Common use of Seller’s Limitation of Liability Clause in Contracts

Seller’s Limitation of Liability. Notwithstanding any provision in this Agreement to the contrary (except for Tax matters which shall be governed by Article XI of this Agreement), the obligation of Seller to indemnify Buyer Indemnified Parties pursuant to (A) Section 9.2(a) against any Losses sustained by reason of any claim with respect to the breach of a representation or warranty (other than Losses (i) arising out of, relating to or resulting from breaches or inaccuracies of any Fundamental Representation or (ii) arising out of or resulting from fraud or willful material breach by Seller (such Losses in (i) and (ii), collectively, the “Seller Uncapped Claims”)) or (B) Section 9.2 (b) against any Losses sustained by reason of any claim with respect to the breach by Seller of a covenant, shall be limited to claims as to which a Buyer Indemnified Party has given Seller written notice, setting forth therein in reasonable detail the basis for such claim, on or prior to the termination of such representation or warranty or covenant pursuant to Section 9.1 hereof; provided, however, that the provisions for indemnification contained in Section 9.2 (a) (other than for Losses constituting Seller Uncapped Claims) shall be effective only after the aggregate amount of all such claims which are so indemnifiable exceeds an amount equal to eleven million five hundred thousand dollars ($11,500,000) (the “Basket”), and only to the extent of such excess; provided, further, that Seller shall not be liable to any Buyer Indemnified Party for any particular claim under Section 9.2(a) (other than for Losses constituting Seller Uncapped Claims), unless the amount of such claim exceeds ten thousand dollars ($10,000) (the “De Minimis Amount”) and is in excess of any reserves reflected on the 2009 Financial Statements set forth on Section 4.6(a) of the Seller Disclosure Letter with respect to such Losses and all such Losses in respect of any claim or series of related claims which total less than the De Minimis Amount or which have not exceeded any relevant reserve shall be excluded in their entirety from calculations with respect to the Basket or Cap, and the Buyer Indemnified Parties shall have no recourse for such Losses. Notwithstanding any other provision of this Agreement, in no event shall the aggregate amount of all indemnification payments for which Seller is liable pursuant to Section 9.2(a) (other than for Losses constituting Seller Uncapped Claims) exceed an amount equal to twenty-eight million dollars ($28,000,000) (the “Cap”).

Seller’s Limitation of Liability. Notwithstanding any provision All representations and warranties made in this Agreement by Seller shall survive Closing for a period of nine (9) months (the “Survival Period”), and upon expiration thereof shall be of no further force or effect except to the extent that with respect to any particular alleged breach, Purchaser gives Seller written notice on or before the expiration of the Survival Period of such alleged breach with reasonable detail as to the nature of such breach and files an action against Seller with respect thereto within thirty (30) days after the giving of such notice. Notwithstanding anything to the contrary (except contained in this Section 6.15, Seller shall have no liability to Purchaser for Tax matters which shall be governed by Article XI of this Agreement), the obligation of Seller to indemnify Buyer Indemnified Parties pursuant to (A) Section 9.2(a) against any Losses sustained by reason of any claim with respect to the breach of a any representation or warranty (other than Losses (i) arising out of, relating to or made in this Agreement unless the loss resulting from breaches or inaccuracies Seller’s breach of any Fundamental Representation or its representations and warranties exceeds, in the aggregate, Twenty Thousand and No/100 Dollars (ii$20,000.00), in which event Seller shall be liable for each dollar of damages in excess of such Twenty Thousand and No/100 Dollars ($20,000.00) arising out of or resulting from fraud or willful material breach by Seller (such Losses in (i) and (ii), collectively, the “Seller Uncapped Claims”)) or (B) Section 9.2 (b) against any Losses sustained by reason of any claim with respect to the breach by Seller or breaches of a covenant, shall be limited to claims as to which a Buyer Indemnified Party has given Seller written notice, setting forth therein in reasonable detail the basis for such claim, on or prior to the termination of such representation or warranty or covenant pursuant to Section 9.1 hereofits representations and warranties; provided, however, that the provisions for indemnification contained in Section 9.2 (a) (other than for Losses constituting Seller Uncapped Claims) shall be effective only after the aggregate amount of all such claims which are so indemnifiable exceeds an amount equal to eleven million five hundred thousand dollars ($11,500,000) (the “Basket”), and only to the extent of such excess; provided, further, that Seller shall not be liable to any Buyer Indemnified Party for any particular claim under Section 9.2(a) (other than for Losses constituting Seller Uncapped Claims), unless the amount of such claim exceeds ten thousand dollars ($10,000) (the “De Minimis Amount”) and is in excess of any reserves reflected on the 2009 Financial Statements set forth on Section 4.6(a) of the Seller Disclosure Letter with respect to such Losses and all such Losses in respect of any claim or series of related claims which total less than the De Minimis Amount or which have not exceeded any relevant reserve shall be excluded in their entirety from calculations with respect to the Basket or Cap, and the Buyer Indemnified Parties shall have no recourse for such Losses. Notwithstanding any other provision of this Agreement, in no event shall Seller’s total liability for any such breach or breaches exceed, in the aggregate amount of all indemnification payments for which Seller is liable pursuant to Section 9.2(a) (other than for Losses constituting Seller Uncapped Claims) exceed an amount equal to twenty-eight million dollars aggregate, Two Hundred Fifty Thousand and No/100 Dollars ($28,000,000) (250,000.00). In no event shall any claim for a breach of any representation or warranty of either party be actionable or payable if the “Cap”)breach in question results from, or is based on, a condition, state of facts or other matter which was known to the non-breaching party prior to Closing or which was contained in the Due Diligence Items or in any other of Seller’s files, books or records made available to Purchaser for inspection or could have been discovered by Purchaser with the application of reasonable efforts to inspect the Property prior to Closing.

