Common use of Updating Clause in Contracts

Updating. (a) At any time prior to Closing, by written notice to Purchaser, Seller may supplement or amend any of the Schedules to include thereon any matters that have arisen after the Effective Date as a result of any actions or inactions of Seller and/or any of its Affiliates in respect of any of the Acquired Companies, the Project or the Facility that are not prohibited by Section 7.3, including any specific activities expected to be undertaken by Seller and its Affiliates during the Interim Period as set forth on Schedule 7.3. Any such Schedules that are supplemented or amended in accordance with this Section 7.7(a) shall be deemed so supplemented or amended for all purposes of this Agreement as if such matters were listed on such Schedules as of the Effective Date. (b) In addition to the supplement or amendments to the Schedules made by Seller pursuant to Section 7.7(a), Seller may from time to time notify Purchaser of any changes or additions to any of the Schedules of which it has Knowledge that may be necessary to correct any matter that would otherwise constitute a breach of any representation or warranty of Seller in Articles IV or V such that the closing condition in Section 3.6(a) cannot be satisfied. No such updates made pursuant to this Section 7.7(b) shall be deemed to cure any inaccuracy of any representation or warranty made in this Agreement as of the Effective Date or for purposes of Section 3.6(a) unless Purchaser specifically agrees thereto in writing; provided, however, that if the Closing shall occur despite the fact that Seller had notified Purchaser of any changes or additions such that the closing condition in Section 3.6(a) could not be satisfied, then, notwithstanding anything in this Agreement to the contrary (including Article X), no matters disclosed by Seller prior to the Closing that constituted breaches of one or more representations or warranties of Seller in Articles IV or V as of the date of the Agreement or as of the Closing Date shall be the basis for any indemnification by Seller pursuant to Section 10.1(a).

Updating. (a) At Seller shall notify each Purchaser in writing of the existence of any time prior matter of which Seller acquires Knowledge and which, if in existence on the Effective Date or the Closing Date could reasonably be expected to Closing, by written notice to Purchaser, Seller may supplement or amend cause (i) any of the Schedules to include thereon any matters that have arisen after the Effective Date as a result of any actions representations or inactions warranties of Seller and/or any of its Affiliates set forth in ARTICLE 4 that are qualified with respect of to materiality (whether by reference to Material Adverse Effect or otherwise) to be untrue or incorrect or (ii) any of the Acquired Companies, the Project representations or the Facility warranties of Seller set forth in ARTICLE 4 that are not prohibited by Section 7.3, including any specific activities expected so qualified to be undertaken by Seller and its Affiliates during the Interim Period as untrue or incorrect in any material respect. The written notice pursuant to this Section 7.3(a) shall be set forth on an amended Seller's Schedule 7.3. Any such or Seller's Schedules that are supplemented or amended in accordance with this Section 7.7(a) which shall be deemed so supplemented to replace the original Seller's Schedule or amended for all purposes of this Agreement as if such matters were listed on such Seller's Schedules as of the Effective Date and the Closing Date, to have qualified the relevant representations and warranties of Seller set forth in ARTICLE 4 as of the Effective Date and the Closing Date, and to have cured any misrepresentation or breach of warranty that otherwise might have existed hereunder by reason of the existence of such matter. (b) In addition to Each Purchaser shall notify Seller in writing of the supplement or amendments to the Schedules made by Seller pursuant to Section 7.7(a), Seller may from time to time notify Purchaser existence of any changes matter of which such Purchaser acquires Knowledge and which, if in existence on the Effective Date or additions the Closing Date, could reasonably be expected to cause (i) any of the Schedules representations or warranties of such Purchaser set forth in ARTICLE 5 or ARTICLE 6, as applicable, that are qualified with respect to materiality (whether by reference to Material Adverse Effect or otherwise) to be untrue or incorrect or (ii) any of the representations or warranties of such Purchaser set forth in ARTICLE 5 or ARTICLE 6, as applicable, that are not so qualified to be untrue or incorrect in any material respect. The written notice pursuant to this Section 7.3(b) shall be set forth on each Purchaser's amended Purchasers' schedule which shall be deemed to replace the original Purchaser's schedule as of the Effective Date and the Closing Date, to have qualified the representations and warranties contained in ARTICLE 5 or ARTICLE 6, as applicable, as of the Effective Date and the Closing Date, and to have cured any misrepresentation or breach of warranty that otherwise might have existed hereunder by reason of the existence of such matter. (c) Without limiting the generality of the foregoing, (i) Seller shall notify each Purchaser promptly of the occurrence of (A) any material casualty, physical damage, destruction or physical loss respecting, or any material adverse change in the physical condition of, the Generation Facility, subject to ordinary wear and tear and to routine maintenance, reasonably likely to result in a Material Adverse