Common use of Special Indemnity Clause in Contracts

Special Indemnity. The Seller agrees to indemnify the Buyer Indemnitees and hold them harmless from and against, and reimburse them for, the entirety of any Adverse Consequences that any of the Buyer Indemnitees may suffer or incur or become subject to as a result of: (i) the inability to assign or otherwise transfer any Retained Assets and Liabilities to the Seller or its designee prior to the Closing Date (as contemplated in Section 2.5); (ii) any expense or Liability incurred by the Buyer in cooperating with the Seller to prosecute and/or defend any actions related to the Retained Assets and Liabilities if such Retained Assets and Liabilities are unable to be transferred to the Seller or its designee prior to the Closing Date; (iii) the inability to satisfy and discharge all intercompany transactions or arrangements (as contemplated in Section 2.7); (iv) any of the actions pursuant to which ANR Company and the Seller contributed the Coastal Coal Membership Interests to El Paso Holding in exchange for membership interests of El Paso Holding; (v) any failure by the Seller to satisfy any of the Liabilities associated with the Retained Assets and Liabilities; (vi) any claim for the matter discussed in item 4.a. in Section 4.1(k)(iii) of the Disclosure Schedules; (vii) the Seller's obligations to pay any Taxes due with respect to Pre-Closing Tax Returns pursuant to Article IX; (viii) any claim associated with Non-Mining Environmental Liabilities to the extent such claim relates to or arises from any activity on or through the use of the Acquired Interests and is attributable to acts or omissions occurring at or prior to the Closing Date to the extent and only to the extent that the Seller waives the condition precedent that a Non-Mining Insurance Policy be obtained in accordance with the provisions of Section 5.10(d); and (ix) any failure by the Seller to satisfy any of the Liabilities associated with the Fox River Plans to the extent such Liabilities relate to or arise from activities or omissions occurring at or prior to the Closing Date.

Special Indemnity. The Seller agrees Acquiror Indemnified Parties shall be entitled to indemnify indemnification solely from the Buyer Indemnitees Net Indemnification Escrow Amount and hold them harmless from and against, and reimburse them for, the entirety Indemnification Notes for the full amount of any Adverse Consequences that any of the Buyer Indemnitees may suffer or incur or become subject Losses with respect to as a result of: (i) the inability any obligation to assign CSX Corporation and its Subsidiaries (or otherwise transfer any Retained Assets and Liabilities claim alleging such an obligation) relating to the Seller or its designee prior to the Closing Date (as contemplated in Section 2.5); CSX Purchase and (ii) any expense claims (now or Liability incurred by the Buyer in cooperating with the Seller to prosecute and/or defend any actions hereafter existing) related to the Retained Assets injuries suffered by Xxxxxx X. Xxxxxx that are the subject of the lawsuit titled Xxxxxx X. Xxxxxx v. Xxxxxx Xxxxxxx, Xxxxxxxx Xxxxxxxx, Xxxx Xxxxxxx, Ironbound Express and Liabilities if Maersk Container Service filed in the Supreme Court of the State of New York (Index No. 2003-4375) including the related third-party claim by Maersk Equipment Service Co., Inc. against CSX Lines LLC and Horizon Lines, Inc. filed in such Retained Assets action (or any other lawsuit, as may be amended or refiled). Any claim described in this Section 9.8 shall be referred to herein as a “Seller Matter.” The Holder Representative shall have the right to assume the defense of any Seller Matter in accordance with Section 9.5 and Liabilities are unable from and after the Closing Date shall be deemed to be transferred to have done so in respect of the Seller or its designee prior to Matter set forth in clause (ii) without any further action by Holder Representative. Notwithstanding the foregoing, Acquiror shall have the right, 10 Business Days after the Closing Date; , to settle without the consent of the Holder Representative the Seller Matter set forth in clause (iiiii) for an amount not to exceed $1,000,000, and, in the inability event of any settlement by Acquiror of the Seller Matter set forth in clause (ii), Acquiror shall be indemnified for the amount of such settlement (but not to satisfy exceed $1,000,000 unless such settlement is consented to by the Holder Representative). Acquiror shall cooperate with the Holder Representative in any discussions with any other party involved in such claim. Any Losses for which any Acquiror Indemnified Party is entitled to indemnification under this Section 9.9 shall be satisfied solely out of the Net Indemnification Escrow Amount and discharge all intercompany transactions or arrangements (as contemplated in Section 2.7); (iv) the Indemnification Notes without regard to any of the actions pursuant to which ANR Company and the Seller contributed the Coastal Coal Membership Interests to El Paso Holding in exchange for membership interests of El Paso Holding; (v) any failure by the Seller to satisfy any of the Liabilities associated with the Retained Assets and Liabilities; (vi) any claim for the matter discussed in item 4.a. thresholds set forth in Section 4.1(k)(iii) of the Disclosure Schedules; 9.3 (vii) the Seller's obligations to pay it being understood and agreed that any Taxes due Losses with respect to Pre-Closing Tax Returns pursuant to Article IX; (viii) any claim associated with Non-Mining Environmental Liabilities to Seller Matter shall not be counted against the extent such claim relates to or arises from any activity on or through the use of the Acquired Interests and is attributable to acts or omissions occurring at or prior to the Closing Date to the extent and only to the extent that the Seller waives the condition precedent that a Non-Mining Insurance Policy be obtained in accordance with the provisions of Section 5.10(dthreshold set forth therein); and (ix) any failure by the Seller to satisfy any of the Liabilities associated with the Fox River Plans to the extent such Liabilities relate to or arise from activities or omissions occurring at or prior to the Closing Date.