Seller’s Limitation of Liability. Notwithstanding any provision in this Agreement to the contrary (except for Tax matters which shall be governed by Article XI of this Agreement)contrary, the obligation liability of Seller to indemnify Buyer Indemnified Parties pursuant to (ASection 11.2(a) Section 9.2(a) hereof against any Losses Damages sustained by reason of any claim Buyer Claim with respect to the a breach of a representation or warranty (other than Losses (i) arising out of, relating to or resulting from breaches or inaccuracies of any Fundamental Representation or (ii) arising out of or resulting from fraud or willful material breach by Seller (such Losses in (i) and (ii), collectively, the “Seller Uncapped Claims”)) or (B) Section 9.2 (b) against any Losses sustained by reason of any claim with respect to the breach by Seller of a covenant, shall be limited to claims Buyer Claims as to which a Buyer Indemnified Party has given Seller written notice, setting forth therein in reasonable detail the basis for such claimBuyer Claim, on or prior to the termination of such representation or warranty or covenant pursuant to Section 9.1 11.1 hereof; provided, however, that (a) Seller shall be liable pursuant to the provisions for indemnification contained in Section 9.2 (a11.2(a) hereof with respect to breaches of representations and warranties (other than for Losses constituting Seller Uncapped Claimsthe representations and warranties contained in Sections 3.1, 3.2, 3.3, 3.4, 3.19 and 3.20 hereof and, solely to the extent relating to the foregoing representations, the certificate delivered pursuant to Section 9.1(c) shall be effective hereof (collectively, the "Excluded Representations")), only after the aggregate amount of all such claims Buyer Claims for which are so indemnifiable Seller is liable under this Agreement (without regard to the limitation contained in this proviso) exceeds an amount equal to eleven million five hundred thousand dollars ($11,500,000) 1,840,000 (the “"Basket”"), and only to the extent of such excess; provided, further, that Seller shall not be liable to any and (b) no Buyer Indemnified Party for any particular claim under Section 9.2(a) Claim (other than for Losses constituting Seller Uncapped Claims), unless the amount of such claim exceeds ten thousand dollars ($10,000) (the “De Minimis Amount”) and is in excess of any reserves reflected on the 2009 Financial Statements set forth on Section 4.6(a) of the Seller Disclosure Letter with respect to such Losses and all such Losses in respect of any claim or series of related claims which total less than Buyer Claims) pursuant to the De Minimis Amount or which have not exceeded any relevant reserve shall be excluded provisions for indemnification contained in their entirety from calculations Section 11.2(a) hereof with respect to the Basket or Cap, breaches of representations and the Buyer Indemnified Parties shall have no recourse for such Losseswarranties in an amount less than $50,000 may be asserted. Notwithstanding any other provision of this Agreement, in no event shall the aggregate amount of all indemnification payments Buyer Claims for which Seller is liable pursuant to: (i) Section 11.2(a) hereof (other than as a result of the breach of any Excluded Representations), exceed an amount equal to $19,187,000, and (ii) Section 11.2(a) hereof (solely as a result of the breach of Excluded Representations), 11.2(b). 11.2(f), 11.2(g), 11.2(h) and 11.2(i), exceed an amount equal to the Purchase Price, less the aggregate amount of all Buyer Claims for which Seller is liable pursuant to Section 9.2(a11.2(a) (hereof with respect to breaches of representations and warranties other than for Losses constituting the Excluded Representations. Without limiting in any manner the applicability of the preceding provisions of this Section 11.3, Buyer and Seller Uncapped Claimsagree that (i) exceed an amount equal Seller's obligations under Section 11.2(h) with respect to twenty-eight million dollars any given Required Consent Lease shall be limited to Damages incurred with respect to the period commencing on the Closing Date and ending on the earliest date that the Required Consent Lease could be terminated by the lessor ($28,000,000or, if earlier, the date such Required Consent Lease would have expired) in accordance with its terms had Consent thereunder been obtained, and (ii) Seller's obligations under Section 11.2(i) with respect to any given Required Consent Third Party Payor Contract shall be limited to Damages incurred with respect to the “Cap”)period commencing on the Closing Date and ending on the earlier of the date one year after the Closing Date and the date that such contract would normally expire in accordance with its terms had Consent thereunder been obtained.

Seller’s Limitation of Liability. Notwithstanding any Any provision in this Agreement to the contrary (except for Tax matters which shall be governed by Article XI of this Agreement)notwithstanding, the obligation liability of Seller to indemnify Buyer Indemnified Parties (a) pursuant to (ASection 10.2(i) Section 9.2(a) hereof against any Losses Damages sustained by reason of any claim with respect to the breach Buyer Claim for breaches of a representation or warranty representations and warranties (other than Losses (ithe representations and warranties set forth in Sections 3.1, 3.2, 3.4, 3.22 and 3.24 and the first sentence of Section 3.3) arising out of, relating to or resulting from breaches or inaccuracies of any Fundamental Representation or (ii) arising out of or resulting from fraud or willful material breach by Seller (such Losses in (i) and (ii), collectively, the “Seller Uncapped Claims”)) or (B) Section 9.2 (b) against any Losses sustained by reason of any claim with respect to the breach by Seller of a covenant, shall be limited to claims such Buyer Claims as to which a Buyer Indemnified Party has given Seller written notice, setting forth therein in reasonable detail the basis for such claimBuyer Claim, on or prior to the termination first anniversary of such representation or warranty or covenant the Closing Date, (b) pursuant to Section 9.1 hereof10.2(iii)(A) hereof against any Damages by reason of any Buyer Claim in respect of On-site Environmental Matters shall be limited to such Buyer Claims as to which Buyer has given Seller written notice, setting forth therein in reasonable detail the basis for such Buyer Claim, on or prior to the second anniversary of the Closing Date and (c) pursuant to Section 10.2(iii)(B) hereof against any Damages by reason of any Buyer Claim in respect of Off-Site Environmental Matters shall be limited to such Buyer Claims as to which Buyer has given Seller written notice, setting forth therein in reasonable detail the basis for such Buyer Claim, on or prior to the tenth anniversary of the Closing Date; provided, however, that the provisions for indemnification contained in Section 9.2 10.2(i) hereof and the provisions for indemnification contained in Section 10.2(iii)(A) and (aB) (other than for Losses constituting Seller Uncapped Claims) hereof in respect of On-site Environmental Matters and Off-site Environmental Matters shall be effective only with respect to any Buyer Claim for Damages only after the aggregate amount of all such claims Buyer Claims for breaches of representations and warranties and all Buyer Claims under Section 10.2(iii) for which are so indemnifiable Seller is liable under this Agreement exceeds an amount equal to eleven million five hundred thousand dollars ($11,500,000) 3,000,000 (the “"Basket”"), and then only to the extent of that such excessBuyer Claims exceed the Basket; and provided, further, that Seller shall not be liable to any Buyer Indemnified Party for any particular claim under Section 9.2(a) (other than for Losses constituting Seller Uncapped Claims), unless the amount of such claim exceeds ten thousand dollars ($10,000) (the “De Minimis Amount”) and is in excess of any reserves reflected on the 2009 Financial Statements set forth on Section 4.6(a) of the Seller Disclosure Letter with respect to such Losses and all such Losses in respect of any claim or series of related claims which total less than the De Minimis Amount or which have not exceeded any relevant reserve shall be excluded in their entirety from calculations with respect to the Basket or Cap, and the Buyer Indemnified Parties shall have no recourse for such Losses. Notwithstanding any other provision of this Agreement, in no event shall the aggregate amount of all indemnification payments Buyer Claims for breaches of representations and warranties and all Buyer Claims under Section 10.2(iii)(A) hereof in respect of On-site Environmental Matters for which Seller is liable pursuant to such Section 9.2(a10.2 hereof exceed $50,000,000. 4 Buyer's Agreement to Indemnify. Upon the terms and subject to conditions of this Article X, Buyer shall indemnify, defend and hold harmless Seller and its officers, directors, employees, agents and affiliates, at any time after the Closing, from and against all Damages asserted against, resulting to, imposed upon or incurred by Seller or such affiliates by reason of or resulting from (i) a breach of any representation or warranty of Buyer contained in or made pursuant to this Agreement; or (ii) other than such for Losses constituting which indemnification is provided in Section 6.7 hereof, non-fulfillment of any agreement or covenant of Buyer or, after the Closing, the Company contained in or made pursuant to this Agreement, including, without limitation, those set forth in Section 7.1 hereof with respect to the assumption by Buyer, Buyer's Pension Plan, Buyer's Thrift Plan or the Company of pension plan obligations (collectively, "Seller Uncapped Claims) exceed an amount equal to twenty-eight million dollars ($28,000,000) (the “Cap”").

