Common use of Limitation on Indemnification Clause in Contracts

Limitation on Indemnification. (a) Notwithstanding anything to the contrary contained in this Agreement, neither Purchaser nor Seller shall be liable for any claim for indemnification pursuant to (i) Section 8.2(a) or (ii) Section 8.3(a), as the case may be, unless and until the aggregate amount of Qualifying Losses which may be recovered from Seller or Purchaser, as the case may be, pursuant to such provisions of this Agreement equals or exceeds the Deductible, in which case Seller, on the one hand, or Purchaser, on the other hand, as the case may be, shall be liable only for the aggregate amount of Qualifying Losses in excess of the Deductible; provided, that the Qualifying Loss and Deductible limitations shall not apply to claims for indemnification arising out of breaches of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of indemnifiable Losses which may be recovered for indemnification pursuant to (x) Section 8.2(a) or (y) Section 8.3(a), as the case may be, shall be an amount equal to $42,500,000; provided, that such limitation on the maximum recovery amount shall not apply to claims for indemnification arising out of breaches of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of Losses which may be recovered from Seller pursuant to Section 8.2, on the one hand, and Purchaser pursuant to Section 8.3, on the other hand, in each case, shall not exceed an amount equal to the Final Purchase Price. Without limiting the foregoing, no Indemnified Party shall be entitled to indemnification under this Article VIII with respect to incidental damages, consequential damages, special damages, damages arising out of business interruption or lost profits, damages arising through the application of any multiplier to any Losses or punitive damages; provided, that damages payable to a Third Party by an Indemnified Party shall constitute direct damages notwithstanding the characterization of such damages vis-à-vis the Third Party.

Limitation on Indemnification. (a) Notwithstanding anything to the contrary contained in this Agreementherein, neither Purchaser nor Seller shall be liable for any claim for indemnification have no obligation to indemnify Buyer pursuant to (a) Section 16.4(i) (excluding Seller’s liability for indemnification under Section 16.4(i) for breaches of the Fundamental Representations) unless, and then only to the extent that, (i) Section 8.2(aany individual claim exceeds Fifty Thousand Dollars ($50,000) or and (ii) Section 8.3(a), as the case may be, unless and until the aggregate amount losses to which Buyer would be entitled to indemnification (but for the provision of Qualifying Losses this Section 16.5) exceed a deductible equal to three percent (3%) of the Base Purchase Price and (b) Section 16.4(ix) unless, and then only to the extent that, the aggregate losses to which may Buyer would be recovered from Seller or Purchaser, as entitled to indemnification (but for the case may be, pursuant to such provisions of this Agreement equals or exceeds Section 16.5) exceed a deductible equal to One Hundred Thousand Dollars ($100,000). Notwithstanding anything to the Deductiblecontrary contained herein, in which case Seller, on the one hand, or Purchaser, on the other hand, as the case may be, shall be liable only ’s aggregate liability for the aggregate amount of Qualifying Losses in excess of the Deductible; provided, that the Qualifying Loss and Deductible limitations shall not apply to claims for indemnification arising out of breaches of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of indemnifiable Losses which may be recovered for indemnification pursuant to under (x) Section 8.2(a16.4(i) or above shall not exceed twenty (20%) of the Base Purchase Price, except for Seller’s liability for indemnification under Section 16.4(i) for breaches of the Fundamental Representations, (y) Section 8.3(a), as the case may be, shall be an amount equal to $42,500,000; provided, that such limitation on the maximum recovery amount 16.4(ix) above shall not apply to claims exceed Two Million Dollars ($2,000,000) and (z) Sections 16.4(ii) through (vi) (after taking in account and - 50- including the amount of Seller’s aggregate liability for indemnification arising out of under Section 16.4(i) for breaches of the any and all representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), that are not Fundamental Representations and Section 5.6. The maximum aggregate amount of Losses which may be recovered from Seller pursuant to Section 8.2, on the one hand, and Purchaser pursuant to Section 8.3, on the other hand, in each case, 16.4(ix)) shall not exceed an amount equal to the Final Base Purchase Price. Without limiting Nothing in this Article 16 shall limit or otherwise modify the foregoing, no Indemnified Party shall be liability of Seller for breach of the special warranty of title set forth in the Conveyances. For purposes of determining both the amount of Claims incurred by any member of the Buyer Group and whether there has been a breach of any of Seller’s representations and warranties for which any member of the Buyer Group is entitled to indemnification under this Article VIII with respect to incidental damagesSection 16.4, consequential damages, special damages, damages arising out of business interruption any materiality qualifiers in Seller’s representations or lost profits, damages arising through the application of any multiplier to any Losses or punitive damages; warranties shall be disregarded (provided, that damages payable each reference to a Third Party by an Indemnified Party “Material Contracts” in Section 5.6 shall constitute direct damages notwithstanding the characterization of such damages vis-à-vis the Third Partynot be disregarded).