Effect of which it Seller has Knowledge that may be necessary Knowledge, and (B) any other material event reasonably likely to correct impair Seller's ability to perform its obligations under this Agreement, if the occurrence is one of which Seller has Knowledge, and (ii) each Purchaser shall notify Seller promptly of (A) any matter that would otherwise constitute a breach of any representation or warranty of by Seller in Articles IV or V such that the closing condition in Section 3.6(a) cannot be satisfied. No such updates made pursuant to this Section 7.7(b) shall be deemed to cure any inaccuracy of any representation other condition or warranty made in circumstance of which such Purchaser has Knowledge that would excuse such Purchaser from its timely performance of its obligations hereunder and (B) any other material event reasonably likely to impair such Purchaser's ability to perform its obligations under this Agreement as of the Effective Date or for purposes of Section 3.6(a) unless Purchaser specifically agrees thereto in writing; providedAgreement, however, that if the Closing shall occur despite the fact that Seller had notified occurrence is one of which such Purchaser of any changes or additions such that the closing condition in Section 3.6(a) could not be satisfied, then, notwithstanding anything in this Agreement to the contrary (including Article X), no matters disclosed by Seller prior to the Closing that constituted breaches of one or more representations or warranties of Seller in Articles IV or V as of the date of the Agreement or as of the Closing Date shall be the basis for any indemnification by Seller pursuant to Section 10.1(a)has Knowledge.

Updating. (a) At any time prior Without limitation to Closing, by written notice to Purchaser, Seller may supplement or amend any of the Schedules to include thereon any matters that have arisen after the Effective Date as a result of any actions or inactions of Seller and/or any of its Affiliates in respect of any of the Acquired Companies, the Project or the Facility that are not prohibited by EME's obligations under Section 7.3, including any specific activities expected to be undertaken by Seller and its Affiliates during the Interim Period as set forth on Schedule 7.3. Any such Schedules that are supplemented or amended in accordance with this Section 7.7(a) shall be deemed so supplemented or amended for all purposes of this Agreement as if such matters were listed on such Schedules as of the Effective Date. (b) In addition to the supplement or amendments to the Schedules made by Seller pursuant to Section 7.7(a6.20(b), Seller may from time to time EME shall notify the Purchaser of any changes or additions to any of EME's Schedules to this Agreement (including the EME Disclosure Schedule and the Structure Chart contained in Section 4.5(b) of the EME Disclosure Schedule) by the delivery of updates thereof, if any, as of a reasonably current date prior to the Closing, but in no event later than five (5) Business Days prior to the Closing, provided that EME shall continue to deliver updates relating to subsequent changes or additions to any of the Schedules of which it has Knowledge that may be necessary to correct any matter that would otherwise constitute a breach of any representation or warranty of Seller in Articles IV or V such that EME until the closing condition in Section 3.6(a) cannot be satisfiedClosing. No such updates made pursuant to this Section 7.7(b6.20(a) shall be deemed to cure any inaccuracy or breach of any representation or warranty made in this Agreement as of the Effective Date or nor, for purposes of Section 3.6(a8.2(a) or Section 11.3(a)(i) (subject to the terms of the second proviso contained therein), the Closing Date, unless the Purchaser specifically agrees thereto in writing; provided, however, that if nor shall any such notification be deemed to constitute or give rise to a waiver (whether express or implied) by the Closing shall occur despite the fact that Seller had notified Purchaser of any changes covenant or additions such that condition set forth in this Agreement. Without limiting the closing generality of the foregoing, EME shall notify the Purchaser reasonably promptly of the occurrence of any material casualty, physical damage, destruction or physical loss respecting, or, to the best of the Knowledge of EME, material adverse change in the physical condition in Section 3.6(aof, any Project, subject to ordinary wear and tear and to routine maintenance. (b) could not be satisfiedThe Sellers and the Purchaser Parties, thenas the case may be, notwithstanding anything shall notify each other promptly after becoming aware of (i) the occurrence or non-occurrence of any event whose occurrence or non-occurrence would (A) cause any representation or warranty given by them respectively in this Agreement to be untrue or inaccurate in any material respect at any time from the contrary date hereof to the Closing Date, (including B) prevent any condition set forth in Article X), no matters disclosed by Seller VIII from being satisfied prior to the Closing that constituted breaches Outside Date and (ii) any material failure of one or more representations or warranties of Seller in Articles IV or V as any of the date Parties or their respective Affiliates or any of the Agreement their respective Representatives, to comply with or as satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder or (C) any material breach or alleged material breach of the Closing Date shall be the basis for any indemnification by Seller pursuant to Section 10.1(a)Major Contract of which EME has Knowledge.