Special Indemnity. The (a) From and after the Closing, Seller agrees to shall indemnify the Buyer Indemnitees and hold them harmless the Purchaser Indemnified Persons from and against, and reimburse them for, the entirety of any Adverse Consequences that any of the Buyer Indemnitees may suffer or incur or become subject to as a result of: against fifty percent (i) the inability to assign or otherwise transfer any Retained Assets and Liabilities to the Seller or its designee prior to the Closing Date (as contemplated in Section 2.5); (ii) any expense or Liability incurred by the Buyer in cooperating with the Seller to prosecute and/or defend any actions related to the Retained Assets and Liabilities if such Retained Assets and Liabilities are unable to be transferred to the Seller or its designee prior to the Closing Date; (iii) the inability to satisfy and discharge all intercompany transactions or arrangements (as contemplated in Section 2.7); (iv) any of the actions pursuant to which ANR Company and the Seller contributed the Coastal Coal Membership Interests to El Paso Holding in exchange for membership interests of El Paso Holding; (v) any failure by the Seller to satisfy any of the Liabilities associated with the Retained Assets and Liabilities; (vi) any claim for the matter discussed in item 4.a. in Section 4.1(k)(iii50%) of the Disclosure Schedules; each Loss (vii) the Seller's obligations to pay any Taxes due with respect to Pre-Closing Tax Returns pursuant to Article IX; (viii) any claim associated with Non-Mining Environmental Liabilities but only to the extent such claim relates Losses constitute bona fide cash payments (for the avoidance of doubt, service credits shall not be deemed to or arises from be cash payments)) incurred by any activity on or through the use of the Acquired Interests and is attributable to acts or omissions occurring at or prior to the Closing Date Purchaser Indemnified Persons to the extent such Loss arises out of any of the matters set forth on Section 10.03(a) of the Seller Disclosure Schedule. For the avoidance of doubt, the Purchaser Indemnified Persons shall bear the remaining fifty percent (50%) of each Loss. This Section 10.03(a) shall constitute the exclusive remedy of Purchaser and the Purchaser Indemnified Persons in connection with the matters set forth on Section 10.03(a) of the Seller Disclosure Schedule. (b) Seller shall have no obligation to indemnify under Section 10.03(a) unless and only to the extent that such Losses exceed in the aggregate $4,000,000. From the Closing Date until the date that is eighteen (18) months after the Closing Date (the “Preliminary Expiration Date”), all indemnity payments made by Seller waives to Purchaser under Section 10.03(a) shall be subject to the condition precedent cap set forth under Section 10.03(a)(B)(3). Following the Preliminary Expiration Date until the date that a Non-Mining Insurance Policy is sixty (60) months after the Closing Date (the “Secondary Expiration Date”), Seller shall have no obligation to indemnify under Section 10.03(a) to the extent the aggregate indemnification payments made by Seller for claims for indemnification under Section 10.03(a) during the period beginning on the Preliminary Expiration Date and ending on the Secondary Expiration Date exceed, in the aggregate, the lesser of (i) $50,000,000 and (ii) the excess of $125,000,000 over the sum of (A) the aggregate amount of indemnification payments made by Seller for claims for indemnification under Section 10.03(a) during the period beginning on the Closing Date and ending on the Preliminary Expiration Date and (B) the aggregate amount of indemnification payments made by Seller under Section 10.01(a)(i). Seller’s obligation to indemnify for any Loss under Section 10.03(a) shall terminate as of the Secondary Expiration Date unless before such date Purchaser has provided Seller with an applicable Claim Notice in respect of such Loss. (c) Any claim for indemnification under Section 10.03(a) shall be obtained subject to the provisions of Section 10.02(a). Notwithstanding anything to the contrary contained in Section 10.02(b) or Section 10.02(c) or otherwise, with respect to any claim for indemnification under Section 10.03(a), Purchaser shall be entitled to participate in the defense of any Third Party Claim and shall be entitled to control the defense of such Third Party Claim and appoint lead counsel (which shall be reasonably acceptable to Seller) for such defense. If Purchaser shall assume the control of the defense of any such Third Party Claim in accordance with the provisions of this Section 5.10(d10.03(a); and , (ixi) Purchaser shall keep Seller reasonably informed with respect to such Third Party Claim by providing Seller with reasonably detailed updates (x) of any