Limitation on Indemnification. (a) Notwithstanding anything to the contrary contained Except as set forth in this AgreementSection 7.5(b) below, neither Purchaser Buyer, on the one hand, nor Seller and the Stockholders, on the other hand, shall be liable for any claim for entitled to indemnification pursuant to (i) Section 8.2(a) or (ii) Section 8.3(a), as the case may be, under this Agreement unless and until the aggregate amount of Qualifying any Losses exceeds One Hundred Fifty Thousand Dollars ($150,000) (the "Basket Amount") after which may be recovered from Seller or Purchaser, as the case may be, pursuant to such provisions of this Agreement equals or exceeds the Deductible, in which case SellerBuyer, on the one hand, or PurchaserSeller and the Stockholders, on the other hand, as the case may be, shall be liable only for the aggregate entire amount of Qualifying Losses such Losses, including the Basket Amount. Unless specifically stated elsewhere in excess this Agreement, the maximum aggregate obligation of Buyer with respect to all matters for which Seller and the Deductible; providedStockholders may seek indemnification under this Agreement with respect to any claim, that the Qualifying Loss and Deductible limitations shall not apply to claims for indemnification loss, liability or damages of any kind whatsoever arising out of breaches of or relating or incident to this Agreement or any agreement or document delivered in connection herewith or the representations and warranties contained in Section 4.2(atransactions contemplated hereby (the "Buyer Cap") shall not exceed Two Million Six Hundred Eighty Eight Thousand Eight Hundred Seventy Dollars (excluding the first sentence thereof$2,688,870), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount obligation of indemnifiable Losses Seller and the Stockholders with respect to all matters for which Buyer may be recovered for seek indemnification pursuant from them under this Agreement and with respect to any claim, loss, liability or damages of any kind whatsoever arising out of or relating or incident to this Agreement or any agreement or document delivered in connection herewith or the transactions contemplated hereby (xthe "Seller Cap") Section 8.2(a) or shall not exceed Two Million Six Hundred Eighty Eight Thousand Eight Hundred Seventy Dollars (y) Section 8.3(a$2,688,870), as the case may be, shall be an amount equal to $42,500,000; provided, that such limitation on however, the maximum recovery amount Seller Cap shall not apply to be Four Million Thirty Three Thousand Three Hundred Six Dollars ($4,033,306) for any indemnification claims for indemnification arising out resulting from a fraudulent breach by Seller and the Stockholders of breaches any of the representations and their representations, warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6or covenants under this Agreement. The maximum aggregate amount of Losses which may be recovered from Buyer Cap and the Seller pursuant Cap are collectively referred to Section 8.2, on as the one hand, and Purchaser pursuant to Section 8.3, on the other hand, in each case, shall not exceed an amount equal to the Final Purchase Price. Without limiting the foregoing, no Indemnified Party shall be entitled to indemnification under this Article VIII with respect to incidental damages, consequential damages, special damages, damages arising out of business interruption or lost profits, damages arising through the application of any multiplier to any Losses or punitive damages; provided, that damages payable to a Third Party by an Indemnified Party shall constitute direct damages notwithstanding the characterization of such damages vis-à-vis the Third Party"Cap".