Seller’s Limitation of Liability. Notwithstanding any provision (a) Anything in this Agreement to the contrary (except for Tax matters which shall be governed by Article XI of this Agreement)notwithstanding, the obligation liability of Seller to indemnify Buyer Indemnified Parties the Purchaser Group pursuant to (ASection 9.1(a) Section 9.2(a) hereof against any Losses Damages sustained by reason of: (i) any Seller Claim pursuant to Section 9.1(a)(i) for a breach of any claim with respect of the representations or warranties set forth herein shall be limited to Seller Claims as to which any member of the Purchaser Group has given Seller written notice on or prior to the breach expiration of a the applicable survival period for such representation or warranty set forth in Section 9.5, and (ii) any Seller Claim pursuant to Section 9.1(a)(ii) for a breach of any of the covenants and agreements set forth herein (other than Losses (i) arising out ofthe covenants and agreements set forth in Sections 7.2, relating to or resulting from breaches or inaccuracies of any Fundamental Representation or (ii) arising out of or resulting from fraud or willful material breach by Seller (such Losses in (i7.3, 7.4, 7.6(b) and (ii7.11), collectively, the “Seller Uncapped Claims”)) or (B) Section 9.2 (b) against any Losses sustained by reason of any claim with respect to the breach by Seller of a covenant, shall be limited to claims Seller Claims as to which a Buyer Indemnified Party any member of the Purchaser Group has given Seller written notice, setting forth therein in reasonable detail the basis for such claim, notice on or prior to the termination second (2nd) anniversary of such representation the Closing Date. (b) With the exception of any and all Seller Claims arising under or warranty or covenant pursuant to Section 9.1 hereof; providedSections 4.1, however4.2, that 4.3, 5.1, 5.4 and 5.17 hereof (the “Excepted Seller Claims”), and arising under or pursuant to Sections 5.7 and 5.19, the provisions for indemnification indemnity contained in Section 9.2 (a9.1(a) (other than for Losses constituting Seller Uncapped Claims) hereof shall be effective only after the aggregate amount of Damages for all such claims which are so indemnifiable Seller Claims exceeds an amount equal to eleven million five hundred thousand dollars Three Hundred Thousand Dollars ($11,500,000300,000) (the “BasketThreshold Indemnification Amount”), and then only to the extent of such excess; provided. (c) Anything in this Agreement to the contrary notwithstanding, further, that Seller (i) there shall not be liable to any Buyer Indemnified Party for any particular claim under Section 9.2(a) (other than for Losses constituting Seller Uncapped Claims), unless no limit on the amount of such claim exceeds ten thousand dollars ($10,000) (the “De Minimis Amount”) and is in excess of any reserves reflected on the 2009 Financial Statements set forth on Section 4.6(a) of the Seller Disclosure Letter Seller’s indemnification obligations with respect to such Losses and all such Losses in respect Seller Claims for a breach of any claim or series of related claims which total less than the De Minimis Amount or which have not exceeded any relevant reserve shall be excluded in their entirety from calculations with respect to the Basket or CapExcepted Seller Claims, and the Buyer Indemnified Parties shall have no recourse for such Losses. Notwithstanding any other provision of this Agreement, (ii) in no event shall the aggregate amount of all Seller’s indemnification payments obligations with respect to Seller Claims for which breaches of the representations or warranties set forth in Sections 5.7, 5.12 and 5.19 in the aggregate, exceed the Initial Purchase Price minus the amount of any indemnification obligations described in Sections 9.3(c)(iii), and (iii) in no event shall the aggregate amount of Seller’s indemnification obligations with respect to Seller is liable pursuant to Section 9.2(a) (Claims for breaches of any of the other than for Losses constituting Seller Uncapped Claims) representations, warranties, covenants or agreements set forth herein exceed an amount equal to twenty-eight million dollars Ten Million Dollars ($28,000,00010,000,000). (d) Any indemnification to which the Purchaser Group is entitled under this Agreement shall first be made as a payment to the Purchaser Group from the Escrow Amount in accordance with the terms of an Escrow Agreement, substantially in the form attached hereto as Exhibit G (the “CapEscrow Agreement”). (e) Notwithstanding anything contained in this Agreement to the contrary, in no event shall Seller have any obligation to indemnify any member of the Purchaser Group against Damages for consequential damages or lost profits and Seller’s obligation to indemnify the Purchaser Group with respect to Seller Claims shall be net of any insurance proceeds recovered by the Purchaser Group with respect thereto and any tax benefit realized by any member of the Purchaser Group in connection therewith, it being understood that the Purchaser Group shall have a good faith obligation to diligently pursue the recovery of insurance proceeds and the realization of tax benefits (and, to the extent any such insurance proceeds or tax benefit are recovered or realized by the Purchaser Group after payment of such indemnification obligation, Purchaser shall pay to Seller the amount of such insurance proceeds or tax benefit recovered or realized up to the amount of such indemnification payment). (f) Notwithstanding anything contained in this Agreement to the contrary, any obligation of Seller to indemnify any member of the Purchaser Group with respect to environmental remediation shall be limited to Damages incurred by the Purchaser Group as may be required by Environmental Laws as in effect on the Closing Date or the valid order or judgment of any court or other governmental authority implementing or enforcing such Environmental Laws as in effect on the Closing Date, and in no event shall Seller have any obligation to indemnify the Purchaser Group beyond actions required by Environmental Laws as in effect on the Closing Date or the valid order or judgment of any court or other Governmental Authority implementing or enforcing such Environmental Laws. Such costs of remediation must be reasonable costs incurred by a member of the Purchaser Group which are reasonably necessary to satisfy but not exceed the enforceable limits or standards imposed by Environmental Laws as in effect on the Closing Date or the valid order or judgment of any court or other Governmental Authority implementing or enforcing such Environmental Laws so that each of the Companies can make use of the applicable property in its business as currently conducted.

