Common use of By the Seller Clause in Contracts

By the Seller. Subject to Section 7.1(E) hereof, the Seller shall indemnify, save, defend and hold harmless the Parent and Buyer and their respective shareholders, directors, officers, partners, agents and employees (collectively, the "Buyer Indemnified Parties") from and against any and all costs, lawsuits, losses, liabilities, deficiencies, claims and expenses, including interest, penalties, attorneys' fees and all amounts paid in investigation, defense or settlement of any of the foregoing (collectively referred to herein as "Damages"), (i) incurred in connection with or arising out of or resulting from or incident to any breach of any covenant, breach of warranty as of the Effective Date, or the inaccuracy of any representation as of the Effective Date, made by the Seller in or pursuant to this Agreement or the Ancillary Agreements, or any other agreement contemplated hereby or in any schedule, certificate, exhibit, or other instrument furnished or to be furnished by the Seller under this Agreement, (ii) based upon, arising out of, or otherwise in respect of any liability or obligation of the Business or relating to the Assets (a) relating to any period prior to the Effective Date, other than those Damages based upon or arising out of the Assumed Liabilities, or (b) arising out of facts or circumstances existing prior to the Effective Date, other than those Damages based upon or arising out of the Assumed Liabilities; provided however, that the Seller shall not be liable for any such Damages to the extent, if any, such Damages result from or arise out of a breach or violation of this Agreement by any Buyer Indemnified Parties, and (iii) any liability under the Securities Act, the Exchange Act or other federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a Material fact relating to the Seller, and provided to Parent or its counsel by the Seller, contained in the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a Material fact relating to the Seller required to be stated therein or necessary to make the statements therein not misleading, provided however, that such indemnity shall not inure to the benefit of Parent and Buyer to the extent such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and Seller provided, in writing, corrected information to Parent and Parent's counsel for inclusion in the Final Prospectus, and such information was not included or properly delivered.

By the Seller. Subject Nothing contained in this Agreement shall give the Buyer, directly or indirectly, rights to Section 7.1(E) hereofcontrol or direct the operations of any member of the Seller Group or the Acquired Companies before the Closing Date. Before the Closing Date, the Seller shall, consistent with the terms and conditions of this Agreement, exercise complete control and supervision over the operations of each member of the Seller Group and each Acquired Company. For the avoidance of doubt, the Buyer shall indemnifynot have any right to control or direct the operations of any member of the Seller Group following the Closing Date. Notwithstanding anything to the contrary in this Agreement, saveprior to Closing, defend and hold harmless the Parent and Buyer and their respective shareholdersits Representatives shall not have the right to conduct appraisal or environmental and engineering inspections of the real property used by the members of the Seller Group and the Acquired Companies and none of the Buyer or its Representatives shall have the right to take and/or analyze any samples of any environmental media (including soil, directorsgroundwater, officerssurface water, partnersair or sediment) or any building material or to perform any invasive testing procedure on any building or real property. Without limiting the foregoing, agents and employees notwithstanding anything in this Agreement to the contrary, on the terms and subject to the conditions set forth in this Agreement, the Seller and its Affiliates and Subsidiaries shall take the restructuring steps set forth on Exhibit D (collectively, the "Buyer Indemnified Parties"“Pre-Closing Restructuring”) from and against any and all costs, lawsuits, losses, liabilities, deficiencies, claims and expenses, including interest, penalties, attorneys' fees and all amounts paid in investigation, defense on or settlement of any of the foregoing (collectively referred to herein as "Damages"), (i) incurred in connection with or arising out of or resulting from or incident to any breach of any covenant, breach of warranty as of the Effective Date, or the inaccuracy of any representation as of the Effective Date, made by the Seller in or pursuant to this Agreement or the Ancillary Agreements, or any other agreement contemplated hereby or in any schedule, certificate, exhibit, or other instrument furnished or to be furnished by the Seller under this Agreement, (ii) based upon, arising out of, or otherwise in respect of any liability or obligation of the Business or relating to the Assets (a) relating to any period prior to the Effective Closing Date, other than those Damages based upon or arising out of the Assumed Liabilities, or (b) arising out of facts or circumstances existing prior to the Effective Date, other than those Damages based upon or arising out of the Assumed Liabilities; provided howeverprovided, that the Seller shall not be liable for any such Damages to amend, restate, supplement or otherwise modify the extent, if any, such Damages result from or arise out Pre-Closing Restructuring without the consent of a breach or violation of this Agreement by any Buyer Indemnified Parties, and (iii) any liability under the Securities Act, the Exchange Act or other federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a Material fact relating to the Seller, and provided to Parent or its counsel by the Seller, contained in the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a Material fact relating to Buyer. If the Seller required or the Acquired Companies desire to take an action which would be stated therein or necessary prohibited pursuant to make this Section 6.1 without the statements therein not misleadingwritten consent of the Buyer, provided however, that prior to taking such indemnity shall not inure action the Seller may request such written consent by sending an e-mail to all of the benefit individuals set forth in Section 6.1 of Parent and the Buyer Disclosure Letter. Any of the individuals set forth in Section 6.1 of the Buyer Disclosure Letter may grant consent on behalf of the Buyer to the extent taking of any action that would otherwise be prohibited pursuant to Section 6.1 by e-mail or such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and Seller provided, in writing, corrected information to Parent and Parent's counsel for inclusion in other notice that complies with the Final Prospectus, and such information was not included or properly deliveredprovisions of Section 13.5.

By the Seller. Subject to Section 7.1(E) hereof, the The Seller shall indemnify, savedefend, and hold harmless the Purchaser and any officer, director, employee or agent of the Purchaser (each, a “Purchaser Indemnified Person”) against, any and all liabilities, losses, costs, damages and expenses (including account adjustments), including reasonable attorneys’ fees and legal expenses and sums paid, liabilities incurred or expenses paid or incurred (collectively, “Losses”) as a result of any Third Party Claim to the extent arising from any breach of any representation, warranty or covenant of the Seller contained herein or any act of gross negligence or willful misconduct of the Seller relating to the Purchased Loans occurring prior to the applicable Purchase Date. Notwithstanding the foregoing, (a) except for the indemnification in respect of Third Party Claims as provided in this Section 9.01, Section 6.01 shall be the Purchaser’s sole and exclusive remedy with respect to any breach of the representations and warranties made in Section 4.01(a)(vi), (b) the Seller shall have no obligation to indemnify any Purchaser Indemnified Person for any matter that arises, or for which the Claim Notice by the Purchaser Indemnified Person in accordance with Section 9.03 is made, other than with respect to a Loss arising as described above from a breach of a covenant, more than three (3) years after the applicable Purchase Date, and (c) the Seller’s indemnification obligations shall not arise to the extent the related Loss relates to the acts or omissions of the Purchaser or its Affiliates, designees or subcontractors occurring after the applicable Purchase Date, or to the acts or omissions of any Third-Party Servicer or to the servicing of the Purchased Loans by any Third-Party Servicer, or to the breach of any representation or warranty made or given to or for the benefit of the Seller by the Purchaser under this Agreement or to the gross negligence or willful misconduct of the Purchaser. Notwithstanding the limitation in clause (b) of the immediately preceding sentence, any obligation to indemnify, defend and hold harmless pursuant to this Section 9.01 shall not terminate with respect to any item as to which any Purchaser Indemnified Person shall have, before the Parent and Buyer and their respective shareholdersexpiration of the applicable survival period, directors, officers, partners, agents and employees (collectivelypreviously made a bona fide claim by delivering notice of such claim to the Seller indemnifying party in accordance with this Section 9.01 until final resolution of such claim. Further notwithstanding any other provision of this Agreement, the "Buyer Indemnified Parties"Purchaser will not be entitled to indemnity pursuant to this Section 9.01 (A) from unless the aggregate amount for all Losses that are subject to indemnification pursuant to this Section 9.01, together with all Loan Losses that are subject to indemnification pursuant to Section 6.01, exceeds, on an annual basis, the Deductible Amount, and against then only to the extent of such excess; and (B) for any Losses or Loan Losses to the extent that making payment thereon would cause the aggregate amount paid for all Losses and all costs, lawsuits, losses, liabilities, deficiencies, claims and expenses, including interest, penalties, attorneys' fees and all amounts paid in investigation, defense or settlement Loan Losses to exceed $[****]; provided that such monetary limitation shall not apply to any Losses the causes of any of the foregoing (collectively referred to herein as "Damages"), which are (i) incurred the failure of the representation and warranty in connection with or arising out item 1 of or resulting from or incident Exhibit D to any breach of any covenant, breach of warranty be true and correct in all material respects as of the Effective applicable Purchase Date, ; or (ii) the inaccuracy of any representation as acts or omissions of the Effective Date, made Seller or any Affiliate of the Seller acting as originator or servicer of the Purchased Loans or to the origination or servicing of the Purchased Loans by the Seller in or pursuant to this Agreement or the Ancillary Agreements, or any other agreement contemplated hereby or in any schedule, certificate, exhibit, or other instrument furnished or to be furnished by Affiliate of the Seller under acting as servicer of the Purchased Loans. This Section shall survive any termination of this Agreement, (ii) based upon, arising out of, or otherwise in respect . [****] Confidential treatment has been requested for portions of any liability or obligation of the Business or relating this exhibit. The copy filed herewith omits information subject to the Assets (a) relating to any period prior to the Effective Dateconfidentiality request. Omissions are designated with brackets containing asterisks. As part of our confidential treatment request, other than those Damages based upon or arising out of the Assumed Liabilities, or (b) arising out of facts or circumstances existing prior to the Effective Date, other than those Damages based upon or arising out of the Assumed Liabilities; provided however, that the Seller shall not be liable for any such Damages to the extent, if any, such Damages result from or arise out of a breach or violation complete version of this Agreement by any Buyer Indemnified Parties, exhibit has been filed separately with the U.S. Securities and (iii) any liability under the Securities Act, the Exchange Act or other federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a Material fact relating to the Seller, and provided to Parent or its counsel by the Seller, contained in the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a Material fact relating to the Seller required to be stated therein or necessary to make the statements therein not misleading, provided however, that such indemnity shall not inure to the benefit of Parent and Buyer to the extent such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and Seller provided, in writing, corrected information to Parent and Parent's counsel for inclusion in the Final Prospectus, and such information was not included or properly deliveredCommission.