failure by material developments and (y) promptly (and in any event within five Business Days) after Seller’s written request (which shall not be made more frequently than every sixty (60) days), in each case with respect to such Third Party Claim, and (ii) Seller shall be entitled to participate in the Seller defense of such Third Party Claim and to satisfy employ separate counsel of its choice for such purpose at its own cost and expense. Purchaser shall not settle any of the Liabilities associated with the Fox River Plans such Third Party Claim under this Section 10.03 without Seller’s written consent (not to the extent such Liabilities relate to be unreasonably withheld, conditioned or arise from activities or omissions occurring at or prior to the Closing Datedelayed).

Special Indemnity. The Seller agrees to indemnify (a) (PARTIES' INTENTION) It is the Buyer Indemnitees and hold them harmless from and against, and reimburse them for, the entirety of any Adverse Consequences that any intention of the Buyer Indemnitees may suffer or incur or become subject to as a result ofparties that: (i) the inability provisions of this Clause 32 shall be applied so as to assign or otherwise transfer any Retained Assets and Liabilities to put the Seller or its designee prior to the Closing Date Indemnitees (as defined below) in the same position that would have existed had the Purchaser not purchased the IB Businesses and consummated the other transactions related thereto contemplated in Section 2.5)by this Deed; (ii) any expense or Liability incurred by if the Buyer Purchaser shall have received, not later than June 30, 2001, not less than $112 million in cooperating cash in accordance with the Seller IB Deed, no Indemnitee shall be entitled to prosecute and/or defend claim under this Clause 32 for any actions related to loss suffered by reason of diminution in value of the Retained Assets and Liabilities if such Retained Assets and Liabilities are unable to be transferred to the Seller or its designee prior to the Closing DateIB Businesses; (iii) no payment shall be required under this Clause 32 until the inability to satisfy and discharge all intercompany transactions Claim at the time in question (other than a claim for diminution in value) involves the obligation of immediate or arrangements (as contemplated in Section 2.7)imminent payment by the Indemnitee; (iv) no Claim in respect of any diminution in value of the actions pursuant to which ANR Company IB Businesses or of any asset or property thereof such as, without limitation, an IB Business trading loss in the ordinary course -------------------------------------------------------------------------------- PAGE 62 69 Allex Xxxxx XXXRE SALE DEED & Hemsxxx -------------------------------------------------------------------------------- of business, shall be covered by this Clause 32 unless and until an Indemnitee (as distinguished from the Seller contributed the Coastal Coal Membership Interests to El Paso Holding in exchange for membership interests of El Paso Holdingaffected IB Businesses themselves) has incurred or suffered a Claim; (v) the Indemnitees shall not be entitled to any failure by double recovery in respect of any Claim or the Seller circumstances giving rise to satisfy any of the Liabilities associated with the Retained Assets and Liabilities;that Claim; and (vi) the Indemnitees shall be protected fully from any claim for the matter discussed in item 4.a. in Section 4.1(k)(iii) Claim which is incurred or suffered by any Indemnitee at any time relating to or arising out of the Disclosure Schedules;IB Businesses, and this Clause 32 shall be construed to give effect to these intentions. (viib) (INDEMNITY) From and after the Seller's obligations date of this Deed, the Warrantor agrees unconditionally and irrevocably upon demand to pay and indemnify the Purchaser and (without duplication) each Purchaser Entity (other than the BTIB Companies) and their respective successors and assigns (collectively, the INDEMNITEES) in respect of any Taxes due with respect to Pre-Closing Tax Returns pursuant to Article IX; Claim of any kind whatsoever, including any Claim for diminution in value (viii) whether direct or indirect, actual or contingent and howsoever and whenever arising and whether or not any claim associated with Non-Mining Environmental Liabilities to the extent such claim relates to or arises from any activity on or through the use of the Acquired Interests and is attributable to acts or omissions occurring at or person was, prior to the Closing Date Completion Date, aware of the Claim or the circumstances giving rise to the extent and only it) incurred or suffered by or brought or made or recovered against any Indemnitee: (i) to the extent that it relates to the Seller waives IB