Updating. (a) At any time prior to each Closing, by written notice to Purchaser, Seller may supplement or amend any of the Schedules to the applicable Acquired Companies Annex to include thereon any matters that have arisen after the applicable Effective Date as a result of any actions or inactions of Seller and/or or any of its Affiliates in with respect of to any of the applicable Acquired Companies, the applicable Project or the applicable Facility that are not prohibited by Section 7.3, including any specific activities expected to be undertaken by Seller and its Affiliates during the Interim Period that is applicable to the Acquired Companies Acquisition as set forth on Schedule 7.37.3 to such Acquired Companies Annex. Any such Schedules that are supplemented or amended in accordance with this Section 7.7(a) shall be deemed so supplemented or amended for all purposes of this Agreement as if such matters were listed on such Schedules as of the applicable Effective Date. (b) In addition to the supplement or amendments to the Schedules made by Seller pursuant to Section 7.7(a), Seller may from time to time notify Purchaser of any changes or additions to any of the Schedules to the applicable Acquired Companies Annex of which it has Knowledge that may be necessary to correct any matter that would otherwise constitute a breach of any representation or warranty of Seller in Articles IV or V such that the applicable closing condition in Section 3.6(a) cannot be satisfied. No such updates made pursuant to this Section 7.7(b) shall be deemed to cure any inaccuracy of any representation or warranty made in this Agreement as of the applicable Effective Date or for purposes of Section 3.6(a) unless Purchaser specifically agrees thereto in writing; provided, however, that if the applicable Closing shall occur despite the fact that Seller had notified Purchaser of any changes or additions such that the applicable closing condition in Section 3.6(a) could not be satisfied, then, notwithstanding anything in this Agreement to the contrary (including Article X), no matters disclosed by Seller prior to the applicable Closing that constituted breaches of one or more representations or warranties of Seller in Articles IV or V as of the date of the Agreement applicable Effective Date or as of the applicable Closing Date shall be the basis for any indemnification by Seller pursuant to Section 10.1(a).

Updating. (a) At any time prior to Closing, by written notice to Purchaser, Seller may supplement or amend any of the Schedules to include thereon any matters that have arisen after the Effective Date as a result of any actions or inactions of Seller and/or any of its Affiliates in respect of any of the Acquired Companies, the Project or the Facility that are not prohibited by Section 7.3, including any specific activities expected to be undertaken by Seller and its Affiliates during the Interim Period as set forth on Schedule 7.3. Any such Schedules that are supplemented or amended in accordance with this Section 7.7(a) shall be deemed so supplemented or amended for all purposes of this Agreement as if such matters were listed on such Schedules as of the Effective Date. (b) In addition to the supplement or amendments to the Schedules made by Seller pursuant to Section 7.7(a), Seller may from time to time notify Purchaser of any changes or additions to any of the Seller's Schedules of which it has Knowledge that to this Agreement and Purchaser may be necessary from time to correct any matter that would otherwise constitute a breach time notify Seller of any representation changes or warranty additions to any of Seller Purchaser's Schedules to this Agreement by the delivery of amendments or supplements thereto, if any, as of a reasonably current date prior to the Closing, but each Party shall in Articles IV any event at least once not earlier than ten (10) Business Days or V later than three (3) Business Days prior thereto so notify the other Party. Prior to the Closing, no such that the closing condition in Section 3.6(a) cannot be satisfied. No such updates notification, change, addition, amendment or supplement made pursuant to this Section 7.7(b) 6.3 shall be deemed to cure any inaccuracy of any representation or warranty made in this Agreement as of the Effective Date or for purposes of Section 3.6(a) date hereof, unless Purchaser the Party receiving such notification specifically agrees thereto in writing; provided, however, that if the Closing nor shall occur despite the fact that Seller had notified Purchaser any such notification be considered to constitute or give rise to a waiver by either Party of any changes or additions such that the closing condition in Section 3.6(a) could not be satisfied, then, notwithstanding anything set forth in this Agreement Agreement, any failure of any Party to satisfy any such condition or any breach of any representation or warranty set forth in this Agreement. Without