By the Seller. Subject to Section 7.1(E) hereof, the The Seller shall indemnify, savedefend, and hold harmless the Purchaser and any officer, director, employee or agent of the Purchaser (each, a “Purchaser Indemnified Person”) against, any and all liabilities, losses, costs, damages and expenses, including reasonable attorneys’ fees and legal expenses and sums paid, liabilities incurred or expenses paid or incurred (collectively, “Losses”) as a result of any Third Party Claim to the extent arising from any breach of any representation, warranty or covenant of the Seller contained herein or any act of gross negligence or willful misconduct of the Seller relating to the Purchased Loans occurring prior to the applicable Purchase Date. Notwithstanding the foregoing, (a) except for the indemnification in respect of Third Party Claims as provided in this Section 9.01, Section 6.01 shall be the Purchaser’s sole and exclusive remedy with respect to any breach of the representations and warranties made in Section 4.01(a)(vi) or (vii) or Section 4.01(b), (b) the Seller shall have no obligation to indemnify any Purchaser Indemnified Person for any matter that arises, or for which the Claim Notice by the Purchaser Indemnified Person in accordance with Section 9.03 is made, other than with respect to a Loss arising as described above from a breach of a covenant, more than three (3) years after the applicable Purchase Date of a Purchased Loan, and (c) the Seller’s indemnification obligations shall not arise to the extent the related Loss relates to the acts or omissions of the Purchaser or its Affiliates, designees or subcontractors occurring after the applicable Purchase Date of a Purchased Loan, or to the acts or omissions of any Third-Party Servicer or to the servicing of the Purchased Loans by any Third-Party Servicer, or to the breach of any representation or warranty made or given to or for the benefit of the Seller by the Purchaser under this Agreement or to the gross negligence or willful misconduct of the Purchaser. Notwithstanding the limitation in clause (b) of the immediately preceding sentence, any obligation to indemnify, defend and hold harmless pursuant to this Section 9.01 shall not terminate with respect to any item as to which any Purchaser Indemnified Person shall have, before the Parent and Buyer and their respective shareholdersexpiration of the applicable survival period, directors, officers, partners, agents and employees (collectivelypreviously made a bona fide claim by delivering notice of such claim to the Seller indemnifying party in accordance with this Section 9.01 until final resolution of such claim. Further notwithstanding any other provision of this Agreement, the "Buyer Indemnified Parties"Purchaser will not be entitled to indemnity pursuant to this Section 9.01 (A) from unless Federal Seller Losses exceed, on an annual basis, the Deductible Amount, and against then only to the extent of such excess and (B) for any Losses or Loan Losses to the extent that making payment thereon would cause the aggregate amount paid for all Federal Seller Losses to exceed $[****]; provided that such monetary limitation shall not apply to any Losses [****] Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits information subject to the confidentiality request. Omissions are designated with brackets containing asterisks. As part of our confidential treatment request, a complete version of this exhibit has been filed separately with the U.S. Securities and all costs, lawsuits, losses, liabilities, deficiencies, claims and expenses, including interest, penalties, attorneys' fees and all amounts paid in investigation, defense or settlement Exchange Commission. the causes of any of the foregoing (collectively referred to herein as "Damages"), which are (i) incurred the failure of the representation and warranty in connection with or arising out item 1 of or resulting from or incident Exhibit D to any breach of any covenant, breach of warranty be true and correct in all material respects as of the Effective Date, applicable Purchase Date of a Purchased Loan or (ii) the inaccuracy of any representation as acts or omissions of the Effective Date, made Seller or any Affiliate of the Seller acting as servicer of the Purchased Loans or to the servicing of the Purchased Loans by the Seller in or pursuant to this Agreement or the Ancillary Agreements, or any other agreement contemplated hereby or in any schedule, certificate, exhibit, or other instrument furnished or to be furnished by Affiliate of the Seller under acting as servicer of the Purchased Loans. This Section shall survive any termination of this Agreement, (ii) based upon, arising out of, or otherwise in respect of any liability or obligation of the Business or relating to the Assets (a) relating to any period prior to the Effective Date, other than those Damages based upon or arising out of the Assumed Liabilities, or (b) arising out of facts or circumstances existing prior to the Effective Date, other than those Damages based upon or arising out of the Assumed Liabilities; provided however, that the Seller shall not be liable for any such Damages to the extent, if any, such Damages result from or arise out of a breach or violation of this Agreement by any Buyer Indemnified Parties, and (iii) any liability under the Securities Act, the Exchange Act or other federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a Material fact relating to the Seller, and provided to Parent or its counsel by the Seller, contained in the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a Material fact relating to the Seller required to be stated therein or necessary to make the statements therein not misleading, provided however, that such indemnity shall not inure to the benefit of Parent and Buyer to the extent such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and Seller provided, in writing, corrected information to Parent and Parent's counsel for inclusion in the Final Prospectus, and such information was not included or properly delivered.

By the Seller. Subject to Section 7.1(E) hereofThe Seller, the Seller shall indemnify, save, defend and hold harmless the Parent and Buyer and their respective shareholdersBuyer's members, directorsmanagers, officers, partners, agents and employees (and in the event the Buyer assigns its right, title and interest hereunder to a corporation, which shall be permitted hereunder, such assignee's shareholders, directors, officers, agents and employees) (collectively, the "Buyer Indemnified Parties") from and against any and all costs, lawsuits, losses, liabilities, deficiencies, claims and expenses, including interest, penalties, attorneys' fees and all amounts paid in investigation, defense or settlement of any of the foregoing (collectively referred to herein as "Damages"), (i) incurred in connection with or arising out of or resulting from or incident to any breach of any covenant, breach of warranty as of the Effective Datecovenant or warranty, or the inaccuracy of any representation as of the Effective Daterepresentation, made by the Seller in or pursuant to this Agreement or the Ancillary Agreements, or any other agreement contemplated hereby or in any schedule, certificate, exhibit, or other instrument furnished or to be furnished by the Seller or its Affiliates under this Agreement, or (ii) based upon, arising out of, or otherwise in respect of any liability or obligation of the Business or relating to the Assets (a) relating to any period prior to the Effective Date, other than those Damages based upon or arising out of the Assumed Liabilities, or (b) arising out of facts or circumstances existing prior to the Effective Date, other than those Damages based upon or arising out of the Assumed Liabilities, or (c) arising out of facts or circumstances existing on and after the Effective Date which constitute a breach or violation of this Agreement by the Seller; provided provided, however, that the Seller shall not be liable for any such Damages to the extent, if any, such Damages result from or arise out of a breach or violation of this Agreement by any Buyer Indemnified Parties, and or (iii) any liability under the Securities Act, the Exchange Act or other federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a Material fact relating to any violation of Governmental Regulations respecting the Seller, and provided to Parent or its counsel by Real Property which arose while Seller was in possession of the Seller, contained in Real Property including such violations as may have been unknown at the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a Material fact relating to the Seller required to be stated therein or necessary to make the statements therein not misleading, provided however, that such indemnity shall not inure to the benefit of Parent and Buyer to the extent such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and Seller provided, in writing, corrected information to Parent and Parent's counsel for inclusion in the Final Prospectus, and such information was not included or properly deliveredClosing Date.