Businesses or results from any action taken or not taken by the condition precedent IB Businesses or (any member of the Vendors' Group in relation to the IB), Businesses, including any acquisition, ownership, sale or other disposition, direct or indirect, of or by any member of the Group of all or any portion of the IB Businesses (including the entry by any member of the Group or any Indemnitee into any agreement, arrangement or understanding in relation to the IB Businesses), whether before or after the Completion Date, including any Claim incurred or suffered as a result of any breach of warranty under any agreement entered into pursuant to clause 2.1 of the IB Deed; or (ii) relating to any Claim by a Public Authority in connection with Vendors' sale of the Sale Shares, PROVIDED THAT: (A) this Clause 32(b) shall not relieve any Indemnitee from performance under the terms of any written contractual obligation (including any obligation to pay money) arising under any Transaction Document, nor shall the existence of any such contractual obligation relieve the Warrantor of its obligations under this -------------------------------------------------------------------------------- PAGE 63 70 Allex Xxxxx XXXRE SALE DEED & Hemsxxx -------------------------------------------------------------------------------- Clause 32 in respect of any Claim (including any loss arising from diminution in value); (B) in calculating any loss incurred or suffered by the Indemnitees, credit shall be given for all amounts or benefits received by the Indemnitees or by a BTIB Company (other than those amounts to which an Indemnitee is entitled under the IB Deed) to the extent to which such amounts relate to the BTIB Group or otherwise to the IB Businesses except to the extent to which such. amounts or benefits are applied to meet liabilities of the IB Businesses or paid to a member of the Deutsche Group pursuant to the IB Deed; (C) Clause 8.6(e) shall apply to this Clause 32 as if it were a Warranty; (D) the amount to be indemnified pursuant to this Clause in respect of a Claim shall equal the amount of the Claim plus any additional amount such that a Non-Mining Insurance Policy the Indemnitee will be obtained made whole in accordance with respect the provisions of Section 5.10(d)Claim in question on an after tax basis; and (ixE) the Warrantor and each Indemnitee shall act reasonably in relation to any failure circumstance which could give rise to a claim under this Clause 32. (c) (PRINCIPAL OBLIGATION) Clause 32(b) shall: (i) be a principal obligation of the Warrantor and shall not be treated as ancillary or collateral to any right or obligation; (ii) be a continuing indemnity and shall remain in full force and effect without any limit as to time; and (iii) subject to Clause 32(a), be construed broadly in favour of Indemnitees. The rights of the Indemnitees under this Clause 32 shall not be limited or restricted by any other provision of this Deed, the Seller IB Deed or any other Transaction Document and, without limitation, shall not be subject to satisfy any maximum or "cap", deductible or threshold, or any other similar limitation provision. (d) (NO WITHHOLDINGS) The Warrantor will make all payments which may be or become due under Clause 32(b) free and clear and without deduction of any and all present and future Taxes, duties, levies, imposts, deductions, charges and withholdings of Australia or any other country or jurisdiction. If the Warrantor is compelled by law to deduct any such Tax, duty, levy, impost, deduction, charge or withholding it will pay to the Indemnitees (as the case may be) such additional amounts as may be necessary so that the net payment of -------------------------------------------------------------------------------- PAGE 64 71 Allex Xxxxx XXXRE SALE DEED & Hemsxxx -------------------------------------------------------------------------------- the amount due under Clause 32(b) after that deduction is not less than the payment would have been had there been no deduction. (e) (NO SET OFF) Neither the Warrantor nor any member of the Vendors' Group shall set off or otherwise deduct or withhold any moneys which it may be or become liable to pay to an Indemnitee under this Clause 32 against any moneys which the Indemnitee may be or become liable to pay to the Warrantor or any of the Liabilities associated with Vendors or any other member of Vendors' Group or the Fox River Plans to the extent such Liabilities relate to Vendors' Guarantor whether under this Deed or arise from activities or omissions occurring at or prior to the Closing Date.otherwise. -------------------------------------------------------------------------------- PAGE 65 72 Allex Xxxxx XXXRE SALE DEED & Hemsxxx -------------------------------------------------------------------------------- SCHEDULE 