyer hereunder and also including any liability that becomes, or is alleged to have become, a liability of the Buyer under Chapter 11 in the United States Bankruptcy Court for the Western District any applicable bulk sales law, under any doctrine of Pennsylvaniade facto merger or successor liability, Case Nos. 98-25773 through 98-25777, inclusiveor otherwise by operation of law); and and (ve) any Proceeding against product manufactured, sold or shipped by, or any Buyer Indemnitee by any person arising out of services provided by, the foregoingSeller prior to the Closing Date.

Seller’s Agreement to Indemnify. (a) Subject to the terms and conditions limitations set forth hereinin this Section 11.2, from the Sellers hereby agree jointly and after the Closingseverally to indemnify, Seller shall indemnify defend and hold harmless the Buyer, Company the Surviving Corporation and Subsidiaries any of their Affiliates, and their respective all officers, directors, officersequity holders, employeesemployees and agents thereof (all of such parties, affiliates, controlling persons, agents and representatives and their successors and assigns (collectively, the "Buyer IndemniteesAffiliates") ), from and against all liability, demands, claims, actions or causes of action, assessmentsactions, losses, damages, liabilities, costs and expenses (including, without limitation, settlement costs, arbitration costs and any reasonable attorneys' fees legal and expensesother expenses for investigating or defending any action or threatened action) (collectively "incurred by any of the Buyer Damages") Affiliates arising out of or caused by, directly in connection with or indirectly, any or all of the following: resulting from (i) any misrepresentation, a breach or failure of any covenant, agreement, representation or warranty of the Company or representation made by the any Seller contained in this Agreement or in any agreement or instrument executed and delivered pursuant to this AgreementAgreement on or prior to Closing or (ii) Taxes that are assessed on or incurred by the Surviving Corporation or the Sellers (or any successor thereof) on the basis of action, facts, circumstances, events or omissions occurring prior to Closing (collectively, "Buyer's Damages"). (b) In the event there is a claim for Buyer's Damages resulting from the assertion of liability by a third party, the Buyer will, or will cause the Surviving Corporation to, give the Sellers notice of any such third-party claim within thirty days after receiving notice thereof, and the Sellers may undertake the lead defense thereof by counsel of its own choosing if (i) the Sellers provide written notice to the Buyer that the Sellers intend to undertake such defense and agree that (A) any damages or liabilities resulting from such third-party claim are Buyer's Damages and (B) the Sellers will be jointly and severally responsible for and indemnify the Buyer Affiliates against such damages and liabilities in accordance with this Section 11.2, (ii) the Sellers provide the Buyer with evidence reasonably acceptable to the Buyer that the Sellers will have the financial resources to defend against the third-party claim and fulfill its indemnification obligations hereunder, (iii) the third-party claim involves only money damages and does not seek an injunction or other equitable relief, (iv) settlement of, or an adverse judgment with respect to, the third-party claim is not, in the good faith judgment of the Buyer likely to establish a precedent adverse to the continuing business interests of the Surviving Corporation (or any successor thereof) and (v) the Sellers conduct the defense of the third-party claim actively and diligently. Any Buyer Affiliate may by counsel participate in such proceedings, negotiations or defense at its own expense. In the event that within ten days after notice of any such third-party claim, the Sellers have not notified the Buyer of their intention to defend the third-party claim or in the event that, in the good faith judgment of the Buyer, the Sellers have not satisfied the conditions in the above subclauses (i) through (v), any Buyer Affiliate will have the right to undertake the defense, compromise or settlement of such claim. The Sellers may by counsel participate in such proceedings, negotiations or defense at any time at their own expense. None of the Buyer Affiliates shall settle any such third-party claim without the consent of the Sellers, which consent shall not be unreasonably withheld. The Buyer Affiliates and the Sellers will furnish to each other in reasonable detail such information as they may have with respect to any claim for Buyer's Damages. (c) Notwithstanding the foregoing, with respect to Buyer's Damages arising from breaches of representations and warranties (except those in Section 5.2 to which this Section 11.2(c) is inapplicable): (i) the Sellers, jointly and severally, shall be obligated to indemnify the Buyer Affiliates in the aggregate only up to the amount of the Merger Price, provided that none of Gary X. Xxxxxx, xxe Hubbards (as a group) or the Eagax Xxxst shall be obligated to indemnify the Buyer Affiliates in excess of 50% of Buyer's Damages; (ii) a Buyer Affiliate must have given the Sellers notice of any failure such breaches within two years after the Closing Date and with respect to the representations in Sections 5.12 (relating to Taxes), 5.14 (relating to Labor and Employment Matters) and 5.18 (Environmental Matters), the applicable statutes of limitation; and (iii) the Sellers will not be liable for any such Buyer's Damages unless and until the aggregate amount of such Buyer's Damages exceeds $20,000 (at which time the Sellers will be liable for such initial $20,000). Further notwithstanding the foregoing, the Sellers will have no liability with respect to Buyer's Damages to the extent of any insurance proceeds received by the Surviving Corporation in connection therewith; provided, however, that any such insurance proceeds received shall not be taken into account and shall not reduce Buyer's Damages for the purpose of determining whether the threshold of $20,000 (as described above) has been met. (d) Notwithstanding the foregoing, the Sellers shall have no indemnification obligations under this Section 11.2 until Closing has occurred, but upon Closing, the Sellers' indemnification obligations under this Section 11.2 shall exist without regard to this Section 11.2(d) and without regard to whether the basis for any claim arises prior to or refusal by Seller to satisfy or perform in all material respects after Closing. (e) After the Closing, this Section 11.2 shall provide the exclusive remedy for the breach of any covenant, term agreement, representation or condition of warranty made in this Agreement required to be satisfied or performed by the Seller; (iii) any claim against Company under any guaranty Sellers or surety by Company of the obligations or liabilities of Seller or its subsidiaries; (iv) any claims asserted by Allegheny Health, Education and Research Foundation, Allegheny University of the Health Sciences, Allegheny University Medical Partners, Allegheny Hospitals, Centennial and Allegheny University Hospital -- East, or its agents, trustees or assigns (collectively, "Allegheny") against Buyer Indemnitees which arise from or relate to payments received by the Company or Subsidiaries from Allegheny prior to the date when Allegheny filed its petition for relief under Chapter 11 in the United States Bankruptcy Court for the Western District of Pennsylvania, Case Nos. 98-25773 through 98-25777, inclusive; and (v) any Proceeding against any Buyer Indemnitee by any person arising out of the foregoingCompany.

Seller’s Agreement to Indemnify. Subject If the Closing occurs, subject to the terms and conditions set forth hereinof this ARTICLE 9, Seller hereby agrees that from and after the ClosingClosing it shall indemnify, Seller shall indemnify defend and hold harmless BuyerPurchaser, Company and Subsidiaries its Affiliates and their respective directors, officers, employeesshareholders, affiliatespartners, controlling personsmembers, agents attorneys, accountants, agents, Representatives and representatives employees and their heirs, successors and assigns permitted assigns, each in their capacity as such (collectivelythe “Purchaser Indemnified Parties,” and collectively with the Seller Indemnified Parties, the "Buyer Indemnitees"“Indemnified Parties”) from and against all liabilityin respect of Losses imposed on, demandssustained, incurred or suffered by, or asserted against, any of the Purchaser Indemnified Parties (the “Purchaser Damages”), whether in respect of third party claims, actions claims between the parties hereto, or causes otherwise, subject to Section 9.2, directly or indirectly relating to or arising from or in connection with any of actionthe following: (a) any breach of, assessmentsor any inaccuracy in any representation or warranty made by Seller contained in this Agreement, lossesany Ancillary Agreement or any document delivered pursuant to this Agreement, damagesit being understood that for purposes of this Section 9.2 any qualifications relating to materiality, costs and expenses including the term “Material Adverse Effect”, or relating to Knowledge contained in such representation or warranty shall be disregarded for purposes of determining whether such representation or warranty was breached; or (b) any breach by Seller or any Seller Subsidiary of (or failure by Seller or any Seller Subsidiary to perform) any covenant, obligation or agreement of Seller contained in this Agreement, any Ancillary Agreement or any document delivered pursuant to this Agreement including any Liability arising out of the ownership or operation of the Purchased Assets prior to the Closing other than the Assumed Liabilities; or (c) any of the Excluded Assets or the Excluded Liabilities, including, without limitation, reasonable attorneys' fees (A) any and expensesall Liabilities relating to Seller’s employees, and (B) (collectively "Buyer Damages") any and all Liabilities under Environmental Law to the extent arising out of (I) the ownership or caused byoperation of the Purchased Assets or the Business prior to the Closing or (II) any activity, directly action or indirectlyfailure to take action by Seller, any Seller Subsidiary or all any Person acting on behalf of Seller or any Seller Subsidiary following the Closing or the existence of any environmentally related condition relating to the Business to the extent resulting from any activity, action or failure to take action by Seller, any Seller Subsidiary or any person acting on behalf of Seller or any Seller Subsidiary following the Closing (including in each case Liabilities relating to (A) investigation, removal, remediation, containment, cleanup or abatement of the following: (i) any misrepresentationpresence, breach release or failure threatened release of any warranty Hazardous Substance, whether on-site or representation made by the Seller in or pursuant to this Agreement; off-site and (ii) any failure or refusal by Seller to satisfy or perform in all material respects any covenant, term or condition of this Agreement required to be satisfied or performed by the Seller; (iiiB) any claim against Company under by any guaranty third party, including tort suits for personal or surety by Company bodily injury, property damage or injunctive relief relating to the presence of the obligations or liabilities of Seller or its subsidiariesexposure to, any Hazardous Substance); and (ivd) any claims asserted by Allegheny Health, Education Taxes and Research Foundation, Allegheny University of the Health Sciences, Allegheny University Medical Partners, Allegheny Hospitals, Centennial and Allegheny University Hospital -- East, or its agents, trustees or assigns (collectively, "Allegheny") against Buyer Indemnitees Transfer Taxes for which arise from or relate to payments received by the Company or Subsidiaries from Allegheny prior to the date when Allegheny filed its petition for relief under Chapter 11 Seller is responsible in the United States Bankruptcy Court for the Western District of Pennsylvania, Case Nos. 98-25773 through 98-25777, inclusive; and (v) any Proceeding against any Buyer Indemnitee by any person arising out of the foregoingaccordance with Section 3.4.