By the Seller. Subject Seller agrees to Section 7.1(E) hereof, the Seller shall indemnify, save, defend and hold harmless the Parent and Buyer defend Buyer, its affiliates and their respective shareholdersofficers, directors, officersprincipals, partnersagents, agents employees or other authorized representatives, successors and employees (collectivelyassigns, the "Buyer Indemnified Parties") from and against any and all costscosts and losses, lawsuits, lossesincluding without limitation Taxes, liabilities, obligations, damages, deficiencies, claims actions, claims, demands, and expensesexpenses (whether or not arising out of third-party claims), including interest, penalties, and reasonable attorneys' ’ fees and all amounts paid in investigation, defense or settlement of any of the foregoing (collectively referred to herein as "Damages"“Losses”), (i) asserted, incurred in connection with or with, arising out of or of, resulting from or incident to (i) any breach of any covenant, breach of representation or warranty as of the Effective Date, or the inaccuracy of any representation as of the Effective Date, made by the Seller in or pursuant to this Agreement or the Ancillary Agreementsin any certificate or other closing document delivered pursuant to this Agreement (each representation and warranty being read for this purpose without regard to any “materially,” “Material Adverse Effect,” “in any material respect” or similar exception or qualifier contained in any such representation or warranty); (ii) any failure by Seller to perform or observe any covenant, agreement or any other agreement contemplated hereby condition to be performed or observed by it under this Agreement or in any schedule, certificate, exhibit, certificate or other instrument furnished or closing document delivered pursuant to be furnished by the Seller under this Agreement; (iii) any acts or omissions of Seller relating to the operations, (ii) based uponownership, arising out of, condition or otherwise in respect of any liability or obligation conduct of the Business or relating to and the Assets (a) relating to any period prior to the Effective DateClosing, other than those Damages based upon whether or arising out of the Assumed Liabilities, or not disclosed in any Schedule to this Agreement; and (biv) arising out of facts or circumstances existing prior to the Effective Date, other than those Damages based upon or arising out of the Assumed Liabilities; provided however, that the any Excluded Liability. Seller shall not be liable responsible for indemnifying Buyer against any such Damages costs or losses related to the extent, if any, such Damages result from or arise out breach of a breach representation or violation warranty of which Buyer had actual knowledge on the Closing Date; provided, however, that (i) Buyer acknowledges and agrees that, to the extent that Buyer or any of Buyer’s equity owners, managers, directors, employees or agents, including without limitation Xxx Xxxxxxx and Xxxxxx Xxxxxx, knew or should have known that any representation and warranty made by Seller in or pursuant to this Agreement by or in any Buyer Indemnified Partiescertificate or other closing document delivered pursuant to this Agreement is or might be inaccurate or untrue, Seller shall have no indemnification obligations under this Section 5.02(a) or otherwise, and (iiiii) this sentence constitutes a complete release and waiver of any liability under the Securities Actand all liabilities, the Exchange Act obligations, damages, deficiencies, actions, claims, demands, expenses (whether or other federal or state not arising out of third-party claims) and rights to indemnity, whether in law or regulationin equity, at common law against Seller by Buyer, or otherwiseby any person claiming through Buyer, arising out of or based upon any untrue statement or alleged untrue statement breach of a Material fact relating to the Seller, such representation and provided to Parent or its counsel by the Seller, contained in the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a Material fact relating to the Seller required to be stated therein or necessary to make the statements therein not misleading, provided however, that such indemnity shall not inure to the benefit of Parent and Buyer to the extent such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and Seller provided, in writing, corrected information to Parent and Parent's counsel for inclusion in the Final Prospectus, and such information was not included or properly deliveredwarranty.

By the Seller. Subject to Section 7.1(E) hereofthe terms and conditions of this ARTICLE 11, the Seller shall hereby agrees to indemnify, save, defend and hold harmless the Parent Buyer, and Buyer and their respective shareholders, its directors, officers, partnersemployees and Affiliates (hereinafter "Buyer's Indemnitees"), agents and employees (collectively, the "Buyer Indemnified Parties") from and against any all Claims asserted against, resulting to, imposed upon, or incurred by Buyer's Indemnitees or the business and all costsassets transferred to Buyer pursuant to this Agreement, lawsuitsdirectly or indirectly, lossesby reason of, liabilities, deficiencies, claims and expenses, including interest, penalties, attorneys' fees and all amounts paid in investigation, defense or settlement of any of the foregoing (collectively referred to herein as "Damages"), (i) incurred in connection with or arising out of or resulting from (a) the inaccuracy or incident to any breach of any covenant, breach of representation or warranty as of the Effective Date, or the inaccuracy of any representation as of the Effective Date, made by the Seller contained in or made pursuant to this Agreement (regardless of whether such breach is deemed "material"); (b) the breach of any covenant of the Seller contained in this Agreement (regardless of whether such breach is deemed "material"); (c) any Claim against the Seller, the Purchased Assets or the Ancillary Agreements, business of the Seller not specifically assumed by Buyer pursuant hereto and which arises out of or relates to any event first occurring on or prior to the Closing Date; or (d) any obligations to the State of California or any other agreement contemplated hereby or Governmental Entity arising from gift certificate escheat laws, as the same may be applied to any gift certificates sold but unredeemed on the Closing Date. As used in any schedulethis ARTICLE 11, certificatethe term "Claim" shall include (i) all Liabilities; (ii) all losses, exhibitdamages (including, or other instrument furnished or to be furnished without limitation, consequential damages), judgments, awards, settlements approved by the Seller under this Agreement, (ii) based upon, arising out of, or otherwise in respect of any liability or obligation of the Business or relating to the Assets (a) relating to any period prior to the Effective Date, other than those Damages based upon or arising out of the Assumed Liabilities, or (b) arising out of facts or circumstances existing prior to the Effective Date, other than those Damages based upon or arising out of the Assumed Liabilities; provided however, that the Seller such approval shall not be liable for unreasonably withheld or delayed), costs and expenses (including, without limitation, interest (including prejudgment interest in any such Damages to the extentlitigated matter), if anypenalties, such Damages result from or arise out of a breach or violation of this Agreement by any Buyer Indemnified Parties, court costs and reasonable attorneys' fees and expenses); and (iii) any liability under the Securities Actall demands, the Exchange Act claims, suits, actions, costs of investigation, causes of action, proceedings and assessments, whether or other federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a Material fact relating to the Seller, and provided to Parent or its counsel by the Seller, contained in the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a Material fact relating to the Seller required not ultimately determined to be stated therein or necessary to make the statements therein not misleading, provided however, that such indemnity shall not inure to the benefit of Parent and Buyer to the extent such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and Seller provided, in writing, corrected information to Parent and Parent's counsel for inclusion in the Final Prospectus, and such information was not included or properly deliveredvalid.

By the Seller. Subject to Section 7.1(E) hereofFrom and after the Closing, the Seller shall indemnify, save, defend agrees to indemnify the Purchaser and the Purchasing Subsidiary and hold the Purchaser and the Purchasing Subsidiary harmless the Parent and Buyer and their respective shareholders, directors, officers, partners, agents and employees (collectively, the "Buyer Indemnified Parties") from and against any and all costsloss, lawsuits, losses, liabilities, deficiencies, claims and expensesliability or damage, including interest, penalties, reasonable attorneys' fees and all amounts paid in investigationother costs and expenses, defense or settlement of any of the foregoing but excluding lost profits and consequential damages (collectively referred to herein as collectively, "Damages"), incurred or sustained by the Purchaser, the Purchasing Subsidiary or any of the Companies as a result of (i) incurred in connection with or arising out of or resulting from or incident to any the breach of any covenant, breach covenant on the part of warranty as of the Effective Date, or the inaccuracy of any representation as of the Effective Date, made by the Seller in or pursuant to this Agreement or the Ancillary Agreements, or any other agreement contemplated hereby or in any schedule, certificate, exhibit, or other instrument furnished or to be furnished by the Seller under this Agreement, provided that any claim for indemnification arising from the breach of any of the covenants contained in Sections 4.14, 4.15 or 4.16 must be brought on or prior to July 31, 1998, (ii) based uponsubject to Section 7.1, arising out ofthe breach of any representation or warranty on the part of the Seller under this Agreement, or otherwise (iii) Special Indemnification Matters (it being understood that solely for purposes of this Section 7, including, without limitation, the calculation of Damages pursuant to this Section 7.2.1, and notwithstanding anything to the contrary in respect of this Agreement, such representation and warranty shall be read as if it were not qualified by any liability materiality standard, including, without limitation, qualifications indicating accuracy "in all material respects" or obligation accuracy "except to the extent the inaccuracy would not have a Material Adverse Effect" or words to similar effect), provided that none of the Business Purchaser, the Purchasing Subsidiary or relating to any of the Assets Companies shall have any claim against the Seller for Taxes described in the first sentence of Section 4.4.3 except as provided in Section 4.4 (a) relating to which claim may be brought at any period time prior to the Effective Date, other than those Damages based upon or arising out expiration of the Assumed Liabilitiesapplicable statute of limitations (including any extensions thereof) plus 60 days provided that the Purchaser shall have complied with Section 4.4.4), the terms of which shall govern exclusively with respect to all claims or (b) arising out of facts or circumstances existing prior to the Effective Datedisputes with respect thereto and, other than those Damages based upon or arising out of the Assumed Liabilities; provided howeverprovided, further, that the Seller there shall not be liable for any such Damages to the extent, if any, such Damages result from duplicative payments or arise out of a breach or violation of this Agreement by any Buyer Indemnified Parties, and (iii) any liability under the Securities Act, the Exchange Act or other federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a Material fact relating to the Seller, and provided to Parent or its counsel indemnities by the Seller, contained in . The Purchaser's and the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission Purchasing Subsidiary's rights to state therein a Material fact relating to the Seller required to indemnification under Section 7 shall be stated therein or necessary to make the statements therein not misleading, provided however, that such indemnity shall not inure to the benefit of Parent and Buyer to the extent such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and Seller provided, in writing, corrected information to Parent and Parent's counsel for inclusion in the Final Prospectus, and such information was not included or properly delivered.limited as follows:

By the Seller. Subject to Section 7.1(E) hereofFrom and after the Closing Date, the Seller shall indemnify, savedefend, defend and hold harmless the Parent and Buyer Buyer, its Affiliates (including the InterfaceFABRIC Companies), and their respective shareholderssuccessors and assigns (if any), and their respective officers, directors, officersemployees, partnersstockholders, agents agents, and employees any Person who is an Affiliate of such Persons (collectivelyeach, the "an “Indemnified Buyer Indemnified Parties"Party”) from and against any and all costsLiabilities, lawsuitsclaims, demands, judgments, losses, liabilitiescosts, deficienciesdamages, claims or expenses whatsoever (including reasonable attorneys’, consultants’, and expenses, including interest, penalties, attorneys' other professional fees and all amounts paid disbursements of every kind, nature, and description incurred by such Indemnified Buyer Party in investigationconnection therewith) (collectively, defense “Damages”) that such Indemnified Buyer Party may sustain, suffer, or settlement incur and that result from, arise out of, or relate to (a) any breach of any of the foregoing covenants or agreements of the Seller (collectively referred and the Company, prior to herein as "Damages"the Closing) contained in Sections 2.3, 2.5, 5.5, 5.8, 5.9(a), (i5.12, 5.13, 5.16, 5.17(c) incurred in connection with or arising out and Article VI of or resulting from or incident to any breach of any covenant, breach of warranty as of the Effective Date, or the inaccuracy of any representation as of the Effective Date, made by the Seller in or pursuant to this Agreement or the Ancillary Agreements, or any other agreement contemplated hereby or in any schedule, certificate, exhibit, or other instrument furnished or to be furnished by the Seller under this Agreement, (iib) based upon, arising out of, or otherwise in respect of any liability or obligation Debt incurred by any of the Business InterfaceFABRIC Companies in whole or part prior to the Closing other than Debt set forth on Schedule 10.1(b), (c) subject to the terms of Article VI, all Taxes imposed on or relating to any of the Assets InterfaceFABRIC Companies for any Pre-Closing Tax Period, (ad) relating to all Taxes of any period prior to Person imposed on any of the Effective InterfaceFABRIC Companies under Treasury Regulation § 1.1502-6 by reason of any affiliation existing on or before the Closing Date, and all Taxes imposed under the federal laws of Canada or any province or territory therein arising in a Post-Closing Tax Period attributable to an event occurring or a deduction or credit claimed in a Pre-Closing Tax Period, (e) any Liability of the Seller or its other Affiliates (other than of the InterfaceFABRIC Companies and other than those Damages based upon Liabilities set forth on Schedule 10.1(e) or arising out any Liability for which the Buyer or the InterfaceFABRIC Companies are responsible under the express terms of this Agreement, the Assumed LiabilitiesTransition Services Agreement or the Transition Marks License Agreement), or (bf) arising out of facts or circumstances existing prior subject to the Effective Dateterms of Section 5.8, other than those Damages based upon or arising out of the Assumed Liabilities; provided however, that the Seller shall not be liable for any such Damages to the extent, if any, such Damages result from or arise out of a breach or violation of this Agreement by any Buyer Indemnified PartiesCompany Employee Plan, and (iiig) any liability under the Securities Act, the Exchange Act or other federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a Material fact relating subject to the Sellerlimitation set forth in Section 10.4(b), and provided to Parent or its counsel by the Sellerany Environmental Condition, contained in the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a Material fact relating to the Seller required to be stated therein or necessary to make the statements therein not misleading, provided however, that such indemnity shall not inure to the benefit of Parent and Buyer to the extent such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) Environmental Condition has occurred in, any preliminary prospectus and Seller provided, in writing, corrected information to Parent and Parent's counsel for inclusion in exists on the Final Prospectus, and such information was not included or properly deliveredClosing Date.

By the Seller. Subject to Section 7.1(E) hereof, the The Seller shall indemnifyindemnify the Buyer, saveits Affiliates (including the Company), defend and hold harmless the Parent and Buyer its and their respective shareholdersofficers, directors, officersmanagers, members, managing members, partners, agents shareholders, employees, agents, representatives, attorneys, insurers, heirs, successors and employees permitted assigns (collectively, the "“Buyer Indemnified Parties"”) from and against any and all costsLosses which the Buyer Indemnified Parties may suffer or incur arising out of, lawsuitsin connection with, losses, liabilities, deficiencies, claims and expenses, including interest, penalties, attorneys' fees and all amounts paid in investigation, defense relating to or settlement of resulting from any of the foregoing (collectively referred to herein as "Damages"), following: (i) incurred in connection with or arising out of or resulting from or incident to any the breach of any covenant, breach of representation or warranty as of the Effective Date, or the inaccuracy of any representation as of the Effective Date, made by the Seller in or pursuant to this Agreement or the Ancillary Agreements, or any other agreement contemplated hereby or in any schedule, certificate, exhibit, or other instrument furnished or to be furnished by the Seller under this Agreement, ; (ii) based upon, arising out of, or otherwise in respect the breach of any liability covenant or obligation of agreement set forth herein required to be performed by the Business or relating to the Assets (a) relating to any period prior to the Effective Date, other than those Damages based upon or arising out of the Assumed Liabilities, or (b) arising out of facts or circumstances existing prior to the Effective Date, other than those Damages based upon or arising out of the Assumed LiabilitiesSeller; provided however, that the Seller shall not be liable for any such Damages to the extent, if any, such Damages result from or arise out of a breach or violation of this Agreement by any Buyer Indemnified Parties, and (iii) any liability under Taxes of the Securities ActSeller; (iv) the business and operations of the Company, or the Exchange Act leasing or operation of the Facility, in each case, prior to the Closing Date (including any and all such Losses rising out of, in connection with, relating to or resulting from (A) income, property, excise or other federal Taxes, (B) environmental conditions or state law claims, (C) injury to persons or regulationdamage to property, at common law (D) claims with respect to employment or otherwiseemployee benefits, arising out (E) violations of Law, or based upon (F) breaches of Contracts with third parties; or (v) any untrue statement or alleged untrue statement of a Material fact relating Pre-Closing Taxes; provided, however, that, with respect to the Sellerforegoing clauses (iv) and (v), Losses shall be calculated equitably to reflect the fact that the Buyer held a 49% ownership interest in the Company during such JV Period, as applicable. The representations and warranties of the Buyer or the Seller hereunder, and provided the rights to Parent indemnification of any Seller Indemnified Party or its counsel Buyer Indemnified Party, as the case may be, with respect thereto shall not be affected or deemed waived by reason of any investigation made by or on behalf of such Seller Indemnified Party or Buyer Indemnified Party, as the case may be, or by reason of the fact that such Seller Indemnified Party or Buyer Indemnified Party, as the case may be, knew or should have know that any such representation or warranty is, was or might by inaccurate or by reason of the Seller’s or the Buyer’s, contained as the case may be, waiver of any condition set forth in Article 6 hereof. For the avoidance of doubt, any Loss incurred as a result of any claim of any kind against either the Seller Indemnified Parties or the Buyer Indemnified Parties related to the business and operations of the Company during the JV Period shall be shared and allocated according to the Buyer’s and Seller’s then respective ownership interest in the Registration Statement or any prospectus forming a part thereofCompany (i.e., or any amendment thereof or supplement thereto, or arising out 51% of or based upon any omission or alleged omission to state therein a Material fact relating to the Seller required to be stated therein or necessary to make the statements therein not misleading, provided however, that such indemnity shall not inure to the benefit of Parent and Buyer to the extent such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and Seller provided, in writing, corrected information to Parent and Parent's counsel for inclusion in the Final Prospectus, and such information was not included or properly delivered.and

By the Seller. Subject to Section 7.1(E) hereof9.3 and without duplication of any rights to recovery or indemnity set forth herein, the Seller shall indemnify, savedefend, defend save and hold harmless the Parent and Buyer and their respective shareholdersits employees, officers, directors, officersmanagers, partners, stockholders, members, Affiliates (including, from and after the Closing Date, each Company Group Entity), fiduciaries, controlling Persons and agents and employees each of the employees, officers, directors, managers, partners, stockholders, members, Affiliates, fiduciaries, controlling Persons and agents of each of the foregoing (collectively, the "“Buyer Indemnified Parties"”) from and against any and all costs, lawsuits, losses, liabilities, deficiencies, Losses (whether arising out of direct claims and expensesor third-party claims), including interest, penalties, reasonable attorneys' ’ fees and all amounts paid in investigation, defense or settlement of any of the foregoing (collectively referred to herein as "collectively, the “Buyer Damages"”), (i) incurred in connection with or arising out of or resulting from or incident to (i) any breach of any covenant, breach of warranty as of the Effective Date, or the inaccuracy of any representation as of the Effective Date, made by the Seller in or pursuant to this Agreement or the Ancillary Agreements, or any other agreement contemplated hereby or in any schedule, certificate, exhibit, or other instrument furnished or to be furnished by the Seller under this AgreementSeller’s Representations, (ii) based uponany breach or violation by the Seller of the Seller’s Covenants, arising out of, or otherwise in respect (iii) without duplication of any liability right to recovery herein, any failure by the Seller to reimburse the Buyer or obligation its Affiliates for any Taxes for a Pre-Closing Tax Period or any Taxes for the portion of a Straddle Period ending on the Closing Date or any other Taxes for which the Seller is responsible pursuant to Section 7.9(a) and (b) or any “imputed underpayment” within the meaning of Section 6225 of the Business Code of any Company Group Entity with respect to any Pre-Closing Tax Period or relating the portion of a Straddle Period ending on the Closing Date or (iv) any claims, actions or suits made by third-parties (before or after the Closing Date) against the Buyer or any of its Affiliates to the Assets extent related to the acts or omissions of (ax) relating the Seller with respect to any period a Company Group Entity or Project prior to the Effective Date, other than those Damages based upon or arising out of the Assumed Liabilities, Closing or (by) arising out of facts or circumstances existing a Company Group Entity prior to the Effective DateClosing. Notwithstanding anything to the contrary contained in this Agreement, other than those no claim for indemnification shall be brought until the total Buyer Damages based upon or arising out for which the Seller would be liable hereunder exceeds in the aggregate an amount equal to $650,000 (the “Indemnity Threshold”), in which case the Seller shall be liable for the full amount of Buyer Damages (starting at the Assumed Liabilities; provided first dollar of Buyer Damages), provided, however, that the Seller Seller’s liability shall not be liable for limited as set forth in Section 9.3; provided, further, that such limitation shall have no application to any such claim to recover Buyer Damages to resulting from the extentSeller’s fraud or willful misconduct, if anythe breach or inaccuracy of any the Seller’s Fundamental Representations, such Damages result from the breach or arise out inaccuracy of a Section 5.16 (Tax Matters), or any breach or violation by the Seller of the Seller’s Covenants under Section 7.9 (Certain Tax Matters); provided, further, that solely for purposes of determining whether Indemnity Threshold has been satisfied in accordance with this Agreement Section 9.2(a), each of the representations, warranties, covenants and agreements herein or in the Transaction Documents that contain any qualifications as to materiality, Material Adverse Effect or words of similar affect shall be deemed to have been given as though there were no such qualifications. Any request for an indemnity payment hereunder shall be accompanied by a statement, certified to by an officer of the Buyer, specifying in reasonable detail the basis of such request, including the Buyer’s then-current estimate of each item of Loss for which any Buyer Indemnified Parties, and (iii) any liability Party is entitled to indemnification under the Securities Act, the Exchange Act or other federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a Material fact relating to the Seller, and provided to Parent or its counsel by the Seller, contained in the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a Material fact relating to the Seller required to be stated therein or necessary to make the statements therein not misleading, provided however, that such indemnity shall not inure to the benefit of Parent and Buyer to the extent such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and Seller provided, in writing, corrected information to Parent and Parent's counsel for inclusion in the Final Prospectus, and such information was not included or properly deliveredthis Agreement.

By the Seller. Subject to Section 7.1(E) hereofThe Seller and Xxxxx Xxxx, the Seller jointly and severally, shall indemnify, save, defend and hold harmless the Parent and Buyer and their respective Buyer's shareholders, directors, officers, partners, agents and employees (and in the event the Buyer assigns its right, title and interest hereunder to a corporation, which shall be permitted hereunder, such assignee's shareholders, directors, officers, agents and employees) (collectively, the "Buyer Indemnified Parties") from and against any and all costs, lawsuits, losses, liabilities, deficiencies, claims and expenses, including interest, penalties, attorneys' fees and all amounts paid in investigation, defense or settlement of any of the foregoing (collectively referred to herein as "Damages"), (i) incurred in connection with or arising out of or resulting from or incident to any breach of any covenant, breach of warranty as of the Effective Datematerial covenant or warranty, or the inaccuracy of any representation as of the Effective Daterepresentation, made by the Seller or Xxxxx Xxxx in or pursuant to this Agreement or the Ancillary Agreements, or any other agreement contemplated hereby or in any schedule, certificate, exhibit, or other instrument furnished or to be furnished by the Seller or its Affiliates under this Agreement, or (ii) based upon, arising out of, or otherwise in respect of any liability or obligation of the Business or relating to the Assets (a) relating to any period prior to the Effective Closing Date, other than those Damages based upon or arising out of the Assumed Liabilities, or (b) arising out of facts or circumstances existing prior to the Effective Closing Date, other than those Damages based upon or arising out of the Assumed LiabilitiesLiabilities or relating to any period on and after the Closing Date or arising out of facts or circumstances existing on and after the Closing Date; provided provided, however, that neither the Seller Seller, nor Xxxxx Xxxx, shall not be liable for any such Damages to the extent, if any, such Damages result from or arise out of a breach or violation of this Agreement by any Buyer Indemnified Parties, and (iiic) any liability under the Securities Act, the Exchange Act or other federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a Material fact relating to any violation of applicable law respecting the SellerReal Property including such violations as may have been unknown at the Closing Date, and provided (d) the matters specifically described in Section 5.9, or (e) the Retained Liabilities. Notwithstanding anything to Parent or its counsel by the Seller, contained contrary in the Registration Statement Agreement, including this Paragraph A, in no event shall any indemnification, payment or any prospectus forming a part thereofobligation of Seller to Buyer, to the Buyer Indemnified Parties, or to any amendment thereof third party arising from or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a Material fact relating to this Agreement or the Seller required to be stated therein or necessary to make documents, instruments and/or transactions contemplated by this Agreement exceed the statements therein not misleading, provided however, that such indemnity shall not inure to amount of the benefit of Parent and Buyer to the extent such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and Seller provided, in writing, corrected information to Parent and Parent's counsel for inclusion in the Final Prospectus, and such information was not included or properly deliveredPurchase Price.

By the Seller. Subject The Seller agrees to Section 7.1(E) hereof, the Seller shall indemnify, save, defend and hold harmless indemnify the Parent Buyer, its affiliates and Buyer subsidiaries and their respective shareholdersits officers, directors, officersemployees, partnersagents, agents successors and employees assigns (collectively, the "“Buyer Indemnified Parties"”) against and hold them harmless from and against any and all costsclaims, lawsuitsliabilities, losses, liabilitiesdamages, deficiencies, claims costs and expenses, including of every kind, nature and description, fixed or contingent (including, without limitation, interest, penalties, attorneys' penalties and counsel’s fees and all amounts paid expenses in investigationconnection with any action, defense claim or settlement proceeding relating thereto or seeking enforcement of any a party’s obligations hereunder) (“Adverse Consequences”) asserted against, resulting to, imposed upon or incurred by the Buyer, directly or indirectly, arising out of the foregoing (collectively referred to herein as "Damages"), (i) incurred in connection with or arising out of or resulting from or incident to any breach of any covenantrepresentation, breach of warranty as of the Effective Datewarranty, covenant or the inaccuracy of any representation as of the Effective Date, agreement made by the Seller in or pursuant to this Agreement or the Ancillary Agreements, or any other agreement contemplated hereby or in any schedule, certificate, exhibit, or other instrument furnished or to be furnished by the Seller under this AgreementAgreement or the Related Agreements, or (ii) based uponany Excluded Liability; provided, arising out of, or otherwise in respect of any liability or obligation of the Business or relating to the Assets (a) relating to any period prior to the Effective Date, other than those Damages based upon or arising out of the Assumed Liabilities, or (b) arising out of facts or circumstances existing prior to the Effective Date, other than those Damages based upon or arising out of the Assumed Liabilities; provided however, that (A) the Seller shall not be liable for have any such Damages obligation to indemnify the extent, if any, such Damages result from or arise out of a breach or violation of this Agreement by any Buyer Indemnified PartiesParties from and against any Adverse Consequences with respect to breaches described in (i) above until the Buyer Indemnified Parities have suffered aggregate Adverse Consequences by reason of all such breaches in excess of $150,000, in which event the Buyer Indemnified Parties shall be entitled to indemnification for the full amount of its aggregate Adverse Consequences and (iiiB) in no event shall the aggregate of the Seller’s indemnification payments with respect to breaches described in (i) above exceed $6.0 million. The foregoing limitations shall not apply with respect to any liability under the Securities Act, the Exchange Act or other federal or state law or regulation, at common law or otherwise, Adverse Consequences arising out of any (i) Excluded Liability or based upon (ii) any untrue statement or alleged untrue statement of a Material fact relating to the Seller, and provided to Parent or its counsel fraud committed by the Seller. Indemnification claims with respect to the representations, warranties and covenants of the Seller contained in this Agreement or in any certificate delivered in connection therewith must be made by the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a Material fact relating to Buyer Indemnified Parities within the Seller required to be stated therein or necessary to make the statements therein not misleading, provided however, that such indemnity shall not inure to the benefit of Parent and Buyer to the extent such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and Seller provided, survival period therefor specified in writing, corrected information to Parent and Parent's counsel for inclusion in the Final Prospectus, and such information was not included or properly deliveredSection 11.06 hereof.

By the Seller. Subject The maximum amount of indemnity protection and/or coverage to Section 7.1(E) hereof, be given and/or furnished by the Seller shall indemnifybe as set forth hereafter: Except with respect to any claim in respect of any breach of the representations of Seller set forth in clauses (a), save(b) and (c) of Section 2 as to which there shall be no time limit, defend any claims by Buyer for an indemnity from Seller to Buyer shall be limited to claims made within a period of five (5) years from the date of Closing only. Exclusive of any claim in respect of the representations set forth in Section 2(a)(b) & (c) such indemnity claims shall not exceed, in the aggregate, $3.0 million dollars and shall be paid, if due, first through a reduction of the then unpaid amount of the Buyer Note and otherwise by cash or a stock transfer to Buyer of SunLink Parent Stock at the option of Seller. SunLink Parent Stock shall be valued based upon the average closing price of SunLink Parent Common Stock on the Amex determined for the 5 day trading period ending 2 days before the indemnity claim payment due date. With regard to (i) Medicare/Medicaid claims which existed or were caused by activities that occurred at or prior to closing; (ii) federal, state and local tax claims for any and all unpaid taxes due by Seller or the Company relating to, at or prior to, closing, (iii) environmental liabilities which existed or were caused by activities or conditions that occurred or existed at or prior to closing; (iv) any claims relating to fraud or intentional misrepresentation by Seller and (v) any breach of the representations of Seller set forth in clauses (a), (b) and (c) of Section 2, said claims shall not be limited to the $3.0 million aggregate limitation described above, but shall be limited to claims made within the five-year claim term described above except for those claims (A) relating to tax claims (ii above) and claims in respect of environmental liabilities (iii above) which shall be governed by appropriate statutes of limitation and (B) in respect of any breach of the representations of Seller set forth in clauses (a), (b) and (c) of Section 2 as to which there shall be no time limit. Subject to the foregoing limitations, the Stockholders agree, jointly and severally, to indemnify and hold harmless the Parent Buyer from and Buyer against all claims, damages, losses, and their respective shareholders, directors, officers, partners, agents and employees liabilities (collectively, the "Buyer Indemnified Parties"“Losses”) from and against which arise out of and/or are due to any and all costs, lawsuits, losses, liabilities, deficiencies, claims and expenses, including interest, penalties, attorneys' fees and all amounts paid in investigation, defense or settlement of any of the foregoing (collectively referred to herein as "Damages"), (i) incurred in connection with or arising out of or resulting from or incident to any breach of any covenant, breach of warranty as of the Effective Date, or the inaccuracy of any representation as of the Effective Date, made by the Seller in or pursuant to this Agreement or the Ancillary Agreements, or any other agreement contemplated hereby or in any schedule, certificate, exhibit, or other instrument furnished or to be furnished by the Seller under this Agreement, (ii) based upon, arising out of, or otherwise in respect of any liability or obligation of the Business or relating to the Assets (a) relating to any period prior to the Effective Date, other than those Damages based upon or arising out of the Assumed Liabilities, or (b) arising out of facts or circumstances existing prior to the Effective Date, other than those Damages based upon or arising out of the Assumed Liabilities; provided however, that the Seller shall not be liable for any such Damages to the extent, if any, such Damages result from or arise out of a breach or violation of this Agreement by any Buyer Indemnified Parties, and (iii) any liability under the Securities Act, the Exchange Act or other federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a Material fact relating to the Seller, and provided to Parent or its counsel by the Seller, contained in the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a Material fact relating to the Seller required to be stated therein or necessary to make the statements therein not misleading, provided however, that such indemnity shall not inure to the benefit of Parent and Buyer to the extent such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and Seller provided, in writing, corrected information to Parent and Parent's counsel for inclusion in the Final Prospectus, and such information was not included or properly delivered.following:

By the Seller. Subject The Seller agrees to Section 7.1(E) hereof, the Seller be responsible for and shall indemnify, save, defend pay and indemnify and hold harmless Purchaser and its Representatives (the Parent Purchaser Indemnitees ) from, against and Buyer in respect of, the amount of any and their respective shareholdersall liabilities, directorsdamages, officersclaims, partnersdeficiencies, agents and employees fines, assessments, losses, Taxes, penalties, interest (collectively, the "Buyer Indemnified Parties") from and against any and all costsLosses ), lawsuits, losses, liabilities, deficiencies, claims costs and expenses, including interestincluding, penaltieswithout limitation, attorneys' reasonable fees and all amounts paid disbursements of counsel arising from, in investigationconnection with, defense or settlement incident to (i) any breach or violation of any of the foregoing (collectively covenants or agreements of the Seller contained in this Agreement or any agreement, document or other writing referred to herein as "Damages")and delivered pursuant hereto, (i) incurred in connection with or arising out of or resulting from or incident to other than any breach of any covenant, breach of warranty as of the Effective Date, or the inaccuracy of any representation as of the Effective Date, made by the Seller in or pursuant to this Agreement or the Ancillary Agreements, or any other employment agreement contemplated hereby or in any schedule, certificate, exhibit, or other instrument furnished or to be furnished by the Seller under this Agreement, hereby; (ii) based upon, arising out of, or otherwise in respect of any liability or obligation of the Business or relating to the Assets (a) relating to any period prior to the Effective Date, other than those Damages based upon or arising out of the Assumed Liabilities, or (b) arising out of facts or circumstances existing prior to the Effective Date, other than those Damages based upon or arising out of the Assumed Liabilities; provided however, that the Seller shall not be liable for any such Damages to the extent, if any, such Damages result from or arise out of a breach or violation of any representation or warranty of the Seller contained in this Agreement by or any Buyer Indemnified Partiesagreement, document or other writing referred to herein and delivered pursuant hereto, other than any employment agreement contemplated hereby; (iii) any liability under and all Taxes for any unaccrued or unreported Tax liabilities with respect either of the Securities Act, Company or the Exchange Act Subsidiary for all periods prior to or other federal or state law or regulation, at common law or otherwise, arising out of or based upon including the Closing Date; (iv) (A) any untrue statement or alleged untrue statement of a Material fact relating to the Seller, and provided to Parent or its counsel by the Seller, contained in the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a Material fact relating to the Seller required to be stated therein or necessary to make the statements therein not misleading, provided however, that such indemnity shall not inure to the benefit of Parent and Buyer Employee Benefit Plan (except to the extent that such untrue statement Liability has been accrued on the Financial Statements) or (B) the Company s or alleged untrue statement) was made in, the Subsidiary s failure to fully perform under and comply with the requirements of ERISA or omission (or alleged omission) occurred in, applicable law with respect to any preliminary prospectus and Seller providedEmployee Benefit Plan of the Company, in writingthe case of each of (A) and (B), corrected information in respect of all periods prior to Parent and Parent's counsel for inclusion in including the Final ProspectusClosing Date; and (vi) any and all actions, suits, proceedings, demands, assessments or judgments, costs and such information was not included or properly deliveredexpenses incidental to any of the foregoing.

By the Seller. Subject Seller agrees to Section 7.1(E) hereof, the Seller shall indemnify, save, defend and hold harmless the Parent and Buyer defend Buyer, its affiliates and their respective shareholdersofficers, directors, officersprincipals, partnersagents, agents employees or other authorized representatives, successors and employees (collectivelyassigns, the "Buyer Indemnified Parties") from and against any and all costscosts and losses, lawsuits, lossesincluding without limitation Taxes, liabilities, obligations, damages, deficiencies, claims actions, claims, demands, and expensesexpenses (whether or not arising out of third-party claims), including interest, penalties, and reasonable attorneys' ’ fees and all amounts paid in investigation, defense or settlement of any of the foregoing (collectively referred to herein as "Damages"“Losses”), (i) asserted, incurred in connection with or with, arising out of or of, resulting from or incident to (i) any breach of any covenant, breach of representation or warranty as of the Effective Date, or the inaccuracy of any representation as of the Effective Date, made by the Seller in or pursuant to this Agreement or the Ancillary Agreementsin any certificate or other closing document delivered pursuant to this Agreement (each representation and warranty being read for this purpose without regard to any “materially,” “Material Adverse Effect,” “in any material respect” or similar exception or qualifier contained in any such representation or warranty); (ii) any failure by Seller to perform or observe any covenant, agreement or any other agreement contemplated hereby condition to be performed or observed by it under this Agreement or in any schedule, certificate, exhibit, certificate or other instrument furnished or closing document delivered pursuant to be furnished by the Seller under this Agreement; (iii) any acts or omissions of Seller relating to the operations, (ii) based uponownership, arising out of, condition or otherwise in respect of any liability or obligation conduct of the Business or relating to and the Assets (a) relating to any period prior to the Effective DateClosing, other than those Damages based upon whether or arising out of the Assumed Liabilities, or not disclosed in any Schedule to this Agreement; and (biv) arising out of facts or circumstances existing prior to the Effective Date, other than those Damages based upon or arising out of the Assumed Liabilities; provided however, that the any Excluded Liability. Seller shall not be liable responsible for indemnifying Buyer against any such Damages costs or losses related to the extent, if any, such Damages result from or arise out breach of a representation or warranty of which Buyer had actual knowledge on the Closing Date; provided, however, that no information provided in Section 2.01(d) of the Disclosure Schedule shall be deemed to give Buyer knowledge of any potential breach or violation by Seller of its representations and warranties in Section 2.01(h) of this Agreement by any Buyer Indemnified Parties, and (iii) any liability under the Securities Act, the Exchange Act or other federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a Material fact relating otherwise limit Buyer’s rights to the Seller, and provided to Parent or its counsel by the Seller, contained indemnification hereunder in the Registration Statement or event any prospectus forming a part thereof, or third party challenges Buyer’s title to any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a Material fact relating to the Seller required to be stated therein or necessary to make the statements therein not misleading, provided however, that such indemnity shall not inure to the benefit of Parent and Buyer to the extent such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and Seller provided, in writing, corrected information to Parent and Parent's counsel for inclusion in the Final Prospectus, and such information was not included or properly deliveredAssets.