1 SHARES AND BUSINESSES -------------------------------------------------------------------------------- PART I - COLUMN 1: COLUMN 2: COLUMN 3: COLUMN 4: COLUMN 5: VENDOR COMPANY IN NO. OF SALE PURCHASE PRICE PERCENTAGE OF WHICH SALE SHARES ISSUED CAPITAL SHARES ARE HELD ================================================================================ BTLLC BT Investments 1,108 $1,994,713,987 100% (Australia) ordinary shares Limited (BTIA) -------------------------------------------------------------------------------- BTNZ BT Funds 14,488,336 $89,839,683 100% Management ordinary shares (NZ) Limited -------------------------------------------------------------------------------- BTNZ BT New 212,643 $160,317 100% Zealand ordinary shares Nominees Limited -------------------------------------------------------------------------------- BTNZ BT Portfolio 10,006,344 $8,628,389 100% Services (NZ) ordinary shares Limited -------------------------------------------------------------------------------- BTID BT Funds 349,999 $4,834,695 99.9999% Management common shares Asia Limited (BTFMA) -------------------------------------------------------------------------------- BTNHK BTFMA 1 common $1 0.0001% share -------------------------------------------------------------------------------- BTFIC BT Funds 100 Class A $701,125 100% Management common shares (Singapore) Limited (BTFMS) -------------------------------------------------------------------------------- BTFIC BTFMS 160 Class B $1,121,799 100% common shares -------------------------------------------------------------------------------- PAGE 1 73 Allex Xxxxx XXXRE SALE DEED & Hemsxxx -------------------------------------------------------------------------------- PART II - COLUMN 1: COLUMN 2: COLUMN 3: VENDORS BUSINESS PURCHASE PRICE ================================================================================ BT Fund Managers Offshore FM Business $1 (Ireland) Limited (Ireland) -------------------------------------------------------------------------------- BTI Offshore FM Business $1 (UK) -------------------------------------------------------------------------------- BTC Offshore FM Business $1 (Alberta) -------------------------------------------------------------------------------- BTC Offshore FM Business $1 (Common Fund) -------------------------------------------------------------------------------- TOTAL PURCHASE PRICE: A$2,100,000,000 (PARTS I AND II) -------------------------------------------------------------------------------- PAGE 2 74 Allex Xxxxx XXXRE SALE DEED & Hemsxxx -------------------------------------------------------------------------------- SCHEDULE 2 THE COMPANIES AND OTHER GROUP MEMBERS AS AT COMPLETION -------------------------------------------------------------------------------- PART I - THE COMPANIES 1. BTIA (a) Issued capital: US$1,108 divided into 1,108 ordinary shares each fully paid (b) Registered holders of shares and class and number of shares held: Registered holder Class No. of shares BTLLC Common 1,108 (c) Beneficial owner of shares and number of shares owned: Beneficial owner Class No. of shares BTLLC Common 1,108 (d) Place of incorporation: Delaware, United States (e) Registered office: 1209 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx, Xxxxxx Xxxxxx xx Xxxxxxx (f) Nature of business: Holding Company 2. BT FUNDS MANAGEMENT (NZ) LIMITED (a) Issued capital NZ$14,488,336 divided into 14,488,336 ordinary shares each fully paid (b) Registered holders of shares and class and number of shares held: Registered holder Class No. of shares BTNZ ordinary 14,488,336 (c) Beneficial owner of shares and number of shares owned: Beneficial owner Class No. of shares BTNZ ordinary 14,488,336 (d) Place of incorporation: Auckland, New Zealand (e) Registered office: Level 7 PriceWaterhouse Centre, 66 Wxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxxx (f) Nature of business: Funds management/securities dealer -------------------------------------------------------------------------------- PAGE 1 75 Allex Xxxxx XXXRE SALE DEED & Hemsxxx -------------------------------------------------------------------------------- 3. BT NEW ZEALAND NOMINEES LIMITED (a) Issued capital: NZ$212,643 divided into 212,643 ordinary shares each fully paid (b) Registered holders of shares and class and number of shares held: Registered holder Class No. of shares BTNZ ordinary 212,643 (c) Beneficial owner of shares and number of shares owned: Beneficial owner class No. of shares BTNZ ordinary 212,643 (d) Place of incorporation: Auckland, New Zealand (e) Registered office: Level 7 PriceWaterhouse Centre, 66 Wxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxxx (f) Nature of business: Custody