Seller’s Agreement to Indemnify. Subject to Upon the terms and subject to conditions set forth herein, from and after the Closingof this Article XI, Seller shall indemnify indemnify, defend and hold harmless Buyer, its Affiliates (including the Company and Subsidiaries its Subsidiaries) and their respective directorspartners, officers, employeesdirectors, affiliates, controlling persons, agents and representatives and their successors and assigns employees (collectively, the "Buyer IndemniteesIndemnified Parties") ), from and [Washington DC #361873 v9] 65 against all liability, demands, claims, actions or causes of action, assessments, losses, damages, liabilities, costs and expenses (includingexpenses, without limitation, including reasonable attorneys' fees and expenses) expenses (collectively collectively, "Buyer Damages") arising out ), asserted against, resulting to, imposed upon or suffered or incurred by Buyer Indemnified Parties by reason of or caused by, directly or indirectly, any or all of the followingarising from: (ia) a breach of any representation or warranty of Seller contained in this Agreement or in any certificate delivered by or on behalf of Seller hereunder; (b) a breach of any covenant of Seller contained in this Agreement (other than any breach of Seller's covenants set forth in Section 6.1(e), which shall be governed by the terms of Section 6.1(e)); (c) Unrelated Liabilities; (d) the Retained Litigation; (e) any misrepresentation, breach or failure of any warranty or representation made by the Seller in or pursuant to this AgreementPartnership Claim; (iif) any failure or refusal by Seller to satisfy or perform in all material respects any covenant, term or condition of this Agreement required to be satisfied or performed by the Seller; (iii) any claim against Company under any guaranty or surety by Company of the obligations or liabilities liability for Indebtedness of Seller or its subsidiariesAffiliates (other than (i) Intercompany Indebtedness and (ii) Capitalized Lease Indebtedness, Earn-Out Indebtedness and other Indebtedness to the extent taken into account in determining the Purchase Price pursuant to Section 1.6); (ivg) any claims asserted by Allegheny Health, Education and Research Foundation, Allegheny University of the Health Sciences, Allegheny University Medical Partners, Allegheny Hospitals, Centennial and Allegheny University Hospital -- Eastliability for Cash Due to Minority Interest Holders; or (h) Seller’s settlement of, or its agentsany Damages payable to any third party (excluding, trustees or assigns for the avoidance of doubt, Buyer’s own attorneys’ fees) as a result of, any claim by equity holders of any Division Entity that they are entitled to Opt-Out Rights (collectively, "AlleghenyBuyer Claims") against Buyer Indemnitees which arise from or relate to payments received by the Company or Subsidiaries from Allegheny prior ). Notwithstanding anything herein to the date when Allegheny filed its petition contrary, for relief under Chapter 11 in purposes of (x) determining whether any such breach of representation or warranty has occurred, (y) calculating the United States Bankruptcy Court for the Western District amount of Pennsylvania, Case Nos. 98-25773 through 98-25777, inclusive; any Damages and (vz) any Proceeding against any Buyer Indemnitee by any person arising out calculating the thresholds set forth in Section 11.3 below, in each case, all "Material Adverse Effect" and materiality qualifications contained in such representations and warranties (including those relating to the corresponding schedules) shall be disregarded, as if such qualifications were not included therein other than as relates to the representations and warranties contained in Section 3.7(a) through (c) and the first sentence of the foregoingSection 3.8.

Seller’s Agreement to Indemnify. (a) Subject to the terms and conditions set forth hereinin this Agreement, from and after the Closing, Seller shall Sellers agree, jointly and severally, to indemnify and hold harmless Buyer, each Company and Subsidiaries Subsidiary and their respective directors, officers, employees, affiliates, controlling persons, agents and representatives and their successors and assigns (collectively, the "“Buyer Indemnitees"”) from and against all liability, demands, claims, actions or causes of actionliabilities, assessments, losses, damages, costs and expenses whether or not arising out of third party claims (including, without limitation, interest, penalties, reasonable attorneys' ’ fees and expensesexpenses and all reasonable amounts paid in investigation, defense or settlement of any of the foregoing) (collectively "collectively, but in all events, subject to Section 8.2(a)(iv) hereof, excluding any punitive, special, incidental, consequential, diminution of value, lost profits or like damages or claims, “Buyer Damages"”) asserted against or incurred by any Buyer Indemnitee as a result of or arising out of (i) a breach, misrepresentation or inaccuracy of any representation or warranty contained in this Agreement or in the Seller Disclosure Letter or any exhibits, schedules or certificates delivered by or on behalf of Sellers pursuant to this Agreement, provided, that, Sellers hereby acknowledge that notwithstanding any disclosure in Section 2.17 of the Seller Disclosure Letter, any Buyer Damages arising out of the matters disclosed on Section 2.17 of the Seller Disclosure Letter (other than those described in clause (v) of this subsection) shall be subject to the indemnification terms of this Article VIII as if not disclosed on Section 2.17 of the Seller Disclosure Letter, provided, further, that Sellers shall be liable on an individual basis for Buyer Damages in respect of the breach, misrepresentation or inaccuracy of any representation or warranty contained in Article III of this Agreement, (ii) any product sold, manufactured or licensed by any Company or any Subsidiary prior to the Closing Date (including products manufactured by or for the account of any Company or Subsidiary prior to the Closing, regardless of their inclusion in inventory of a Company 57 or Subsidiary as of the Closing and their eventual sale by a Company or Subsidiary or by Buyer or its affiliates after the Closing), (iii) any breach of any of the covenants and agreements of any Seller contained in this Agreement (including those covenants and agreements set forth in the Environmental Remediation Agreement), including without limitation any agreement of Sellers to indemnify Buyer with respect to specific matters contained elsewhere in this Agreement, (iv) all liabilities and obligations (including, but only with respect to this clause (iv), punitive, special, incidental and consequential damages or claims, to the extent such damages or claims are payable by Buyer or any Subsidiary of Buyer (including any of the Companies after Closing) to any third party)) arising out of or caused bythe Selected Litigation Matters, directly or indirectly, any or all of the following: (i) any misrepresentation, breach or failure of any warranty or representation made by the Seller in or pursuant to this Agreement; (ii) any failure or refusal by Seller to satisfy or perform in all material respects any covenant, term or condition of this Agreement required to be satisfied or performed by the Seller; (iii) any claim against Company under any guaranty or surety by Company of the obligations or liabilities of Seller or its subsidiaries; (iv) any claims asserted by Allegheny Health, Education and Research Foundation, Allegheny University of the Health Sciences, Allegheny University Medical Partners, Allegheny Hospitals, Centennial and Allegheny University Hospital -- East, or its agents, trustees or assigns (collectively, "Allegheny") against Buyer Indemnitees which arise from or relate to payments received by the Company or Subsidiaries from Allegheny prior to the date when Allegheny filed its petition for relief under Chapter 11 in the United States Bankruptcy Court for the Western District of Pennsylvania, Case Nos. 98-25773 through 98-25777, inclusive; and (v) all liabilities and obligations (including, but only with respect to this clause (v), punitive, special, incidental and consequential damages or claims, to the extent such damages or claims are payable by Buyer or any Proceeding against Subsidiary of Buyer (including any Buyer Indemnitee by of the Companies after Closing) to any person third party)) for Claims arising out of the foregoingmatters described in Item 1 (3163 East Xxxxxx ESA), Item 2 (3049 East Vernon ESA), Item 22 (Casmalia Superfund Site) or Item 23 (OII Superfund Site) set forth on Section 2.17 of the Seller Disclosure Letter, provided that no Buyer Indemnitee initiates any contact or inquiry of any governmental entity or other third party with respect to such matters. Subject to the limitations set forth in Section 8.2(b) hereof, Buyer Indemnitees shall be required to recover any Buyer Damages for which Sellers are obligated to indemnify under this Section 8.2, (i) first, from the Escrow Agent, an amount equal to any Buyer Damages any such Buyer Indemnitee may suffer hereunder pursuant to Section 8.7 hereof and (ii) second, if and to the extent that the Indemnification Escrow Amount is not sufficient to cover such Buyer Damages, from Sellers. Notwithstanding anything to the contrary contained in this Agreement, for purposes of determining whether Sellers are obligated to provide indemnification under Section 8.2(a)(i) of this Agreement and for purposes of determining the amount of any Buyer Damages to which such indemnification applies, each representation and warranty in this Agreement and each certificate delivered pursuant hereto shall be read without regard and without giving effect to the term “material” or “material adverse effect” or similar phrases contained in such representation or warranty which has the effect of making such representation and warranty less restrictive (as if such word were deleted from such representation and warranty). (b) Sellers’ obligation to indemnify the Buyer Indemnitees for Buyer Damages under Section 8.2(a) of this Agreement is subject to the following limitations: (i) No indemnification shall be made by Sellers under Sections 8.2(a)(i) or 8.2(a)(ii) unless (i) the aggregate amount of all Buyer Damages arising out of a single breach or liability exceeds $5,000 and (ii) the aggregate amount of all Buyer Damages exceeds $750,000 (the “Basket”) and, in such event, indemnification shall be made by Sellers for the aggregate amount of Buyer Damages in excess of the Basket; provided, however, that the Basket shall not apply to Buyer Damages resulting from the Selected Litigation Matters or a breach of (A) Sections 2.1, 2.2, 2.4, 2.13, 2.25, 3.1 or 3.2 hereof, or (B) the representations and warranties in Section 2.16 hereof that relate to the “Xxxxxx 58 Xxxx” trademark, trade name, domain name and related logos listed on Section 2.16 of the Seller Disclosure Letter. (ii) In no event shall Sellers’ aggregate obligation to indemnify the Buyer Indemnitees under Sections 8.2(a)(i) or 8.2(a)(ii) exceed $25,000,000 (the “Cap Amount”), except in the event that such obligation to indemnify arises from the fraud of any Seller; provided, that the Cap Amount shall not apply to Buyer Damages resulting from a breach of (A) Sections 2.1, 2.2, 2.4, 2.13, 2.25, 3.1 or 3.2 hereof or, (B) the representations and warranties in Section 2.16 hereof that relate to the “Xxxxxx Xxxx” trademark, trade name, domain name and related logos listed on Section 2.16 of the Seller Disclosure Letter. (iii) Sellers shall be obligated to indemnify the Buyer Indemnitees under Section 8.2(a)(i) only for those claims giving rise to Buyer Damages as to which the Buyer has given Sellers’ Representative written notice, with a copy to the Escrow Agent (if applicable), prior to the end of the Survival Period (to the extent the Survival Period is applicable to such claim) or applicable survival period set forth in Section 8.1 of this Agreement. Any written notice delivered by a Buyer to Sellers’ Representative with respect to Buyer Damages shall set forth with reasonable specificity the basis of the claim for Buyer Damages if reasonably determinable at such time and it may state the amount of the Buyer Damages claimed. Subject to the procedures with respect to Claims under Section 8.4 hereof, if such written notice (or an amended notice) states the amount of Buyer Damages claimed and the Sellers’ Representative notifies the Buyer Indemnitee that Sellers’ Representative does not dispute the claim described in such notice or fails to notify the Buyer, with a copy to the Escrow Agent (if applicable), within 30 business days after delivery of such notice by the Buyer whether Sellers’ Representative disputes the claim described in such notice, Buyer Damages in the amount specified in such notice will be admitted by Sellers, and Sellers shall be responsible for the payment of such Buyer Damages to the Buyer Indemnitee, unless Buyer Damages in respect of such claim, once determined, are less than the amount specified in the notice, in which event Buyer shall be entitled to recover such lesser amount. If Sellers’ Representative has timely disputed Sellers’ liability with respect to such claim by delivery of notice in accordance with this Section 8.2, Buyer and Sellers’ Representative will proceed in good faith to negotiate a resolution of such dispute in accordance with Section 8.5 hereof. Any written notice delivered by Sellers’ Representative to Buyer for purposes of disputing a claim for Buyer’s Damages shall provide in reasonable detail the basis for any objection to the matters set forth in Buyer’s notice and the portion of the claim (if less than all) which is the subject of the dispute notice). If a written notice does not state the amount of Buyer Damages claimed, such omission will not preclude the Buyer Indemnitee from recovering from Sellers the amount of Buyer Damages with respect to the claim described in such notice if any such amount is promptly provided once determined. (iv) Sellers’ indemnification obligation pursuant to Section 8.2(a)(v), and pursuant to Section 8.2(a)(iii) (as such provision relates to the Environmental Remediation Agreement) shall survive for a period of five years after the Closing Date.