Seller’s Limitation of Liability. Notwithstanding any provision in this Agreement to the contrary (except for Tax matters which shall be governed by Article XI of this Agreement)contrary, the obligation liability of Seller to indemnify Buyer Indemnified Parties pursuant to (ASection 11.2(a) Section 9.2(a) against any Losses sustained by reason of any claim with respect to the breach of a representation or warranty (other than Losses (i) arising out of, relating to or resulting from breaches or inaccuracies of any Fundamental Representation or (ii) arising out of or resulting from fraud or willful material breach by Seller (such Losses in (i) and (ii), collectively, the “Seller Uncapped Claims”)) or (B) Section 9.2 (b) against any Losses sustained by reason of any claim with respect to the breach by Seller of a covenant, hereof shall be limited to claims Buyer Claims as to which a Buyer Indemnified Party has given Seller written notice, setting forth therein in reasonable detail the basis for such claimBuyer Claim, on or prior to the termination of such representation or warranty or covenant pursuant to Section 9.1 11.1 hereof; provided, however, that (i) the provisions for indemnification contained in Section 9.2 (a) (other than for Losses constituting Seller Uncapped Claims11.2(a) shall be effective only after the aggregate amount of all such claims Buyer Claims (other than Buyer Claims resulting from a breach of a Fundamental Representation) for which are so indemnifiable exceeds Seller is liable under Section 11.2(a) exceed an amount equal to eleven million five hundred thousand dollars ($11,500,000) 1.5% of the Purchase Price (the “"Basket”"), and only to the extent of such excess; provided, further, that Seller shall not be liable to any (ii) no Buyer Indemnified Party for any particular claim under Section 9.2(a) Claim (other than for Losses constituting Seller Uncapped Claims), unless the amount of such claim exceeds ten thousand dollars ($10,000) (the “De Minimis Amount”) and is in excess of any reserves reflected on the 2009 Financial Statements set forth on Section 4.6(a) of the Seller Disclosure Letter with respect to such Losses and all such Losses in respect of any claim or series of related claims which total Buyer Claims) pursuant to Section 11.2(a) in an amount less than the De Minimis Amount $150,000 may be asserted (provided, that no Buyer Claim (or which have not exceeded series of related Buyer Claims) pursuant to Section 11.2(a) arising from any relevant reserve shall supplemental or amended disclosure pursuant to Section 5.7(a)(ii) in an amount less than $200,000 may be excluded in their entirety from calculations with respect to the Basket or Cap, and the Buyer Indemnified Parties shall have no recourse for such Lossesasserted). Notwithstanding any other provision of this Agreement, in no event shall the aggregate amount of all indemnification payments Buyer Claims for which Seller is liable pursuant to: (i) Section 11.2(a) (other than as a result of fraud or the breach of a Fundamental Representation), exceed an amount equal to 12.5% of the Purchase Price (the "Cap"); and (ii) Section 11.2(a) (solely as a result of the breach of a Fundamental Representation), Section 11.2(b), 11.2(e), or 11.2(g) exceed an amount equal to the Purchase Price, less the aggregate amount of all Buyer Claims for which Seller is liable pursuant to Section 9.2(a11.2(a); it being understood and agreed that the foregoing limits shall not apply to any Buyer Claims for intentional and willful fraud or pursuant to Sections 11.2(c), 11.2(d) (other than for Losses constituting Seller Uncapped Claims) exceed an amount equal to twenty-eight million dollars ($28,000,000) (the “Cap”and 11.2(f).

Seller’s Limitation of Liability. Notwithstanding any provision in this Agreement to the contrary (except for Tax matters which shall be governed by Article XI of this Agreement)contrary, the obligation liability of Seller to indemnify Buyer Indemnified Parties pursuant to (ASection 11.2(a) Section 9.2(a) against any Losses sustained by reason of any claim with respect to the breach of a representation or warranty (other than Losses (i) arising out of, relating to or resulting from breaches or inaccuracies of any Fundamental Representation or (ii) arising out of or resulting from fraud or willful material breach by Seller (such Losses in (i) and (ii), collectively, the “Seller Uncapped Claims”)) or (B) Section 9.2 (b) against any Losses sustained by reason of any claim with respect to the breach by Seller of a covenant, hereof shall be limited to claims Buyer Claims as to which a Buyer Indemnified Party has given Seller written notice, setting forth therein in reasonable detail the basis for such claimBuyer Claim, on or prior to the termination of such representation or warranty or covenant pursuant to Section 9.1 11.1 hereof; provided, however, that (i) the provisions for indemnification contained in Section 9.2 (a11.2(a) (other than for Losses constituting Seller Uncapped Claimswith respect to breaches of the Unlimited Representations) shall be effective only after the aggregate amount of all such claims Buyer Claims for which are so indemnifiable exceeds Seller is liable under this Agreement exceed an amount equal to eleven million five hundred thousand dollars ($11,500,000) 712,500 (the “"Basket”"), in which event all amounts including such $712,500 shall be due to Buyer, and only to the extent of such excess; provided, further, that Seller shall not be liable to any (ii) no Buyer Indemnified Party for any particular claim under Section 9.2(a) Claim (other than for Losses constituting Seller Uncapped Claims), unless the amount of such claim exceeds ten thousand dollars ($10,000) (the “De Minimis Amount”) and is in excess of any reserves reflected on the 2009 Financial Statements set forth on Section 4.6(a) of the Seller Disclosure Letter with respect to such Losses and all such Losses in respect of any claim or series of related claims which total Buyer Claims) pursuant to the provisions for indemnification contained in Section 11.2(a) hereof in an amount less than the De Minimis Amount or which have not exceeded any relevant reserve shall $35,000 may be excluded in their entirety from calculations with respect to the Basket or Cap, and the Buyer Indemnified Parties shall have no recourse for such Lossesasserted. Notwithstanding any other provision of this Agreement, in no event shall the aggregate amount of all indemnification payments Buyer Claims for which Seller is liable pursuant to (A) Section 9.2(a11.2(a) (other than for Losses constituting Seller Uncapped Claimswith respect to breaches of the Unlimited Representations or the representations and warranties under Section 3.18 (Environmental)) exceed an amount equal to twenty-eight million dollars $9,500,000 or (B) Section 11.2(b) with respect to those covenants and obligations contained in Article V hereof to be performed after the Closing or Section 11.2(a) with respect to breaches of the representations and warranties under Section 3.18 (Environmental) exceed an amount equal to $28,000,000) (the “Cap”)23,750,000.