limiting the contrary generality of the foregoing, Seller shall notify Purchaser promptly of the occurrence of (including Article X)i) any material casualty, no matters disclosed by physical damage, destruction or physical loss respecting, or any material adverse change in, the physical condition of the Project, subject to ordinary wear and tear and to routine maintenance, and (ii) any other material event reasonably likely to impair Seller's ability to perform its obligations under this Agreement. (b) Seller prior shall deliver the Monthly Financial Report to Purchaser not later than fifteen (15) days following the Closing that constituted breaches last day of one or more representations or warranties of each calendar month. Seller in Articles IV or V shall prepare the Inventory Report, as of the date last day of each calendar month consistent with Seller's current inventory practices, and Seller shall deliver the Agreement or Inventory Report to Purchaser not later than fifteen (15) days following the last day of each calendar month, provided that the first Inventory Report prepared and delivered pursuant to this sentence shall be prepared as of the Closing Date February 29, 2004 and shall be the basis for any indemnification delivered not later than March 15, 2004. (c) Seller shall provide to Purchaser copies of all notices received by Seller pursuant or any of its Affiliates, or sent by Seller or any of its Affiliates, from or to Section 10.1(a)any other party, as the case may be, under the Senior Loan Documents. (d) Purchaser shall provide to Seller copies of its publicly-available regulatory filings with respect to the Transactions as made.

Updating. (a) At With respect to the Emerald Breeze Projects, at any time prior to Closing, by written notice to Purchaser, Seller may supplement or amend any of the Schedules to include thereon any matters that have arisen after the Effective Date as a result of any actions or inactions of Seller and/or any of its Affiliates in respect of any of the Acquired CompaniesEmerald Breeze Project Company, the any Emerald Breeze Project or any Facility (other than the Elk City Wind Facility, Sac County Wind Facility or Xxxxxx Wind Facility) that are not prohibited by Section 7.3, including any specific activities expected to be undertaken by Seller and its Affiliates during the Interim Period as set forth on Schedule 7.3. Any such Schedules that are supplemented or amended in accordance with this Section 7.7(a) shall be deemed so supplemented or amended for all purposes of this Agreement as if such matters were listed on such Schedules as of the Effective Date. (b) In addition to the supplement supplements or amendments to the Schedules made by Seller pursuant to Section 7.7(a), Seller may from time to time notify Purchaser of any changes or additions to any of the Schedules of which it has Knowledge to the Acquired Companies Annex that may be necessary to correct any matter that would otherwise constitute a breach of any representation or warranty of Seller in Articles IV or V such that or in the closing condition in Section 3.6(a) cannot be satisfiedAcquired Companies Annex. No such updates made pursuant to this Section 7.7(b) shall be deemed to cure any inaccuracy of any representation or warranty made in this Agreement or in the Acquired Companies Annex as of the Effective Date or for purposes of Section 3.6(a) ), unless Purchaser specifically agrees thereto in writing; provided, however, that that, if (i) the matter or matters giving rise to any such change or addition to the Schedules to the Acquired Companies Annex would, individually or collectively, cause the failure of one or more conditions to Closing set forth in Section 3.4 or Section 3.6(a) or (b) of the Agreement or Part V of the Acquired Companies Annex and (ii) the Closing shall occur despite as a result of the fact that Seller had notified Purchaser of any changes or additions Purchaser’s waiving such that the closing condition in Section 3.6(a) could not be satisfiedconditions, then, notwithstanding anything in this Agreement to the contrary in the Agreement (including Article X)) or the applicable Acquired Companies Annex, no matters such matter disclosed by Seller prior to the Closing that constituted breaches might constitute a breach of one or more representations or warranties of Seller in Articles IV or V of the Agreement, or in such Acquired Companies Annex, as of the date of the Agreement Effective Date or as of the Closing Date shall be the basis for any indemnification Claim by Purchaser or any Purchaser Indemnified Party against Seller or any of its Affiliates, including any Indemnification Claim pursuant to Article X, other than to the extent of any Losses incurred by any Purchaser Indemnified Party arising out of a Third Party Claim.” (q) The first sentence of Section 10.1(a9.2(b) of the Agreement is hereby amended and restated in its entirety to read as follows: “Seller