Seller’s Agreement to Indemnify. Subject to the terms and conditions set forth herein, from and after the Closing, Seller shall indemnify indemnify, defend, reimburse, and hold harmless Buyer, the Project Company and Subsidiaries and their respective directors, officers, employees, affiliates, controlling persons, agents and representatives and their respective successors and assigns (each, a “Buyer Indemnitee” and, collectively, the "“Buyer Indemnitees"”) from and against all liability, demands, claims, actions or causes of actionLiabilities, assessments, lossesfines, penalties, Taxes, Losses, amounts paid in settlement, defense costs, Liens, damages, costs and expenses (includingincluding reasonable out-of-pocket attorneys’, without limitation, reasonable attorneys' accountants and other experts fees and expensesexpenses and or other expenses of Third Party Claims) (collectively "collectively, “Buyer Damages"”) incurred by, and all demands, claims, Actions or causes of action asserted against, any Buyer Indemnitee as a result of or arising out of: (a) the breach or inaccuracy of any representation or warranty made by Seller in this Agreement or any Transaction Document; (b) the breach or violation of, or default under, any covenant, agreement or undertaking of Seller contained in this Agreement or any Transaction Document; (c) except as provided in Section 2.5, any Taxes of the Project Company for a Pre-Closing Taxable Period or a Pre-Closing Period; and (d) that certain letter dated March 20, 2008 from Xxxx X. Xxxxx and Xxxxxx X. Xxxxx to ORNI 24, LLC and that certain letter dated March 7, 2014 from the Project Company to Xxxxxx and Xxxx Xxxxx, in each case relating to that certain Judgment Pursuant to Stipulation dated July 28, 1993. With respect to any claim for indemnification under this Agreement not resulting from a Third Party Claim, within ten (10) days after notification from a Buyer Indemnitee setting forth the nature of the circumstances entitling the Buyer Indemnitee to indemnity hereunder, Seller shall diligently commence resolution of such matters in a manner reasonably acceptable to the Buyer Indemnitee and shall diligently and timely prosecute such resolution to completion. With respect to those claims that may be satisfied by payment of a liquidated sum of money, including claims for reimbursement of expenses incurred in connection with any circumstances entitling any Buyer Indemnitee to indemnity hereunder, Seller shall pay the full amount so claimed to the extent supported by reasonable documentation within fifteen (15) days of such resolution. If Seller by written notice to Buyer disputes the right to indemnity of all Buyer Indemnitees in connection with such claim, Seller shall pay any undisputed part of such claim, and Buyer and Seller shall timely resolve any remaining dispute, provided that if any such remaining dispute is not resolved within thirty (30) days of Buyer’s receipt of Seller’s dispute notice, Buyer may commence an Action pursuant to Section 8.14. The maximum aggregate amount of Buyer Damages for which Seller shall be liable with respect to claims made pursuant to Section 6.1(a) (other than with respect to Buyer Damages to the extent arising from or attributable to (i) fraud or willful misconduct by Seller or the Project Company, for which no monetary limit shall apply or (ii) the breach of any Seller Fundamental Representation, which is addressed below), shall be equal to seventy-five percent (75%) of the amount equal to (x) the Purchase Price, minus (y) any amounts paid by Seller to Buyer pursuant to Sections 6.5.1 of the EPC Schedule, plus (z) any amounts paid by Buyer to Seller pursuant to Section 6.5.2 of the EPC Schedule. The maximum aggregate amount of Buyer Damages for which Seller shall be liable with respect to claims made pursuant to Section 6.1 (including with respect to the breach of any Seller Fundamental Representation, but other than (A) with respect to Buyer Damages to the extent arising from or attributable to fraud or willful misconduct by Seller or the Project Company and (B) pursuant to Section 6.1(d), for which no monetary limit shall apply) shall be equal to seventy-five percent (75%) of the amount equal to (x) the Purchase Price, minus (y) any amounts paid by Seller to Buyer pursuant to Sections 6.5.1 of the EPC Schedule, plus (z) any amounts paid by Buyer to Seller pursuant to Section 6.5.2 of the EPC Schedule. Except with respect to Buyer Damages arising from or attributable to fraud or willful misconduct by Seller or the Project Company or arising out of or caused by, directly or indirectly, any or all of the following: (i) any misrepresentation, breach or failure of any warranty or representation made by the Seller in or pursuant to this Agreement; (ii) any failure or refusal by Seller to satisfy or perform complete item 56 on the IE Schedule, for which no minimum amount shall be required, Seller shall have no Liability in all material respects the case of a claim by any covenantBuyer Indemnitee, term or condition of this Agreement required to be satisfied or performed by the Seller; (iii) any claim against Company under any guaranty or surety by Company of the obligations or liabilities of Seller or its subsidiaries; (iv) any claims asserted by Allegheny Healthunless and until, Education and Research Foundation, Allegheny University of the Health Sciences, Allegheny University Medical Partners, Allegheny Hospitals, Centennial and Allegheny University Hospital -- East, or its agents, trustees or assigns (collectively, "Allegheny") against Buyer Indemnitees which arise from have suffered or relate to payments received by the Company or Subsidiaries from Allegheny prior incurred Losses with respect to the date when Allegheny filed its petition Project consisting of actual damages aggregating in excess of $50,000, whereupon such Buyer Indemnitees shall be entitled to claim indemnification for relief under Chapter 11 only the amount of all Losses related to the Project in the United States Bankruptcy Court for the Western District excess of Pennsylvania, Case Nos. 98-25773 through 98-25777, inclusive; and (v) any Proceeding against any Buyer Indemnitee by any person arising out of the foregoingsuch amount.

Seller’s Agreement to Indemnify. (a) Subject to the terms and conditions set forth herein, from and after the Closing, Seller shall indemnify and hold harmless Buyer, Company Buyer and Subsidiaries and their respective its directors, officers, employees, affiliatesAffiliates, controlling personsPersons, agents and representatives and their respective successors and assigns (collectively, the "“Buyer Indemnitees"”) from and against all liability, demands, claims, actions or causes of action, assessments, losses, damages, costs and expenses (including, without limitation, including reasonable attorneys' ’ fees and expenses) (collectively "collectively, “Buyer Damages"”) asserted against or incurred by any Buyer Indemnitee as a result of or arising out of or caused by, directly or indirectly, any or all of the following: of: (i) any misrepresentation, a breach or failure of any representation or warranty of Seller contained in Article II or any Pre-Closing Covenant of Seller (provided that for the purposes of determining Buyer Damages and determining whether or not any such breach has occurred, any qualification or exception contained in any representation made by the or warranty of Seller in or pursuant Article II relating to materiality (including Seller Material Adverse Effect) shall be disregarded, other than the reference to “Material Contracts” in Section 2.10 and the referent to “Seller Material Adverse Effect” in Section 2.6(a)); __________ ***Certain information in this Agreement; document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. (ii) a breach of any failure or refusal by covenant (other than a Pre-Closing Covenant) of Seller to satisfy or perform contained in all material respects any covenant, term or condition of this Agreement required to be satisfied or performed by the Seller; Agreement; (iii) any claim against Company under any guaranty or surety by Company of the obligations or liabilities of Seller or its subsidiariesExcluded Assets and Retained Liabilities; or (iv) any claims asserted and all Seller Taxes. (b) Seller’s obligation to indemnify Buyer Indemnitees pursuant to Section 10.2(a) is subject to the following limitations: (i) No indemnification shall be made by Allegheny Health, Education Seller pursuant to Section 10.2(a) (other than with respect to the representation and Research Foundation, Allegheny University warranty set forth in Section 2.20): (1) with respect to any individual item (or group of related items) of Buyer Damage unless such Buyer Damage exceeds $100,000 (nor shall any such Buyer Damage below such threshold be applied to or considered for purposes of calculating the aggregate amount of Buyer Damages) and (2) unless the aggregate amount of all Buyer Damages of the Health Sciences, Allegheny University Medical Partners, Allegheny Hospitals, Centennial Buyer Indemnitees with respect to Section 10.2(a) shall exceed the Deductible (after which point Seller will be obligated only to indemnify Buyer from and Allegheny University Hospital -- East, or its agents, trustees or assigns (collectively, "Allegheny") against Buyer Damage in excess of the Deductible but less than or equal to the Cap). The maximum amount that Seller shall be required to pay in the aggregate pursuant to Section 10.2(a) in respect of all Buyer Damages by all Buyer Indemnitees is an amount equal to the Cap less the Deductible, after which arise point Seller will not have an obligation to indemnify Buyer from and against further such Buyer Damage. Notwithstanding the foregoing, (x) Seller’s obligation to indemnify Buyer under (1) Section 10.2(a)(i) for a breach of any of the Fundamental Representations, any representation or relate warranty set forth in Section 2.11 or any Pre-Closing Covenant, (2) Section 10.2(a)(ii), (3) Section 10.2(a)(iii) or (4) Section 10.2(a)(iv) shall not be subject to payments any of the limitations in this Section 10.2(b)(i) but shall not, in the aggregate (together with any and all amounts paid pursuant to Section 10.4(a)), exceed an amount equal to the Purchase Price and (y) no indemnification shall be made by Seller pursuant to Section 10.2(a)(i) for a breach of the representation and warranty set forth in Section 2.20 with respect to any individual item (or group of related items) of Buyer Damage unless such Buyer Damage exceeds $25,000 (nor shall any such Buyer Damage below such threshold be applied to or considered for purposes of calculating the aggregate amount of Buyer Damages), and any amounts paid in respect of such indemnification shall count against the maximum amount that Seller shall be required to pay in the aggregate pursuant to Section 10.2(a) as provided in the second sentence of this Section 10.2(b)(i). (ii) The amount of any Buyer Damages shall be reduced by (A) any amount directly or indirectly received by a Buyer Indemnitee with respect thereto under any insurance coverage or from any other party alleged to be responsible therefor and (B) the Company amount of any net Tax benefit actually realized by Buyer Indemnitee relating thereto. Buyer Indemnitees shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Buyer Indemnitee directly or Subsidiaries indirectly receives an amount under insurance coverage or from Allegheny such other party with respect to Buyer Damages at any time subsequent to any indemnification provided by Seller pursuant to this Section 10.2, then such Buyer Indemnitee shall promptly reimburse Seller for any payment made or expense incurred by Seller in connection with providing such indemnification up to such amount received by Buyer Indemnitee. Each Buyer Indemnitee shall take all reasonable steps to mitigate damages in respect of any claim for which such Buyer Indemnitee is seeking indemnification and shall use commercially reasonable efforts to avoid any costs or expenses associated with such claim and, if such costs and expenses cannot be avoided, to minimize the amount thereof; and (iii) Seller shall be obligated to indemnify Buyer Indemnitees only for those claims giving rise to Buyer Damages as to which Buyer Indemnitees have given Seller written notice thereof, and with respect to any claim pursuant to Section 10.2(a)(i), such notice must be given prior to the date when Allegheny filed its petition for relief under Chapter 11 end of the applicable survival period set forth in the United States Bankruptcy Court for the Western District of Pennsylvania, Case NosSection 10.1 with respect to such claim. 98-25773 through 98-25777, inclusive; and (v) any Proceeding against any Any written notice delivered by a Buyer Indemnitee by any person arising out to Seller with respect to Buyer Damages shall set forth with as much specificity as is reasonably practicable the basis of the foregoingclaim for Buyer Damages and, to the extent reasonably practicable, a reasonable estimate of the amount thereof.