Seller’s Limitation of Liability. Notwithstanding any provision All representations and warranties made in this Agreement by Seller shall survive Closing for a period of nine (9) months (the “Survival Period”), and upon expiration thereof shall be of no further force or effect except to the extent that with respect to any particular alleged breach, Purchaser gives Seller written notice on or before the expiration of the Survival Period of such alleged breach with reasonable detail as to the nature of such breach and files an action against Seller with respect thereto within thirty (30) days after the giving of such notice. Notwithstanding anything to the contrary (except contained in this Section 6.17, Seller shall have no liability to Purchaser for Tax matters which shall be governed by Article XI of this Agreement), the obligation of Seller to indemnify Buyer Indemnified Parties pursuant to (A) Section 9.2(a) against any Losses sustained by reason of any claim with respect to the breach of a any representation or warranty (other than Losses (i) arising out of, relating to or made in this Agreement unless the loss resulting from breaches or inaccuracies Seller’s breach of any Fundamental Representation or its representations and warranties exceeds, in the aggregate, Thirty Thousand and No/100 Dollars (ii$30,000.00) arising out the “Threshold Amount”), in which event Seller shall be liable for each dollar of or damages in excess of the Threshold Amount resulting from fraud or willful material breach by Seller (such Losses in (i) and (ii), collectively, the “Seller Uncapped Claims”)) or (B) Section 9.2 (b) against any Losses sustained by reason of any claim with respect to the breach by Seller or breaches of a covenant, shall be limited to claims as to which a Buyer Indemnified Party has given Seller written notice, setting forth therein in reasonable detail the basis for such claim, on or prior to the termination of such representation or warranty or covenant pursuant to Section 9.1 hereofits representations and warranties; provided, however, that in no event shall Seller’s total liability for any such breach or breaches exceed, in the provisions for indemnification contained in Section 9.2 (a) (other than for Losses constituting Seller Uncapped Claims) shall be effective only after the aggregate amount of all such claims which are so indemnifiable exceeds an amount equal to eleven million five hundred thousand dollars aggregate, Three Hundred Thousand and No/100 Dollars ($11,500,000300,000.00) (the “BasketDamage Cap”). In no event shall any claim for a breach of any representation or warranty of either party be actionable or payable if the breach in question results from, and only or is based on, a condition, state of facts or other matter which was known to the extent non-breaching party prior to Closing or which was contained in the Due Diligence Items or in any other of such excess; providedSeller’s files, further, that books or records made available to Purchaser for inspection or could have been discovered by Purchaser with the application of reasonable efforts to inspect the Property prior to Closing. Seller shall will not be liable to or responsible in any Buyer Indemnified Party circumstances for any particular claim under Section 9.2(a) (other than consequential or punitive damages or lost profits, and Purchaser hereby releases and waives all claims for Losses constituting Seller Uncapped Claims)such damages and lost profits. If, unless prior to the amount of such claim exceeds ten thousand dollars ($10,000) (the “De Minimis Amount”) and is in excess of any reserves reflected on the 2009 Financial Statements set forth on Section 4.6(a) expiration of the Seller Disclosure Letter with respect to such Losses and all such Losses Survival Period, Purchaser has not notified Seller, in respect writing, of any claim or series Purchaser has against Seller for breach of related claims which total less than any of Seller's representations and warranties and commenced an action against Seller within thirty (30) days of giving such notice, Purchaser will be forever barred and precluded from making a claim based upon any breach of the De Minimis Amount or which have not exceeded any relevant reserve shall Seller's representations and warranties, and Seller will be excluded in their entirety deemed released from calculations all liabilities and obligations with respect to the Basket or Cap, and the Buyer Indemnified Parties shall have no recourse for such Losses. Notwithstanding any other provision of this Agreement, in no event shall the aggregate amount of all indemnification payments for which Seller is liable pursuant to Section 9.2(a) (other than for Losses constituting Seller Uncapped Claims) exceed an amount equal to twenty-eight million dollars ($28,000,000) (the “Cap”)thereto.

Seller’s Limitation of Liability. Notwithstanding Section 9.2 or any other provision in this Agreement to the contrary (except for Tax matters which shall be governed by Article XI of this Agreement), : (a) the obligation of Seller to indemnify Buyer Indemnified Parties shall not be entitled to any indemnification in respect of Damages incurred by any Buyer Indemnified Party pursuant to (A) Section 9.2(a) for any individual item or Claim, or series of related items or Claims, in which the Damages related thereto are less than $200,000 (any claim exceeding such threshold being referred to herein as a “Qualifying Claim”); (b) Seller shall have no obligation to indemnify any Buyer Indemnified Party from and against any Losses sustained Damages until the aggregate amount of indemnifiable Damages under Section 9.2(a) suffered by reason the Buyer Indemnified Parties in respect of any claim Qualifying Claims exceeds an amount equal to $10,000,000 (the “Threshold Amount”), and then only with respect to Damages under Section 9.2(a) in excess of the breach Threshold Amount. (c) the aggregate amount of a representation or warranty (other than Losses (i) arising out of, relating to or resulting from breaches or inaccuracies of any Fundamental Representation or (ii) arising out of or resulting from fraud or willful material breach by all Damages for which Seller (such Losses in (i) and (ii), collectively, the “Seller Uncapped Claims”)) or (B) Section 9.2 (b) against any Losses sustained by reason of any claim with respect to the breach by Seller of a covenant, shall be limited to claims as to which a Buyer Indemnified Party has given Seller written notice, setting forth therein in reasonable detail the basis for such claim, on or prior to the termination of such representation or warranty or covenant may become liable pursuant to Section 9.1 hereof9.2(a) shall not in any event exceed Fifty Million Dollars ($50,000,000) (the “Indemnity Cap”); provided, however, that the provisions for indemnification contained limitation of liability set forth in this Section 9.2 (a) (other than for Losses constituting Seller Uncapped Claims9.3(c) shall be effective only after the aggregate amount of all such claims which are so indemnifiable exceeds an amount equal to eleven million five hundred thousand dollars ($11,500,000) (the “Basket”), and only to the extent of such excess; provided, further, that Seller shall not be liable apply to any Damages incurred by the Buyer Indemnified Party for any particular claim under Section 9.2(a) (other than for Losses constituting Seller Uncapped Claims), unless the amount of such claim exceeds ten thousand dollars ($10,000) (the “De Minimis Amount”) and is in excess Parties as a result of any reserves reflected actual fraud on the 2009 Financial Statements set forth on Section 4.6(apart of Seller in the negotiation or execution of this Agreement; and (d) of the Seller Disclosure Letter with respect to such Losses and all such Losses in respect of any claim or series of related claims which total less than the De Minimis Amount or which have not exceeded any relevant reserve shall be excluded in their entirety from calculations with respect to the Basket or Cap, and the Buyer Indemnified Parties shall have no recourse for such Losses. Notwithstanding not be entitled to indemnification with respect to any other provision of this AgreementDamages to the extent reflected or reserved for, or arising from any matter reflected or reserved for, in no event shall the aggregate amount Closing Balance Sheet or otherwise taken into account in the calculation of all indemnification payments for which Seller is liable pursuant to Section 9.2(a) (other than for Losses constituting Seller Uncapped Claims) exceed an amount equal to twenty-eight million dollars ($28,000,000) (the “Cap”)Net Purchase Price.