shall be responsible for and indemnify Purchaser against any Tax with respect to any applicable Acquired Company that is attributable to a Pre-Closing Taxable Period or to that portion of a Straddle Taxable Period that ends on the applicable Closing Date (including, as applicable, any adjustment in the RLF1 28114541v.2 916425.18B-WILSR01A - MSW amount of any item of income, gain, loss, deduction, or credit of any Acquired Company, or any distributive share thereof, to the extent such adjustment results in an “imputed underpayment” as described in Code section 6225(b) or any analogous provision of state or local law); provided, however, that Seller shall not be liable for, and shall not indemnify Purchaser for, any liability for Taxes (i) that were included as a liability in calculating the applicable Post-Closing Working Capital Adjustment Payment; (ii) that were otherwise paid by Seller, (iii) that were recoverable from a Person other than the Purchaser or the applicable Acquired Companies or (iv) resulting from transactions or actions taken by Purchaser or the applicable Acquired Companies after the applicable Closing.” (r) Section 12.10 of the Agreement is hereby amended and restated in its entirety to read as follows:

Updating. (a) At any time prior to Closing, by written notice to Purchaser, Seller may supplement or amend any of the Schedules to include thereon any matters that have arisen after the Effective Date as a result of any actions or inactions of Seller and/or any of its Affiliates in respect of any of the Acquired CompaniesCompany, the any Project or the any Facility that are not prohibited by Section 7.3, including any specific activities expected to be undertaken by Seller and its Affiliates during the Interim Period as set forth on Schedule 7.3. Any such Schedules that are supplemented or amended in accordance with this Section 7.7(a) shall be deemed so supplemented or amended for all purposes of this Agreement as if such matters were listed on such Schedules as of the Effective Date. (b) In addition to the supplement supplements or amendments to the Schedules made by Seller pursuant to Section 7.7(a), Seller may from time to time notify Purchaser of any changes or additions to any of the Schedules of which it has Knowledge to the Acquired Companies Annex that may be necessary to correct any matter that would otherwise constitute a breach of any representation or warranty of Seller in Articles IV or V such that or in the closing condition in Section 3.6(a) cannot be satisfiedAcquired Companies Annex. No such updates made pursuant to this Section 7.7(b) 7.7 shall be deemed to cure any inaccuracy of any representation or warranty made in this Agreement or in the Acquired Companies Annex as of the Effective Date or for purposes of Section 3.6(a) ), unless Purchaser specifically agrees thereto in writing; provided, however, that that, if (i) the matter or matters giving rise to any such change or addition to the Schedules to the Acquired Companies Annex would, individually or collectively, cause the failure of one or more conditions to Closing set forth in Section 3.4 or Section 3.6(a) or (b) of the Agreement or Part V of the Acquired Companies Annex and (ii) the Closing shall occur despite as a result of the fact that Seller had notified Purchaser of any changes or additions Purchaser’s waiving such that the closing condition in Section 3.6(a) could not be satisfiedconditions, then, notwithstanding anything in this Agreement to the contrary in the Agreement (including Article X)) or this Annex, no matters such matter disclosed by Seller prior to the Closing that constituted breaches might constitute a breach of one or more representations or warranties of Seller in Articles IV or V of the Agreement, or in the Acquired Companies Annex, as of the date of the Agreement Effective Date or as of the Closing Date shall be the basis for any indemnification Claim by Purchaser or any Purchaser Indemnified Party against Seller or any of its Affiliates, including any Indemnification Claim pursuant to Article X, other than to the extent of any Losses incurred by any Purchaser Indemnified Party arising out of a Third Party Claim.” (n) The first sentence of Section 10.1(a9.2(b) of the Agreement is hereby amended and restated in its entirety to read as follows: “Seller shall be responsible for and indemnify Purchaser against any Tax with respect to any applicable Acquired Company that is attributable to a Pre-Closing Taxable Period or to that portion of a Straddle Taxable Period that ends on the applicable Closing Date (including, as applicable, any adjustment in the amount of any item of income, gain, loss, deduction, or credit of any Acquired Company, or any distributive share thereof, to the extent such adjustment results in an “imputed underpayment” as described in Code section 6225(b) or any analogous provision of state or local law); provided, however, that Seller shall not be liable for, and shall not indemnify Purchaser for, any liability for Taxes (i) that were included as a liability in calculating the applicable Post-Closing Working Capital Adjustment Payment; (ii) that were otherwise paid by Seller, (iii) that were recoverable from a Person other than the Purchaser or the applicable Acquired Companies or (iv) resulting from transactions or actions taken by Purchaser or the applicable Acquired Companies after the applicable Closing.” (o) Section 12.10 of the Agreement is hereby amended and restated in its entirety to read as follows:

