Common use of Seller’s Indemnification Clause in Contracts

Seller’s Indemnification. PROVIDED THAT THE CLOSING OCCURS, SELLER SHALL RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS BUYER, ITS PARTNERS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, MEMBERS, SHAREHOLDERS, AFFILIATES AND SUBSIDIARIES (COLLECTIVELY, THE “BUYER INDEMNITEES”) FROM AND AGAINST ANY AND ALL LOSSES AS A RESULT OF, ARISING OUT OF, OR RELATED TO THE RETAINED OBLIGATIONS, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF THE BUYER INDEMNITEES; provided, however, notwithstanding anything to the contrary contained in this Agreement, (a) Seller's obligations under this Section 16.04 shall apply only if and to the extent Buyer provides Seller with a Claim Notice complying with Section 16.05 on or before the day occurring one (1) year after the Closing, (b) Buyer shall bear sole responsibility for the aggregate Losses associated with all such claims up to a threshold percentage of two percent (2%) of the Unadjusted Purchase Price, it being intended by the Parties that Seller be obligated only to the extent of those Losses that exceed two percent (2%) of the Unadjusted Purchase Price, and (c) Seller's aggregate liability is limited to an amount equal to fifty percent (50%) of the Unadjusted Purchase Price. INDEMNIFICATION UNDER THIS SECTION 16.04 SHALL BE BUYER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY RETAINED OBLIGATION, AND SELLER'S LIABILITY WITH RESPECT TO ANY RETAINED OBLIGATION SHALL BE SUBJECT TO THE PROCEDURES AND LIMITATIONS ON TIMING AND AMOUNT PROVIDED IN THIS SECTION 16.04 AND IN SECTION 16.05.

Seller’s Indemnification. PROVIDED THAT THE CLOSING OCCURS, SELLER SHALL RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS BUYER, ITS PARTNERS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, MEMBERS, SHAREHOLDERS, AFFILIATES AND SUBSIDIARIES (COLLECTIVELY, THE “BUYER INDEMNITEES”) FROM AND AGAINST ANY AND ALL LOSSES AS A RESULT OF, ARISING OUT OF, OR RELATED TO THE RETAINED OBLIGATIONS, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF THE BUYER INDEMNITEES; provided, however, notwithstanding anything to the contrary contained in this Agreement, (a) Seller's obligations ’s indemnification obligation under this Section 16.04 shall apply only if and to the extent Buyer provides Seller with a Claim Notice complying with Section 16.05 on or before the day occurring one (1) year after the Closing, (b) Buyer shall bear sole responsibility for the aggregate Losses costs associated with all such claims up to a threshold percentage of two percent (2%) of the Unadjusted Purchase Price, it being intended by the Parties that Seller be obligated only to the extent of those Losses that costs exceed two percent (2%) of the Unadjusted Purchase Price, and (c) Seller's ’s aggregate indemnification liability is limited to an amount equal to fifty percent (50%) of the Unadjusted Purchase Price. INDEMNIFICATION UNDER THIS SECTION 16.04 SHALL BE BUYER'S ’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY RETAINED OBLIGATIONOBLIGATION OR ANY BREACH OF ANY REPRESENTATION OR WARRANTY OF SELLER MADE IN ARTICLE VI, AND SELLER'S ’S LIABILITY WITH RESPECT TO ANY RETAINED OBLIGATION OR BREACH OF ANY REPRESENTATION OR WARRANTY OF SELLER MADE IN ARTICLE VI SHALL BE SUBJECT TO THE PROCEDURES AND LIMITATIONS ON TIMING AND AMOUNT PROVIDED IN THIS SECTION 16.04 AND IN SECTION 16.05.

Seller’s Indemnification. PROVIDED THAT THE CLOSING OCCURS, SELLER SHALL RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS BUYER, ITS PARTNERS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, MEMBERS, SHAREHOLDERS, AFFILIATES AND SUBSIDIARIES (COLLECTIVELY, THE “BUYER INDEMNITEES”) FROM AND AGAINST ANY AND ALL LOSSES AS A RESULT OF, ARISING OUT OF, OR RELATED TO (I) THE RETAINED OBLIGATIONS, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF THE BUYER INDEMNITEESINDEMNITEES AND (II) ANY BREACH OF ANY REPRESENTATION OR WARRANTY OF SELLER, OR OF A COVENANT OR AGREEMENT OF SELLER THAT EXPRESSLY SURVIVES CLOSING, UNDER THIS AGREEMENT; provided, however, notwithstanding anything to the contrary contained in this Agreement, (a) Seller's obligations ’s indemnification obligation under this Section 16.04 18.04 shall apply only if and to the extent Buyer provides Seller with a Claim Notice complying with Section 16.05 18.05 on or before the day occurring one nine (19) year months after the Closing, (b) except to the extent provided otherwise in Section 12.01(a), Buyer shall bear sole responsibility for the aggregate Losses costs associated with all such claims Claims up to a threshold percentage of two percent (2%) of the Unadjusted Purchase Price, it being intended by the Parties that Seller be obligated only to the extent of that those Losses that costs exceed two percent (2%) of the Unadjusted Purchase Price, and (c) except to the extent provided otherwise in Section 12.01(a), Seller's ’s aggregate indemnification liability is limited to an amount equal to fifty twenty-five percent (5025%) of the Unadjusted Purchase Price. PROVIDED THAT CLOSING OCCURS, INDEMNIFICATION UNDER THIS SECTION 16.04 18.04 SHALL BE BUYER'S ’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY RETAINED OBLIGATIONOBLIGATION OR ANY BREACH OF ANY REPRESENTATION OR WARRANTY OF SELLER MADE IN ARTICLE VI, AND SELLER'S ’S LIABILITY WITH RESPECT TO ANY RETAINED OBLIGATION OR BREACH OF ANY REPRESENTATION OR WARRANTY OF SELLER MADE IN Article VI SHALL BE SUBJECT TO THE PROCEDURES AND LIMITATIONS ON TIMING AND AMOUNT PROVIDED IN THIS SECTION 16.04 18.04 AND IN SECTION 16.0518.05.

Seller’s Indemnification. PROVIDED THAT THE CLOSING OCCURSProvided that the Closing occurs, SELLER SHALL RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS BUYERPURCHASER, ITS PARTNERSAFFILIATES, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, REPRESENTATIVES, MEMBERS, MANAGERS, SHAREHOLDERS, AFFILIATES AFFILIATES, SUBSIDIARIES, SUCCESSORS AND SUBSIDIARIES ASSIGNS (COLLECTIVELY, THE “BUYER PURCHASER INDEMNITEES”) FROM AND AGAINST ANY AND ALL LOSSES DAMAGES AS A RESULT OF, ARISING OUT OF, OF OR RELATED TO (I) ANY BREACH OR INACCURACY OF THE REPRESENTATIONS AND WARRANTIES OF SELLER SET FORTH IN THIS AGREEMENT, (II) ANY BREACH OR FAILURE TO PERFORM OR SATISFY ANY OF THE COVENANTS OR OBLIGATIONS OF SELLER SET FORTH IN THIS AGREEMENT AND (III) THE RETAINED OBLIGATIONS, ; IN ANY SUCH EVENT REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE COMPARATIVE, GROSS OR CONCURRENT NEGLIGENCE OR NEGLIGENCE, STRICT LIABILITY OR OTHER WRONGDOING OF ANY OF THE BUYER PURCHASER INDEMNITEES; provided. Except as otherwise set forth below, however, notwithstanding anything to the contrary contained in indemnification obligations of Seller under this Agreement, Section 14.02: (a) Seller's obligations under this Section 16.04 shall only apply only if and to the extent Buyer provides Purchaser has provided Seller with written notice of a Claim Notice complying with Section 16.05 on or before the day occurring good faith claim for indemnification within one (1) year after of the Closing, except with respect to such claims arising from a breach of a representation and warranty contained in Section 5.16, notice of which must be provided no later than sixty (60) days following the expiration of the relevant statute of limitations, or with respect to a claim arising from Seller’s obligation under Section 12.02 or Section 12.03, notice of which may be provided at any time; and (b) Buyer shall bear sole responsibility for be limited to amounts in the aggregate Losses associated with all such claims in excess of Six Hundred Thousand and No/100 Dollars ($600,000.00) (threshold) up to a threshold percentage maximum aggregate liability of two ten percent (210.0%) of the Unadjusted Purchase Price, it being intended by the Parties that Seller be obligated only to the extent of those Losses that exceed two percent (2%) of the Unadjusted Purchase Price, and (c) Seller's aggregate liability is limited to an amount equal to fifty percent (50%) of the Unadjusted Purchase Price. INDEMNIFICATION UNDER THIS SECTION 16.04 SHALL BE BUYER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY RETAINED OBLIGATION, AND SELLER'S LIABILITY WITH RESPECT TO ANY RETAINED OBLIGATION SHALL BE SUBJECT TO THE PROCEDURES AND LIMITATIONS ON TIMING AND AMOUNT PROVIDED IN THIS SECTION 16.04 AND IN SECTION 16.05.)