Seller’s Limitation of Liability. Notwithstanding any provision (a) Anything in this Agreement to the contrary (except for Tax matters which shall be governed by Article XI of this Agreement)notwithstanding, the obligation liability of Seller to indemnify Buyer Indemnified Parties the Acquiror Group pursuant to (ASection 10.1(a) Section 9.2(a) hereof against 65 any Losses Damages sustained by reason of any claim with respect to the Seller Claim thereunder for a breach of a any representation or warranty (other than Losses (i) arising out ofof Seller or the Company shall be limited to Seller Claims as to which any member of the Acquiror Group has given Seller written notice on or prior to March 31, relating to 1998, whether or resulting from breaches or inaccuracies of not any Fundamental Representation or (ii) arising out of or resulting from fraud or willful material breach by Seller (such Losses in (i) and (ii)Damages have then actually been sustained; provided, collectivelyhowever, that, notwithstanding the foregoing, the “liability of Seller Uncapped Claims”)) or (B) Section 9.2 (b) to indemnify the Acquiror Group against any Losses Damages sustained by reason of any claim Seller Claim for a breach of any of the representations and warranties set forth in Sections 6.4, 6.14 and 6.15 hereof shall not be so limited. (b) Other than with respect to the representations and warranties set forth in Sections 6.4, 6.14 and 6.15 hereof, (i) the amount of any single Seller Claim under Section 10.1(a) hereof for which Seller is liable for a breach of any representation or warranty of Seller or the Company shall be reduced by a $100,000 deductible (as to each single Seller Claim, a "Deductible"), (ii) the provisions in Section 10.1(a) hereof for indem- nity by Seller of the Acquiror Group against Damages sustained by reason of any Seller Claim thereunder for a covenant, shall be limited to claims as to which a Buyer Indemnified Party has given Seller written notice, setting forth therein in reasonable detail the basis for such claim, on or prior to the termination breach of such any representation or warranty of Seller or covenant pursuant to Section 9.1 hereof; provided, however, that the provisions for indemnification contained in Section 9.2 (a) (other than for Losses constituting Seller Uncapped Claims) Company shall be effective only after the aggregate amount of all such claims Seller Claims for which are so indemnifiable Seller is liable (after giving effect to all Deductibles) exceeds an $5,000,000 plus the amount equal to eleven million five hundred thousand dollars ($11,500,000) (the “Basket”)of any unused Indemnity Credit, and then only to the extent of such excess; provided, further, that Seller shall not be liable to any Buyer Indemnified Party for any particular claim under Section 9.2(a) (other than for Losses constituting Seller Uncapped Claims), unless the amount of such claim exceeds ten thousand dollars ($10,000) (the “De Minimis Amount”) and is in excess of any reserves reflected on the 2009 Financial Statements set forth on Section 4.6(a) of the Seller Disclosure Letter with respect to such Losses and all such Losses in respect of any claim or series of related claims which total less than the De Minimis Amount or which have not exceeded any relevant reserve shall be excluded in their entirety from calculations with respect to the Basket or Cap, and the Buyer Indemnified Parties shall have no recourse for such Losses. Notwithstanding any other provision of this Agreement, (ii) in no event shall Seller's indemnity obligations with respect to breach of any representations or warranties of Seller or the aggregate amount of all indemnification payments for which Seller is liable pursuant to Section 9.2(a) (other than for Losses constituting Seller Uncapped Claims) Company exceed an amount equal to twenty-eight million dollars ($28,000,000) (the “Cap”)Aggregate Purchase Price.

Seller’s Limitation of Liability. Notwithstanding (a) Sellers shall have no obligation to indemnify the Buyer Indemnitees for any provision Buyer Claims pursuant to Section 12.03(b) until the Buyer Indemnitees have suffered Damages in excess of $500,000 in the aggregate with all other Buyer Claims pursuant to Section 12.03(b) at which point Sellers and the Company shall be obligated to indemnify the Buyer Indemnitees for all Damages which exceed $500,000; provided, however, that such limitation shall not apply to the penultimate sentence of Section 5.10(d), Section 5.12 and Sections 5.16(a) and (e). (b) Anything in this Agreement to the contrary (except for Tax matters which shall be governed by Article XI of this Agreement)notwithstanding, the obligation liability of Seller Parent and the Company to indemnify Buyer Indemnified Parties Indemnitees pursuant to (A) Section 9.2(a12.03(b) against any Losses Damages sustained by reason of any claim with respect breach of any representation or warranty of Seller Parent or Company shall be limited to Buyer Claims as to which any of the Buyer Indemnitees has given Seller written notice thereof on or prior to the date, if any, on which survival of such representation or warranty terminates pursuant to Section 12.02, whether or not any Damages have then actually been sustained. (c) Anything to the contrary in this Agreement notwithstanding, the liability of Seller Parent and the Company to indemnify Buyer Indemnitees pursuant to Section 12.03(b) shall not exceed $150,000,000. (d) For the avoidance of doubt, the foregoing provisions of this Section 12.04 shall not limit or restrict any claim or right of the Buyer Indemnities to indemnification by Sellers Parent and the Company pursuant to any section or provision of this Agreement other than Section 12.03(b), even if the facts or circumstances underlying such claim or right also constitute a breach of a representation or warranty (other than Losses (i) arising out of, relating to or resulting from breaches or inaccuracies of any Fundamental Representation or (ii) arising out of or resulting from fraud or willful material breach by Seller (such Losses in (i) and (ii), collectively, the “Seller Uncapped Claims”)) or (B) Section 9.2 (b) against any Losses sustained by reason of any claim with respect to the breach by Seller of a covenant, shall be limited to claims as to which a Buyer Indemnified Party has given Seller written notice, setting forth therein in reasonable detail the basis for such claim, on or prior to the termination of such representation or warranty or covenant pursuant to Section 9.1 hereof; provided, however, that the provisions for indemnification contained in Section 9.2 (a) (other than for Losses constituting Seller Uncapped Claims) shall be effective only after the aggregate amount of all such claims which are so indemnifiable exceeds an amount equal to eleven million five hundred thousand dollars ($11,500,000) (the “Basket”), and only to the extent of such excess; provided, further, that Seller shall not be liable to any Buyer Indemnified Party for any particular claim under Section 9.2(a) (other than for Losses constituting Seller Uncapped Claims), unless the amount of such claim exceeds ten thousand dollars ($10,000) (the “De Minimis Amount”) and is in excess of any reserves reflected on the 2009 Financial Statements set forth on Section 4.6(a) of the Seller Disclosure Letter with respect to such Losses and all such Losses in respect of any claim or series of related claims which total less than the De Minimis Amount or which have not exceeded any relevant reserve shall be excluded in their entirety from calculations with respect to the Basket or Cap, and the Buyer Indemnified Parties shall have no recourse for such Losses. Notwithstanding any other provision of this Agreement, in no event shall the aggregate amount of all indemnification payments for which Seller is liable pursuant to Section 9.2(a) (other than for Losses constituting Seller Uncapped Claims) exceed an amount equal to twenty-eight million dollars ($28,000,000) (the “Cap”)Sellers hereunder.