Seller’s Agreement to Indemnify. Subject to Section 7.5, the Seller shall, in accordance with the terms and conditions set forth hereinhereof, from and after the Closing, Seller shall indemnify and hold harmless Buyerthe Purchaser, Company and its Subsidiaries and all of their respective directorsAffiliates, officers, directors, employees, affiliates, controlling persons, agents and representatives and their successors and assigns agents (collectively, the "Buyer IndemniteesPurchaser Indemnified Parties") from against and against in respect of any and all liability, demands, claims, actions or causes of action, assessmentsliabilities, losses, damages, costs and deficiencies, penalties, fines, costs, Tax or expenses (including, without limitation, the reasonable attorneys' fees and expensesexpenses of investigation and counsel) (collectively collectively, "Buyer DamagesLosses") arising out of or caused by, directly or indirectly, any or all of the followingresulting from: (i) any misrepresentation, misrepresentation or breach of warranty or failure the non-fulfillment of any warranty agreement, covenant or representation made obligation by the Seller made in or pursuant to this Agreement; (ii) any failure or refusal by Seller and all actions, suits, proceedings, claims, demands, assessments, judgments incidental to satisfy or perform in all material respects any covenant, term or condition the enforcement of this Agreement required to be satisfied or performed by the Sellersuch indemnification; (iii) any claim against Company under and all Taxes or liability (including any guaranty liability incurred as a transferee or surety successor, by Company contract, operation of law or otherwise) for or in respect of Taxes (A) of the obligations or liabilities of Seller or its subsidiaries; (iv) any claims asserted by Allegheny Health, Education and Research Foundation, Allegheny University of the Health Sciences, Allegheny University Medical Partners, Allegheny Hospitals, Centennial Seller's Subsidiaries or Affiliates (including Taxes relating to any transaction contemplated under Section 6.19 or any Taxes related to any transactions among the Seller and Allegheny University Hospital -- East, or its agents, trustees or assigns Subsidiaries (collectively, "Allegheny"including the Companies) against Buyer Indemnitees which arise from or relate to payments received by the Company or Subsidiaries from Allegheny within one week prior to the date when Allegheny filed its petition Closing)), except (1) as otherwise provided in Section 8 with respect to sharing of certain transfer taxes upon the sale of the Interests, or (2) with respect to Taxes of the Companies accrued on the Balance Sheet or Taxes, other than income Taxes, incurred and accrued for relief under Chapter 11 on the Companies' books and records in the United States Bankruptcy Court ordinary course of business consistent with past practice between the Balance Sheet Date and the Closing Date ("Assumed Sales Taxes"), (B) relating to or attributable to the Companies for any taxable period (or portion thereof) ending before the Western District of PennsylvaniaClosing Date (other than Assumed Sales Taxes), Case Nos. 98-25773 through 98-25777or (C) whether determined on a separate, inclusive; and (v) any Proceeding against any Buyer Indemnitee by any person arising out consolidated, combined, group or unitary basis of the foregoing.Seller or any of the Seller's Subsidiaries or Affiliates (1)

Seller’s Agreement to Indemnify. (a) Subject to the terms conditions and conditions provisions set forth herein, from each of Seller and after the ClosingShareholders will jointly and severally defend, Seller shall indemnify and hold harmless Buyer, Company and Subsidiaries and their respective its directors, officers, employees, affiliatesagents, controlling persons, agents subsidiaries and representatives and their successors and assigns shareholders (collectively, the "Buyer IndemniteesAffiliates") against and in respect of: (i) Any and all loss, damage or deficiency resulting from any misrepresentation, breach of warranty, or other violation of any of the covenants, warranties or representations contained in this Agreement or any documents executed herewith or the transactions contemplated hereby, or nonfulfillment of any agreement, on the part of Seller under this Agreement or any documents executed herewith or the transactions contemplated hereby, or from any misrepresentation in or omission from any certificate or other instrument furnished to Buyer in connection herewith; (ii) Any and all liabilities or obligations of Buyer or obligations with respect to or arising out of the ownership or operation of the Purchased Assets or the Business on or prior to the Closing Date, whether accrued, unaccrued, known, unknown, fixed, contingent, absolute or otherwise, and that are not expressly assumed by Buyer hereunder, including the matters disclosed on Schedule 3.5; (iii) all claims (including without limitation claims for personal injury or death, claims for property damages and all other private party claims and claims by governmental authorities or entities of any type), damages, pending or threatened actions, administrative proceedings (whether formal or informal proceedings), investigation costs, monitoring costs, assessment costs, response costs, remedial costs, removal costs, restoration costs, governmental requirements, judgments, losses of or damages to natural resources, penalties, liens, fines, settlements, punitive damages, interest and other losses, costs and liabilities of any kind (including without limitation attorneys' fees and court costs, and consultant and expert witness fees) arising in any manner out of or by reason of (1) breach of the warranties and representations in Section 3.24, (2) any violation or alleged violation of any Environmental Law, as interpreted and in effect on the Closing Date, by Seller or with respect to the Realty (as defined in Section 3.24) that first occurs or commences prior to Closing or results from Seller's acts or omissions prior to Closing, (3) any contamination or threatened or suspected contamination of the Realty (or any part thereof including without limitation the soil and groundwater thereunder) by Hazardous Materials that first occurs or commences prior to Closing or results from Seller's acts or omissions prior to Closing, or (4) any presence, generation, treatment, storage, disposal, transport release, suspected release or threatened releasee of Hazardous Materials on or from the Realty (or any part thereof including without limitation the soil and groundwater thereunder) that first occurs or commences prior to Closing or results from Seller's acts or omissions prior to Closing. Notwithstanding any of the foregoing, Seller and the Shareholders shall be required to indemnify a Buyer Affiliate under this Section 7.2(a)(iii) (and to the extent related thereto, Section 7.2(a)(v)) only for claims of which notice has been given to Seller or the Shareholders within 5 years after the Closing Date and only for damages under such claims that do not exceed in the aggregate $2,500,000 less any amounts paid to a Buyer Affiliate for or in connection with a breach of the representations and warranties contained in Section 3.24. Further notwithstanding any of the foregoing, Seller and the Shareholders shall not be required to indemnify a Buyer Affiliate under this Section 7.2(a)(iii) (and to the extent related thereto, Section 7.2(a)(v)): (A) for any costs incurred by a Buyer Affiliate in undertaking work to remediate Hazardous Materials in, on, under or about any of the Realty, unless (w) a governmental authority of any kind has issued an order or other directive requiring that such remediation work be undertaken, (x) such work is necessary to allow the full and safe use of the Realty for manufacturing and related purposes, (y) a third party has asserted or threatened a claim against a Buyer Affiliate that relates to or arises out of the presence of Hazardous Materials or (z) Buyer reasonably believes that it is in imminent danger of incurring a liability if such work in not performed; or (B) for any claims if Seller has caused, prior to Closing, such environmental testing to be conducted and reports to be prepared to satisfy Buyer in its reasonable discretion that no further conditions or circumstances exist that (a) could give rise to any claim or liability in connection with the presence of Hazardous Materials or a violation or alleged violation of any Environmental Law, or (b) could be required to be set forth on Schedule 3.24 as if the representations and warranties in Section 3.24 were being made after the completion of such tests and reports. (iv) Any and all liabilityclaims, losses, liabilities or expenses resulting from noncompliance with any bulk sale laws resulting from the transactions contemplated by this Agreement; and (v) Any and all claims, costs, damages, liabilities, deficiencies, losses or expenses suffered or incurred by any such party (whether as a result of third party claims (whether valid or not), demands, claimssuits, actions or causes of action, proceedings, investigations, judgments, assessments, lossesliabilities or otherwise), damages, including costs of investigation and expenses (including, without limitation, reasonable defense and attorneys' fees and expenses) (collectively "Buyer Damages") assessed, incurred or sustained by or against any of them, arising out of or caused by, directly or indirectly, in connection with any or all of the following: foregoing in respect of which indemnification rights exist. (b) No indemnification shall be required to be made under this Section 7.2 for breaches of representations and warranties until the aggregate amount of damages incurred by the Buyer Affiliates under this Section 7.2 for such breaches exceeds $50,000, and if such damages arising from such breaches exceed such amount then Seller and the Shareholders shall indemnify the Buyer Affiliates for the full amount of such damages up to and in excess of the initial $50,000. It is further agreed that the liability of Seller and the Shareholders pursuant to this Section 7.2 for such breaches of representations and warranties shall be limited to Claims (as defined below) asserted by the Buyer Affiliates within two years after the Closing Date. Notwithstanding the foregoing, this Section 7.2(b) and the limitations contained herein shall not apply to Claims arising under or in connection with: (i) any misrepresentationSection 7.2(a)(iii) (or Section 7.2(a)(v) to the extent related to a claim under Section 7.2(a)(iii)); (ii) Section 7.2(d) (relating to product-related claims); (iii) Section 3.11 (relating to Taxes) or otherwise relating to taxes; (iv) Section 3.10 (relating to Employee Benefit Plans; ERISA); (v) Section 3.14 (relating to Title to Purchased Assets); (vi) Section 3.15 (relating to Tangible Purchased Assets); (vii) Section 3.16 (relating to Leased Property); and (viii) Section 3.24 (relating to Environmental Matters); provided, breach or failure of any warranty or representation made however, that with respect to: (A) Claims covered by the foregoing clauses (iii) and (iv), the liability of Seller in or and the Shareholders pursuant to this AgreementSection 7.2 shall be limited to Claims of which a Buyer Affiliate has given notice to Seller or the Shareholders within the applicable statute of limitation; and (iiB) any failure or refusal by Seller to satisfy or perform in all material respects any covenant, term or condition of this Agreement required to be satisfied or performed Claims covered by the Seller; foregoing clause (iii) any claim against Company under any guaranty or surety by Company of viii), the obligations or liabilities liability of Seller and the Shareholders pursuant to this Section 7.2 (x) shall be limited to Claims of which a Buyer Affiliate has given notice to Seller or its subsidiaries; the Shareholders within 5 years after the Closing Date and (ivy) shall not exceed in the aggregate $2,500,000 less any claims asserted by Allegheny Health, Education amounts paid to a Buyer Affiliate under Section 7.2(a)(iii) (and Research Foundation, Allegheny University of the Health Sciences, Allegheny University Medical Partners, Allegheny Hospitals, Centennial and Allegheny University Hospital -- East, or its agents, trustees or assigns (collectively, "Allegheny"Section 7.2(a)(v) against Buyer Indemnitees which arise from or relate to payments received by the Company or Subsidiaries from Allegheny prior to the date when Allegheny filed its petition for relief extent related to a claim under Chapter 11 in the United States Bankruptcy Court for the Western District of Pennsylvania, Case Nos. 98-25773 through 98-25777, inclusive; and (v) any Proceeding against any Buyer Indemnitee by any person arising out of the foregoingSection 7.2(a)(iii)).

Seller’s Agreement to Indemnify. Subject to the terms Seller, jointly and conditions set forth herein, from and after the Closing, Seller severally shall fully indemnify and hold harmless Buyerand satisfy and defend Purchaser, Company its Affiliates and its Subsidiaries and all of their respective directorsAffiliates, officers, directors, employees, affiliatesrepresentatives, controlling personsattorneys, consultants and agents against and representatives in respect of any and their successors and assigns (collectively, the "Buyer Indemnitees") from and against all liability, demands, claims, actions or causes of actionobligations, assessmentsliabilities, losses, damages, deficiencies, penalties, fines, costs and or expenses (including, without limitation, reasonable attorneys' legal, expert and consultant fees and expensesexpenses and Taxes) (collectively "Buyer Damages"“Losses”) arising out of or caused by, directly or indirectly, any or all of the following: resulting from: (i) any misrepresentation, misrepresentation or breach or failure of any warranty or representation of Seller made by in this Agreement (including, without limitation, the Seller in or pursuant to this Agreement; Schedules, Annexes and Exhibits hereto and the certificates delivered hereunder); (ii) any failure breach or refusal by nonfulfillment of any agreement, covenant or obligation of Seller to satisfy or perform made in all material respects any covenant, term or condition of this Agreement required to be satisfied or performed by (including, without limitation, the Seller; Schedules, Annexes and Exhibits hereto and the certificates delivered hereunder); (iii) any claim against Company under any guaranty Actions or surety by Company of the obligations or liabilities of Seller or its subsidiariesProceedings listed on Schedule 3.8; and (iv) any claims asserted by Allegheny Health, Education and Research Foundation, Allegheny University of the Health Sciences, Allegheny University Medical Partners, Allegheny Hospitals, Centennial and Allegheny University Hospital -- East, or its agents, trustees or assigns (collectively, "Allegheny") against Buyer Indemnitees which arise from or relate to payments received by the Company or Subsidiaries from Allegheny prior to the date when Allegheny filed its petition for relief under Chapter 11 in the United States Bankruptcy Court for the Western District of Pennsylvania, Case Nos. 98-25773 through 98-25777, inclusive; and Excluded Liabilities; (v) any Proceeding against brokerage of finder’s fees or commissions or similar payments based upon any Buyer Indemnitee agreement or understanding made, or alleged to have been made, by any person Person with Seller (or any Person acting on its behalf) in connection with any of the transactions contemplated by this Agreement; (vi) (A) any liability that Purchaser may become subject in order to effect the assignment of the Oracle Contract to Purchaser and/or obtain the consent of Oracle Corporation to such assignment (including all costs associated therewith), and (B) the reasonable costs incurred by Purchaser to cause all out-of-compliance software referred to in Schedule 3.4(b) to become subject to compliant licenses; (vii) any liability to which Purchaser may become subject as a result of the fact that the transactions contemplated by this Agreement are being effected, at the request of Seller, without compliance with the provisions of any bulk transfer provisions of the Uniform Commercial Code (or any similar law (including, without limitation, the bulk sales laws of the State of California)); and (viii) any suit, action or other proceeding brought by any governmental authority or other Person arising out of, or in any way related to, any of the foregoingmatters referred to in Section 8.1(b)(i) through (vii). Any such Losses may be satisfied by Seller on a dollar for dollar basis, at the election of Seller, by forgiving any of the then outstanding principal amount of the Notes. Any net insurance proceeds or net proceeds from a third party indemnification payment received by Purchaser during the pendency of an indemnification claim against Seller with respect to that claim shall be credited against the amount of such indemnification claim and any such net proceeds received by Purchaser after payment in full of such indemnification claim by Seller shall be paid over to Seller.