Special Indemnity. The Seller agrees Notwithstanding anything to indemnify the Buyer Indemnitees and hold them harmless from and againstcontrary contained in this Agreement or any Document, and reimburse them forSeller's maximum aggregate liability under this Section 9 shall not exceed $160,000 in the aggregate (the "Maximum Aggregate Liability Amount"), the entirety of any Adverse Consequences that any of the Buyer Indemnitees may suffer or incur or become subject to reduction as a result of: hereinafter set forth. It is acknowledged that the parties will be closing the transactions contemplated hereunder without obtaining (i) the inability to assign or otherwise transfer any Retained Assets and Liabilities prior acknowledgements of the Lessees (the "Lessee Acknowledgements") to the Seller or its designee prior to transfer of the Closing Date (as contemplated in Section 2.5); Leases and the Equipment and (ii) any expense the prior consents or Liability incurred by acknowledgements (as applicable) of the Buyer in cooperating with the Seller to prosecute and/or defend any actions related Lenders to the Retained Assets transfer of the Equipment and Liabilities if the Leases (such Retained Assets and Liabilities consents or acknowledgements, as applicable, are unable collectively called the "Lender Consents"). In order to be transferred induce Buyer to close the Seller or its designee contemplated transactions without obtaining, prior to the Closing Date; (iii) , the inability to satisfy and discharge all intercompany transactions or arrangements (as contemplated in Section 2.7); (iv) any of the actions pursuant to which ANR Company Lessee Acknowledgements and the Lender Consents, Seller contributed the Coastal Coal Membership Interests has agreed to El Paso Holding make this indemnity in exchange for membership interests of El Paso Holding; (v) any failure by the Seller to satisfy any of the Liabilities associated with the Retained Assets and Liabilities; (vi) any claim for the matter discussed in item 4.athis Section 9. in Section 4.1(k)(iii) of the Disclosure Schedules; (vii) the Seller's obligations to pay any Taxes due with respect to Pre-Closing Tax Returns pursuant to Article IX; (viii) any claim associated with Non-Mining Environmental Liabilities Subject to the extent such claim relates Maximum Aggregate Liability Amount, Seller agrees to or arises from indemnify Buyer for any activity on or through the use losses which Buyer may suffer as a result of the Acquired Interests and is attributable to acts or omissions occurring at or prior to the Closing Date to the extent and only to the extent that the Seller waives the condition precedent that a Non-Mining Insurance Policy be obtained in accordance with the provisions of Section 5.10(d); and (ix) any failure by the Seller to satisfy any of the Liabilities associated with the Fox River Plans to the extent such Liabilities relate to or arise from activities or omissions occurring at or not obtaining, prior to the Closing Date, (i) with respect to the Applicable Funded Leases (as hereinafter defined), the Lessee Acknowledgements related thereto or the Lender Consents related thereto and (ii) with respect to the Unfunded Leases, the Lessee Acknowledgments related thereto. With respect to any Applicable Funded Lease, if Buyer shall receive the Lessee Acknowledgement related thereto and the Lender Consent related thereto, the Maximum Liability Aggregate Amount shall be reduced by the "Reduction Amount" set forth on the Schedule opposite such Applicable Funded Lease. Such reduction may occur from time to time as such Lessee Acknowledgments and Lender Consents are obtained. With respect to any Unfunded Lease, if Buyer shall receive the Lessee Acknowledgement related thereto, the Maximum Aggregate Liability Amount shall also be reduced by the "Reduction Amount" set forth on the Schedule opposite such Unfunded Lease. Such reduction may occur from time to time as such Lessee Acknowledgements are obtained. The term "Applicable Funded Lease" means any Funded Lease which does not give the Lessee thereunder the option or the right to purchase the related Equipment for $1.00 (or less) at the expiration of the lease term thereof. The Seller's obligations under this Section are conditioned upon Buyer exercising commercially reasonable efforts to promptly obtain the Lessee Acknowledgments and the Lender Consents, including (without limitation) executing such documents or instruments as any Lessee or Lender may reasonably request in connection therewith, and Buyer and Seller agree to exert such efforts (and execute such documents and instruments). Without limiting the foregoing, Seller agrees to contact the Lessees and the Lenders by telephone if the Lessee acknowledgements and the Lender Acknowledgements are not obtained within 2 weeks from the Closing Date.