Seller’s Indemnification. PROVIDED THAT THE CLOSING OCCURSSeller shall indemnify, SELLER SHALL RELEASEdefend, DEFENDand hold harmless Buyer and its officers, INDEMNIFY AND HOLD HARMLESS BUYERdirectors, ITS PARTNERSemployees, AND THEIR RESPECTIVE OFFICERSagents, DIRECTORSsuccessors and assigns from and against any and all losses, EMPLOYEESclaims, AGENTSactions, REPRESENTATIVEScosts, MEMBERSliabilities, SHAREHOLDERSexpenses, AFFILIATES AND SUBSIDIARIES fines, damages, and other relief or penalties it or they may suffer (COLLECTIVELYincluding, THE “BUYER INDEMNITEES”but not limited to, reasonable attorneys' fees and expenses) FROM AND AGAINST ANY AND ALL LOSSES AS A RESULT OFarising out of, ARISING OUT OFrelating to, OR RELATED TO THE RETAINED OBLIGATIONS, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF THE BUYER INDEMNITEES; provided, however, notwithstanding anything to or resulting from: (a) any material breach or default in the contrary performance by Seller of any covenant or agreement of Seller contained in this Agreement; (b) any act or omission of Seller or its employees or agents that constitutes gross negligence, willful misconduct or actual fraud; (c) illness, injury or death to any person relating to or arising out of Seller's performance of this Agreement arising from Products manufactured by Seller, except as to any such damage arising out of or relating to Buyer's testing, possession, provision, sale, use, operation or other exploitation of the Products (unless arising from an act or omission covered by Section 10.2(b), which shall not be carved out of Seller's indemnification obligations); (d) material damage to any real or tangible personal property relating to or arising out of Seller's performance of this Agreement except as to any such damage arising out of or [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request. EXHIBIT 10.22 CONFIDENTIAL TREATMENT REQUESTED PURSUANT TO RULE 24B-2 CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT UNDER RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934. THE OMITTED MATERIALS HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. relating to Buyer's testing, possession, provision, sale, use, operation or other exploitation of the Products; and (e) any and all actions, suits, proceedings, claims, demands, judgments, costs and expenses (including reasonable legal and accounting fees) incident to any of the foregoing, provided that, Seller's obligation to indemnify Buyer hereunder shall apply only if: (a) Buyer gives Seller prompt notice after learning of any such claims or actions, (b) Seller shall have exclusive control over the defense and settlement of any such claim or actions, (c) Buyer shall not settle or compromise any such claims or actions without Seller's obligations under this Section 16.04 prior written approval, and (d) Buyer shall cooperate with Seller in a defense and settlement of any claim, at Seller's expense, provided that Seller shall not be liable hereunder for any settlement or compromise negotiated by Buyer unless Seller agrees in writing to be so bound. If Buyer provides notice of a claim in accordance with (a) above and is not notified within ten (10) days thereafter that Seller intends to defend the claim, Buyer shall be entitled to defend such claim, and settle or compromise such claim, subject to the indemnification provided for herein. The foregoing indemnity shall not apply only if and to the extent Buyer provides Seller with a Claim Notice complying with Section 16.05 on or before the day occurring one (1) year after the Closing, (b) Buyer shall bear sole responsibility for the aggregate Losses associated with all that such claims up to a threshold percentage of two percent (2%) of the Unadjusted Purchase Price, it being intended by the Parties that Seller be obligated only or actions for damages or other relief arise from or are related to the extent gross negligence, willful misconduct, breach of those Losses that exceed two percent (2%) any terms or provisions of the Unadjusted Purchase Pricethis Agreement by, and (c) Selleror other unlawful conduct of, Buyer or any of Buyer's aggregate liability is limited to an amount equal to fifty percent (50%) of the Unadjusted Purchase Price. INDEMNIFICATION UNDER THIS SECTION 16.04 SHALL BE BUYER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY RETAINED OBLIGATION, AND SELLER'S LIABILITY WITH RESPECT TO ANY RETAINED OBLIGATION SHALL BE SUBJECT TO THE PROCEDURES AND LIMITATIONS ON TIMING AND AMOUNT PROVIDED IN THIS SECTION 16.04 AND IN SECTION 16.05employees or agents.

Seller’s Indemnification. PROVIDED THAT THE CLOSING OCCURSProvided that the Closing occurs, SELLER SHALL RELEASESeller shall release, DEFENDdefend, INDEMNIFY AND HOLD HARMLESS BUYERindemnify and hold harmless Buyer, ITS PARTNERSits partners, AND THEIR RESPECTIVE OFFICERSand their respective officers, DIRECTORSdirectors, EMPLOYEESemployees, AGENTSagents, REPRESENTATIVESrepresentatives, MEMBERSmembers, SHAREHOLDERSshareholders, AFFILIATES AND SUBSIDIARIES affiliates, subsidiaries, successors and assigns (COLLECTIVELYcollectively, THE the “BUYER INDEMNITEESBuyer Indemnitees”) FROM AND AGAINST ANY AND ALL LOSSES AS A RESULT OFfrom and against any and all Losses as a result of, ARISING OUT OFarising out of, OR RELATED TO THE RETAINED OBLIGATIONSor related to (a) the Retained Obligations, (b) any breach of any representation or warranty of Seller under this Agreement or in the certificate delivered at Closing pursuant to Section 10.04(g), and (c) any breach of Seller’s covenants and agreements contained in this Agreement, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF THE BUYER INDEMNITEES; provided, BUT EXCLUDING THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY INDEMNIFIED PERSON. Provided, however, notwithstanding anything to the contrary contained in this Agreement, herein (ai) Seller's obligations ’s indemnification obligation under this Section 16.04 14.04 for any breach of any representation or warranty of Seller under this Agreement or in the certificate delivered at Closing pursuant to Section 10.04(g) that is not a Fundamental Representation or Environmental Representation or any breach of Seller’s covenants and agreements contained in this Agreement to be performed prior to Closing shall only apply if Buyer has provided Seller with written notice claiming indemnification in good faith within twelve (12) months of the Closing Date and only if and with respect to the extent indemnification so claimed, (ii) Seller’s indemnification obligation under this Section 14.04 for any breach of an Environmental Representation shall only apply if Buyer provides has provided Seller with a Claim Notice complying with Section 16.05 on or before written notice claiming indemnification within six (6) months of the day occurring one (1) year after the ClosingClosing Date, (biii) Buyer Seller’s indemnification obligation under this Section 14.04 for any breach of any representation or warranty of Seller under this Agreement or in the certificate delivered at Closing pursuant to Section 10.04(g) that is not a Fundamental Representation or any breach of Seller’s covenants and agreements contained in this Agreement (other than covenants and agreements with respect to Retained Obligations) shall bear sole responsibility for only apply if the aggregate Losses associated with all such claims up relating to Seller’s indemnity obligations under this Section 14.04 exceeds a threshold percentage deductible of two one and one-half percent (21.5%) of the Unadjusted Purchase Price, it being intended by the Parties that in which case Seller shall be obligated only with respect to the extent Losses in excess of those Losses that exceed two percent (2%) of the Unadjusted Purchase Pricesuch deductible, and (civ) Seller's aggregate liability is limited ’s indemnification obligations under this Section 14.04 with respect to an amount equal to fifty percent the Retained Obligations shall only apply if Buyer has provided Seller with written notice claiming indemnification with respect thereto within four (50%4) years of the Unadjusted Purchase PriceClosing Date with respect to Retained Obligations described in Sections 14.01(a)-(c) and prior to the expiration of the statute of limitations applicable thereto with respect to Retained Obligations described in Sections 14.01(d)-(h). INDEMNIFICATION UNDER THIS SECTION 16.04 SHALL BE BUYER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY RETAINED OBLIGATIONNotwithstanding anything to the contrary herein, AND SELLER'S LIABILITY WITH RESPECT TO ANY RETAINED OBLIGATION SHALL BE SUBJECT TO THE PROCEDURES AND LIMITATIONS ON TIMING AND AMOUNT PROVIDED IN THIS SECTION 16.04 AND IN SECTION 16.05.Seller’s obligation to indemnify hereunder for breaches of representations and warranties of Seller under this Agreement or in the certificate delivered at Closing pursuant to Section 10.04(g) that are not Fundamental Representations and breaches of Seller’s covenants and agreements contained in this Agreement