Seller’s Agreement to Indemnify. Subject to Upon the terms and subject to the conditions set forth hereinof this Article VIII, Seller shall, from and after the Closing, Seller shall indemnify indemnify, defend and hold harmless BuyerBuyer and its Affiliates, Company and Subsidiaries which after the Closing shall include the Companies, (and their respective directors, directors and officers, employees, affiliates, controlling persons, agents and representatives and their successors and assigns ) (collectively, the "“Buyer Indemnitees"”) from and against any and all liabilityClaims, demands, claims, actions or causes of action, assessmentsliabilities, losses, damages, payments, deficiencies, awards, settlements, assessments, judgments, costs and expenses, including reasonable costs and expenses (including, without limitation, incurred in connection with investigating and defending any Claims and the reasonable attorneys' fees and expenses) disbursements of counsel, consultants and other professionals (collectively "Buyer collectively, “Damages") arising out ”), which any of them shall incur, sustain or caused bysuffer and which relate to or arise, directly or indirectly, any out of or all of the following: in connection with (i) any misrepresentation, breach or failure inaccuracy by Seller of any representation or warranty in this Agreement (each such breach and inaccuracy, a “Warranty Breach”) or representation made by the Seller in or pursuant to this Agreement; (ii) any failure breach or refusal non-compliance by Seller of any covenant or agreement in this Agreement (items (i) and (ii) collectively, “Buyer Claims”); it being agreed for purposes of this Section 8.01 that any Warranty Breach or breach or non-compliance by Seller of any covenant or agreement and the amount of any Damages arising therefrom shall be determined without giving effect to satisfy any qualification as to materiality (including the word “material” or perform “Material Adverse Effect”) except with respect to the representations and warranties set forth in all material respects the last sentence of Section 3.05(b) and Section 3.15. Notwithstanding anything herein to the contrary, the Buyer Indemnitees shall not be entitled to recover any covenant, term or condition Damages relating to any matter arising under one provision of this Agreement required to be satisfied or performed by the Seller; extent (iiii) any claim against Company under any guaranty or surety by Company of the obligations or liabilities of Seller or its subsidiaries; (iv) any claims asserted by Allegheny Health, Education and Research Foundation, Allegheny University of the Health Sciences, Allegheny University Medical Partners, Allegheny Hospitals, Centennial and Allegheny University Hospital -- East, or its agents, trustees or assigns (collectively, "Allegheny") against Buyer Indemnitees which arise from have already recovered the same Damages with respect to such matter pursuant to other provisions of this Agreement or relate to payments received by (ii) such Damages were taken into account in determining the Company or Subsidiaries from Allegheny prior to Closing Amount (and had the date when Allegheny filed its petition for relief under Chapter 11 in effect of reducing the United States Bankruptcy Court for the Western District of Pennsylvania, Case Nos. 98-25773 through 98-25777, inclusive; and (v) any Proceeding against any Buyer Indemnitee by any person arising out of the foregoingInitial Equity Purchase Price).

Seller’s Agreement to Indemnify. Subject to (a) Upon the terms and subject to the conditions set forth hereinin this Agreement, from and after the Closing, the Seller shall indemnify and hold harmless Buyer, Company the Buyer and Subsidiaries and their respective its directors, officers, employees, affiliates, controlling personsAffiliates, agents and representatives and their successors and assigns (collectively, the "“Buyer Indemnitees"”) from and against all liabilityliabilities, demands, claims, deficiencies, actions or causes of action, assessments, losses, damages, costs and expenses (including, including without limitation, interest, penalties, reasonable attorneys' ’ fees and expensesexpenses and all reasonable amounts paid in settlement of any of the foregoing) (collectively "collectively, “Buyer Damages"”) asserted against or incurred by any Buyer Indemnitee to the extent arising out of or caused by, directly or indirectly, any or all of resulting from the following: (i) any misrepresentation, breach or failure of any representation or warranty or representation made by of the Seller in or pursuant to this Agreement; (ii) any failure breach or refusal by Seller to satisfy or perform in all material respects nonfulfillment of any covenant, term agreement or condition other obligation of the Seller in this Agreement required to be satisfied or performed by the SellerAgreement; (iii) any claim against Company under any guaranty or surety by Company the matters listed in Section 7.2 of the obligations or liabilities of Seller or its subsidiariesDisclosure Letter; (iv) any claims asserted by Allegheny Healthclaim for brokerage or finder’s fees or commissions or similar payments based on any agreement or understanding alleged to have been made in connection with the Purchase; (v) any Seller Benefit Plans, Education including without limitation, the Seller Retiree Medical Plan, the Seller Pension Plan and Research Foundation, Allegheny University the Seller Severance Plan; (vi) any Legal Proceeding or Order applicable to the Company as of the Health Sciences, Allegheny University Medical Partners, Allegheny Hospitals, Centennial and Allegheny University Hospital -- EastClosing Date, or its agents, trustees (vii) any Indebtedness of the Company to the extent attributable to the operation of the Company or assigns the Company Business prior to the Closing Date. (collectively, "Allegheny"b) against The obligation of the Seller to indemnify the Buyer Indemnitees under Section 7.2 is subject to the following limitations: (i) No indemnification shall be made by the Seller pursuant to clause (i) of Section 7.2(a) unless the aggregate amount of Buyer Damages subject to such clauses exceeds $750,000 (the “Threshold Amount”) and, in such event, indemnification shall be made by the Seller from the first dollar; provided, however, that any Buyer Damages that individually total less than $100,000 (“De Minimis Buyer Losses”) shall be excluded in their entirety for all purposes, including counting towards fulfillment of the Threshold Amount, and the Seller in no event shall have any liability hereunder to any Buyer Indemnitees for any such De Minimis Buyer Losses; and provided, further, that claims for Buyer Damages pursuant to Section 7.2(a) resulting from fraud or from a breach of the Fundamental Representations or the representations and warranties identified in Section 7.1(c) and Section 7.1(d) made by the Seller shall not be subject to the Threshold Amount, and shall be recoverable from the first dollar. This Section 7.2(b)(i) shall not apply to claims for indemnification made pursuant to clauses (ii), (iii), (iv), (v), (vi) and (vii) of Section 7.2(a). (ii) In no event shall the Seller’s aggregate obligation to indemnify the Buyer Indemnitees pursuant to clause (i) of Section 7.2(a) exceed $40,000,000 in the aggregate, provided, however, that this limitation shall not apply to claims for Buyer Damages pursuant to Section 7.2(a) resulting from fraud or from a breach of the Fundamental Representations or the representations and warranties identified in Section 7.1(c) and Section 7.1(d) made by the Seller. This Section 7.2(b)(ii) shall not apply to claims for indemnification made pursuant to clauses (ii), (iii), (iv), (v), (vi) and (vii) of Section 7.2(a). (iii) The amount of any Buyer Damages shall be reduced by any amount directly or indirectly received by a Buyer Indemnitee (including, for this purpose, the Company) with respect to such Buyer Damages under any insurance coverage or from any other party alleged to be responsible for such Buyer Damages less any expenses of recovery, deductibles and/or co-payment. The Buyer Indemnitees shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Buyer Indemnitee directly or indirectly receives any amount under insurance coverage or from such other party with respect to Buyer Damages at any time subsequent to any indemnification provided by, or for the benefit of, the Seller under this Section 7.2, then such Buyer Indemnitee shall promptly reimburse the Seller for any payment made or expense incurred by, or for the benefit of, the Seller in connection with providing such indemnification up to such amount received by such Buyer Indemnitee less any expenses of recovery, deductibles and/or co-payments. (iv) The Seller shall be obligated to indemnify the Buyer Indemnitees only for those claims giving rise to Buyer Damages as to which arise from or relate the Buyer Indemnitees have given the Seller written notice thereof prior to payments the end of the applicable Survival Period. Any written notice delivered by a Buyer Indemnitee to the Seller with respect to Buyer Damages shall set forth with as much specificity as is reasonably practicable the basis of the claim for Buyer Damages and, to the extent reasonably practicable, a reasonable estimate of the amount of such claim. (v) The Seller shall be entitled to control each of the matters and Legal Proceedings referenced in clause (iii) of Section 7.2(a), at the Seller’s expense. The Buyer shall, and shall cause the Company to, cooperate with the Seller in each of such matters and Legal Proceedings and take all actions reasonably requested by the Seller in connection with such matters and Legal Proceedings, including the filing of documents in the Legal Proceedings, and the Seller shall promptly reimburse the Buyer and the Company for all reasonable out-of-pocket expenses incurred by them in connection with such cooperation and actions. Such cooperation shall include access to books, records and personnel. With respect to such matters and Legal Proceedings referenced in clause (iii) of Section 7.2(a), the Seller shall be entitled to all proceeds, if any, received by the Company or Subsidiaries from Allegheny prior with respect to such matters and Legal Proceedings, and the Buyer shall cause the Company to turn over promptly to the date when Allegheny filed its petition for relief under Chapter 11 in the United States Bankruptcy Court for the Western District of Pennsylvania, Case Nos. 98-25773 through 98-25777, inclusive; and (v) any Proceeding against any Buyer Indemnitee by any person arising out of the foregoingSeller all such proceeds.