Special Indemnity. The Seller agrees Prior to indemnify Closing, Sellers shall use commercially reasonable efforts to obtain and deliver to Purchaser (a) a fully executed copy of unrecorded Option Agreement for Water Pipeline Easement (the Buyer Indemnitees and hold them harmless from and against“Unrecorded Water Easement”) described in Parcel 3 on Schedule 4.02(n), and reimburse them for, (b) an assignment instrument (the entirety of any Adverse Consequences that any of the Buyer Indemnitees may suffer or incur or become subject to as a result of: (i“Canal Assignment”) the inability to assign or otherwise transfer any Retained Assets and Liabilities to the Seller or its designee prior to the Closing Date (as contemplated in Section 2.5); (ii) any expense or Liability incurred by the Buyer in cooperating with the Seller to prosecute and/or defend any actions related to the Retained Assets and Liabilities if such Retained Assets and Liabilities are unable to be transferred to the Seller or its designee prior to the Closing Date; (iii) the inability to satisfy and discharge all intercompany transactions or arrangements (as contemplated in Section 2.7); (iv) any of the actions pursuant to which ANR Company the original grantor assigned the Right-of-Way Easement described in Parcel 11 on Schedule 4.02(n) (the “Canal Easement”) to the current grantor under the Canal Easement, and the Seller contributed the Coastal Coal Membership Interests to El Paso Holding in exchange for membership interests of El Paso Holding; (v) any failure an estoppel certificate or similar written assurance executed by the Seller current grantor under the Canal Easement in form and substance reasonably acceptable to satisfy Purchaser (the “Canal Estoppel”). In the event that Sellers obtain and deliver the Unrecorded Water Easement, the Canal Assignment or the Canal Estoppel CONFIDENTIAL TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED BY [CONFIDENTIAL TREATMENT REQUESTED]. MATERIAL OMITTED HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. prior to Closing, and any of such are not reasonably acceptable to Purchaser, then Purchaser shall have the Liabilities associated with right to terminate this Agreement by notice to Sellers. In the Retained Assets event Sellers fail to obtain and Liabilities; (vi) any claim for deliver to Purchaser the matter discussed in item 4.a. in Section 4.1(k)(iii) of Unrecorded Water Easement, the Disclosure Schedules; (vii) Canal Assignment or the Seller's obligations to pay any Taxes due with respect to Pre-Closing Tax Returns pursuant to Article IX; (viii) any claim associated with Non-Mining Environmental Liabilities to the extent such claim relates to or arises from any activity Canal Estoppel on or through the use of the Acquired Interests and is attributable to acts or omissions occurring at or prior to the Closing Date to the extent and only to the extent that the Seller waives the condition precedent that a Non-Mining Insurance Policy be obtained in accordance with the provisions of Section 5.10(d); and (ix) any failure by the Seller to satisfy any of the Liabilities associated with the Fox River Plans to the extent such Liabilities relate to or arise from activities or omissions occurring at or prior to the Closing Date, from and after the Closing, each Seller shall indemnify, defend, reimburse and hold harmless the Purchaser Indemnified Parties, on a several and not a joint basis, from and against any and all reasonable Losses actually incurred by any Purchaser Indemnified Party, acting consistent with Prudent Industry Practices and in a manner consistent with the actions of such Purchaser Indemnified Party or other utilities acting under similar circumstances, as a result of, in connection with, relating to or arising out of (y) failure of Company to hold a water pipeline easement for Parcel 3 on Schedule 4.02(n), with no further consideration due, and otherwise on terms substantially similar to the unrecorded easement for Parcel 5 on Schedule 4.02(n) (in the event that Sellers fail to deliver the Unrecorded Water Easement prior to the Closing Date), or (z) assignment to the current grantor of the Canal Easement having caused or resulting in a material change in terms or termination of the Canal Easement (in the event that Sellers fail to deliver the Canal Assignment prior to the Closing Date), or any Company monetary breach or default under the Canal Easement (in the event that Sellers fail to deliver the Canal Estoppel prior to the Closing Date). The foregoing indemnity shall be effective notwithstanding any disclosures in the Disclosure Schedules as of the date of this Agreement.