Seller’s Indemnification. PROVIDED THAT THE CLOSING OCCURS, SELLER SHALL RELEASESELLERS HEREBY JOINTLY AND SEVERALLY RELEASE AND SHALL, DEFEND, INDEMNIFY AND HOLD HARMLESS BUYER, ITS PARTNERS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, MEMBERS, SHAREHOLDERS, AFFILIATES AND SUBSIDIARIES (COLLECTIVELY, THE “BUYER INDEMNITEES”) FROM AND AGAINST ANY AND ALL LOSSES, EVEN IF SUCH LOSSES AS A RESULT OF, ARISING OUT OF, OR RELATED TO THE RETAINED OBLIGATIONS, REGARDLESS OF WHETHER CAUSED OR WERE CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF THE BUYER INDEMNITEES, AS A RESULT OF, ARISING OUT OF, OR RELATED TO: (a) THE RETAINED OBLIGATIONS; (b) ANY BREACH OF REPRESENTATIONS OR WARRANTIES MADE BY SELLERS IN THIS AGREEMENT; (c) ANY BREACH OF ANY COVENANTS OR AGREEMENTS OF SELLERS UNDER THIS AGREEMENT; AND (d) ANY MATTER FOR WHICH SELLERS HAVE SPECIFICALLY AGREED TO INDEMNIFY BUYER OR BUYER INDEMNITEES UNDER THIS AGREEMENT; provided, however, notwithstanding anything to the contrary contained in this Agreement, (ai) Seller's obligations excluding any claims for indemnification arising from a breach of a Fundamental Representation and the representations and warranties in Section 7.12, Sellers’ indemnification obligation under this Section 16.04 shall apply only if and to the extent Buyer provides Seller Sellers with a Claim Notice complying with Section 16.05 on or before the day occurring one nine (19) year months after the Closing, and (bii) excluding any claims for indemnification arising from a breach of a Fundamental Representation and the representations and warranties in Section 7.12, Buyer shall bear sole responsibility for the aggregate Losses costs associated with all such claims up to a threshold percentage of two five percent (25%) of the Unadjusted Purchase Price, it being intended by the Parties that Seller Sellers be obligated only to the extent of those Losses that exceed two costs exceeding five percent (25%) of the Unadjusted Purchase Price, and (ciii) Seller's excluding any claims for indemnification arising from a breach of a Fundamental Representation and the representations and warranties in Section 7.12, Sellers’ aggregate indemnification liability is limited to an amount equal to fifty fifteen percent (5015%) of the Unadjusted Purchase Price. Sellers shall have no liability pursuant to this Section 16.04 for any Loss to the extent there has been a downward adjustment to the Purchase Price for such loss pursuant to Section 12.02. INDEMNIFICATION UNDER THIS SECTION 16.04 SHALL BE BUYER'S ’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY RETAINED OBLIGATION, AND SELLER'S LIABILITY WITH RESPECT LOSS OR CLAIM OF LOSSES ARISING OUT OF OR RELATED TO ANY RETAINED OBLIGATION SHALL BE SUBJECT TO THIS AGREEMENT OR THE PROCEDURES AND LIMITATIONS ON TIMING AND AMOUNT PROVIDED IN DOCUMENTS EXECUTED AS PART OF THE TRANSACTIONS CONTEMPLATED BY THIS SECTION 16.04 AND IN SECTION 16.05AGREEMENT.

Seller’s Indemnification. PROVIDED THAT THE CLOSING OCCURS, SELLER SHALL RELEASE, AGREES TO DEFEND, INDEMNIFY AND ------------------------ HOLD BUYER HARMLESS BUYER, ITS PARTNERS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, MEMBERS, SHAREHOLDERS, AFFILIATES AND SUBSIDIARIES (COLLECTIVELY, THE “BUYER INDEMNITEES”) FROM AND AGAINST ANY AND ALL LOSSES AS A RESULT OFCLAIMS, DEMANDS, LOSSES, DAMAGES, LIABILITIES, JUDGMENTS, CAUSES OF ACTION, REASONABLE COSTS OR EXPENSES (INCLUDING, WITHOUT LIMITATION, ANY AND ALL REASONABLE COSTS, EXPENSES, ATTORNEYS' FEES, CONSEQUENTIAL DAMAGES AND OTHER COSTS INCURRED IN DEFENSE OF ANY CLAIM OR LAWSUIT ARISING THEREFROM), OF WHATSOEVER NATURE ARISING OUT OF, OF OR RELATED RELATING TO THE RETAINED OBLIGATIONS, REGARDLESS OF WHETHER CAUSED THIRD PARTY CLAIMS OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF THE BUYER INDEMNITEES; provided, however, notwithstanding anything to the contrary contained in this Agreement, (a) Seller's obligations under this Section 16.04 shall apply only if and to the extent Buyer provides Seller with a Claim Notice complying with Section 16.05 on or before the day occurring one (1) year after the Closing, (b) Buyer shall bear sole responsibility for the aggregate Losses associated with all such claims up to a threshold percentage of two percent (2%) of the Unadjusted Purchase Price, it being intended by the Parties that Seller be obligated only to the extent of those Losses that exceed two percent (2%) of the Unadjusted Purchase Price, and (c) Seller's aggregate liability is limited to an amount equal to fifty percent (50%) of the Unadjusted Purchase Price. INDEMNIFICATION UNDER THIS SECTION 16.04 SHALL BE BUYER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY RETAINED OBLIGATION, SUITS AND SELLER'S LIABILITY WITH RESPECT TO ANY RETAINED OBLIGATION SHALL BE SUBJECT OWNERSHIP, OPERATION OR ADMINISTRATION OF THE ASSETS ON OR PRIOR TO THE PROCEDURES CLOSING DATE, IN REGARD TO THE FOLLOWING MATTERS ONLY, (I) DAMAGES TO PERSONS OR PROPERTY, (II) FINES, PENALTIES, MONETARY SANCTIONS OR OTHER AMOUNTS PAYABLE FOR FAILURE TO COMPLY WITH THE REQUIREMENTS OF APPLICABLE ENVIRONMENTAL LAWS, SAFETY OR HEALTH LAW (WHETHER FEDERAL, STATE OR LOCAL), (III) THE VIOLATION BY SELLER OF ANY LAW OR REGULATION OR THE TERMS OF ANY AGREEMENT BINDING UPON THE SELLER, (IV) CLAIMS OF SELLER'S CO-OWNERS, PARTNERS, JOINT VENTURERS AND LIMITATIONS ON TIMING OTHER PARTICIPANTS, (V) CLAIMS ARISING OUT OF ANY TAX AUDITS, (VI) THE INCORRECT PAYMENT OF RENTALS OR OTHER PAYMENTS UNDER THE LEASES, (VII) FINES, PENALTIES, MONITARY SANCTIONS OR OTHER AMOUNTS PAYABLE FOR FAILURE TO COMPLY WITH ANY SECURITIES LAW (WHETHER FEDERAL, STATE OR LOCAL) AND AMOUNT PROVIDED (VIII) THE INCORRECT PAYMENT OF ROYALTY PAYMENTS UNDER THE LEASES EXCEPT IN THIS SECTION 16.04 AND IN SECTION 16.05EACH CASE FOR THOSE ARISING OUT OF BUYER'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

Seller’s Indemnification. PROVIDED THAT THE CLOSING OCCURSSubject to the limitations set forth in Section 4.3 and Section 4.4 and in this Section 7.3, SELLER SHALL RELEASESeller shall indemnify, DEFENDdefend and hold harmless Purchaser and its officers, INDEMNIFY AND HOLD HARMLESS BUYERdirectors, ITS PARTNERSagents, AND THEIR RESPECTIVE OFFICERSpartners, DIRECTORSmembers, EMPLOYEESand employees (collectively, AGENTS, REPRESENTATIVES, MEMBERS, SHAREHOLDERS, AFFILIATES AND SUBSIDIARIES (COLLECTIVELY, THE the “BUYER INDEMNITEESPurchaser Indemnitees”) FROM AND AGAINST ANY AND ALL LOSSES AS A RESULT OF, ARISING OUT OF, OR RELATED TO THE RETAINED OBLIGATIONS, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF THE BUYER INDEMNITEES; provided, however, notwithstanding anything to the contrary contained from and against any and all Losses incurred by Purchaser Indemnitees in this Agreement, connection with (a) the material inaccuracy of any of Seller's obligations under this ’s representations or warranties herein (subject to Seller’s right to cure any certain such inaccuracies pursuant to Section 16.04 shall apply only if and to the extent Buyer provides Seller with a Claim Notice complying with Section 16.05 on or before the day occurring one (1) year after the Closing7.1), (b) Buyer the material breach of any of Seller’s covenants herein or (c) the Excluded Liabilities; provided that under no circumstances shall bear sole responsibility (i) Seller be required to indemnify any Purchaser Indemnitee for any environmental liability associated with any collateral securing a Loan (including any Mortgaged Property), and (ii) any amounts payable pursuant to indemnification under this Section 7.3 in respect of any Loan exceed the Allocated Purchase Price for such Loan; provided, further, that if Purchaser has timely invoked repurchase remedies concerning any given Loan pursuant to Article VIII, such repurchase shall be the exclusive remedy of the Purchaser Indemnitees in respect of such Loan, and the Purchaser Indemnitees shall not be entitled to indemnification in respect of such Loan under this Section 7.3; provided, further, that with respect to indemnification payments under Section 7.3(a) (other than with respect to breaches of Section 4.1(a), Section 4.1(b)(i) and Section 4.1(c)): (A) Seller shall not be liable for any such indemnification until the aggregate amount of Losses associated for which Purchaser is entitled to be indemnified under Section 7.3(a) (other than with all such claims up respect to breaches of Section 4.1(a), Section 4.1(b)(i) and Section 4.1(c)), together with the aggregate Repurchase Price of the Loans required to be repurchased by Seller pursuant to Article VIII, exceeds, on a threshold percentage of two cumulative basis, an amount equal to one percent (21%) of the Unadjusted Base Purchase PricePrice (the “Seller Basket”), it being intended by the Parties that Seller be obligated only (B) to the extent the Seller Basket is exceeded, then Seller shall pay Purchaser all indemnifiable Losses under Section 7.3(a) including the Seller Basket and (C) in no event shall Seller be required to make aggregate indemnification payments pursuant to Section 7.3(a) (other than with respect to breaches of those Losses that exceed two Section 4.1(a), Section 4.1(b)(i) and Section 4.1(c)) in excess of an amount equal to ten percent (210%) of the Unadjusted Base Purchase Price, and (c) Seller's aggregate liability is limited to an amount equal to fifty percent (50%) of the Unadjusted Purchase Price. INDEMNIFICATION UNDER THIS SECTION 16.04 SHALL BE BUYER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY RETAINED OBLIGATION, AND SELLER'S LIABILITY WITH RESPECT TO ANY RETAINED OBLIGATION SHALL BE SUBJECT TO THE PROCEDURES AND LIMITATIONS ON TIMING AND AMOUNT PROVIDED IN THIS SECTION 16.04 AND IN SECTION 16.05.