Seller’s Agreement to Indemnify. Subject (a) The Seller hereby agrees to the terms and conditions set forth hereinindemnify, from and after the Closing, Seller shall indemnify defend and hold harmless Buyerthe Buyer and its officers, Company and Subsidiaries and their respective directors, officers, employees, affiliatesagents, controlling persons, agents representations and representatives and their successors and assigns Affiliates (collectively, the "“Buyer Indemnitees"Indemnified Parties”) from and against all liability, demands, claims, actions or causes of actionactions, losses, assessments, lossesfees, damages, liabilities, obligations, judgments, interest, penalties, fines, Taxes, diminutions in value, costs and expenses (includingincluding attorneys’ fees, without limitationsettlement costs, arbitration costs and any reasonable attorneys' fees legal and other expenses) (collectively "“Damages”) incurred by any of the Buyer Damages") Indemnified Parties arising out of or caused by, directly in connection with or indirectly, resulting from any or all of the following: following (collectively, “Buyer Damages”): (i) any misrepresentation, inaccuracy, or breach or failure of any representation or warranty or representation made by of the Seller contained as of the Closing Date in or pursuant to this Agreement; , any other Transactions Agreement or in the Seller Certificate; (ii) any failure breach or refusal by nonfulfillment of any covenant or agreement of the Seller to satisfy or perform contained in all material respects any covenant, term or condition of this Agreement required to be satisfied or performed by the Seller; in any other Transaction Agreement; (iii) any claim against Company Liability or alleged Liability of the Seller arising from the operation of the PhosLo Business prior to the Effective Time that is not an Assumed Liability, whether asserted before or after the Closing, including any Liability or alleged Liability that becomes, or is alleged to have become, a Liability of the Buyer under any guaranty bulk transfer law of any jurisdiction, under any common law doctrine of de facto merger or surety successor liability, or otherwise by Company operation of the obligations or liabilities of Seller or its subsidiaries; law; (iv) any claims asserted by Allegheny Health, Education and Research Foundation, Allegheny University Liability to any Governmental Authority in respect of the Health Sciences, Allegheny University Medical Partners, Allegheny Hospitals, Centennial and Allegheny University Hospital -- East, PhosLo Business (or its agents, trustees or assigns (collectively, "Allegheny"regarding the conduct of the PhosLo Business) against Buyer Indemnitees which arise from or relate to payments received by the Company or Subsidiaries from Allegheny prior to the date when Allegheny filed its petition for relief under Chapter 11 in Effective Time, whether asserted before or after the United States Bankruptcy Court for the Western District of Pennsylvania, Case Nos. 98-25773 through 98-25777, inclusiveClosing; and or (v) any Proceeding against Liability or alleged Liability incurred or arising in connection with any Buyer Indemnitee demands, claims or actions by or on behalf of any person shareholders of the Seller (including shareholder derivative actions) arising out of or relating to the foregoingtransactions contemplated by this Agreement. (b) Within ten days after the Seller’s receipt from any Buyer Indemnified Party of a claim for Buyer Damages, Seller shall pay such Buyer Indemnified Party in cash, subject to the provisions of Section 10.5 in the event of a disagreement and subject to the other provisions of this Article X, the amount set forth in such claim for Buyer Damages.

Seller’s Agreement to Indemnify. Subject to Upon the terms and subject to the conditions set forth hereinof this Article VIII, Seller shall, from and after the Closing, Seller shall indemnify indemnify, defend and hold harmless Buyer, Company Buyer and Subsidiaries its Affiliates (and their respective directors, officers, managers, shareholders, members, managers, partners, employees, affiliatesagents, controlling persons, agents attorneys and representatives and their successors and assigns (collectively, the "Buyer Indemnitees"representatives) from and against any and all liabilitycharges, demandsdues, Taxes, fines, claims, actions or causes of action, assessmentsLiabilities, losses, damages, payments, deficiencies, awards, settlements, assessments, judgments, fees, penalties, costs and expenses (includingexpenses, without limitation, including the reasonable attorneys' fees and expenses) disbursements of counsel (collectively "Buyer collectively, “Damages") arising out ”), which any of them shall incur, sustain or caused bysuffer and which relate to or arise, directly or indirectly, any out of or all of the following: in connection with (i) any misrepresentation, breach or failure inaccuracy of any representation or warranty or representation made by the Seller in this Agreement or pursuant to this Agreement; in any Seller Ancillary Document (each such breach and inaccuracy, a “Seller Warranty Breach”), (ii) any failure breach, non-compliance, nonfulfillment or refusal nonperformance by Seller to satisfy of any covenant or perform agreement in all material respects any covenantthis Agreement, term or condition of this Agreement required to be satisfied or performed by the Seller; (iii) any claim against Company under any guaranty or surety by Company of the obligations or liabilities of Seller or its subsidiaries; Tax Amount, (iv) any claims asserted by Allegheny HealthBuyer Tax Losses, Education and Research Foundation(v) Closing Indebtedness, Allegheny University (vi) Excluded Liabilities, (vii) those Actions listed on Section 3.20(a) of the Health SciencesDisclosure Schedule, Allegheny University Medical Partners, Allegheny Hospitals, Centennial and Allegheny University Hospital -- East, or its agents, trustees or assigns (collectively, "Allegheny"viii) any Actions against Buyer Indemnitees which arise from or relate to payments received by the Company or Subsidiaries from Allegheny Companies filed after the date of this Agreement but prior to the date when Allegheny filed its petition for relief under Chapter 11 in Closing Date, (ix) any matter set forth on Section 8.01(ix) of the United States Bankruptcy Court for the Western District of PennsylvaniaDisclosure Schedules, Case Nos. 98-25773 through 98-25777(x) Seller Retention Obligations, inclusive; and (vxi) any Proceeding against any expenses of Seller related to the transaction contemplated by this Agreement that are incurred by the Companies (items (i)-(viii) collectively, “Buyer Indemnitee by any person arising out of the foregoingClaims”).

Seller’s Agreement to Indemnify. Subject to Upon the terms and subject to conditions set forth herein, from and after the Closingof this Article XI, Seller shall indemnify indemnify, defend and hold harmless Buyer, its Affiliates (including the Company and Subsidiaries its Subsidiaries) and their respective directorspartners, officers, employeesdirectors, affiliates, controlling persons, agents and representatives and their successors and assigns employees (collectively, the "Buyer IndemniteesIndemnified Parties") ), from and against all liability, demands, claims, actions or causes of action, assessments, losses, damages, liabilities, costs and expenses (includingexpenses, without limitation, including reasonable attorneys' fees and expenses) expenses (collectively collectively, "Buyer Damages") arising out ), asserted against, resulting to, imposed upon or suffered or incurred by Buyer Indemnified Parties by reason of or caused by, directly or indirectly, any or all of the followingarising from: (ia) a breach of any representation or warranty of Seller contained in this Agreement or in any certificate delivered by or on behalf of Seller hereunder; (b) a breach of any covenant of Seller contained in this Agreement (other than any breach of Seller's covenants set forth in Section 6.1(e), which shall be governed by the terms of Section 6.1(e)); (c) Unrelated Liabilities; (d) the Retained Litigation; (e) any misrepresentation, breach or failure of any warranty or representation made by the Seller in or pursuant to this AgreementPartnership Claim; (iif) any failure or refusal by Seller to satisfy or perform in all material respects any covenant, term or condition of this Agreement required to be satisfied or performed by the Seller; (iii) any claim against Company under any guaranty or surety by Company of the obligations or liabilities liability for Indebtedness of Seller or its subsidiariesAffiliates (other than (i) Intercompany Indebtedness and (ii) Capitalized Lease Indebtedness, Earn-Out Indebtedness and other Indebtedness to the extent taken into account in determining the Purchase Price pursuant to Section 1.6); (ivg) any claims asserted by Allegheny Health, Education and Research Foundation, Allegheny University of the Health Sciences, Allegheny University Medical Partners, Allegheny Hospitals, Centennial and Allegheny University Hospital -- East, or its agents, trustees or assigns liability for Cash Due to Minority Interest Holders (collectively, "AlleghenyBuyer Claims") against Buyer Indemnitees which arise from or relate to payments received by the Company or Subsidiaries from Allegheny prior ). Notwithstanding anything herein to the date when Allegheny filed its petition contrary, for relief under Chapter 11 in purposes of (x) determining whether any such breach of representation or warranty has occurred, (y) calculating the United States Bankruptcy Court for the Western District amount of Pennsylvania, Case Nos. 98-25773 through 98-25777, inclusive; any Damages and (vz) any Proceeding against any Buyer Indemnitee by any person arising out calculating the thresholds set forth in Section 11.3 below, in each case, all "Material Adverse Effect" and materiality qualifications contained in such representations and warranties (including those relating to the corresponding schedules) shall be disregarded, as if such qualifications were not included therein other than as relates to the representations and warranties contained in Section 3.7(a) through (c) and the first sentence of the foregoingSection 3.8.

Seller’s Agreement to Indemnify. (a) Subject to the terms and conditions limitations set forth hereinin this Agreement, from and after the Closing, Seller the Sellers, jointly and severally, shall indemnify and hold harmless Buyer, Company the Buyer and Subsidiaries and their respective its directors, officers, shareholders, employees, affiliates, controlling persons, agents and representatives and their successors and assigns (each, a “Buyer Indemnified Party” and collectively, the "“Buyer Indemnitees"Indemnified Parties”) from and against all liability, demands, claims, actions or causes of action, suits, proceedings, hearings, investigations, charges, complaints, injunctions, judgments, orders, decrees, rulings, assessments, losses, damages, costs dues, penalties, fines, costs, amounts paid in settlement, obligations, taxes, liens and expenses (including, without limitation, reasonable attorneys' fees and expenses’ fees) (collectively "collectively, the “Buyer Damages"”) asserted against or incurred by any Buyer Indemnified Party as a result of or arising out of or caused by, directly or indirectly, any or all of the following: (i) any misrepresentationthe Excluded Liabilities, breach or failure of any warranty or representation made by the Seller in or pursuant to this Agreement; (ii) any failure misrepresentation in any of the representations or refusal any breach of the warranties made by Seller to satisfy or perform the Sellers in all material respects any covenant, term or condition Article III of this Agreement required to be satisfied Agreement, the Disclosure Schedule or performed any closing certificate delivered by the Seller; Sellers pursuant to this Agreement or (iii) any claim against Company under breach of, or failure to perform, any guaranty agreement or surety by Company covenant of the Sellers in this Agreement. (b) The obligations or liabilities of Seller or its subsidiaries; (iv) any claims asserted by Allegheny Health, Education and Research Foundation, Allegheny University of the Health SciencesSellers to indemnify the Buyer Indemnified Parties pursuant to Section 6.2(a) hereof are subject to the following limitations: (i) No indemnification shall be made by the Sellers with respect to any claim made pursuant to Section 6.2(a)(ii) unless the aggregate amount of Buyer Damages under all claims exceeds an amount equal to $200,000 (the “Basket Amount”) and, Allegheny University Medical Partnersin such event, Allegheny Hospitalsindemnification shall be made by the Sellers for all Buyer Damages (including all claims under the Basket Amount); provided, Centennial however, that the foregoing limitations shall not apply to any breach of any representation or warranty contained in any Excluded Representation; (ii) In no event shall the aggregate obligation of the Sellers to indemnify the Buyer Indemnified Parties as a result of a breach of any representation or warranty (other than an Excluded Representation) exceed an amount equal to $6,000,000 (the “Cap”), it being further understood and Allegheny University Hospital -- Eastagreed that the Escrow Deposit less $1,500,000 shall serve as a limitation on and as the sole and exclusive source of funds available to the Buyer Indemnified Parties for satisfaction of the Sellers’ indemnity obligations as a result of a breach of any representation or warranty (other than an Excluded Representation) by the Sellers; and (iii) Notwithstanding anything to the contrary herein contained, or its agents, trustees or assigns (collectively, "Allegheny") against the indemnification obligations under Section 6.2 shall not limit the right of the Buyer Indemnitees Indemnified Parties to recover Buyer Damages which arise result from or relate to payments received arise out of actual fraud by the Company or Subsidiaries from Allegheny prior to the date when Allegheny filed its petition for relief under Chapter 11 in the United States Bankruptcy Court for the Western District of Pennsylvania, Case Nos. 98-25773 through 98-25777, inclusive; and (v) any Proceeding against any Buyer Indemnitee by any person arising out of the foregoingSellers.