Seller’s Limitation of Liability. Notwithstanding any provision in this Agreement to the contrary (except for Tax matters which shall be governed by Article XI of this Agreement)contrary, the obligation liability of Seller to indemnify Buyer Indemnified Parties pursuant to (ASection 11.2(a) Section 9.2(a) against any Losses sustained by reason of any claim with respect to the breach of a representation or warranty (other than Losses (i) arising out of, relating to or resulting from breaches or inaccuracies of any Fundamental Representation or (ii) arising out of or resulting from fraud or willful material breach by Seller (such Losses in (i) and (ii), collectively, the “Seller Uncapped Claims”)) or (B) Section 9.2 (b) against any Losses sustained by reason of any claim with respect to the breach by Seller of a covenant, hereof shall be limited to claims Buyer Claims as to which a Buyer Indemnified Party has given Seller written notice, setting forth therein in reasonable detail the basis for such claimBuyer Claim, on or prior to the termination of such representation or warranty or covenant pursuant to Section 9.1 11.1 hereof; provided, however, that (i) the provisions for indemnification contained in Section 9.2 (a) (other than for Losses constituting Seller Uncapped Claims11.2(a) shall be effective only after the aggregate amount of all such claims Buyer Claims (other than Buyer Claims resulting from a breach of a Fundamental Representation) for which are so indemnifiable exceeds Seller is liable under Section 11.2(a) exceed an amount equal to eleven million five hundred thousand dollars ($11,500,000) 1.5% of the Purchase Price (the “"Basket”"), and only to the extent of such excess; provided, further, that Seller shall not be liable to any (ii) no Buyer Indemnified Party for any particular claim under Section 9.2(a) Claim (other than for Losses constituting Seller Uncapped Claims), unless the amount of such claim exceeds ten thousand dollars ($10,000) (the “De Minimis Amount”) and is in excess of any reserves reflected on the 2009 Financial Statements set forth on Section 4.6(a) of the Seller Disclosure Letter with respect to such Losses and all such Losses in respect of any claim or series of related claims which total Buyer Claims) pursuant to Section 11.2(a) in an amount less than the De Minimis Amount $150,000 may be asserted (provided that no Buyer Claim (or which have not exceeded series of related Buyer Claims) pursuant to Section 11.2(a) arising from any relevant reserve shall supplemental or amended disclosure pursuant to Section 5.7(a)(ii) in an amount less than $200,000 may be excluded in their entirety from calculations with respect to the Basket or Cap, and the Buyer Indemnified Parties shall have no recourse for such Lossesasserted). Notwithstanding any other provision of this Agreement, in no event shall the aggregate amount of all indemnification payments Buyer Claims for which Seller is liable pursuant to: (i) Section 11.2(a) (other than as a result of fraud or the breach of a Fundamental Representation), exceed an amount equal to 12.5% of the Purchase Price (the "Cap"); and (ii) Section 11.2(a) (solely as a result of the breach of a Fundamental Representation), Section 11.2(b), 11.2(e), or 11.2(g) exceed an amount equal to the Purchase Price, less the aggregate amount of all Buyer Claims for which Seller is liable pursuant to Section 9.2(a11.2(a); it being understood and agreed that the foregoing limits shall not apply to any Buyer Claims for intentional and willful fraud or pursuant to Sections 11.2(c), 11.2(d) (other than for Losses constituting Seller Uncapped Claims) exceed an amount equal to twenty-eight million dollars ($28,000,000) (the “Cap”and 11.2(f).. [Washington DC #361873 v9] 66

Seller’s Limitation of Liability. Notwithstanding any provision in this Agreement to the contrary (except for Tax matters which shall be governed by Article XI of this Agreement)contrary, the obligation liability of Seller to indemnify Buyer Indemnified Parties pursuant to (ASection 11.2(a) Section 9.2(a) hereof against any Losses Damages sustained by reason of any claim Buyer Claim with respect to the a breach of a representation or warranty (other than Losses (i) arising out of, relating to or resulting from breaches or inaccuracies of any Fundamental Representation or (ii) arising out of or resulting from fraud or willful material breach by Seller (such Losses in (i) and (ii), collectively, the “Seller Uncapped Claims”)) or (B) Section 9.2 (b) against any Losses sustained by reason of any claim with respect to the breach by Seller of a covenant, shall be limited to claims Buyer Claims as to which a Buyer Indemnified Party has given Seller written notice, setting forth therein in reasonable detail the basis for such claimBuyer Claim, on or prior to the termination of such representation or warranty or covenant pursuant to Section 9.1 11.1 hereof; provided, however, that (a) Seller shall be liable pursuant to the provisions for indemnification contained in Section 9.2 (a11.2(a) hereof with respect to breaches of representations and warranties (other than for Losses constituting Seller Uncapped Claimsthe representations and warranties contained in Sections 3.1, 3.2, 3.3, 3.4, 3.19 and 3.20 hereof and, solely to the extent relating to the foregoing representations, the certificate delivered pursuant to Section 9.1(c) shall be effective hereof (collectively, the “Excluded Representations”)), only after the aggregate amount of all such claims Buyer Claims for which are so indemnifiable Seller is liable under this Agreement (without regard to the limitation contained in this proviso) exceeds an amount equal to eleven million five hundred thousand dollars ($11,500,000) 1,840,000 (the “Basket”), and only to the extent of such excess; provided, further, that Seller shall not be liable to any and (b) no Buyer Indemnified Party for any particular claim under Section 9.2(a) Claim (other than for Losses constituting Seller Uncapped Claims), unless the amount of such claim exceeds ten thousand dollars ($10,000) (the “De Minimis Amount”) and is in excess of any reserves reflected on the 2009 Financial Statements set forth on Section 4.6(a) of the Seller Disclosure Letter with respect to such Losses and all such Losses in respect of any claim or series of related claims which total less than Buyer Claims) pursuant to the De Minimis Amount or which have not exceeded any relevant reserve shall be excluded provisions for indemnification contained in their entirety from calculations Section 11.2(a) hereof with respect to the Basket or Cap, breaches of representations and the Buyer Indemnified Parties shall have no recourse for such Losseswarranties in an amount less than $50,000 may be asserted. Notwithstanding any other provision of this Agreement, in no event shall the aggregate amount of all indemnification payments Buyer Claims for which Seller is liable pursuant to: (i) Section 11.2(a) hereof (other than as a result of the breach of any Excluded Representations), exceed an amount equal to $19,187,000, and (ii) Section 11.2(a) hereof (solely as a result of the breach of Excluded Representations), 11.2(b). 11.2(f), 11.2(g), 11.2(h) and 11.2(i), exceed an amount equal to the Purchase Price, less the aggregate amount of all Buyer Claims for which Seller is liable pursuant to Section 9.2(a11.2(a) (hereof with respect to breaches of representations and warranties other than for Losses constituting the Excluded Representations. Without limiting in any manner the applicability of the preceding provisions of this Section 11.3, Buyer and Seller Uncapped Claimsagree that (i) exceed an amount equal Seller’s obligations under Section 11.2(h) with respect to twenty-eight million dollars any given Required Consent Lease shall be limited to Damages incurred with respect to the period commencing on the Closing Date and ending on the earliest date that the Required Consent Lease could be terminated by the lessor ($28,000,000or, if earlier, the date such Required Consent Lease would have expired) in accordance with its terms had Consent thereunder been obtained, and (ii) Seller’s obligations under Section 11.2(i) with respect to any given Required Consent Third Party Payor Contract shall be limited to Damages incurred with respect to the “Cap”)period commencing on the Closing Date and ending on the earlier of the date one year after the Closing Date and the date that such contract would normally expire in accordance with its terms had Consent thereunder been obtained.