Seller’s Indemnification. PROVIDED THAT THE CLOSING OCCURS(a) Subject to the terms, SELLER SHALL RELEASEconditions and limitations set forth in this Agreement, DEFENDeach of the Seller Parties, INDEMNIFY AND HOLD HARMLESS BUYERseverally and not jointly, ITS PARTNERShereby agrees to indemnify, AND THEIR RESPECTIVE OFFICERShold harmless, DIRECTORSdefend and compensate Buyer for any losses (including loss of value of any Purchased Asset), EMPLOYEEScauses of action, AGENTSliabilities, REPRESENTATIVESclaims, MEMBERSdemands, SHAREHOLDERSobligations, AFFILIATES AND SUBSIDIARIES damages, costs and expenses, including accountants' fees and attorneys' fees of whatsoever kind or nature (COLLECTIVELYcollectively, THE “BUYER INDEMNITEES”"Indemnified Amounts") FROM AND AGAINST ANY AND ALL LOSSES AS A RESULT OFwhether known or unknown, ARISING OUT OFto which Buyer may become subject on account of, OR RELATED TO THE RETAINED OBLIGATIONSarising out of or relating to (a) a breach of the representations and warranties of such Seller Party set forth herein, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE(b) the Wiener Litigation or (c) the Hedge Claim. (b) Except as provided below with respect to intentional breaches of representations and warranties and as to any obligation any Seller Party may have to indemnify Buyer in regard to the Wiener Litigation or any Hedge Claim pursuant to Section 9.3 (a), JOINTno Seller Party shall have any obligation to indemnify the Buyer in respect to any Indemnified Amounts resulting from a breach of its representations or warranties unless and until the aggregate adverse effect on the value of the Purchased Asset resulting from such breaches exceeds the Threshold Amount; provided, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF THE BUYER INDEMNITEESthat the aggregate amount required to be paid by Sellers pursuant to this Section 9.3 shall not with respect to any Purchased Asset exceed the Purchase Price for such Asset (the "Maximum Amount"). Except for claims in respect to Surviving Representations, claims under this Section must be brought by Buyer within one year from the date hereof if at all. Notwithstanding the foregoing, to the extent that any Seller Party's breach of any representation or warranty is intentional, Buyer shall be entitled to recover all Indemnified Amounts (whether or not in excess of the Threshold Amount) in respect of each Asset affected by such intentional breach (up to the Maximum Amount for each such Asset) resulting solely from such breach without regard to the limitations contained in this Section 9.3. Notwithstanding anything to the contrary contained herein, no Indemnified Amounts as to which Buyer is fully indemnified in respect to either the Wiener Litigation, the Hedge Claim or intentional breaches of representations and warranties shall be taken into account in determining whether the Threshold Amount has been exceeded. (c) In connection with Sellers' obligations under this Section, to the extent that the D.C. Retail Loans and/or the Remic Interest, are sold prior to the end of the one year survival period set forth in Section 5.6, Fund I and Offshore shall not distribute the net proceeds they receive from such sale to their partners until the end of such survival period; provided, however, notwithstanding anything to the contrary contained in this Agreement, (a) Seller's obligations that if Buyer files a bona fide claim against Fund I under this Section 16.04 shall apply only if and 9.3 prior to the extent end of the one year survival period, no such net proceeds shall be distributed to any of Fund I's or Offshore partners, until such claim is finally adjudicated or settled, except that Fund I and Offshore may distribute that aggregate amount, if any, by which such net proceeds received exceed an amount equal to 150% of Buyer's claim. (d) The Buyer provides Seller with a Claim Notice complying with Section 16.05 on or before the day occurring one (1) year acknowledges and agrees that, from and after the Closing, (b) Buyer shall bear its sole responsibility for the aggregate Losses associated and exclusive remedy with respect to any claims relating to breaches of representations and warranties by any or all such claims up to a threshold percentage of two percent (2%) of the Unadjusted Purchase Price, it being intended by Sellers shall be its right of indemnification under the Parties that Seller be obligated only to the extent provisions of those Losses that exceed two percent (2%) of the Unadjusted Purchase Price, and (c) Seller's aggregate liability is limited to an amount equal to fifty percent (50%) of the Unadjusted Purchase Price. INDEMNIFICATION UNDER THIS SECTION 16.04 SHALL BE BUYER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY RETAINED OBLIGATION, AND SELLER'S LIABILITY WITH RESPECT TO ANY RETAINED OBLIGATION SHALL BE SUBJECT TO THE PROCEDURES AND LIMITATIONS ON TIMING AND AMOUNT PROVIDED IN THIS SECTION 16.04 AND IN SECTION 16.05this Section 9.3.

Seller’s Indemnification. PROVIDED THAT THE CLOSING OCCURS, 8.1.1 SELLER SHALL RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS agrees to indemnify and hold harmless BUYER, ITS PARTNERSits affiliates and its officers, AND THEIR RESPECTIVE OFFICERSdirectors, DIRECTORSemployees and agents, EMPLOYEESsuccessors and assigns (each a BUYER's Indemnitee" and collectively the "BUYER's Indemnitees") from any and all damages (including punitive damages), AGENTSloses, REPRESENTATIVESexpenses (including, MEMBERSwithout limitation, SHAREHOLDERScourt costs, AFFILIATES AND SUBSIDIARIES arbitration fees and attorneys' fees and expenses of investigation and all payments made pursuant to any agreement or legal requirement to indemnify, hold harmless or exonerate any person), claims (COLLECTIVELYincluding amounts paid in settlement), THE “demands, suits, causes of action, proceedings, judgments, fines, penalties and other liabilities or obligations of any nature (including costs relating to the enforcement of this Article 8, contingent or non-contingent, liquidated or unliquidated, direct or indirect) (collectively, "Losses"), incurred or sustained by or asserted against any of the BUYER's Indemnitees with respect to or arising out of: (i) the failure or breach of any of the SELLER's representations and warranties made in Section 4.1 hereof to be true and correct in all respects as of the Closing Date; (ii) the SELLER's failure or refusal or inability to pay for all liabilities and obligations of SELLER, other than the Assumed Liabilities that BUYER INDEMNITEES”has agreed to assume pursuant to Section 2.4 of this Agreement; and (iii) FROM AND AGAINST ANY AND ALL LOSSES AS A RESULT OFthe breach of or failure by SELLER to observe or perform any obligation, ARISING OUT OF, OR RELATED TO THE RETAINED OBLIGATIONS, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF THE BUYER INDEMNITEEScovenant or agreement of SELLER under this Agreement; provided, however, notwithstanding anything that no -------- ------- BUYER's Indemnitee shall be entitled to indemnification for Losses under the provisions of this Section 8.1 unless and until the aggregate amount of all Losses of the BUYER's Indemnitees as a group under Section 8.1 shall have exceeded $100,000 in the aggregate, in which event the BUYER's Indemnitees in the aggregate shall be entitled to such indemnification only for all Losses in excess of such amount. The indemnification obligations of SELLER for a breach of its representations and warranties under this Section 8.1 shall survive the Closing for a period of three (3) years after the Closing. 8.1.2 Notwithstanding any investigation conducted at any time with regard thereto by or on behalf of any party to this Agreement, all representations, warranties, obligations, covenants, and agreements of SELLER shall survive the execution, delivery, and performance of this Agreement, unless otherwise specifically set forth in this Agreement to the contrary contrary. No investigation made by or on behalf of BUYER with respect to SELLER shall be deemed to affect BUYER's reliance on the representations, warranties, covenants and agreements made by SELLER contained in this AgreementAgreement and shall not be a waiver of BUYER's rights to indemnity as herein provided for the breach or inaccuracy of or failure to perform or comply with any of SELLER's representations, (a) Seller's obligations warranties, covenants or agreements under this Section 16.04 Agreement. All representations and warranties of each party set forth in this Agreement shall apply only if be deemed to have been made again by such party at and as of the Closing. Nothing in this Agreement shall be construed as limiting in any way the remedies that may be available to a party in the event of fraud relating to the extent Buyer provides Seller representations, warranties, agreements or covenants made by any other party in this Agreement. SELLER shall have liabilities and obligations for Losses with a Claim Notice complying with Section 16.05 on respect to claims submitted or before notice of claims provided during the day occurring one (1) year after the Closing, (b) Buyer shall bear sole responsibility for the aggregate Losses associated with all such claims up to a threshold percentage time period of two percent (2%) survivability of the Unadjusted Purchase Pricespecific representation, it being intended by warranty, covenant or agreement as set forth herein. Notwithstanding the Parties that Seller be obligated only expiration date of the representations, warranties, covenants and agreements set forth herein, if BUYER shall notify SELLER with respect to the extent submission of a claim during the time period of survivability of such representation, warranty, covenant or agreement, SELLER's liability or obligation for Losses shall continue in full force and effect until settled to the other party's satisfaction with respect to those Losses that exceed two percent (2%) of the Unadjusted Purchase Price, and (c) Seller's aggregate liability is limited to an amount equal to fifty percent (50%) of the Unadjusted Purchase Price. INDEMNIFICATION UNDER THIS SECTION 16.04 SHALL BE BUYER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY RETAINED OBLIGATION, AND SELLER'S LIABILITY WITH RESPECT TO ANY RETAINED OBLIGATION SHALL BE SUBJECT TO THE PROCEDURES AND LIMITATIONS ON TIMING AND AMOUNT PROVIDED IN THIS SECTION 16.04 AND IN SECTION 16.05claims timely made.