Seller’s Agreement to Indemnify. Subject to Upon the terms and subject to conditions set forth herein, from and after the Closingof this Article XI, Seller shall indemnify indemnify, defend and hold harmless Buyer, its affiliates (including the Company and Subsidiaries its Subsidiaries) and their respective officers, directors, officersagents, employees, affiliates, controlling persons, agents stockholder and representatives and their successors and assigns (collectively, the "Buyer IndemniteesIndemnified Parties") ), at any time after the Closing, from and against all liability, demands, claims, actions or causes of action, assessments, losses, damages, diminution in value, liabilities, costs and expenses (includingexpenses, without limitationincluding interest, penalties and reasonable attorneys' fees and expenses) (collectively "Buyer Damages") arising out of or caused by, directly or indirectly, any or all of the following: (i) any misrepresentation, breach or failure of any warranty or representation made by the Seller in or pursuant to this Agreement; (ii) any failure or refusal by Seller to satisfy or perform in all material respects any covenant, term or condition of this Agreement required to be satisfied or performed by the Seller; (iii) any claim against Company under any guaranty or surety by Company of the obligations or liabilities of Seller or its subsidiaries; (iv) any claims asserted by Allegheny Health, Education and Research Foundation, Allegheny University of the Health Sciences, Allegheny University Medical Partners, Allegheny Hospitals, Centennial and Allegheny University Hospital -- East, or its agents, trustees or assigns expenses (collectively, "AlleghenyDamages"), asserted against, resulting to, imposed upon or suffered or incurred by Buyer Indemnified Parties by reason of or arising from (a) against Buyer Indemnitees a breach of any representation or warranty of Seller contained in or made pursuant to this Agreement (other than those contained in Section 3.14 hereof), (b) other than such for which arise indemnification is provided in Section 6.1(c), non-fulfillment of any agreement or covenant of Seller contained in or made pursuant to this Agreement or (c) the Excluded Assets (including any obligations and liabilities arising from or relate to payments received by the Company or Subsidiaries from Allegheny prior relating to the date when Allegheny filed its petition for relief under Chapter 11 Excluded Assets) or the transactions contemplated by Section 2.4 hereof (collectively, "Buyer Claims"). Any provision in this Agreement to the contrary notwithstanding, in the United States Bankruptcy Court for event the Western District Closing occurs and Buyer thereafter sells or otherwise disposes of Pennsylvania, Case Nos. 98-25773 through 98-25777, inclusive; and (v) all or any Proceeding against any Buyer Indemnitee by any person arising out portion of the foregoing.Continuing Business, the liability of Seller under this Article 11 automatically shall expire and terminate with respect to a "Division" (as defined below) of the Continuing Business of which Buyer makes a "Disposition" (as defined below), concurrent with the effective date of any such Disposition, and neither the Buyer Indemnified Parties, nor any purchaser or acquiror of any such portion of the Continuing Business shall have any right or remedy under this Article 11 or otherwise with respect to that portion of the Continuing Business, irrespective of the form of the transaction or the method or manner in which the sale or disposition occurs. For purposes of the immediately preceding sentence, a "Division" shall mean any of the Integrated Retail Banking, Consumer Lending, Residential Lending Services, Integrated Financial Services, Financial Services

Seller’s Agreement to Indemnify. (a) Subject to the terms and conditions set forth herein, from and after the Closingof this Article X, Seller shall indemnify agrees to indemnify, defend and hold harmless Buyerharmless, Company each member of the Buyer Operating Group, and Subsidiaries and their respective the officers, directors, officersemployees and agents, employees, affiliates, controlling persons, agents and representatives and their successors and assigns of each of them (collectively, the "Indemnified Buyer IndemniteesGroup") ), from and against against, for, and in respect of any and all liabilityClaims and Losses asserted against, demands, claims, actions or causes of action, assessments, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) (collectively "Buyer Damages") arising out of, relating to, imposed upon or incurred by any member of or caused bythe Indemnified Buyer Group, directly or indirectly, any by reason of or all of the following: resulting from (i) any misrepresentation, breach or failure of any warranty or representation made by the Seller inaccuracy in or pursuant to breach by Seller of its representations or warranties contained in Section 4.1(e) of this Agreement; , (ii) any failure inaccuracy in or refusal breach by Seller to satisfy of its other representations or perform warranties contained in all material respects any covenantthis Agreement, term or condition of this Agreement required to be satisfied or performed by the Seller; (iii) any claim against Company breach by Seller of its obligations, covenants or agreements under any guaranty or surety by Company of the obligations or liabilities of Seller or its subsidiaries; this Agreement, (iv) Seller's failure to comply with any claims asserted by Allegheny Healthapplicable bulk sales laws, Education and Research Foundation, Allegheny University of the Health Sciences, Allegheny University Medical Partners, Allegheny Hospitals, Centennial and Allegheny University Hospital -- East, or its agents, trustees or assigns (collectively, "Allegheny") against Buyer Indemnitees which arise from or relate to payments received by the Company or Subsidiaries from Allegheny prior to the date when Allegheny filed its petition for relief under Chapter 11 in the United States Bankruptcy Court for the Western District of Pennsylvania, Case Nos. 98-25773 through 98-25777, inclusive; and (v) any Proceeding against Excluded Liabilities, (vi) the failure of Seller to obtain consents, Permits and/or Approvals required to transfer Contracts, Permits and/or Approvals and similar items in each case constituting the Acquired Assets to Buyer or (vii) any allegation that the conduct, practices or products made, used or sold, by the Business at any time prior to the Closing misappropriates or infringes any Intellectual Property of any Person (collectively "Buyer Indemnitee by Indemnified Claims"). (b) Notwithstanding anything to the contrary in Section 10.2(a) above but subject to Section 10.2(c) below, (i) Seller shall not be liable for Buyer Indemnified Claims arising under subsection 10.2(a)(ii), (iv), (vi) and (vii) unless (A) the amount of such claim either individually, or together with any person related claims, equals or exceeds $25,000 and (B) the aggregate of all Buyer Indemnified Claims exceeds U.S. $5 million (the "Threshold Amount"); provided, -------- however, that when such claims equal or exceed the Threshold Amount, Seller ------- shall be liable for, and provide indemnification with respect to, the full amount of all such claims, and (ii) Seller shall not be liable for Buyer Indemnified Claims arising under Section 10.2(a)(ii), (iv), (v), (vi) and (vii) exceeding in the aggregate U.S. $636 million (the "Maximum Amount"). (c) Notwithstanding anything to the contrary contained in Sections 10.2(a) and (b) above, (i) in no event shall Buyer Indemnified Claims (A) arising under Sections 10.2(a)(i), (B) 10.2(a)(iii) to the extent that any such breach relates to a breach of an agreement to make any payment or reimbursement in accordance with the terms of the Agreement, or (C) otherwise arising out of, relating to, imposed upon, or incurred by reason of or resulting from the foregoingExcluded Liabilities set forth in Exhibit J attached hereto be subject to the Maximum Amount or taken into account in determining the amount of Losses subject to the Maximum Amount, and (ii) in no event shall Buyer Indemnified Claims arising under Section 10.2(a)(i) be subject to the provisions of Section 10.2(b).

Seller’s Agreement to Indemnify. (a) Subject to the terms and conditions set forth herein, from and after the Closing, Seller shall indemnify and hold harmless Buyer, Company Buyer and Subsidiaries and their respective its directors, officers, employees, affiliates, controlling persons, agents and representatives and their successors and assigns (collectively, the "“Buyer Indemnitees"”) from and against all liability, demands, claims, actions or causes of action, assessments, losses, damages, costs and expenses (including, without limitation, including the reasonable attorneys' fees and expensesexpenses of attorneys and experts) (collectively "“Damages”) asserted against or incurred by any Buyer Damages") Indemnitee as a result of or arising out of: (i) a breach by Seller of any representation or caused bywarranty contained in Article V of this Agreement when made or at and as of the Closing, (ii) any breach or violation of any covenant or agreement made in this Agreement by Seller to be performed after the Closing, (iii) any Excluded Liabilities, (iv) any failure by Seller to deliver any of the Purchased Assets, directly or (v) the ownership, use or indirectlypossession of the Excluded Assets. (vi) any Taxes imposed on or with respect to the Companies which are attributable to any Pre-Closing Tax Period or result from any transaction in a Pre-Closing Tax Period, any Taxes attributable to the ownership or all operation of the followingPurchased Assets and/or the VocalData Business during any Pre-Closing Tax Period, any liability for Taxes under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign tax Law) or as a transferee or successor, and any Taxes resulting from a breach of Seller’s representations and warranties in Section 5.17 (except to the extent such Taxes were already paid or reimbursed by Seller pursuant to Section 8.9). (b) Seller’s obligations to indemnify the Buyer Indemnitees pursuant to Section 11.2(a)(i) hereof with respect to a breach of a representation or warranty contained in this Agreement are subject to the following limitations: (i) No indemnification shall be made by Seller unless the aggregate amount of Damages exceeds $500,000 and, in such event, indemnification shall be made by Seller from the first dollar of such Damages. (ii) In no event shall Seller’s aggregate obligation to indemnify the Buyer Indemnitees exceed 25% of the total value of: (A) the Buyer Investment Shares to be received at Closing and (B) the shares of GenBand Common Stock issued pursuant to the Dilution Protection Right, or, in the case of fraud, 100% of the total value of: (A) the Buyer Investment Shares to be received at Closing and (B) the shares of GenBand Common Stock issued pursuant to the Dilution Protection Right, whether paid in cash, Escrow Shares in accordance with the Escrow Agreement, and/or other Buyer Investment Shares or Dilution Protection Shares as contemplated by Section 11.2(c) below. (c) Notwithstanding anything to the contrary herein, Seller may, at its election and in its sole discretion, elect to satisfy any indemnification obligations to any Buyer Indemnitee under this Article XI by: (i) payment in cash, (ii) delivery of Escrow Shares in accordance with the Escrow Agreement; and/or (iii) other Buyer Investment Shares or Dilution Protection Shares, in any misrepresentationcombination of the foregoing determined by Seller having a value equal to the amount of the indemnification obligation. Escrow Shares, breach or failure Buyer Investment Shares and/or Dilution Protection Shares delivered for purposes of satisfying any such indemnification obligation of Seller and/or referenced for purposes of computing the value of any warranty indemnity caps and limitations under this Article 11 shall be valued at one dollar and forty-four cents ($1.44) per Escrow Share, Buyer Investment Share and/or Dilution Protection Share, as applicable. Subject to the foregoing and during the term of the Escrow Agreement, Seller shall deliver Escrow Shares in satisfaction of such indemnification obligation pursuant to and in accordance with the terms of the Escrow Agreement. (d) The amount of any Damages shall be reduced by any amount received by a Buyer Indemnitee with respect thereto under any insurance coverage or representation made from any other party alleged to be responsible therefor. The Buyer Indemnitees shall use Reasonable Efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Buyer Indemnitee receives an amount under insurance coverage directly as a result of Damages at any time subsequent to any indemnification provided by the Seller in or pursuant to this Agreement; (ii) Section 11.2, then such Buyer Indemnitee shall promptly reimburse Seller for any failure or refusal payment made by Seller in connection with such indemnification up to satisfy or perform in all material respects any covenant, term or condition of this Agreement required to be satisfied or performed by the Seller; (iii) any claim against Company under any guaranty or surety by Company of the obligations or liabilities of Seller or its subsidiaries; (iv) any claims asserted by Allegheny Health, Education and Research Foundation, Allegheny University of the Health Sciences, Allegheny University Medical Partners, Allegheny Hospitals, Centennial and Allegheny University Hospital -- East, or its agents, trustees or assigns (collectively, "Allegheny") against Buyer Indemnitees which arise from or relate to payments such amount received by the Company or Subsidiaries from Allegheny prior Buyer Indemnitee. (e) The caps applicable to Seller’s obligation to indemnify the Buyer Indemnitees under Section 11.2(b)(ii) are modified as expressly described below, and all other terms of Seller’s indemnity shall remain unchanged in all other respects: (1) Monetary damages under Section 11.2(a)(ii) shall be subject to a cap of 100% of the total value of: (A) the Buyer Investment Shares to be received at Closing and (B) the shares of GenBand Common Stock issued pursuant to the date Dilution Protection Right (provided that this Section 11.2 shall not limit Buyer’s ability to seek injunctive relief, when Allegheny filed its petition for relief under Chapter 11 in the United States Bankruptcy Court for the Western District of Pennsylvaniaappropriate); (2) Sections 11.2(a)(iii), Case Nos. 98-25773 through 98-2577711.2(a)(v), inclusive; and (v11.2(a)(vi) any Proceeding against any Buyer Indemnitee by any person arising out of the foregoingshall not be subject to this cap.