Limitation on Indemnification. (a) Notwithstanding anything to the contrary contained in this Agreement, neither Purchaser nor Seller except in the case of fraud or intentional breach of any covenant contained herein, no Parent Indemnitee shall be liable for any claim for entitled to indemnification pursuant to (i) Section 8.2(a) or (ii) Section 8.3(a), as the case may be8.2, unless and until the aggregate amount of Qualifying indemnifiable Losses which may be recovered from Seller or Purchaser, the Equity Holders as the case may be, pursuant to such provisions of this Agreement a group equals or exceeds One Million Five Hundred Thousand Dollars ($1,500,000) (the “Deductible”), in which case Seller, on the one hand, or Purchaser, on the other hand, as the case may be, Equity Holders shall be liable only for the aggregate amount of Qualifying the Losses in excess of the Deductible; provided, however, that (i) until such time as the Parent Indemnitees have incurred indemnifiable Losses in an amount equal to or greater than the Deductible, no Parent Indemnitee shall have any right to indemnification with respect to any individual Loss (which shall include any Loss or Losses submitted for indemnification that arise from the same or a reasonably related set of underlying facts or circumstances) that is less than Five Thousand Dollars ($5,000) and no such Loss shall be taken into account in determining whether, or to what extent, the Deductible has been met or exceeded and (ii) from and after the time that the Qualifying Parent Indemnitees have incurred indemnifiable Losses in an amount greater than the Deductible, no Parent Indemnitee, shall have any right to indemnification with respect to any individual Loss and Deductible limitations (which shall not apply to claims include any Loss or Losses submitted for indemnification arising out that arise from the same or a reasonably related set of breaches underlying facts or circumstances) that is less than Twenty Thousand Dollars ($20,000). Notwithstanding the foregoing, neither the Deductible nor the limitations contained in the foregoing clauses (i) and (ii) of this Section 8.4(a) shall be applicable to any breach of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of indemnifiable Losses which may be recovered for indemnification pursuant to (x) Section 8.2(a3.2(b) or (y) Section 8.3(a), as the case may be, shall be an amount equal to $42,500,000; provided, that such limitation on the maximum recovery amount shall not apply to claims for indemnification arising out of breaches of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of Losses which may be recovered from Seller pursuant to Section 8.2, on the one hand, and Purchaser pursuant to Section 8.3, on the other hand, in each case, shall not exceed an amount equal to the Final Purchase Price. Without limiting the foregoing, no Indemnified Party shall be entitled to indemnification under this Article VIII with respect to incidental damages, consequential damages, special damages, damages arising out of business interruption or lost profits, damages arising through the application of any multiplier to any Losses or punitive damages; provided, that damages payable to a Third Party by an Indemnified Party shall constitute direct damages notwithstanding the characterization of such damages vis-à-vis the Third Party3.14.

Limitation on Indemnification. Notwithstanding any other provision of this Agreement to the contrary, in no event shall Losses include a party's incidental or consequential damages. Neither Sellers nor Buyer shall be liable to the other in respect of any indemnification hereunder except to the extent that (a) Notwithstanding anything to the contrary contained in aggregate Losses under this Agreement, neither Purchaser nor Seller shall be liable for any claim for indemnification pursuant to Agreement of Sellers (i) Section 8.2(ataken as a whole) or (ii) Section 8.3(a)Buyer, as the case may be, unless exceeds Five Hundred Thousand Dollars ($500,000) (the "Basket Amount"), and until then only to the extent of the excess over the Basket Amount, and (b) the aggregate amount of Qualifying such indemnification, together with all other indemnification payments by the indemnifying party, for Losses is less than Three Million Dollars ($3,000,000) (the "Indemnity Cap"); PROVIDED, HOWEVER, (i) any Losses incurred by Sellers in connection with Buyer's failure to comply with the covenants, agreements and indemnities set forth in SECTION 2.8.1 and (ii) any amounts owing in connection with the Final Net Working Capital shall not be subject to the Basket Amount or the Indemnity Cap. Notwithstanding anything to the contrary set forth herein or otherwise, Buyer acknowledges and agrees that the Basket Amount and the Indemnity Cap shall be applicable to all of the Sellers on a collective basis and not individually. Each party (a "recipient party") shall notify the other party (the "representing party") reasonably promptly of any perceived breach by the representing party of which may be recovered from Seller or Purchaserthe recipient party has knowledge of any representations and warranties, as covenants, and agreements and of any Losses (including a brief description of the case may be, pursuant same) of the recipient party caused thereby. In the event of any breach that is cured prior to such provisions the Closing Date in accordance with the terms of this Agreement equals Agreement, the representing party shall have no obligation under SECTION 12.2 or exceeds SECTION 12.3 