Seller’s Indemnification. PROVIDED THAT THE CLOSING OCCURSSeller hereby agrees to indemnify, SELLER SHALL RELEASEhold harmless and defend Purchaser from and against any and all loss, DEFENDdamage (other than consequential or punitive damages), INDEMNIFY AND HOLD HARMLESS BUYERclaim, ITS PARTNERScost and expense and any other liability whatsoever, AND THEIR RESPECTIVE OFFICERSincluding, DIRECTORSwithout limitation, EMPLOYEESreasonable accountants’ and attorneys’ fees, AGENTScharges and costs, REPRESENTATIVES, MEMBERS, SHAREHOLDERS, AFFILIATES AND SUBSIDIARIES incurred by Purchaser by reason of (COLLECTIVELY, THE “BUYER INDEMNITEES”a) FROM AND AGAINST ANY AND ALL LOSSES AS A RESULT OF, ARISING OUT OF, OR RELATED TO THE RETAINED OBLIGATIONS, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF THE BUYER INDEMNITEES; provided, however, notwithstanding anything to the contrary Seller’s breach of any representations or warranties or covenants of Seller contained in this Agreement, (a) Seller's obligations under this Section 16.04 shall apply only if and to the extent Buyer provides Seller with a Claim Notice complying with Section 16.05 on or before the day occurring one (1) year after the Closing, (b) Buyer without limiting the generality of the foregoing, Seller’s failure to duly perform and discharge Retained Liabilities or perform the obligations of Seller under Related Documents, provided Seller shall bear sole responsibility have no duty indemnify Purchaser for the aggregate Losses associated with any losses arising hereunder until Purchaser has suffered losses by reason of all such claims up to a threshold percentage of two percent breaches (2%) when aggregated with losses under Section 15.01 of the Unadjusted Agreement to Purchase Price, it being intended by Seven Hotels) in excess of Fifty Thousand Dollars ($50,000.00) aggregate deductible (after which point the Parties that Seller will be obligated only to indemnify the Purchaser from and against further such losses) or thereafter to the extent of those Losses that exceed two percent the losses (2%) when aggregated with losses under Section 15.01 of the Unadjusted Agreement to Purchase Price, and (cSeven Hotels) Seller's aggregate liability is limited the Purchaser has suffered by reason of all such breaches up to an amount aggregate cap equal to fifty percent Seven Hundred Fifty Thousand Dollars (50%$750,000.00) (after which point the Seller will have no obligation to indemnify the Purchaser from and against further losses). This indemnity shall terminate and be of no force and effect except with respect to actions brought by Purchaser against Seller for claims made pursuant to Section 15.03) not later than the final day of the Unadjusted Purchase PriceSurvival Period. INDEMNIFICATION UNDER THIS SECTION 16.04 SHALL BE BUYER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY RETAINED OBLIGATION, AND SELLER'S LIABILITY WITH RESPECT TO ANY RETAINED OBLIGATION SHALL BE SUBJECT TO THE PROCEDURES AND LIMITATIONS ON TIMING AND AMOUNT PROVIDED IN THIS SECTION 16.04 AND IN SECTION 16.05The indemnification provided for in this Section 15.01 shall from and after the Closing be the Purchaser’s sole remedy for any matters referred to in this Section 15.01.

Seller’s Indemnification. PROVIDED THAT THE CLOSING OCCURS(a) If the Closing occurs, SELLER SHALL RELEASESeller agrees to indemnify, DEFENDdefend and hold harmless Buyer, INDEMNIFY AND HOLD HARMLESS BUYERits parent, ITS PARTNERSsubsidiary and Affiliates, AND THEIR RESPECTIVE OFFICERSand their respective officers, DIRECTORSdirectors, EMPLOYEESemployees, AGENTSagents, REPRESENTATIVESrepresentatives, MEMBERSand their successors and assigns (collectively, SHAREHOLDERS, AFFILIATES AND SUBSIDIARIES (COLLECTIVELY, THE the “BUYER INDEMNITEESBuyer Indemnitees”) FROM AND AGAINST ANY AND ALL LOSSES AS A RESULT OFfrom and against any and all Indemnified Losses that are attributable to (i) a breach by Seller of its representations, ARISING OUT OFwarranties, OR RELATED TO THE RETAINED OBLIGATIONScovenants and agreements hereunder, (ii) Pre-Effective Time Liabilities, (iii) Interim Period Liabilities, and (iv) the matters listed on Schedule 5.05, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE JOINT OR CONCURRENT FAULT OR NEGLIGENCE (ACTIVE OR PASSIVE) OR STRICT LIABILITY OF ANY OF THE BUYER INDEMNITEES. (b) Notwithstanding anything to the contrary in Section 10.01(a), in no event shall any amounts be recovered from Seller, its parent, subsidiary or any of its Affiliates: (i) relating to any breach of a representation or warranty or covenant by Seller of which Buyer had Knowledge at least two (2) Business Days prior to the Closing Date and with respect to which Buyer failed to give a Breach Notice; (ii) for any matter under Section 10.01(a) for which a written notice of claim specifying in reasonable detail the specific nature of and specific basis of the Losses and the estimated amount of such Indemnified Losses (“Claim Notice”) is not delivered to Seller prior to the close of business on the day 12 months following the Closing Date (or the later closing date with respect to any Property specified in Sections 7.01(c)(iv) or 7.05), and the indemnities granted by Seller in Section 10.01(a) shall terminate on such date; provided, however, notwithstanding anything to the contrary contained in this Agreement, (a) Seller's obligations under this Section 16.04 that such indemnities shall apply only if and to the extent Buyer provides Seller survive with a Claim Notice complying with Section 16.05 on or before the day occurring one (1) year after the Closing, (b) Buyer shall bear sole responsibility for the aggregate Losses associated with all such claims up to a threshold percentage of two percent (2%) of the Unadjusted Purchase Price, it being intended by the Parties that Seller be obligated respect only to the extent specific matter that is the subject of any Claim Notice delivered in good faith in compliance with the requirements of this Section 10.01(b)(ii) prior to such 12 month anniversary until the earlier to occur of (i) the date on which a final nonappealable resolution of the matter described in such Claim Notice has been reached and Seller has paid all required amounts or (ii) the date on which the matter described in such Claim Notice has otherwise reached final resolution and Seller have paid all required amounts; (iii) for any individual Indemnified Loss arising out of a single set of facts and circumstances resulting from matters described in Section 10.01(a) that is less than $50,000; (iv) for any Indemnified Losses resulting from matters described in Section 10.01(a) until the aggregate amount of Indemnified Losses incurred by the Buyer Indemnitees in respect of all matters giving rise to such Indemnified Losses (but excluding matters described in clause (iii)) exceeds $500,000 (the “Deductible”); and in the event the aggregate Indemnified Losses exceed the Deductible, then Seller shall be liable (subject to the other provisions of this Section 10.01(b)) to indemnify the Buyer lndemnitees for those Indemnified Losses that so exceed two percent the Deductible; and (2%v) for any Indemnified Losses resulting from matters described in Section 10.01(a) that exceed the Cap. As used herein the term “Cap” means that time when the Indemnified Losses incurred by the Buyer Indemnitees in respect of all matters described in Section 10.1(a) first equals 25% of the Unadjusted Purchase PricePrice (including the Deductible). For the avoidance of doubt, and (c) Seller's aggregate liability is limited to an amount equal to fifty percent (50%) of the Unadjusted Purchase Price. INDEMNIFICATION UNDER THIS SECTION 16.04 SHALL BE BUYER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY RETAINED OBLIGATION, AND SELLER'S LIABILITY WITH RESPECT TO ANY RETAINED OBLIGATION SHALL BE SUBJECT TO THE PROCEDURES AND LIMITATIONS ON TIMING AND AMOUNT PROVIDED IN THIS SECTION 16.04 AND IN SECTION 16.05.limitation described in this Section 10.01(b)