Special Indemnity. The (a) From and after the Closing, Seller agrees to shall indemnify the Buyer Indemnitees and hold them harmless the Purchaser Indemnified Persons from and against, and reimburse them for, the entirety of any Adverse Consequences that any of the Buyer Indemnitees may suffer or incur or become subject to as a result of: against fifty percent (i) the inability to assign or otherwise transfer any Retained Assets and Liabilities to the Seller or its designee prior to the Closing Date (as contemplated in Section 2.5); (ii) any expense or Liability incurred by the Buyer in cooperating with the Seller to prosecute and/or defend any actions related to the Retained Assets and Liabilities if such Retained Assets and Liabilities are unable to be transferred to the Seller or its designee prior to the Closing Date; (iii) the inability to satisfy and discharge all intercompany transactions or arrangements (as contemplated in Section 2.7); (iv) any of the actions pursuant to which ANR Company and the Seller contributed the Coastal Coal Membership Interests to El Paso Holding in exchange for membership interests of El Paso Holding; (v) any failure by the Seller to satisfy any of the Liabilities associated with the Retained Assets and Liabilities; (vi) any claim for the matter discussed in item 4.a. in Section 4.1(k)(iii50%) of the Disclosure Schedules; each Loss (vii) the Seller's obligations to pay any Taxes due with respect to Pre-Closing Tax Returns pursuant to Article IX; (viii) any claim associated with Non-Mining Environmental Liabilities but only to the extent such claim relates Losses constitute bona fide cash payments (for the avoidance of doubt, service credits shall not be deemed to or arises from be cash payments)) incurred by any activity on or through the use of the Acquired Interests and is attributable to acts or omissions occurring at or prior to the Closing Date Purchaser Indemnified Persons to the extent such Loss arises out of any of the matters set forth on Section 10.03(a) of the Seller Disclosure Schedule. For the avoidance of doubt, the Purchaser Indemnified Persons shall bear the remaining fifty percent (50%) of each Loss. This Section 10.03(a) shall constitute the exclusive remedy of Purchaser and the Purchaser Indemnified Persons in connection with the matters set forth on Section 10.03(a) of the Seller Disclosure Schedule. (b) Seller shall have no obligation to indemnify under Section 10.03(a) unless and only to the extent that such Losses exceed in the aggregate $4,000,000. From the Closing Date until the date that is eighteen (18) months after the Closing Date (the “Preliminary Expiration Date”), all indemnity payments made by Seller waives to Purchaser under Section 10.03(a) shall be subject to the condition precedent cap set forth under Section 10.01(c)(ii)(B)(3). Following the Preliminary Expiration Date until the date that a Non-Mining Insurance Policy is sixty (60) months after the Closing Date (the “Secondary Expiration Date”), Seller shall have no obligation to indemnify under Section 10.03(a) to the extent the aggregate indemnification payments made by Seller for claims for indemnification under Section 10.03(a) during the period beginning on the Preliminary Expiration Date and ending on the Secondary Expiration Date exceed, in the aggregate, the lesser of (i) $50,000,000 and (ii) the excess of $125,000,000 over the sum of (A) the aggregate amount of indemnification payments made by Seller for claims for indemnification under Section 10.03(a) during the period beginning on the Closing Date and ending on the Preliminary Expiration Date and (B) the aggregate amount of indemnification payments made by Seller under Section 10.01(a)(i). Seller’s obligation to indemnify for any Loss under Section 10.03(a) shall terminate as of the Secondary Expiration Date unless before such date Purchaser has provided Seller with an applicable Claim Notice in respect of such Loss. (c) Any claim for indemnification under Section 10.03(a) shall be obtained subject to the provisions of Section 10.02(a). Notwithstanding anything to the contrary contained in Section 10.02(b) or Section 10.02(c) or otherwise, with respect to any claim for indemnification under Section 10.03(a), Purchaser shall be entitled to participate in the defense of any Third Party Claim and shall be entitled to control the defense of such Third Party Claim and appoint lead counsel (which shall be reasonably acceptable to Seller) for such defense. If Purchaser shall assume the control of the defense of any such Third Party Claim in accordance with the provisions of this Section 5.10(d10.03(a); and , (ixi) Purchaser shall keep Seller reasonably informed with respect to such Third Party Claim by providing Seller with reasonably detailed updates (x) of any failure by material developments and (y) promptly (and in any event within five Business Days) after Seller’s written request (which shall not be made more frequently than every sixty (60) days), in each case with respect to such Third Party Claim, and (ii) Seller shall be entitled to participate in the Seller defense of such Third Party Claim and to satisfy employ separate counsel of its choice for such purpose at its own cost and expense. Purchaser shall not settle any of the Liabilities associated with the Fox River Plans such Third Party Claim under this Section 10.03 without Seller’s written consent (not to the extent such Liabilities relate to be unreasonably withheld, conditioned or arise from activities or omissions occurring at or prior to the Closing Datedelayed).