Seller’s Limitation of Liability. Notwithstanding (a) Seller shall not be liable with respect to any provision in this Agreement Seller Warranty Breach if the amount of Damages resulting from such Seller Warranty Breach, or any series of related Seller Warranty Breaches, does not exceed $100,000 (“De Minimis Claim”) and such items shall not be aggregated for purposes of satisfying the Deductible; provided, that, to the contrary (except for Tax matters which extent Damages exceed the De Minimis Claim amount with respect to any Seller Warranty Breach, or series of related Seller Warranty Breaches, the full amount of Damages with respect to such Seller Warranty Breach, or series of related Seller Warranty Breaches, shall be governed by Article XI applied to the Deductible without regard to such De Minimis Claim amount (and not only with respect to Damages in excess of this Agreementthe De Minimis Claim amount). (b) Seller shall not be liable with respect to any Seller Warranty Breach (other than those relating to a Seller Fundamental Representation or Section 3.11 or Section 3.13) unless the aggregate amount of Damages with respect to all Seller Warranty Breaches exceeds $5,100,000.00 (the “Deductible”), in which event the obligation of Seller to indemnify Buyer Indemnified Parties pursuant to (A) Section 9.2(a) against any Losses sustained by reason of any claim with respect shall, subject to the breach other limitations herein, be indemnified only for Damages in excess of a representation or warranty the Deductible. (c) Seller’s maximum liability in the aggregate for all Claims for indemnification for Seller Warranty Breaches (other than Losses (i) arising out of, those relating to or resulting from breaches or inaccuracies of any a Seller Fundamental Representation or (iiSection 3.11 or Section 3.13) arising out of or resulting from fraud or willful material breach by Seller (such Losses in (i) shall not exceed $25,500,000.00 and (ii), collectively, the “Seller Uncapped Claims”)) or (B) Section 9.2 (b) against any Losses sustained by reason of any claim with respect subject to the breach by Seller of a covenantforegoing limitation, shall be limited to claims as to which a Buyer Indemnified Party has given Seller written notice, setting forth therein Seller’s maximum liability in reasonable detail the basis aggregate for such claim, on or prior to the termination of such representation or warranty or covenant all Claims for indemnification pursuant to Section 9.1 hereofthis Agreement (other than in respect of Excluded Liabilities) shall not exceed the Final Purchase Price; provided, however, that the provisions for indemnification contained maximum liability limitations set forth in this Section 9.2 (a) (other than for Losses constituting Seller Uncapped Claims8.02(c) shall be effective only after the aggregate amount of all such claims which are so indemnifiable exceeds an amount equal to eleven million five hundred thousand dollars ($11,500,000) (the “Basket”), and only to the extent of such excess; provided, further, that Seller shall not be liable apply with respect to any liability of Seller to Buyer Indemnified Party for any particular claim under Section 9.2(a) relating to or arising from Seller Taxes described in clause (other than for Losses constituting Seller Uncapped Claims), unless the amount of such claim exceeds ten thousand dollars ($10,000) (the “De Minimis Amount”) and is in excess of any reserves reflected on the 2009 Financial Statements set forth on Section 4.6(ac) of the definition of Seller Disclosure Letter with respect Taxes. (d) In view of the Deductible and De Minimis Claim requirement, for purposes of determining whether a Seller Warranty Breach has occurred, the representations and warranties of Seller set forth in this Agreement shall be considered without regard to any qualification based on materiality or “Material Adverse Effect” or other similar qualification contained in or otherwise applicable to such Losses representations and all warranties other than such Losses qualifications or limitations contained in respect or otherwise applicable to Section 3.06, the first sentence of any claim Section 3.07(a), Section 3.08(a), the first sentence of Section 3.08(d), Section 3.10(a)(viii), Section 3.10(a)(x), the second sentence of Section 3.13(a), Section 3.15(b), the first sentence of Section 3.20(a), the first sentence of Section 3.20(b), Section 3.21(a) or series the definition and use of related claims which total less than the De Minimis Amount terms “Permitted Lien” and “Permitted Liens”. (e) Notwithstanding anything in this Agreement to the contrary, Seller’s obligation to indemnify Buyer under Section 8.01 for the costs of remedial actions or which have not exceeded any relevant reserve corrective measures to address liabilities under or noncompliance with Environmental Laws shall be excluded in their entirety from calculations with respect limited to only those costs required to implement the Basket or Cap, and least costly remedy required by the Buyer Indemnified Parties shall have no recourse for such Losses. Notwithstanding any other provision of this Agreement, in no event shall the aggregate amount of all indemnification payments for which Seller is liable pursuant to Section 9.2(a) (other than for Losses constituting Seller Uncapped Claims) exceed an amount equal to twenty-eight million dollars ($28,000,000) (the “Cap”)applicable Governmental Body.

Seller’s Limitation of Liability. Notwithstanding Section 9.2 or any other provision in this Agreement to the contrary (except for Tax matters which shall be governed by Article XI of this Agreement), : (a) the obligation of Seller to indemnify Buyer Indemnified Parties shall not be entitled to any indemnification in respect of Damages incurred by any Buyer Indemnified Party pursuant to (A) Section 9.2(a) for any individual item or Claim, or series of related items or Claims, in which the Damages related thereto are less than $50,000 (any claim exceeding such threshold being referred to herein as a “Qualifying Claim”); (b) Sellers shall have no obligation to indemnify any Buyer Indemnified Party from and against any Losses sustained Damages until the aggregate amount of indemnifiable Damages under Section 9.2(a) suffered by reason the Buyer Indemnified Parties in respect of any claim Qualifying Claims exceeds an amount equal to $2,000,000 (the “Threshold Amount”), and then only with respect to Damages under Section 9.2(a) in excess of the breach Threshold Amount; (c) the aggregate amount of a representation or warranty (other than Losses (i) arising out of, relating to or resulting from breaches or inaccuracies of any Fundamental Representation or (ii) arising out of or resulting from fraud or willful material breach by Seller (such Losses in (i) and (ii), collectively, the “Seller Uncapped Claims”)) or (B) Section 9.2 (b) against any Losses sustained by reason of any claim with respect to the breach by Seller of a covenant, shall be limited to claims as to all Damages for which a Buyer Indemnified Party has given Seller written notice, setting forth therein in reasonable detail the basis for such claim, on or prior to the termination of such representation or warranty or covenant Sellers may become liable pursuant to Section 9.1 hereof9.2(a) shall not in any event exceed $10,000,000 (the “Indemnity Cap”); provided, however, that the provisions for indemnification contained limitation of liability set forth in this Section 9.2 (a) (other than for Losses constituting Seller Uncapped Claims) shall be effective only after the aggregate amount of all such claims which are so indemnifiable exceeds an amount equal to eleven million five hundred thousand dollars ($11,500,000) (the “Basket”), and only to the extent of such excess; provided, further, that Seller 9.3 shall not be liable apply to any Buyer Indemnified Party for any particular claim under Section 9.2(a) (other than for Losses constituting Seller Uncapped Claims), unless the amount of such claim exceeds ten thousand dollars ($10,000) (the “De Minimis Amount”) and is in excess of any reserves reflected on the 2009 Financial Statements set forth on Section 4.6(a) of the Seller Disclosure Letter with respect to such Losses and all such Losses in respect of any claim or series of related claims which total less than the De Minimis Amount or which have not exceeded any relevant reserve shall be excluded in their entirety from calculations with respect to the Basket or Cap, and Damages incurred by the Buyer Indemnified Parties shall have no recourse for such Losses. Notwithstanding as a result of any other provision actual fraud on the part of Sellers in the negotiation or execution of, or performance under, this Agreement; and (d) Notwithstanding the foregoing, if any Seller breaches, in no event shall any respect, the aggregate amount of all indemnification payments for which representations set forth in Section 4.7(b), Section 4.11(a)(ix)(a) or Section 4.27 Buyer may recover Damages from such Seller is liable pursuant to Section 9.2(a) (other than for Losses constituting Seller Uncapped Claims) exceed an amount equal to twenty-eight million dollars ($28,000,000) 9.2 without application of any limitations set forth in this Section 9.3 (the “Qualifying Claim and the Threshold Amount), and such Damages will not be included in calculating the Indemnity Cap”). (e) Notwithstanding the foregoing, the limitations set forth in this Section 9.3 shall not apply to the indemnification for Taxes under Article X.