Updating. (a) At any time prior to Closing, by written notice to Purchaser, Seller may supplement or amend any of the Schedules to include thereon any matters that have arisen after the Effective Date as a result of any actions or inactions of Seller and/or any of its Affiliates in respect of any of the Acquired CompaniesCompany, the any Project or the any Facility that are not prohibited by Section 7.3, including any specific activities expected to be undertaken by Seller and its Affiliates during the Interim Period as set forth on Schedule 7.3. Any such Schedules that are supplemented or amended in accordance with this Section 7.7(a) shall be deemed so supplemented or amended for all purposes of this Agreement as if such matters were listed on such Schedules as of the Effective Date. (b) In addition to the supplement or amendments to the Schedules made by Seller pursuant to Section 7.7(a), Seller may from time to time notify Purchaser of any changes or additions to any of the Schedules of which it has Knowledge to the Acquired Companies Annex that may be necessary to correct any matter that would otherwise constitute a breach of any representation or warranty of Seller in Articles IV or V such that or in the closing condition in Section 3.6(a) cannot be satisfiedAcquired Companies Annex. No such updates made pursuant to this Section 7.7(b) 7.7 shall be deemed to cure any inaccuracy of any representation or warranty made in this Agreement or in the Acquired Companies Annex as of the Effective Date or for purposes of Section 3.6(a) ), unless Purchaser specifically agrees thereto in writing; provided, however, that that, if (i) the matter or matters giving rise to any such change or addition to the Schedules to the Acquired Companies Annex would, individually or collectively, cause the failure of one or more conditions to Closing 873619.23-WILSR01A - MSW set forth in Section 3.4, or Section 3.6(a) or (b) of the Agreement or Part V of the Acquired Companies Annex and (ii) the Closing shall occur despite as a result of the fact that Seller had notified Purchaser of any changes or additions Purchaser’s waiving such that the closing condition in Section 3.6(a) could not be satisfiedconditions, then, notwithstanding anything to the contrary in this Agreement to the contrary (including Article X), no matters such matter disclosed by Seller prior to the Closing that constituted breaches might constitute a breach of one or more representations or warranties of Seller in Articles IV or V of the Agreement, or in the Acquired Companies Annex, as of the date of the Agreement Effective Date or as of the Closing Date shall be the basis for any indemnification Claim by Purchaser or any Purchaser Indemnified Party against Seller or any of its Affiliates, including any Indemnification Claim pursuant to Article X, other than to the extent of any Losses incurred by any Purchaser Indemnified Party arising out of a Third Party Claim.” (k) Section 10.1(a10.2(a)(ii) of the Agreement is hereby amended by adding the following to the end of such Section: “provided, however, that Seller’s obligation to indemnify Purchaser Indemnified Parties against any Losses incurred by any Purchaser Indemnified Parties arising out of or relating to the Excluded Liabilities shall terminate on the third (3rd) anniversary of the Closing Date;” (l) Section 10.2(a)(iii) of the Agreement is hereby amended by adding the following to the end of such Section: “provided, further, that this Section 10.2(a)(iii) shall not apply to any Losses incurred by any Purchaser Indemnified Parties arising out of or relating to the Excluded Liabilities;” (m) Section 10.2(a)(iv) of the Agreement is hereby amended by adding the following to the end of such Section: “provided, further, this Section 10.2(a)(iv) shall not apply to any Losses incurred by any Purchaser Indemnified Parties arising out of or relating to the Excluded Liabilities; and” (n) Section 10.2(a)(v) of the Agreement is hereby amended by adding the following to the end of such Section (but prior to the period (“.”).): “, and provided, further, that in no event shall Seller’s aggregate liability for Losses incurred by any Purchaser Indemnified Parties arising out of or relating to the Excluded Liabilities exceed the Schedule RS Amount” (o) Section 12.10 of the Agreement is hereby amended and restated in its entirety to read as follows: