Common use of Indemnification Provisions for Benefit of the Buyer Clause in Contracts

Indemnification Provisions for Benefit of the Buyer. (i) Subject to the limitations contained in this Section 8, and except for any payment or indemnification obligations of the Seller under Section 2(b)(iv), which are subject exclusively to the terms thereunder and excluded from this Section 8, after Closing, the Seller Entities hereby jointly and severally agree to indemnify the Buyer and its officers and directors, shareholders and Affiliates against, and hold them harmless from, any loss, liability, claim, damage or expense (including reasonable legal fees and expenses) other than punitive damages, lost profit, or consequential, special or incidental damages (a “Loss”) suffered or incurred by any such indemnified party caused by, resulting from or arising out of (A) any breach of any representation or warranty of the Seller Entities contained in this Agreement, (B) any breach of any covenant of the Seller Entities contained in this Agreement which by its terms requires performance after the Closing Date, (C) any Income Taxes of the Company attributable to taxable periods ending prior to or on the Closing Date, including liabilities of the Company under consolidated, combined or unitary income or franchise Tax Returns and liabilities related to the Tax Returns of the Seller Entities, but excluding any Taxes for which there is an adequate accrual or reserve on the Most Recent Financial Statements or any Taxes attributable to transactions not in the Ordinary Course of Business occurring after the Closing which are effectuated or initiated by the Buyer or the Company, (D) Taxes related to the Overlap Period to the extent allocable to the period ending on the Closing Date as set forth in Section 9(c), (E) any product sold or any services performed by the Company prior to the Closing Date, (F), any Third Party Claim relating to wages or other compensation of any current or former Employees of the Company, any Employee Benefit Plan or any Environmental, Safety or Health Requirement, in each case arising from events that occurred prior to the Closing Date, and (G) any act of fraud, intentional tort or willful misconduct by any Seller Entity or the Company prior to the Closing. (ii) The Buyer acknowledges and agrees that neither the Seller Entities nor any of their Affiliates shall have any liability under any provision of this Agreement for any Loss to the extent that such Loss relates to actions taken by or omitted to be taken by the Buyer or the Company after the Closing Date or such Loss arises in the conduct of the business of the Company by the Buyer or the Company after the Closing Date.

Indemnification Provisions for Benefit of the Buyer. (i) Subject Seller agrees to the limitations contained in this Section 8indemnify, defend and except for any payment or indemnification obligations of the Seller under Section 2(b)(iv), which are subject exclusively to the terms thereunder and excluded from this Section 8, after Closing, the Seller Entities hereby jointly and severally agree to indemnify the hold harmless Buyer and its directors, officers and directorsAffiliates against and in respect of all Liabilities, shareholders and Affiliates againstobligations, and hold them harmless fromjudgments, any lossLiens, liabilityinjunctions, claimcharges, damage or expense orders, decrees, rulings, damages, dues, assessments, Taxes, losses, fines, penalties, expenses, fees, costs, amounts paid in settlement (including reasonable legal attorneys' and expert witness fees and expenses) other than punitive damagesdisbursements in connection with investigating, lost profitdefending or settling any action or threatened action), or consequential, special or incidental damages (a “Loss”) suffered or incurred by any such indemnified party caused by, resulting from or arising out of any claim, damages, complaint, demand, cause of action, audit, investigation, hearing, action, suit or other proceeding asserted or initiated or otherwise existing in respect of any matter (Acollectively, the "Losses") any that results from: (a) the breach of any representation or warranty made by Seller herein, or resulting from any misrepresentation or breach of warranty, all determined as if all materiality and knowledge provisions were not contained therein (for this purpose only those qualifiers containing the defined term "Knowledge" shall constitute knowledge qualifiers), or nonfulfillment of any agreement or covenant of Seller contained herein or in any agreement or instrument required to be entered into in connection herewith or from any misrepresentation in or omission from any schedule, document, certificate or other instrument required to be furnished by Seller hereunder; provided, however, that the Seller shall be liable under this ss. (a) in respect of Losses if the aggregate of such Losses exceeds $10,000,000 in which case the Seller will be liable for all Losses relating back to the first dollar; provided, that for Losses pursuant to this ss.9.2(a), individual claims that are less than $200,000 shall be excluded for all purposes and, provided, further, that the maximum liability of Seller for aggregate Losses arising from the breach of any representations or warranties shall not exceed $50,000,000; (b) any Liability of the Seller Entities contained in this Agreement, (B) including any breach of any covenant liability of the Seller Entities contained in this Agreement which by its terms requires performance after the Closing Date, (C) any Income Taxes of the Company attributable to taxable periods ending existing prior to or on the Closing Dateresulting from actions taken or events occurring prior to Closing), other than an Assumed Liability (including liabilities any Liability that becomes a Liability of the Company Buyer under consolidatedany bulk transfer law of any jurisdiction, combined under any common law doctrine of de facto merger or unitary income successor liability, or franchise Tax Returns otherwise by operation of law). 9.1 and liabilities related 9.2(a) hereof relating to their obligations in respect of Losses resulting from the Tax Returns inaccuracy of any representation and warranty, or any misrepresentation, breach of warranty or non-fulfillment of an agreement or covenant as described in ss. 9.2(a), shall not apply. Buyer shall provide Seller written notice for any claim made in respect of the Seller Entitiesindemnification provided in this ss. 9.2, but excluding any Taxes for which there is an adequate accrual whether or reserve on not arising out of a claim by a third party. Notwithstanding the Most Recent Financial Statements or any Taxes attributable to transactions not foregoing, Assumed Liabilities shall in the Ordinary Course of Business occurring after the Closing which are effectuated or initiated by the Buyer or the Company, (D) Taxes related to the Overlap Period to the extent allocable to the period ending on the Closing Date as set forth in Section 9(c), (E) any product sold or any services performed by the Company prior to the Closing Date, (F), any Third Party Claim relating to wages or other compensation of any current or former Employees of the Company, any Employee Benefit Plan or any Environmental, Safety or Health Requirement, in each case arising from events that occurred prior to the Closing Date, and (G) any act of fraud, intentional tort or willful misconduct by any Seller Entity or the Company prior to the Closingno event be considered a Loss under this ss. 9. (ii) The Buyer acknowledges and agrees that neither the Seller Entities nor any of their Affiliates shall have any liability under any provision of this Agreement for any Loss to the extent that such Loss relates to actions taken by or omitted to be taken by the Buyer or the Company after the Closing Date or such Loss arises in the conduct of the business of the Company by the Buyer or the Company after the Closing Date.

Indemnification Provisions for Benefit of the Buyer. (a) The Seller shall indemnify and defend the Buyer, its Affiliates and each of their shareholders, directors, officers, employees, agents and advisors (collectively, the “Buyer Indemnified Parties”) and hold the Buyer Indemnified Parties harmless from and with respect to any and all Adverse Consequences incurred or sustained by, or imposed upon, the Buyer Indemnified Parties resulting from, arising out of, relating to, in the nature of, or caused by (i) Subject to any breach or inaccuracy on the limitations part of the Seller of any of its representations or warranties contained in this Section 8Agreement; (ii) any breach, and except for any payment default or indemnification obligations lack of performance on the part of the Seller under Section 2(b)(iv)of any of its agreements or covenants contained in this Agreement or in any instrument of transfer delivered by the Seller hereunder; (iii) any brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding made, which are subject exclusively or alleged to have been made by any Person with the Seller or its Affiliates in connection with this Agreement or the transactions contemplated hereby; or (iv) any Excluded Liability. (b) Notwithstanding the foregoing, or any other provision to the terms thereunder and excluded from this Section 8, after Closing, the Seller Entities hereby jointly and severally agree to indemnify the Buyer and its officers and directors, shareholders and Affiliates against, and hold them harmless from, any loss, liability, claim, damage or expense (including reasonable legal fees and expenses) other than punitive damages, lost profit, or consequential, special or incidental damages (a “Loss”) suffered or incurred by any such indemnified party caused by, resulting from or arising out of (A) any breach of any representation or warranty of the Seller Entities contrary contained in this Agreement, the Buyer Indemnified Parties shall be entitled to indemnification under clauses (Ba)(i) and (a)(ii) (other than for a claim based on fraud or intentional misconduct or any breach of any covenant of the Seller Entities contained in this Agreement which by its terms requires performance after the Closing DateSections 4.5, (C4.6, 4.10 or 4.19) any Income Taxes of the Company attributable to taxable periods ending prior to or on the Closing Date, including liabilities of the Company under consolidated, combined or unitary income or franchise Tax Returns and liabilities related to the Tax Returns of the Seller Entities, but excluding any Taxes for which there is an adequate accrual or reserve on the Most Recent Financial Statements or any Taxes attributable to transactions not in the Ordinary Course of Business occurring after the Closing which are effectuated or initiated by the Buyer or the Company, (D) Taxes related to the Overlap Period to the extent allocable to the period ending on the Closing Date as set forth in Section 9(c), (E) any product sold or any services performed by the Company prior to the Closing Date, (F), any Third Party Claim relating to wages or other compensation of any current or former Employees of the Company, any Employee Benefit Plan or any Environmental, Safety or Health Requirement, in each case arising from events that occurred prior to the Closing Date, and (G) any act of fraud, intentional tort or willful misconduct by any Seller Entity or the Company prior to the Closing. (ii) The Buyer acknowledges and agrees that neither the Seller Entities nor any of their Affiliates shall have any liability under any provision of this Agreement for any Loss Section 12.1 only to the extent that the aggregate amount of the Adverse Consequences for which the Buyer Indemnified Parties would otherwise be entitled exceeds One Hundred Thousand Dollars ($100,000) (the “Threshold Amount”). (c) The amount of any Adverse Consequences for which indemnification is provided for under this Section 12.1 shall be offset by (i) any amounts recovered from a third party by a Buyer Indemnified Party and (ii) any insurance proceeds or other amounts received by a Buyer Indemnified Party in connection with an insurance claim included among the Transferred Assets. Each party agrees to use commercially reasonable efforts to make any claims for insurance and/or indemnification available from a third party(ies) with respect to Adverse Consequences for which it will seek indemnification hereunder and to diligently pursue such Loss relates to actions taken claims in good faith. If any such insurance proceeds and/or other amounts are received by or omitted a Buyer Indemnified Party after payment by the Indemnifying Party of any amount otherwise required to be taken paid to such Buyer Indemnified Party pursuant to this Section 12.1, such Buyer Indemnified Party shall repay to the Indemnifying Party, promptly after receipt of such insurance proceeds and/or other amounts, the amount that such Indemnifying Party would not have had to pay pursuant to this Section 12.1 had such insurance proceeds and/or other amounts been received by such Buyer Indemnified Party prior to the Buyer or the Company after the Closing Date or such Loss arises in the conduct of the business of the Company by the Buyer or the Company after the Closing DateIndemnifying Party’s payment under this Section 12.1.

Indemnification Provisions for Benefit of the Buyer. (i) Subject to the limitations contained in this Section 8, and except for any payment or indemnification obligations of after the Seller under Section 2(b)(iv), which are subject exclusively to the terms thereunder and excluded from this Section 8, after Closing, the Seller Entities hereby jointly and severally agree to indemnify the Buyer and its officers and directors, shareholders and Affiliates against, against and hold them harmless from, from any loss, liability, claim, damage or expense Liability (including reasonable legal fees and expenses, interest, penalties, and all reasonable amounts paid in investigation, defense or settlement of any of the foregoing and whether or not any such demands, claims or allegations of Third Party Claims are meritorious) other than punitive damages, lost profit, or consequential, special or incidental damages (a “Loss”) suffered or incurred by any such indemnified party Indemnified Party caused by, resulting from or arising out of of: (A) any breach of any representation or warranty of the Seller Entities contained in this Agreement, ; (B) any breach of any covenant of the Seller Entities contained in this Agreement which by its terms requires performance after the Closing Date, ; (C) any Income Taxes of the any Company attributable to taxable periods ending prior to or on the Closing Date, including liabilities of the Company under consolidated, combined or unitary income or franchise Tax Returns and liabilities related to the Tax Returns of the Seller Entities, but excluding other than any Taxes of any Company for which there is an adequate accrual or reserve on the Most Recent Financial Statements Closing Date Balance Sheet or any Taxes attributable to transactions not in the Ordinary Course of Business occurring after the Closing which are effectuated or initiated by the Buyer or the CompanyCompany (other than any Section 338(h)(10) Election); or any Taxes of any Person that is a member of an Affiliated Group, or any consolidated, combined or unitary group, of which any Company has been a member on or at any time prior to the Closing Date, including pursuant to United States Treasury Regulation Section 1.1502-6 or any analogous or similar state, local, or foreign law or regulation; (D) Taxes resulting from the Section 338(h)(10) Election (or any comparable election under state, local or foreign Tax law); (E) Taxes related to the Overlap Period to the extent allocable to the period ending on the Closing Date as set forth in Section 9(c), ; (EF) any product sold or any services performed by the any Company prior to the Closing Date, ; (F), G) any Third Party Claim relating to wages or other compensation of any current or former Employees or Contract Workers of the any Company, any Employee Benefit Plan or any Environmental, Safety or Health Requirement, in each case arising from events that occurred prior to the Closing Date, and ; (GH) any act of fraud, intentional tort or willful misconduct by any Seller Entity or the any Company prior to the Closing. The Buyer shall have the right to set off the amount of any Loss indemnifiable under this Section 8(b) against any amounts owed or payable to the Seller Entities under this Agreement, including the Note Amount; provided, however, that except as set forth in Section 2(b)(ii)(A)(II) and Section 2(b)(ii)(B)(I), the Buyer may only exercise such right (i) with regard to any claim determined to constitute a Loss by a court of competent jurisdiction in a non-appealable judgment or (ii) with regard to any other claim against the Seller Entities outstanding on the maturity date of the Note, by depositing the amount due thereunder into an escrow account with a bank, and pursuant to an escrow agreement, reasonably acceptable to the Seller Entities. (ii) The Buyer acknowledges and agrees that neither the Seller Entities nor any of their Affiliates shall have any liability under any provision of this Agreement for any Loss to the extent that such Loss relates to actions taken by or omitted to be taken by the Buyer or the any Company after the Closing Date or such Loss arises in the conduct of the business of the any Company by the Buyer or the such Company after the Closing DateDate (other than with respect to the Section 338(h)(10) Election).

Indemnification Provisions for Benefit of the Buyer. (i) Subject to the limitations contained in this Section 8, and except for any payment or indemnification obligations of the Seller under Section 2(b)(iv8(b)(ii), which are subject exclusively to the terms thereunder and excluded from this Section 8, after Closing, the Seller Entities hereby jointly and severally agree agrees to indemnify the Buyer Buyer, SM&P and its officers and any of their respective Affiliates, directors, shareholders officers, employees and Affiliates againstagents (collectively, the "Buyer Indemnified Parties") from and hold them harmless fromagainst any Adverse Consequences any Buyer Indemnified Party suffers as a result of the breach of any of the Seller's representations, any losswarranties and covenants contained herein, liability, claim, damage or expense (including reasonable legal fees and expenses) other than punitive damages, lost profit, or consequential, special or incidental damages (a “Loss”) suffered or incurred by any such indemnified party caused by, resulting from or arising out of provided that (A) any breach of any representation or warranty of such Adverse Consequences exceed the Seller Entities contained in this AgreementClaim Deductible, and (B) any breach in the case of any covenant breaches of representations and warranties contained in Section 4, the Buyer makes a written claim for indemnification against the Seller Entities contained in this Agreement which by its terms requires performance after pursuant to Section 11(g) within the Closing Date, (C) any Income Taxes of the Company attributable to taxable periods ending prior to or on the Closing Date, including liabilities of the Company under consolidated, combined or unitary income or franchise Tax Returns and liabilities related to the Tax Returns of the Seller Entities, but excluding any Taxes for which there is an adequate accrual or reserve on the Most Recent Financial Statements or any Taxes attributable to transactions not in the Ordinary Course of Business occurring after the Closing which are effectuated or initiated by the Buyer or the Company, (D) Taxes related to the Overlap Period to the extent allocable to the period ending on the Closing Date as set forth in Section 9(c), (E) any product sold or any services performed by the Company prior to the Closing Date, (F), any Third Party Claim relating to wages or other compensation of any current or former Employees of the Company, any Employee Benefit Plan or any Environmental, Safety or Health Requirement, in each case arising from events that occurred prior to the Closing Date, and (G) any act of fraud, intentional tort or willful misconduct by any Seller Entity or the Company prior to the Closingapplicable survival period. (ii) The Seller shall have no obligation under Section 8(b) to indemnify the Buyer acknowledges Indemnified Parties from and agrees that neither against any Adverse Consequences arising from or relating to the breach of any representation, warranty or covenant until the aggregate of the Adverse Consequences for all claims (including the Claim Deductible for each individual claim for which Adverse Consequences exceed the Claim Deductible) exceeds $500,000. After the aggregate of the Adverse Consequences for all claims under Section 8(b) (including the Claim Deductible for each individual claim for which Adverse Consequences exceed the Claim Deductible) exceeds $500,000, the Seller Entities nor any of their Affiliates shall have any liability under any provision of this Agreement for any Loss to the extent that such Loss relates to actions taken by or omitted to be taken by indemnify the Buyer or the Company after the Closing Date or such Loss arises Indemnified Parties for all Adverse Consequences in the conduct excess of the business $500,000, up to a maximum aggregate indemnity of the Company by the Buyer or the Company after the Closing Date$8.0 million.

Indemnification Provisions for Benefit of the Buyer. (i) Subject to the limitations contained set forth in this Section 8, and except for any payment or indemnification obligations of the Seller under Section 2(b)(iv(S)11(b), which are subject exclusively to the terms thereunder Seller and excluded from this Section 8, after ClosingUnion Pacific (collectively, the Seller Entities hereby "UP Group") jointly and severally agree to -------- indemnify and hold the Buyer and its officers and directorsAffiliates harmless against any Losses which any of them may suffer, shareholders and Affiliates against, and hold them harmless from, any loss, liability, claim, damage or expense (including reasonable legal fees and expenses) other than punitive damages, lost profitsustain, or consequentialbecome subject to, special or incidental damages (a “Loss”) suffered or incurred by any such indemnified party caused by, resulting from or arising out of as the result of: (A) any the breach of any representation or warranty of the Seller Entities contained in this Agreement, (S)3 above (other than the representations and warranties set forth in (S)3(e) or (f) above); (B) the breach of any representation or warranty contained in (S)3(e) or (f) above; (C) the breach of any covenant of or agreement to be performed by the Seller Entities contained in or Union Pacific under this Agreement which by its terms requires performance after the Closing Date, (C) any Income Taxes of the Company attributable to taxable periods ending prior to or on the Closing Date, including liabilities of the Company under consolidated, combined or unitary income or franchise Tax Returns and liabilities related to the Tax Returns of the Seller Entities, but excluding any Taxes for which there is an adequate accrual or reserve on the Most Recent Financial Statements or any Taxes attributable to transactions not in the Ordinary Course of Business occurring after the Closing which are effectuated or initiated by the Buyer or the Company, Agreement; (D) Taxes related to the Overlap Period to the extent allocable to the period ending on the Closing Date as set forth in Section 9(c), any Excluded Liabilities; or (E) any product sold or any services performed by the Company prior Environmental Conditions if, and only to the Closing Dateextent that, such Loss is incurred or imposed (F1) pursuant to any agreement, Order, notice of responsibility, directive (including requirements embodied in Environmental, Health and Safety Requirements), injunction, judgment or similar documents (including settlements) attributable to, connected with or arising out of or under, Environmental, Health and Safety Requirements or (2) pursuant to any Third Party Claim relating to wages claim by a Governmental Entity or other compensation of any current Person for personal injury, property damage, damage to natural resources, remediation or former Employees of the Companyresponse costs or other corrective actions arising out of, connected with or attributable to, any Employee Benefit Plan or any Environmental, Safety or Health Requirement, in each case arising from events that occurred prior to the Closing Date, and (G) any act of fraud, intentional tort or willful misconduct by any Seller Entity or the Company prior to the ClosingEnvironmental Condition. (ii) The With respect to claims for breaches of representations and warranties referred to in (S)11(b)(i)(A) above, (A) the UP Group will be liable to the Buyer acknowledges and agrees that neither for Losses only if the aggregate amount of all such Losses relating to all such breaches exceeds $250,000, in which case Seller will be liable only for such excess, (B) the UP Group will not be liable for any Losses arising from the breach of any representation or warranty contained in (S)3(i) or (j) hereof unless written notice of such breach is given by the Buyer to the Seller Entities nor on or prior to September 30, 1998 (with such notice stating with reasonable specificity the nature and basis of the assertion and the amount thereof to the extent known) and the indemnification obligations of the UP Group shall continue in full force and effect indefinitely with regard to the breach of any other representation or warranty referred to in (S)11(b)(i)(A) above, and (C) in no event shall the aggregate amount of their Affiliates shall have Losses that the UP Group is obligated to satisfy pursuant to (S)11(b)(i)(A) and (B) exceed $13,162,500 in the aggregate. If any liability under any provision Loss arising from a breach of a representation or warranty referred to in (S)11(b)(i)(A) above also constitutes a Loss arising out of or relating to an Excluded Liability or an Environmental Condition, such Loss will be deemed to be arising out of or relating to an Excluded Liability or an Environmental Condition, as applicable, for purposes of this Agreement (S)11, and, thus, not subject to the limitations set forth in the first sentence of this (S)11(b)(ii). (iii) With respect to claims for breaches of representations and warranties referred to in (S)11(b)(i)(B) above, (A) the UP Group will be liable to the Buyer for Losses only if the aggregate amount of all such Losses relating to all such breaches exceeds $1,000,000, in which case the UP Group will be liable only for such excess, (B) the UP Group will not be liable for any Losses arising therefrom unless written notice of such breach is given by the Buyer to the Seller on or prior to March 31, 1999 (with such notice stating with reasonable specificity the nature and basis of the assertion and the amount thereof to the extent known) and (C) in no event shall the aggregate amount of Losses that the UP Group is obligated to satisfy pursuant to (S)11(b)(i)(B) exceed $6,581,250. If any Loss for which the UP Group is obligated to provide indemnification pursuant to (S)11(b)(i)(B) above also constitutes a Loss arising out of a relating to an Excluded Liability or an Environmental Condition, such Loss will be deemed to be arising out of or relating to an Excluded Liability or an Environmental Condition, as applicable, for purposes of this (S)11, and, thus, not subject to the limitations set forth in the first sentence of this (S)11(b)(iii). (iv) With respect to claims for Excluded Liabilities referred to in (S)11(b)(i)(D) above, (A) the UP Group will be liable to the Buyer for the first dollar of any such Losses, (B) the UP Group will not be liable for any such Losses unless written notice of the claim relating to such Excluded Liability is given by the Buyer to the Seller on or prior to March 31, 2002 (with such notice stating with reasonable specificity the nature and basis of the assertion and the amount thereof to the extent known) and (C) except as set forth in (S)11(b)(vi) below, there shall be no dollar limit on the aggregate amount of Losses relating to Excluded Liabilities that the UP Group is obligated to satisfy pursuant to (S)11(b)(i)(D). If any Loss arising from an Excluded Liability pursuant to (S)11(b)(i)(D) above also constitutes a Loss arising out of or relating to an Environmental Condition, such Loss will be deemed to be an Excluded Liability for purposes of (S)11, and, thus, subject to the provisions of this (S)11(b)(iv). (v) With respect to claims for Environmental Conditions referred to in (S)11(b)(i)(E) above, (A) the UP Group will be liable to the Buyer for Losses only if the aggregate amount of all such Losses relating to all such Environmental Conditions exceeds $100,000, in which case the UP Group will be liable only for such excess, (B) the UP Group will not be liable to Buyer for any such Losses unless written notice of the applicable Environmental Condition is given by the Buyer to Seller on or prior to March 31, 2002 (with such notice stating with reasonable specificity the nature and basis of the assertion and the amount thereof to the extent known); provided, however, if the Buyer, on or prior to March 31, 2002, gives the UP Group written notice of a potential Loss relating to an Environmental Condition that has not been incurred or imposed pursuant to the conditions set forth in (S)11(b)(i)(E) above and with regard to which the Buyer reasonably believes it prudent to perform Remedial Work or other reasonable corrective or safety measures in order to avoid a potential Loss as a result of an Environmental Condition and the Seller determines that Remedial Work or such other measures are not required with respect to such Environmental Condition (it being expressly acknowledged that the Seller has the right to assume, conduct and control the performance of the proposed Remedial Work or other measures pursuant to (S)11(g) hereof) then this (S)11(b)(v)(B) shall not apply to any Loss subsequently incurred or imposed pursuant to the conditions set forth in (S)11(b)(i)(E) which relates to or results from the Environmental Condition described in such written notice, and (C) except as set forth in (S)11(b)(vi) below, there shall be no dollar limit on the aggregate amount of Losses relating to Environmental Conditions that the UP Group is obligated to satisfy pursuant to (S)11(b)(i)(E). If any Loss arising from a claim for an Environmental Condition referred to in (S)11(b)(i)(E) above also constitutes a Loss arising out of an Excluded Liability such Loss will be deemed to be an Excluded Liability for purposes of this (S)11, and, thus, subject to the provisions of (S)11(b)(iv). (vi) The obligations of the UP Group under this (S)11 to indemnify the Buyer in respect of Environmental Conditions and Excluded Liabilities shall be reduced to the extent that such Loss relates any intentional act or failure to actions taken by act by, or omitted to be taken by gross negligence of, the Buyer or the Company its Affiliates, successors or assigns occurring after the Closing Date or adversely affects such Loss arises in obligations, other than failures to act where such failure is based on the conduct of the business of the Company by Seller's determination, after receiving written notice from the Buyer as provided in (S)11(b)(v) above, that Remedial Work or the Company after the Closing Dateother measures are not required.

Indemnification Provisions for Benefit of the Buyer. In the event any of the Sellers breach (ior in the event any third party alleges facts that, if true, would mean any of the Sellers has breached) Subject to the limitations any representations, warranties or covenants contained in this Section 8Agreement, and except if there is an applicable survival period pursuant to Section 6.1 (provided that the Buyer makes a written claim for indemnification against any payment or indemnification obligations of the Seller under Section 2(b)(ivSellers within the survival period), which are subject exclusively to then each of the terms thereunder and excluded from this Section 8, after Closing, the Seller Entities hereby jointly and severally agree Sellers agrees to indemnify the Buyer and its officers and officers, directors, shareholders employees, agents and Affiliates againstaffiliates (collectively, the “Buyer Parties”) from and hold them harmless against the entirety of any actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid in settlement, Liabilities, obligations, taxes, liens, losses, expenses and fees, including court costs and reasonable attorney fees and expenses (collectively, “Adverse Consequences”) any of the Buyer Parties may suffer through and after the date of the claim for indemnification (including any Adverse Consequences the Buyer Parties may suffer after the end of any applicable survival period) resulting from, arising out of, relating to, in the nature of, or caused by such breach (or alleged breach), including any lossLiability of the Sellers that becomes a Liability of the Buyer under any bulk transfer law of any jurisdiction, under any common law doctrine of de facto merger or successor liability, claimunder environmental, damage or expense (including reasonable legal fees health and expenses) other than punitive damages, lost profitsafety requirements, or consequential, special or incidental damages (a “Loss”) suffered or incurred otherwise by any such indemnified party caused by, resulting from or arising out operation of (A) any law). Sellers’ indemnification obligations for breach of any representation or warranty of the Seller Entities contained Standard Representations shall be limited to the amount to be outstanding(including interest) under the Promissory Note in this Agreement, (B) any breach of any covenant of the Seller Entities contained in this Agreement which by accordance with its terms requires performance after at the Closing Datetime a claim is made, (C) any Income Taxes of the Company attributable to taxable periods ending prior to whether or on the Closing Date, including liabilities of the Company under consolidated, combined not scheduled payments or unitary income or franchise Tax Returns and liabilities related to the Tax Returns of the Seller Entities, but excluding any Taxes for which there is an adequate accrual or reserve on the Most Recent Financial Statements or any Taxes attributable to transactions not in the Ordinary Course of Business occurring after the Closing which are effectuated or initiated by the Buyer or the Company, (D) Taxes related to the Overlap Period to the extent allocable to the period ending on the Closing Date as set forth in Section 9(c), (E) any product sold or any services performed by the Company prior to the Closing Date, (F), any Third Party Claim relating to wages or other compensation of any current or former Employees of the Company, any Employee Benefit Plan or any Environmental, Safety or Health Requirement, in each case arising from events that occurred prior to the Closing Date, and (G) any act of fraud, intentional tort or willful misconduct by any Seller Entity or the Company prior to the Closingprepayments have been made. (ii) The Buyer acknowledges and agrees that neither the Seller Entities nor any of their Affiliates shall have any liability under any provision of this Agreement for any Loss to the extent that such Loss relates to actions taken by or omitted to be taken by the Buyer or the Company after the Closing Date or such Loss arises in the conduct of the business of the Company by the Buyer or the Company after the Closing Date.

Indemnification Provisions for Benefit of the Buyer. (i) Subject Seller agrees to the limitations contained in this Section 8indemnify, defend and except for any payment or indemnification obligations of the Seller under Section 2(b)(iv), which are subject exclusively to the terms thereunder and excluded from this Section 8, after Closing, the Seller Entities hereby jointly and severally agree to indemnify the hold harmless Buyer and its directors, officers and directorsAffiliates against and in respect of all Liabilities, shareholders and Affiliates againstobligations, and hold them harmless fromjudgments, any lossLiens, liabilityinjunctions, claimcharges, damage or expense orders, decrees, rulings, damages, dues, assessments, Taxes, losses, fines, penalties, expenses, fees, costs, amounts paid in settlement (including reasonable legal attorneys' and expert witness fees and expenses) other than punitive damagesdisbursements in connection with investigating, lost profitdefending or settling any action or threatened action), or consequential, special or incidental damages (a “Loss”) suffered or incurred by any such indemnified party caused by, resulting from or arising out of any claim, damages, complaint, demand, cause of action, audit, investigation, hearing, action, suit or other proceeding asserted or initiated or otherwise existing in respect of any matter (Acollectively, the "Losses") any breach that results from: (1) the inaccuracy of any representation or warranty made by Seller herein or any third party allegation which if true would mean a representation or warranty made by the Seller herein was inaccurate, or resulting from any misrepresentation, breach of warranty (as if all qualifiers specifically using the following words "material", "materiality", "Knowledge", or "Material Adverse Effect" were not contained in such representation or warranty) or nonfulfillment of any agreement or covenant of Seller contained herein or in any agreement or instrument required to be entered into in connection herewith or from any misrepresentation in or omission from any schedule, document, certificate or other instrument required to be furnished by Seller hereunder; provided, however, that the Seller shall not be liable under this Section 9.2(a) in respect of Losses until the aggregate of such Losses exceeds $200,000, provided, further, that after such event the Seller shall be required to pay all amounts by which such aggregate amount of Losses exceeds $100,000, up to a maximum aggregate amount of $6,000,000; (2) any Liability which is not an Assumed Liability (including any Liability that becomes a Liability of the Buyer under any bulk transfer law of any jurisdiction, under any common law doctrine of de facto merger or successor liability, or otherwise by operation of law). In the event that Seller Entities contained may be obliged to indemnify Buyer under both subsection (a) and subsection (b) of this Section 9.2, its obligations under subsection (b) shall be controlling and the limitations provided in Sections 9.1 and 9.2(a) hereof relating to their obligations in respect of Losses resulting from the inaccuracy of any representation and warranty, or any misrepresentation, breach of warranty or non-fulfillment of an agreement or covenant as described in Section 9.2(a), shall not apply. Buyer shall provide Seller written notice for any claim made in respect of the indemnification provided in this AgreementSection 9.2, (B) any breach whether or not arising out of any covenant of the Seller Entities contained in this Agreement which a claim by its terms requires performance after the Closing Date, (C) any Income Taxes of the Company attributable to taxable periods ending prior to or on the Closing Date, including liabilities of the Company under consolidated, combined or unitary income or franchise Tax Returns and liabilities related to the Tax Returns of the Seller Entities, but excluding any Taxes for which there is an adequate accrual or reserve on the Most Recent Financial Statements or any Taxes attributable to transactions not in the Ordinary Course of Business occurring after the Closing which are effectuated or initiated by the Buyer or the Company, (D) Taxes related to the Overlap Period to the extent allocable to the period ending on the Closing Date as set forth in Section 9(c), (E) any product sold or any services performed by the Company prior to the Closing Date, (F), any Third Party Claim relating to wages or other compensation of any current or former Employees of the Company, any Employee Benefit Plan or any Environmental, Safety or Health Requirement, in each case arising from events that occurred prior to the Closing Date, and (G) any act of fraud, intentional tort or willful misconduct by any Seller Entity or the Company prior to the Closinga third party. (ii) The Buyer acknowledges and agrees that neither the Seller Entities nor any of their Affiliates shall have any liability under any provision of this Agreement for any Loss to the extent that such Loss relates to actions taken by or omitted to be taken by the Buyer or the Company after the Closing Date or such Loss arises in the conduct of the business of the Company by the Buyer or the Company after the Closing Date.

Indemnification Provisions for Benefit of the Buyer. (i) Subject to In the limitations contained in this Section 8event the Shareholder breaches any of his representations, and except for warranties (or any payment of such representations or indemnification obligations of the Seller under Section 2(b)(ivwarranties is untrue or inaccurate), which are subject exclusively covenants and agreements contained herein or in any certificate, document, instrument or agreement delivered pursuant to this Agreement, and, provided that the terms thereunder and excluded from this Indemnified Buyers (as hereafter defined) make a written claim for indemnification against the Shareholder as provided in Section 814(g) below within the applicable claim period provided in Section 10(a) above, after Closing, then the Seller Entities hereby jointly and severally agree Shareholder agrees to indemnify the Buyer and each of its officers and officers, directors, employees, representatives and shareholders (collectively, the "Indemnified Buyers") from and Affiliates against, against the entirety of any Adverse Consequences the Indemnified Buyers suffer through and hold them harmless after the date of the claim for indemnification (including any Adverse Consequences the Indemnified Buyers suffer after the end of any applicable claim period) resulting from, any lossarising out of, liabilityrelating to, claim, damage or expense (including reasonable legal fees and expenses) other than punitive damages, lost profitin the nature of, or consequentialcaused by the breach, special untruth or incidental damages (a “Loss”) suffered or incurred by inaccuracy; PROVIDED, however, that the Shareholder shall not have any such indemnified party caused byobligation to indemnify the Indemnified Buyers from and against any Adverse Consequences resulting from, resulting from or arising out of of, relating to, in the nature of, or caused by the breach (Aor alleged breach) any breach of any representation or warranty of the Seller Entities Shareholder contained in this Agreement, Section 3 or Section 5 above: (A) until the Indemnified Buyers have suffered Adverse Consequences by reason of all such breaches (or alleged breaches) in excess of a $100,000 aggregate deductible (after which point the Shareholder will be obligated only to indemnify the Indemnified Buyers from and against Adverse Consequences in excess of that amount) or thereafter (B) to the extent that the Adverse Consequences the Indemnified Buyers have suffered by reason of all such breaches exceeds a $26,250,000 aggregate ceiling (after which point the Shareholder will have no obligation to indemnify the Indemnified Buyers from and against further such Adverse Consequences). (ii) Notwithstanding the limitation of Section 10(b)(i) above and without limiting any breach other indemnification provided in this Section 10, the Shareholder agrees to indemnify the Indemnified Buyers from and against the entirety of any covenant Adverse Consequences they suffer as a result of a taxing authority taking the Seller Entities contained in this Agreement which by its terms requires performance after the Closing Date, (C) position that any Income Taxes former or current subcontractor of the Company attributable to taxable periods ending prior to or on the Closing Dateshould have been, including liabilities of the Company under consolidated, combined or unitary income or franchise Tax Returns and liabilities related to the Tax Returns of the Seller Entities, but excluding at any Taxes for which there is an adequate accrual or reserve on the Most Recent Financial Statements or any Taxes attributable to transactions not in the Ordinary Course of Business occurring after the Closing which are effectuated or initiated by the Buyer or the Company, (D) Taxes related to the Overlap Period to the extent allocable to the period ending on the Closing Date as set forth in Section 9(c), (E) any product sold or any services performed by the Company time prior to the Closing Date, (F), any Third Party Claim relating to wages or other compensation of any current or former Employees treated as an employee of the Company. (iii) Notwithstanding the limitation of Section 10(b)(i) above and without limiting any other indemnification provided in this Section 10, the Shareholder agrees to indemnify the Indemnified Buyers and the Company from and against the entirety of any Adverse Consequences they suffer as a result of the matters identified in Section 5(w) of the Shareholder Disclosure Schedule following the list of Employee Benefit Plan or Plans listed therein (the "Special Damages"); PROVIDED, however, that the Shareholder shall not have any Environmental, Safety or Health Requirement, in each case arising from events that occurred prior obligation to indemnify the Closing Date, and (G) any act of fraud, intentional tort or willful misconduct by any Seller Entity Indemnified Buyers or the Company prior from and against any Special Damages until the Indemnified Buyers or the Company have suffered Special Damages in excess of the reserve for the Special Damages set forth on the Most Recent Balance Sheet, as such reserve may be reduced from time to time in connection with the satisfaction of the liabilities for which the reserve has been established, it being acknowledged that the payment to the Closing. Shareholder of the amount, if any, required by the second sentence of Section 11(f) shall be deemed to reduce such reserve to zero; and PROVIDED, FURTHER, that the Buyer shall cause the Company (iiA) The Buyer acknowledges within twenty one (21) days following the Closing Date (or as soon thereafter as the information required to make such filings and agrees that neither requests is available upon diligent inquiry), to file with the Seller Entities nor Internal Revenue Service any Forms 5500 which are past due for the Section 125 Plan identified in Section 5(w) of their Affiliates shall have the Shareholder Disclosure Schedule as being required, along with a request for abatement and waiver of any liability under any provision of this Agreement for any Loss penalties relating to such late filing, such request being in a form reasonably satisfactory to the extent Shareholder and (B) within forty five (45) days following the Closing Date (or as soon thereafter as the information required to make such filing and audit is available upon diligent inquiry), to file requests with the Internal Revenue Service for a determination letter as to the qualified status under Code Section 401(a) of the Company's 401(k) Profit Sharing Plan and Trust and for a closing agreement under the "Walk-in Closing Agreement Program" with respect to the qualification defects that are determined on the basis of a competent audit of such Loss relates to actions taken by or omitted to be taken 401(k) Profit Sharing Plan and Trust arranged by the Buyer or (which audit shall have a scope and cost reasonably acceptable to the Company after Shareholder), such requests and closing agreement to be in forms reasonably satisfactory to the Closing Date or such Loss arises in the conduct of the business of the Company by the Buyer or the Company after the Closing DateShareholder.

Indemnification Provisions for Benefit of the Buyer. (i) Subject to the limitations contained in this Section 8, and except for any payment or indemnification obligations Each of the Seller under Section 2(b)(iv), which are subject exclusively to the terms thereunder and excluded from this Section 8, after Closing, the Seller Entities hereby jointly and severally agree to Selling Group Members shall indemnify the Buyer and its officers and officers, directors, shareholders stockholders, partners, trustees, beneficiaries, employees, agents, Affiliates, successors and Affiliates againstassigns (collectively, the "Buyer Indemnified Persons") from and hold them harmless fromagainst such Selling Group Member's Allocable Portion of any Indemnifiable Losses such Buyer Indemnified Persons shall incur as a result of (i) any breach or inaccuracy in any representation or warranty made by any of the Selling Group Members under the Documents, (ii) except as set forth in clause (D) below, any lossbreach by any of the Selling Group Members of any of the Selling Group Members' covenant or other agreement of any of the Selling Group Members as provided for in the Documents, liability, claim, damage or expense (including reasonable legal fees iii) all costs and expenses) other than punitive damages, lost profit, or consequential, special or incidental damages (a “Loss”) suffered or penalties incurred by any of the Buyer Indemnified Persons, including legal fees, if any, as a result of the alleged failure of the Company to file Annual Reports with respect to the Company's 125 Plan, (iv) any claims asserted in respect of the Threatened Claims or (v) the assertion against any of the Buyer Indemnified Persons of any Excluded Obligation, provided, that: (A) such indemnified party claim for indemnification must be asserted by Buyer Indemnified Persons within the related Claims Period (if any), pursuant to a written claim for indemnification delivered to the Valley Equityholder Representative by written notice in the manner provided herein, provided, however, that after the assertion of any such claim hereunder on or prior to the expiration of the Claims Period (if any), the Buyer Indemnified Persons shall be fully entitled to the benefits of this Section 7 (and the other indemnification provisions in this Agreement) notwithstanding the fact that such claim shall not be finally resolved on or prior to the expiration of the Claims Period (if any); (B) except for any Lodi Environmental Liabilities or Indemnifiable Losses caused byby the breach of an Excluded Representation or Warranty, resulting the Selling Group Members shall not have any obligation to indemnify the Buyer Indemnified Persons from or and against any Indemnifiable Losses arising out of (A) any Threatened Claims or caused by the breach of any representation or warranty of the Seller Entities contained in Section 4 of this Agreement until the Buyer Indemnified Persons have incurred such Indemnifiable Losses which, in the aggregate, exceed a $750,000 aggregate deductible, it being acknowledged and agreed that the Selling Group Members will only be obligated to indemnify the Buyer Indemnified Persons from and against such further Indemnifiable Losses in excess of such $750,000 deductible amount; (C) except for Indemnifiable Losses caused by the breach of an Excluded Representation or Warranty, the Selling Group Members shall not have any obligation to indemnify the Buyer Indemnified Persons from and against any Indemnifiable Losses caused by the breach of any representation or warranty contained in Section 4 of this Agreement, any Lodi Environmental Liabilities or any Threatened Claims to the extent the indemnification claims which the Selling Group Members have, in the aggregate, paid, discharged or otherwise satisfied, exceed an aggregate ceiling of $6,000,000, it being acknowledged and agreed that the maximum liability of the Selling Group Members to the Buyer Indemnified Persons in respect of such Indemnifiable Losses shall be the aggregate amount of $6,000,000; and (BD) with regard to any breach of any covenant of the Seller Entities contained in this Agreement which by its terms requires performance after the Closing Date, (C) any Income Taxes of the Company attributable to taxable periods ending prior to or on the Closing Date, including liabilities of the Company under consolidated, combined or unitary income or franchise Tax Returns and liabilities related to the Tax Returns of the Seller Entities, but excluding any Taxes for which there is an adequate accrual or reserve on the Most Recent Financial Statements or any Taxes attributable to transactions not in the Ordinary Course of Business occurring after the Closing which are effectuated or initiated by the Buyer or the Company, (D) Taxes related to the Overlap Period to the extent allocable to the period ending on the Closing Date as covenants set forth in Section 9(csubsections (c), (Ed) any product sold or any services performed by the Company prior (e) of Section 8 hereof, (1) Morg▇▇ ▇▇▇ll be solely liable to the Closing Date, (F), Buyer Indemnified Persons for any Third Party Claim relating to wages or other compensation breach of any current or former Employees of the Companysuch covenant(s) by Morg▇▇, ▇▇d neither Fish▇▇, ▇▇r any Employee Benefit Plan or any Environmentalother Selling Group Member, Safety or Health Requirement, in each case arising from events that occurred prior to the Closing Date, and (G) any act of fraud, intentional tort or willful misconduct by any Seller Entity or the Company prior to the Closing. (ii) The Buyer acknowledges and agrees that neither the Seller Entities nor any of their Affiliates shall have any liability under any provision to the Buyer Indemnified Persons for such breach and (2) Fish▇▇ ▇▇▇ each of this Agreement the other Selling Group Members (other than Morg▇▇) ▇▇all be solely liable to the Buyer Indemnified Persons for any Loss breach of any covenant(s) by Fish▇▇ ▇▇ such other Selling Group Member (other than Morg▇▇), ▇nd Morg▇▇ ▇▇▇ll have no liability to the extent that Buyer Indemnified persons for such Loss relates breach. Notwithstanding anything to actions taken by or omitted to be taken by the Buyer or contrary contained herein, the Company after the Closing Date or such Loss arises limitations set forth in the conduct foregoing provisions of clauses (B) and (C) above shall not apply to the business willful breach of the Company by the Buyer any representation or the Company after the Closing Datewarranty.