By the Seller. Subject to Section 7.1(E) hereof, the The Seller shall indemnify, save, defend indemnify and hold harmless ------------- the Parent and Buyer and their respective shareholders, its directors, officers, partnersemployees, agents agents, successors, affiliates and employees assigns (collectively, the "Buyer Indemnified Parties") from and against against, and reimburse the Buyer Parties on demand with respect to, any and all costsloss, lawsuitsdamage (including any decrease in the value of property or securities acquired hereunder), lossesliability, liabilitiesclaims, deficiencies, claims cost and expensesexpense, including interestreasonable attorney's, penaltiesaccountant's, attorneys' consultant's and engineer's fees and all amounts paid in investigation(collectively, defense or settlement of any of the foregoing (collectively referred to herein as "Damages"), (i) incurred in connection with by a Buyer Party by reason of or arising out of or resulting from or incident to any in connection with (i) the breach of any covenantrepresentation or warranty contained in Article III, breach of warranty as including without limitation the representations and warranties in Section 3.10 regarding environmental matters, or in any certificate expressly delivered to the Buyer pursuant to this Agreement; (ii) the failure of the Effective DateSeller to perform any agreement or covenant required by this Agreement to be performed by it; (iii) the allegation by any third party of the existence of any liability, obligation, lease, agreement, contract, other commitment or the inaccuracy state of facts which if it existed would constitute a breach of any representation as of the Effective Date, made by the Seller or warranty contained in or pursuant to this Agreement or the Ancillary Agreements, or any other agreement contemplated hereby Article III hereof or in any schedulecertificate or other document delivered by or on behalf of the Seller to the Buyer pursuant to the provisions of this Agreement; (iv) any failure of the Seller to pay, certificate, exhibitperform or discharge any of the Excluded Liabilities in accordance with the terms thereof; (v) the fact that the parties have not taken any action to comply with the provisions of the so-called "bulk sales laws" of any state in connection with the transactions contemplated by this Agreement; (vi) any action of the Seller that causes liability under, or other instrument furnished or associated with, the Warn Act to be furnished by the Seller under this Agreement, (ii) based upon, arising out of, assessed or otherwise in respect of imputed to the Buyer or Aquatics, provided that the Buyer has complied with and performed its obligations under Section 10.05; or (vii) any liability or obligation obligation, direct or indirect, with respect to any Plan of the Business Seller or relating to the Assets (a) relating to any period prior to the Effective Date, other than those Damages based upon or arising out ERISA Affiliate of the Assumed Liabilities, or (b) arising out of facts or circumstances existing prior to the Effective Date, other than those Damages based upon or arising out of the Assumed Liabilities; provided however, that the Seller shall not be liable for any such Damages to the extent, if any, such Damages result from or arise out of a breach or violation of this Agreement by any Buyer Indemnified Parties, and (iii) any liability under the Securities Act, the Exchange Act or other federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a Material fact relating to the Seller, and provided to Parent or its counsel by the Seller, contained in the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a Material fact relating to the Seller required to be stated therein or necessary to make the statements therein not misleading, provided however, that such indemnity shall not inure to the benefit of Parent and Buyer to the extent such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and Seller provided, in writing, corrected information to Parent and Parent's counsel for inclusion in the Final Prospectus, and such information was not included or properly delivered.

By the Seller. Subject The Seller agrees to Section 7.1(E) hereof, the Seller be responsible for and shall indemnify, save, defend pay and indemnify and hold harmless Purchaser and its Representatives (the Parent “Purchaser Indemnitees”) from, against and Buyer in respect of, the amount of any and their respective shareholdersall liabilities, directorsdamages, officersclaims, partnersdeficiencies, agents and employees fines, assessments, losses, Taxes, penalties, interest (collectively, the "Buyer Indemnified Parties") from and against any and all costs“Losses”), lawsuits, losses, liabilities, deficiencies, claims costs and expenses, including interestincluding, penaltieswithout limitation, attorneys' reasonable fees and all amounts paid disbursements of counsel arising from, in investigationconnection with, defense or settlement incident to (i) any breach or violation of any of the foregoing (collectively representations or warranties contained in this Agreement or any agreement, document or other writing referred to herein as "Damages"), (i) incurred in connection with or arising out of or resulting from or incident to any breach of any covenant, breach of warranty as of the Effective Date, or the inaccuracy of any representation as of the Effective Date, made by the Seller in or and delivered pursuant to this Agreement or the Ancillary Agreements, or any other agreement contemplated hereby or in any schedule, certificate, exhibit, or other instrument furnished or to be furnished by the Seller under this Agreementhereto, (ii) based upon, arising out of, or otherwise in respect of any liability or obligation of the Business or relating to the Assets (a) relating to any period prior to the Effective Date, other than those Damages based upon or arising out of the Assumed Liabilities, or (b) arising out of facts or circumstances existing prior to the Effective Date, other than those Damages based upon or arising out of the Assumed Liabilities; provided however, that the Seller shall not be liable for any such Damages to the extent, if any, such Damages result from or arise out of a breach or violation of any of the covenants or agreements of the Seller contained in this Agreement by or any Buyer Indemnified Partiesagreement, document or other writing referred to herein and delivered pursuant hereto; (iii) any liability under resulting from any litigation involving any of the Securities ActCompany, regardless of whether or not such litigation was disclosed by the Exchange Act Seller on Schedule 4.1(m) or otherwise in this Agreement or in any other federal schedule or state law exhibit hereto; (iv) any and all Taxes for any unaccrued or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a Material fact relating unreported Tax liabilities with respect to the SellerCompany for all periods prior to or including the Closing Date; (v) any and all claims arising at or prior to Closing relating to, and provided to Parent resulting from or its counsel caused (whether in whole or in part) by the Seller, contained in the Registration Statement any Liability arising (a) from or under any prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a Material fact relating to the Seller required to be stated therein or necessary to make the statements therein not misleading, provided however, that such indemnity shall not inure to the benefit of Parent and Buyer Employee Benefit Plan (except to the extent that such untrue statement Liability has been accrued on the Financial Statements or Additional Financial Statements) or (b) from the Company’ failure to fully perform under and comply with the requirements of ERISA with respect to any Employee Benefit Plan of the Company; and (v) any and all actions, suits, proceedings, demands, assessments or alleged untrue statement) was made injudgments, or omission (or alleged omission) occurred in, costs and expenses incidental to any preliminary prospectus and Seller provided, in writing, corrected information to Parent and Parent's counsel for inclusion in of the Final Prospectus, and such information was not included or properly deliveredforegoing.

By the Seller. Subject to Section 7.1(E) hereofthe terms and conditions of this ARTICLE 11, the Seller shall hereby agrees to indemnify, save, defend and hold harmless the Parent Buyer, and Buyer and their respective shareholders, its directors, officers, partnersemployees and Affiliates (hereinafter "Buyer's Indemnitees"), agents and employees (collectively, the "Buyer Indemnified Parties") from and against any all Claims asserted against, resulting to, imposed upon, or incurred by Buyer's Indemnitees or the business and all costsassets transferred to Buyer pursuant to this Agreement, lawsuitsdirectly or indirectly, lossesby reason of, liabilities, deficiencies, claims and expenses, including interest, penalties, attorneys' fees and all amounts paid in investigation, defense or settlement of any of the foregoing (collectively referred to herein as "Damages"), (i) incurred in connection with or arising out of or resulting from (a) the inaccuracy or incident to any breach of any covenant, breach of representation or warranty as of the Effective Date, or the inaccuracy of any representation as of the Effective Date, made by the Seller contained in or made pursuant to this Agreement (regardless of whether such breach is deemed "material"); (b) the breach of any covenant of the Seller contained in this Agreement (regardless of whether such breach is deemed "material"); or (c) any Claim against the Seller, the Purchased Assets or the Ancillary Agreementsbusiness of the Seller not specifically assumed by Buyer pursuant hereto or which arises out of or relates to any event first occurring on or prior to the Closing Date. As used in this ARTICLE 11, or any other agreement contemplated hereby or in any schedulethe term "Claim" shall include (i) all Liabilities; (ii) all losses, certificatedamages (including, exhibitwithout limitation, or other instrument furnished or to be furnished consequential damages), judgments, awards, settlements approved by the Seller under this Agreement, (ii) based upon, arising out of, or otherwise in respect of any liability or obligation of the Business or relating to the Assets (a) relating to any period prior to the Effective Date, other than those Damages based upon or arising out of the Assumed Liabilities, or (b) arising out of facts or circumstances existing prior to the Effective Date, other than those Damages based upon or arising out of the Assumed Liabilities; provided however, that the Seller such approval shall not be liable for unreasonably withheld or delayed), costs and expenses (including, without limitation, interest (including prejudgment interest in any such Damages to the extentlitigated matter), if anypenalties, such Damages result from or arise out of a breach or violation of this Agreement by any Buyer Indemnified Parties, court costs and reasonable attorneys' fees and expenses); and (iii) any liability under the Securities Actall demands, the Exchange Act claims, suits, actions, costs of investigation, causes of action, proceedings and assessments, whether or other federal or state law or regulation, at common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a Material fact relating to the Seller, and provided to Parent or its counsel by the Seller, contained in the Registration Statement or any prospectus forming a part thereof, or any amendment thereof or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a Material fact relating to the Seller required not ultimately determined to be stated therein or necessary to make the statements therein not misleading, provided however, that such indemnity shall not inure to the benefit of Parent and Buyer to the extent such untrue statement (or alleged untrue statement) was made in, or omission (or alleged omission) occurred in, any preliminary prospectus and Seller provided, in writing, corrected information to Parent and Parent's counsel for inclusion in the Final Prospectus, and such information was not included or properly deliveredvalid.