Seller’s Agreement to Indemnify. Subject to the terms and conditions set forth herein, from and after the Closing, Seller Lake (the “Indemnifying Seller”) shall indemnify and hold harmless Buyerthe Purchaser, Company and Subsidiaries its Affiliates, any of its respective successors or assigns and their respective directors, officers, employees, affiliates, controlling persons, agents and representatives and their successors and assigns officers or employees (collectively, the "Buyer Indemnitees"each a “Purchaser Indemnified Party”) from and against all liability, demands, claims, actions or causes of action, assessments, losses, damagescharges, reasonable out-of-pocket costs and expenses (includingincluding interest, without limitationcourt costs, reasonable out-of-pocket attorneys' ’ fees and expenses, but excluding, in each case, incidental, consequential, indirect or punitive losses, liabilities, damages or expenses and any losses, liabilities, damages or expenses for lost profits or diminution in value) (collectively "Buyer “Purchaser Damages"”) incurred by a Purchaser Indemnified Party as a result of or arising out of (a) any breach of any representation or caused by, directly or indirectly, any or all warranty of the following: Company Group contained in Article V of this Agreement, (ib) any misrepresentation, breach or failure inaccuracy of any representation or warranty of the Company Group set forth in any certificate or other document delivered pursuant to or in connection with this Agreement, including the certificate to be provided to the Purchaser pursuant to Section 10.1; (c) any breach or inaccuracy of any representation made or warranty of the Sellers contained in Article IV of this Agreement, (d) any breach of or noncompliance by the Seller Sellers with respect to any covenant or agreement contained in or pursuant to this Agreement; (iie) with respect to the 2008 and 2009 plan years, any failure or refusal by Seller to satisfy or perform the actual deferral percentage nondiscrimination testing under the Xxxxxx Energy 401(k) Plan; provided that Purchaser shall, in all material respects any covenantgood faith, term or condition utilize reasonable best efforts to minimize the costs of this Agreement required to be satisfied or performed by correction and excise taxes in accordance with the Seller; (iii) any claim against Company Internal Revenue Service’s published guidance under any guaranty or surety by Company of applicable Treasury Regulations and the obligations or liabilities of Seller or its subsidiaries; (iv) any claims asserted by Allegheny Health, Education and Research Foundation, Allegheny University of the Health Sciences, Allegheny University Medical Partners, Allegheny Hospitals, Centennial and Allegheny University Hospital -- East, or its agents, trustees or assigns (collectively, "Allegheny") against Buyer Indemnitees which arise from or relate to payments received by the Company or Subsidiaries from Allegheny prior to the date when Allegheny filed its petition for relief under Chapter 11 in the United States Bankruptcy Court for the Western District of Pennsylvania, Case Nos. 98-25773 through 98-25777, inclusiveEmployee Plans Compliance Resolution System; and (vf) for periods before the Closing Date, any Proceeding against failure to comply with legal requirements applicable to the Company Group’s pre-tax premium plan; provided that neither Purchaser nor the Company Group shall self-report any Buyer Indemnitee such legal deficiencies to any governmental agency unless specifically requested to do so by any person arising out action of the foregoinga court or governmental agency.

Seller’s Agreement to Indemnify. Subject to the terms and conditions set forth herein, from and after the Closingof this Article 11, Seller shall indemnify hereby agrees to indemnify, defend and hold harmless BuyerBuyer and its officers, Company and Subsidiaries and their respective directors, officers, employees, affiliatesstockholders, controlling personsrepresentatives, agents and representatives and their agents, successors and assigns (collectively, the "Buyer Indemnitees") from and against all liabilitylosses, damages, demands, claims, actions or causes of action, assessments, lossesactions, damagesTaxes, penalties, interest, reasonable attorneys' and accountants' fees, settlement costs and other costs and expenses (collectively, "Indemnified Losses") arising out of, or incident to, any of the following: (a) any breach of any representation or warranty made by Seller herein or in any certificate or other instrument delivered pursuant hereto, except that Buyer shall not assert a claim under Section 4.7(b) to the extent of any Material Adverse Effect arising solely out of changes in general economic conditions; (b) any breach or failure by Seller to perform or fulfill any of its covenants or agreements set forth herein (including, without limitation, reasonable attorneys' fees failure by Seller to pay, discharge or perform any of its obligations and expensesliabilities other than the Assumed Liabilities); (c) whether or not disclosed on any Schedule hereto, the Xxxxxxxx Note, the Xxxxxxxx Rebate and the Xxxxxxxx Payables (collectively "unless an amount equal to the Xxxxxxxx Payables is paid to Buyer Damages"pursuant to section 2.2(e) arising out of or caused by, directly or indirectly, hereof) and any or all increase in the amount of the following: Xxxxxxxx Receivables; (d) whether or not disclosed on any Schedule hereto, (i) all Taxes of or with respect to Seller or any misrepresentationof its shareholders (except as set forth in clause (iv) of Section 1.5) and (ii) all Taxes of EES with respect to any period (or portion thereof) ending on or prior to the Closing Date, breach to the extent such Taxes in clause (ii) of this Section 11.1(d) are in excess of the amount reflected as an accrual or failure reserve (without regard to deferred Tax assets and liabilities) for income tax liabilities payable of EES on the Closing Balance Sheet as appropriately reduced for any Tax items (including, without limitation, any payment of Taxes (whether pursuant to Section 8.5 or otherwise)) and/or by the amount of any warranty or representation payment made by the Buyer to Seller in or pursuant to this Agreement; the final sentence of Section 8.5(b); (e) any liabilities resulting from Seller's failure to comply with the provisions of any state's laws with respect to bulk transfers, or acts of similar nature, as such laws may be applicable to the Purchased Assets; (f) whether or not disclosed on any Schedule hereto, any liability or obligation of EES for (i) Taxes with respect to any period (or portion thereof) ending on or prior to the Closing Date, to the extent such Taxes are in excess of the amount reflected as an accrual or reserve (without regard to deferred Tax assets and liabilities) for income tax liabilities payable of EES set forth on the Closing Balance Sheet as appropriately reduced for any Tax items (including, without limitation, any payment of Taxes (whether pursuant to Section 8.5 or otherwise)) and/or by the amount of any payment made by Buyer to Seller pursuant to the final sentence of Section 8.5(b), (ii) any failure or refusal indebtedness of EES to Seller for borrowed money (other than the indebtedness evidenced by Seller to satisfy or perform in all material respects any covenantEES's Promissory Note dated January 21, term or condition of this Agreement required to be satisfied or performed by the Seller; 1997), (iii) any claim against Company under other indebtedness of EES for borrowed money or any guaranty or surety by Company EES of the obligations or liabilities of Seller or its subsidiaries; indebtedness for borrowed money, (iv) any claims asserted by Allegheny Health, Education fees and Research Foundation, Allegheny University expenses of the Health Sciences, Allegheny University Medical Partners, Allegheny Hospitals, Centennial and Allegheny University Hospital -- East, or its agents, trustees or assigns (collectively, "Allegheny") against Buyer Indemnitees which arise from or relate to payments received by the Company or Subsidiaries from Allegheny prior Seller relating to the date when Allegheny filed its petition for relief under Chapter 11 in the United States Bankruptcy Court for the Western District of PennsylvaniaContemplated Transactions, Case Nos. 98-25773 through 98-25777, inclusive; and (v) any Proceeding against liabilities or obligations of EES in respect of any Buyer Indemnitee by agreement, contract, lease or commitment other than the EES Agreements or any person other agreements under which the other party or parties thereto continue to do business with EES (or with Seller for the exclusive benefit of EES) following the closing on the terms specified in the agreement, (vi) any liability or obligation under the Worker Adjustment and Retraining Notification Act with respect to EES arising prior to the Closing Date, (vii) any liabilities or obligations relating to the Excluded Assets or not arising out of the business of EES, or (viii) subject to clause (v) of Section 1.5 (but with the understanding that Buyer will not assume sponsorship of any Plan in whole or in part), any liability or obligation under or related to any Plan; (g) any of the Assumed Liabilities described in clauses (vi) and (vii) of Section 1.5 hereof and any liability or obligation of EES of the type described in clauses (vi) and (vii) of Section 1.5 hereof; or (h) any and all claims, actions, suits, proceedings, investigations, demands, assessments and judgments incident to any of the foregoing.

Seller’s Agreement to Indemnify. Subject Each Seller, jointly and severally, agrees to the terms and conditions set forth hereinindemnify, from and after the Closing, Seller shall indemnify defend and hold harmless Buyer, Company Buyer and Subsidiaries and their respective directors, officers, employees, affiliates, controlling persons, agents and representatives and their its successors and assigns (collectivelyfrom, against and in respect of the "Buyer Indemnitees") from full amount of any and against all liabilityliabilities, demandsdamages, claims, actions or causes of actiondeficiencies, fines, assessments, losses, damagestaxes, penalties, interest, costs and expenses, including, without limitation, reasonable fees and disbursements of counsel ("DAMAGES") arising from, in connection with, or incident to: (a) any untruth, inaccuracy, breach or omission of, from or in, the representations and warranties made to Buyer herein; or any nonfulfillment of any covenant or agreement of Seller under this Agreement; or from any untruth, inaccuracy, breach or omission of, from or in, any representation or warranty, or any nonfulfillment of any covenant or agreement made by Seller in the Schedules or any other written statement, list, certificate or other instrument furnished to Buyer by or on behalf of Seller pursuant to this Agreement. (b) the Excluded Liabilities; (c) warranty claims relating to sales, work and/or services provided by Seller prior to the Closing Date or relating to Seller's jobs in process as of the Closing Date; (d) any fees, expenses or other payments incurred or owed by Seller to any brokers or comparable third parties retained or employed in connection with the transactions contemplated by this Agreement; (e) the failure to comply with statutory provisions relating to bulk sales and transfers (other than Damages resulting from the failure of Buyer to discharge the Assumed Liabilities or to fulfill its obligations post-Closing with respect to the Assumed Contracts); (f) the failure to pay any Taxes arising out of the transactions contemplated by this Agreement including, without limitation, transfer taxes (other than transfer taxes which, pursuant to the provisions of applicable law, are assessed against the Buyer); (g) any severance benefits payable to the employees of Seller by reason of the consummation of the transactions contemplated by this Agreement, including any payments arising out of Seller's termination of employees, including any payments arising out of a failure to comply with the WARN Act or any state equivalent; (h) subject to Section 6.4, any claim made by a third party alleging facts which, if true, would entitle Buyer to indemnification pursuant to the above; and (i) any and all actions, suits, claims, proceedings, investigations, audits, demands, assessments, fines, judgments, costs and other expenses (including, without limitation, reasonable attorneys' fees audit and expenseslegal fees) incurred by Buyer resulting from the circumstances described in Section 6.1(a) through (collectively "Buyer Damages"h) arising out of or caused by, directly or indirectly, any or all of the following: (i) any misrepresentation, breach or failure of any warranty or representation made by the Seller in or pursuant to this Agreement; (ii) any failure or refusal by Seller to satisfy or perform in all material respects any covenant, term or condition of this Agreement required to be satisfied or performed by the Seller; (iii) any claim against Company under any guaranty or surety by Company of the obligations or liabilities of Seller or its subsidiaries; (iv) any claims asserted by Allegheny Health, Education and Research Foundation, Allegheny University of the Health Sciences, Allegheny University Medical Partners, Allegheny Hospitals, Centennial and Allegheny University Hospital -- East, or its agents, trustees or assigns (collectively, "Allegheny") against Buyer Indemnitees which arise from or relate to payments received by the Company or Subsidiaries from Allegheny prior to the date when Allegheny filed its petition for relief under Chapter 11 in the United States Bankruptcy Court for the Western District of Pennsylvania, Case Nos. 98-25773 through 98-25777, inclusive; and (v) any Proceeding against any Buyer Indemnitee by any person arising out of the foregoingabove.