Seller’s Indemnification. PROVIDED THAT THE CLOSING OCCURS, SELLER SHALL RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS BUYER, ITS PARTNERS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, MEMBERS, SHAREHOLDERS, AFFILIATES AND SUBSIDIARIES (COLLECTIVELY, THE “BUYER INDEMNITEES”) FROM AND AGAINST ANY AND ALL LOSSES AS A RESULT OF, ARISING OUT OF, OR RELATED TO THE RETAINED OBLIGATIONS, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF THE BUYER INDEMNITEES; provided, however, notwithstanding anything to the contrary contained in this Agreement, (a) Seller's obligations ’s indemnification obligation under this Section 16.04 shall apply only if and to the extent Buyer provides Seller with a Claim Notice complying with Section 16.05 on or before the day occurring one six (16) year months after the ClosingClosing with respect to claims arising under Section 16.01(d) in connection with the breach by Seller of any representation contained in - 40 - Sections 6.06 through 6.16, or on or before the day occurring twelve (12) months after the Closing with respect to claims arising under Sections 16.01(a), 16.01(b), 16.01(c), 16.01(d)(in connection with the breach by Seller of any representation contained in Sections 6.01 through 6.05), 16.01(e) or 16.01(f), (b) Buyer shall bear sole responsibility for the aggregate Losses costs associated with all such claims up to a threshold percentage of two three percent (23%) of the Unadjusted Purchase Price, it being intended by the Parties that Seller be obligated only to the extent of those Losses costs that exceed two three percent (23%) of the Unadjusted Purchase Price, and (c) Seller's ’s aggregate indemnification liability is limited to an amount equal to fifty twenty percent (5020%) of the Unadjusted Purchase Price. INDEMNIFICATION UNDER THIS SECTION 16.04 SHALL BE BUYER'S ’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY RETAINED OBLIGATIONOBLIGATION OR ANY BREACH OF ANY REPRESENTATION OR WARRANTY OF SELLER MADE IN ARTICLE VI, AND SELLER'S ’S LIABILITY WITH RESPECT TO ANY RETAINED OBLIGATION OR BREACH OF ANY REPRESENTATION OR WARRANTY OF SELLER MADE IN ARTICLE VI SHALL BE SUBJECT TO THE PROCEDURES AND LIMITATIONS ON TIMING AND AMOUNT PROVIDED IN THIS SECTION 16.04 AND IN SECTION 16.05.

Seller’s Indemnification. PROVIDED THAT THE CLOSING OCCURS10.2.1 The Seller agrees to indemnify and hold the Purchaser, SELLER SHALL RELEASEits successors and assigns, DEFENDharmless from and against: (i) Any and all material damages, INDEMNIFY AND HOLD HARMLESS BUYERlosses, ITS PARTNERSclaims, AND THEIR RESPECTIVE OFFICERSliabilities, DIRECTORSdeficiencies and obligations of every kind and description, EMPLOYEEScontingent or otherwise, AGENTSarising out of or related to the operation of the Seller’s Business or ownership of the Assets prior to the close of business on the day before the Closing Date, REPRESENTATIVES(ii) any and all damage or deficiency resulting from any material misrepresentation, MEMBERSbreach of warranty or covenant, SHAREHOLDERSor non-fulfillment of any agreement on the part of the Seller under this Agreement, AFFILIATES AND SUBSIDIARIES and (COLLECTIVELYiii) any and all actions, THE “BUYER INDEMNITEES”suits, claims, proceedings, investigation, audits, demands, assessments, fines, judgments, costs and other expenses (including, without limitation, reasonable audit and attorney’s fees) FROM AND AGAINST ANY AND ALL LOSSES AS A RESULT OFdirectly incident to any of the foregoing. 10.2.2 If any claim is asserted against the Purchaser that would give rise to a claim by the Purchaser against the Seller for indemnification under the provisions of this Section, ARISING OUT OFthen the Purchaser shall promptly give written notice to the Seller concerning such claim, OR RELATED TO THE RETAINED OBLIGATIONSand upon the Purchaser’s request, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLEthe Seller shall, JOINTat no expense to the Purchaser, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF THE BUYER INDEMNITEES; provideddefend the claim. Provided, however, notwithstanding anything Purchaser shall have the option to undertake and control defense of the claim at Seller’s expense, but in such event (or in the event of Purchaser’s exercise of its rights set forth in the last sentence of this Section 10.2.2), Purchaser shall provide to the contrary contained Seller such information as the Seller may from time to time reasonably request with respect the claim and Purchaser’s defense thereof, permit the Seller, at the Seller’s sole cost and expense, to participate in this Agreement, (a) Seller's obligations under this Section 16.04 shall apply only if and to the extent Buyer provides Seller with a Claim Notice complying with Section 16.05 on or before the day occurring one (1) year after the Closing, (b) Buyer shall bear sole responsibility for the aggregate Losses associated with all such claims up to a threshold percentage of two percent (2%) defense of the Unadjusted Purchase Price, it being intended by the Parties that Seller be obligated only claim ,and not agree to the extent of those Losses that exceed two percent (2%) any settlement or compromise of the Unadjusted claim without the Seller’s prior written consent, which shall not be unreasonably withheld or delayed. Purchaser shall have the right to offset any such indemnity claims or losses against any portion of the Purchase PricePrice withheld by Purchaser or any other amounts owed by Purchaser to Seller pursuant to any other agreement. If the Seller refuses to indemnify and/or defend Purchaser after written notice, Purchaser shall have the right to retain attorneys to represent and/or defend Purchaser, and (c) Seller's aggregate liability is limited to an amount equal to fifty percent (50%) of the Unadjusted Purchase Price. INDEMNIFICATION UNDER THIS SECTION 16.04 SHALL BE BUYER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY RETAINED OBLIGATION, AND SELLER'S LIABILITY WITH RESPECT TO ANY RETAINED OBLIGATION SHALL BE SUBJECT TO THE PROCEDURES AND LIMITATIONS ON TIMING AND AMOUNT PROVIDED IN THIS SECTION 16.04 AND IN SECTION 16.05compromise and settle such claims.

Seller’s Indemnification. PROVIDED THAT THE CLOSING OCCURS, SELLER SHALL RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS BUYER, ITS PARTNERS, AND THEIR RESPECTIVE BUYER’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, MEMBERS, SHAREHOLDERS, AFFILIATES AND SUBSIDIARIES (COLLECTIVELY, THE “BUYER INDEMNITEES”) FROM AND AGAINST ANY AND ALL LOSSES AS A RESULT OF, ARISING OUT OF, OR RELATED TO THE RETAINED OBLIGATIONS, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF THE BUYER INDEMNITEES; providedPROVIDED, howeverHOWEVER, notwithstanding anything to the contrary contained in this AgreementNOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, (aA) Seller's obligations under this Section SELLER’S INDEMNIFICATION OBLIGATION AND OTHER OBLIGATIONS UNDER THIS SECTION 16.04 shall apply only if and to the extent Buyer provides Seller with a Claim Notice complying with Section TO INDEMNIFY BUYER FOR SELLER’S 9-MONTH RETAINED OBLIGATIONS SHALL APPLY ONLY IF AND TO THE EXTENT BUYER PROVIDES SELLER WITH A CLAIM NOTICE COMPLYING WITH SECTION 16.05 on or before the day occurring one ON OR BEFORE THE DAY OCCURRING NINE (19) year after the ClosingMONTHS AFTER THE CLOSING, (bB) Buyer shall bear sole responsibility for the aggregate Losses associated with all such claims up to a threshold percentage of two percent SELLER’S INDEMNIFICATION OBLIGATION AND OTHER OBLIGATIONS UNDER THIS SECTION 16.04 TO INDEMNIFY BUYER FOR SELLER’S STATUTE OF LIMITATIONS RETAINED OBLIGATIONS SHALL APPLY ONLY IF AND TO THE EXTENT BUYER PROVIDES SELLER WITH A CLAIM NOTICE COMPLYING WITH SECTION 16.05 ON OR BEFORE THE EXPIRATION OF ANY STATUTE OF LIMITATIONS PERIOD APPLICABLE TO ANY CLAIM RELATED TO SELLER’S STATUTE OF LIMITATIONS RETAINED OBLIGATIONS, (2C) BUYER SHALL BEAR SOLE RESPONSIBILITY FOR THE AGGREGATE LOSSES ASSOCIATED WITH ALL SUCH CLAIMS UP TO FIVE HUNDRED THOUSAND DOLLARS ($500,000), IT BEING INTENDED BY THE PARTIES THAT SELLER BE OBLIGATED ONLY TO THE EXTENT OF THOSE LOSSES THAT EXCEED FIVE HUNDRED THOUSAND DOLLARS ($500,000), AND (D) SELLER’S AGGREGATE LIABILITY UNDER THIS SECTION 16.04 IS LIMITED TO AN AMOUNT EQUAL TO TEN PERCENT (10%) of the Unadjusted Purchase PriceOF THE UNADJUSTED PURCHASE PRICE. FOR THE AVOIDANCE OF DOUBT, it being intended by the Parties that Seller be obligated only to the extent of those Losses that exceed two percent (2%) of the Unadjusted Purchase PriceEXCEPT AS TO BUYER’S OBLIGATION TO PROVIDE A CLAIM NOTICE TO SELLER COMPLYING WITH SECTION 16.05, and (c) Seller's aggregate liability is limited to an amount equal to fifty percent (50%) of the Unadjusted Purchase PriceTHERE SHALL BE NO TIMING, MONETARY OR OTHER LIMITATIONS ON SELLER’S INDEMNIFICATION OBLIGATIONS FOR ANY OF SELLER’S INDEFINITE RETAINED OBLIGATIONS. INDEMNIFICATION UNDER THIS SECTION 16.04 SHALL BE BUYER'S ’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY RETAINED OBLIGATIONOBLIGATION OR ANY BREACH OF ANY REPRESENTATION OR WARRANTY OF SELLER MADE IN ARTICLE VI, AND SELLER'S ’S LIABILITY WITH RESPECT TO ANY RETAINED OBLIGATION OR BREACH OF ANY REPRESENTATION OR WARRANTY OF SELLER MADE IN ARTICLE VI SHALL BE SUBJECT TO THE PROCEDURES AND LIMITATIONS ON TIMING AND AMOUNT PROVIDED IN THIS SECTION 16.04 AND IN SECTION 16.05.

Seller’s Indemnification. PROVIDED THAT THE CLOSING OCCURSSeller hereby agrees to indemnify, SELLER SHALL RELEASEhold harmless and defend Purchaser from and against any and all loss, DEFENDdamage (other than consequential or punitive damages), INDEMNIFY AND HOLD HARMLESS BUYERclaim, ITS PARTNERScost and expense and any other liability whatsoever, AND THEIR RESPECTIVE OFFICERSincluding, DIRECTORSwithout limitation, EMPLOYEESreasonable accountants’ and attorneys’ fees, AGENTScharges and costs, REPRESENTATIVES, MEMBERS, SHAREHOLDERS, AFFILIATES AND SUBSIDIARIES incurred by Purchaser by reason of (COLLECTIVELY, THE “BUYER INDEMNITEES”a) FROM AND AGAINST ANY AND ALL LOSSES AS A RESULT OF, ARISING OUT OF, OR RELATED TO THE RETAINED OBLIGATIONS, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF THE BUYER INDEMNITEES; provided, however, notwithstanding anything to the contrary Seller’s breach of any representations or warranties or covenants of Seller contained in this Agreement, (a) Seller's obligations under this Section 16.04 shall apply only if and to the extent Buyer provides Seller with a Claim Notice complying with Section 16.05 on or before the day occurring one (1) year after the Closing, (b) Buyer without limiting the generality of the foregoing, Seller’s failure to duly perform and discharge Retained Liabilities or perform the obligations of Seller under Related Documents, provided Seller shall bear sole responsibility have no duty indemnify Purchaser for the aggregate Losses associated with any losses arising hereunder until Purchaser has suffered losses by reason of all such claims up to a threshold percentage of two percent breaches (2%) when aggregated with losses under Section 15.01 of the Unadjusted Agreement to Purchase Price, it being intended by Two Hotels) in excess of Fifty Thousand Dollars ($50,000.00) aggregate deductible (after which point the Parties that Seller will be obligated only to indemnify the Purchaser from and against further such losses) or thereafter to the extent of those Losses that exceed two percent the losses (2%) when aggregated with losses under Section 15.01 of the Unadjusted Agreement to Purchase Price, and (cTwo Hotels) Seller's aggregate liability is limited the Purchaser has suffered by reason of all such breaches up to an amount aggregate cap equal to fifty percent Seven Hundred Fifty Thousand Dollars (50%$750,000.00) (after which point the Seller will have no obligation to indemnify the Purchaser from and against further losses). This indemnity shall terminate and be of no force and effect except with respect to actions brought by Purchaser against Seller for claims made pursuant to Section 15.03) not later than the final day of the Unadjusted Purchase PriceSurvival Period. INDEMNIFICATION UNDER THIS SECTION 16.04 SHALL BE BUYER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY RETAINED OBLIGATION, AND SELLER'S LIABILITY WITH RESPECT TO ANY RETAINED OBLIGATION SHALL BE SUBJECT TO THE PROCEDURES AND LIMITATIONS ON TIMING AND AMOUNT PROVIDED IN THIS SECTION 16.04 AND IN SECTION 16.05The indemnification provided for in this Section 15.01 shall from and after the Closing be the Purchaser’s sole remedy for any matters referred to herein.

Seller’s Indemnification. PROVIDED THAT THE CLOSING OCCURS, SELLER SHALL HEREAFTER RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS BUYERPURCHASER AND PURCHASER’S INTEREST HOLDERS, ITS PARTNERS, MEMBERS, MANAGERS, AFFILIATES, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS, SPONSORS, PARTNERS, REPRESENTATIVES, MEMBERS, SHAREHOLDERS, AFFILIATES AFFILIATES, SUBSIDIARIES, SUCCESSORS, HEIRS AND SUBSIDIARIES ASSIGNS (COLLECTIVELY, THE “BUYER PURCHASER INDEMNITEES”) FROM AND AGAINST ANY AND ALL LOSSES AS A RESULT OF, ARISING OUT OF, OR RELATED TO (I) ANY BREACH OF ANY REPRESENTATION OR WARRANTY OF SELLER CONTAINED HEREIN OR IN ANY CERTIFICATE, DOCUMENT OR OTHER INSTRUMENT DELIVERED BY OR ON BEHALF OF SELLER IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY, TO THE EXTENT AND ONLY UNTIL THE TERMINATION DATE OF EACH SUCH REPRESENTATION OR WARRANTY; (II) ANY BREACH OF OR FAILURE BY SELLER TO PERFORM ANY COVENANT OR OBLIGATION CONTAINED HEREIN, TO THE EXTENT AND ONLY UNTIL THE TERMINATION DATE OF EACH SUCH COVENANT OR OBLIGATION, AND (III) ANY OF SELLER’S RETAINED OBLIGATIONS, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF THE BUYER PURCHASER INDEMNITEES; provided, howeverBUT EXCLUDING PURCHASER INDEMNITEES’ GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, notwithstanding anything to the contrary contained in this AgreementWHICH INDEMNIFICATION OBLIGATION SHALL SURVIVE INDEFINITELY. FROM AND AFTER THE DATE HEREOF, (a) Seller's obligations under this Section 16.04 shall apply only if and to the extent Buyer provides Seller with a Claim Notice complying with Section 16.05 on or before the day occurring one (1) year after the Closing, (b) Buyer shall bear sole responsibility for the aggregate Losses associated with all such claims up to a threshold percentage of two percent (2%) of the Unadjusted Purchase Price, it being intended by the Parties that Seller be obligated only to the extent of those Losses that exceed two percent (2%) of the Unadjusted Purchase Price, and (c) Seller's aggregate liability is limited to an amount equal to fifty percent (50%) of the Unadjusted Purchase Price. INDEMNIFICATION UNDER THIS SECTION 16.04 18 SHALL BE BUYER'S PURCHASER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY RETAINED OBLIGATIONBREACH HEREUNDER. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, AND SELLER'S LIABILITY IN THE EVENT THAT A CLAIM FOR INDEMNIFICATION IS TIMELY MADE WITHIN THE APPLICABLE SURVIVAL PERIOD SET FORTH ABOVE, SUCH SURVIVAL PERIOD SHALL BE EXTENDED (SOLELY WITH RESPECT TO ANY RETAINED OBLIGATION SHALL BE SUBJECT TO SUCH CLAIM FOR INDEMNIFICATION TIMELY MADE WITHIN THE PROCEDURES AND LIMITATIONS ON TIMING AND AMOUNT PROVIDED IN THIS SECTION 16.04 AND IN SECTION 16.05APPLICABLE SURVIVAL PERIOD SET FORTH ABOVE) UNTIL THE FINAL RESOLUTION OF SUCH CLAIM.

Seller’s Indemnification. PROVIDED THAT THE CLOSING OCCURSSeller shall indemnify, SELLER SHALL RELEASEprotect, DEFENDdefend, INDEMNIFY AND HOLD HARMLESS BUYERand hold harmless each of the Company, ITS PARTNERSthe Manufacturing Subsidiary, AND THEIR RESPECTIVE OFFICERSGreenbrier, DIRECTORSand each of their Affiliates, EMPLOYEESofficers, AGENTSdirectors, REPRESENTATIVESshareholders, MEMBERSemployees, SHAREHOLDERSrepresentatives and agents, AFFILIATES AND SUBSIDIARIES from and against and in respect of any and all claims, demands, losses, costs, expenses, obligations, judgments, liabilities, damages, recoveries and deficiencies, including interest, penalties and reasonable attorneys' fees (COLLECTIVELYbut net of any recoveries under applicable insurance policies and with waiver, THE “BUYER INDEMNITEES”if applicable, of any subrogation rights under any applicable insurance coverages) FROM AND AGAINST ANY AND ALL LOSSES AS A RESULT OF(hereinafter, ARISING OUT OF"Losses") that they may incur or suffer which arise, OR RELATED TO THE RETAINED OBLIGATIONS, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF THE BUYER INDEMNITEES; provided, however, notwithstanding anything to the contrary contained in this Agreement, result from or relate to: (ai) Seller's obligations under or BTM's breach of or failure to perform any of its representations, warranties, covenants or agreements in this Section 16.04 shall apply only if Agreement (other than a breach of the representation and warranty in 17.8 below), save for Losses which are the result of the gross negligence, fraud, bad faith or willful misconduct of the Company, the Manufacturing Subsidiary or Greenbrier; (ii) the Excluded Liabilities; (iii) foreign, federal, state or local taxes ("Taxes") with respect to the extent Buyer provides Seller with a Claim Notice complying with Section 16.05 on Joint Venture or before the day occurring one (1) year after the Closing, (b) Buyer shall bear sole responsibility ownership thereof for the aggregate Losses associated with all such claims up to a threshold percentage of two percent (2%) of the Unadjusted Purchase Price, it being intended by the Parties that Seller be obligated only periods prior to the extent Closing Date; or (iv) claims arising between September 1, 1998 and the Closing Date against the Company and/or the Manufacturing Subsidiary related to the Decree that establishes Programs of those Losses Temporary Importation for Producing Articles of Exportation ("PITEX") taxes; 13-INTEREST REDEMPTION AGREEMENT provided, that exceed two percent Seller's liability solely with respect to subsections (2%iii) of the Unadjusted Purchase Price, and (civ) shall be limited to Seller's aggregate proportionate share of such liability is limited to an amount equal to fifty percent (50%) under the Joint Venture Agreement; and provided further that should any adjustments be made with respect to PITEX taxes payable by the Company and/or the Manufacturing Subsidiary or Taxes prior to the Closing Date, Seller and Greenbrier agree to share benefits stemming therefrom, in proportion of the Unadjusted Purchase Price. INDEMNIFICATION UNDER THIS SECTION 16.04 SHALL BE BUYER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY RETAINED OBLIGATION, AND SELLER'S LIABILITY WITH RESPECT TO ANY RETAINED OBLIGATION SHALL BE SUBJECT TO THE PROCEDURES AND LIMITATIONS ON TIMING AND AMOUNT PROVIDED IN THIS SECTION 16.04 AND IN SECTION 16.05their Joint Venture Agreement (50/50).

Seller’s Indemnification. PROVIDED THAT FOLLOWING THE CLOSING OCCURSCLOSING, SELLER SHALL RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS BUYER AND BUYER, ITS PARTNERS, AND THEIR RESPECTIVE ’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, MEMBERS, SHAREHOLDERS, AFFILIATES AND SUBSIDIARIES (COLLECTIVELY, THE “BUYER INDEMNITEES”) FROM AND AGAINST ANY AND ALL LOSSES AS A RESULT OF, ARISING OUT OF, OR RELATED TO THE RETAINED OBLIGATIONS, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF THE BUYER INDEMNITEES, BUT EXCLUDING BUYER INDEMNITEE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; provided, however, notwithstanding anything to the contrary contained in this Agreement, (a) Seller's ’s obligations under this Section 16.04 12.04 (excluding Seller’s obligations under this Section 12.04 related to Seller’s breach of the Fundamental Representations, Seller’s breach of the representations and warranties in Section 6.08 or Section 6.09, and Seller’s Retained Obligations identified in Section 12.01(b) or Section 12.01(c), all of which shall survive indefinitely) shall apply only if and to the extent Buyer provides Seller with a Claim Notice complying with Section 16.05 12.05 on or before the day occurring one eighteen (118) year months after the Closing, (b) Buyer shall bear sole responsibility for the aggregate Losses associated with all such claims (excluding claims asserted under Section 12.04 solely as to claims based on Seller’s breach of the Fundamental Representations, Seller’s breach of the representations and warranties in Section 6.08 or Section 6.09, or Seller’s Retained Obligations identified in Section 12.01(b) or Section 12.01(c), all of which shall not be subject to a threshold) up to a threshold percentage of two percent (2%) of the Unadjusted Purchase Price, it being intended by the Parties that Seller be obligated only to the extent of those Losses that exceed two percent (2%) of the Unadjusted Purchase Price, and (c) Seller's ’s aggregate liability under this Section 12.04 is limited to an amount equal to fifty ten percent (5010%) of the Unadjusted Purchase Price. INDEMNIFICATION UNDER THIS SECTION 16.04 12.04 SHALL BE BUYER'S ’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY RETAINED OBLIGATION, AND SELLER'S ’S LIABILITY WITH RESPECT TO ANY RETAINED OBLIGATION SHALL BE SUBJECT TO THE PROCEDURES AND LIMITATIONS ON TIMING AND AMOUNT PROVIDED IN THIS SECTION 16.04 12.04 AND IN SECTION 16.0512.05. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN THE EVENT THAT A CLAIM FOR INDEMNIFICATION IS TIMELY MADE WITHIN THE APPLICABLE SURVIVAL PERIOD SET FORTH ABOVE, SUCH SURVIVAL PERIOD SHALL BE EXTENDED (SOLELY WITH RESPECT TO SUCH CLAIM FOR INDEMNIFICATION TIMELY MADE WITHIN THE APPLICABLE SURVIVAL PERIOD SET FORTH ABOVE) UNTIL THE FINAL RESOLUTION OF SUCH CLAIM.

Seller’s Indemnification. PROVIDED THAT THE CLOSING OCCURSExcept as otherwise provided in Section 10.5, SELLER SHALL RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS BUYER, ITS PARTNERS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, MEMBERS, SHAREHOLDERS, AFFILIATES AND SUBSIDIARIES (COLLECTIVELY, THE “BUYER INDEMNITEES”) FROM AND AGAINST ANY AND ALL LOSSES AS A RESULT OF, ARISING OUT OF, OR RELATED TO THE RETAINED OBLIGATIONS, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF THE BUYER INDEMNITEES; provided, however, notwithstanding anything to the contrary contained in this Agreement, (a) Seller's obligations under this Section 16.04 shall apply only if from and to the extent Buyer provides Seller with a Claim Notice complying with Section 16.05 on or before the day occurring one (1) year after the Closing, Sellers hereby agree jointly and severally to indemnify Coyote and INET, and any successor to the business or assets of Coyote and INET, and hold them harmless from and in respect of any loss, liability, damages, deficiencies, costs or expenses, including reasonable attorneys' fees (bnet of income or franchise tax savings) Buyer shall bear sole responsibility for the aggregate Losses associated with all such claims up to a threshold percentage accruing from or resulting by reason of two percent (2%) any breach of any of the Unadjusted Purchase Pricerepresentations, it being intended warranties, covenants or agreements made or to be performed by the Parties that Seller be obligated only Sellers or INET pursuant to this Agreement or from any misrepresentations in, or from any instrument furnished hereunder. Sellers shall indemnify and hold harmless Coyote and INET, and any successor to the extent business of those Losses that exceed two percent Coyote or INET, from all suits, actions, proceedings, demands, assessments, judgments, costs, reasonable attorneys' fees and expenses (2%net of income or franchise tax savings) incidental to any of the Unadjusted Purchase Priceforegoing. Coyote or INET shall notify Sellers in writing of the existence of any matter to which the obligations set forth in this Section 10.2 shall apply, in the manner specified in Section 10.4 hereof which shall set forth the amount of the indemnity claim to be paid to Coyote, upon payment by Coyote or INET. Sellers agree to pay to Coyote the amount of the indemnity claim within ten (10) days of receipt of Coyote's notice, or Sellers shall dispute its obligation to pay such amount in full to Coyote by setting forth the basis of its objection in a written notice to Coyote with in such ten (10) business day period. The Parties specifically agree that, subject to the provisions of Section 10.5, the indemnification provided herein shall apply according to its terms regardless of the materiality or lack thereof with respect to any claim Coyote may have pursuant to the indemnity provided therein, without limiting the generality of the foregoing. 10.2.1 In the event of an indemnification event by Sellers as set forth above, and (c) Seller's aggregate liability is limited to an amount equal to fifty percent (50%) if cash payment of the Unadjusted Purchase Price. INDEMNIFICATION UNDER THIS SECTION 16.04 SHALL BE BUYER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY RETAINED OBLIGATIONfull amount is not made timely, AND SELLER'S LIABILITY WITH RESPECT TO ANY RETAINED OBLIGATION SHALL BE SUBJECT TO THE PROCEDURES AND LIMITATIONS ON TIMING AND AMOUNT PROVIDED IN THIS SECTION 16.04 AND IN SECTION 16.05.Coyote shall have the right to set off against the obligation by demanding return of Coyote Shares previously tendered or reducing the number of Earnout Shares otherwise available pursuant to Exhibit B.