or otherwise to indemnify the Deductible, in which case Seller, on the one hand, or Purchaser, on the other hand, as the case may be, shall be liable only for the aggregate amount of Qualifying Losses in excess of the Deductible; provided, that the Qualifying Loss and Deductible limitations shall not apply to claims for indemnification arising out of breaches of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of indemnifiable Losses which may be recovered for indemnification pursuant to (x) Section 8.2(a) or (y) Section 8.3(a), as the case may be, shall be an amount equal to $42,500,000; provided, that such limitation on the maximum recovery amount shall not apply to claims for indemnification arising out of breaches of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of Losses which may be recovered from Seller pursuant to Section 8.2, on the one hand, and Purchaser pursuant to Section 8.3, on the other hand, in each case, shall not exceed an amount equal to the Final Purchase Price. Without limiting the foregoing, no Indemnified Party shall be entitled to indemnification under this Article VIII recipient party with respect to incidental damagessuch Losses. In addition, consequential damages, special damages, damages arising out of business interruption or lost profits, damages arising through each recipient party will specify in writing to the application representing party any perceived breach by the representing party of any multiplier to representations and warranties, covenants, and agreements and of any Losses (including a brief description of the same) of the recipient party caused thereby. In the event that the recipient party fails to so notify the representing party of any such breach of which the recipient party has knowledge, the representing party shall have no obligation under SECTION 12.2 or punitive damages; provided, that damages payable SECTION 12.3 or otherwise to a Third Party by an Indemnified Party shall constitute direct damages notwithstanding indemnify the characterization of recipient party with respect to such damages vis-à-vis the Third PartyLosses.

Limitation on Indemnification. (a a) Notwithstanding anything The Sellers shall be obligated to indemnify as and to the contrary contained extent set forth in this AgreementArticle VI only if and to the extent that the aggregate of all of the Sellers' aggregate liability under such indemnity obligations exceeds $300,000, neither Purchaser nor Seller shall it being understood that said $300,000 figure is to serve as a one time "deductible" (for example, if the indemnity claims for which the Sellers would, but for the provisions of this sentence, be liable aggregate $350,000, the Sellers would then be liable for $50,000 and not $350,000). In addition, in no event shall the aggregate indemnification liability of any claim for Seller under this Article VI exceed the amount resulting by multiplying such Seller's "PROPORTIONATE SHARE" as specified in SCHEDULE 1.1 hereto) by $15,000,000 (i.e., $4,500,000 in the case of 1997-1 Irrevocable Trust; $4,500,000 in the case of R.A. Wilkins 1998 Irrevocable Trust; $4,500,000 in the case of SS-1900 Xxxxxxxxxle Trust and $1,500,000 in the case of Lexington Services Corporation); PROVIDED, HOWEVER, that such $15,000,000 limitation on indemnification pursuant liability (and the $300,000 "deductible") shall not be applicable with respect to breaches of Sections 2.3 (i) Section 8.2(a) or (ii) Section 8.3(apartnership interests), 2.5 (title to interests) and 2.6 (options and rights); and FURTHER PROVIDED that the parties agree that indemnification as the case may be, unless and until the aggregate amount of Qualifying Losses which may be recovered from Seller or Purchaser, as the case may be, pursuant to such provisions of provided under this Agreement equals or exceeds the Deductible, in which case Seller, on the one hand, or Purchaser, on the other hand, as the case may be, Article VI shall be liable only the sole and exclusive remedy for the aggregate amount of Qualifying Losses in excess of the Deductible; providedmatters indemnified against under Sections 6.2 and 6.3 above, except that the Qualifying Loss and Deductible limitations notwithstanding such exclusive remedy, nothing herein shall not apply to claims limit Purchaser's remedies for indemnification arising out of breaches of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of indemnifiable Losses which may be recovered for indemnification pursuant to (x) Section 8.2(a) actual fraud under applicable law or (y) Section 8.3(a)equitable remedies (other than the payment of money damages) under applicable law (such as injunctive relief, as the case may bespecific performance, shall be an amount equal to $42,500,000; provided, etc.) The parties further agree that such limitation on the maximum recovery amount shall not apply to claims for indemnification arising out of breaches of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of Losses which may be recovered from Seller pursuant to Section 8.2, on the one hand, and Purchaser pursuant to Section 8.3, on the other hand, in each case, shall not exceed an amount equal to the Final Purchase Price. Without limiting the foregoing, no Indemnified Party shall be entitled to indemnification under this Article VIII with respect to incidental damagesany indemnification claim for which the Sellers are liable to Purchaser under the terms of this Article VI, consequential damages, special damages, damages arising out of business interruption or lost profits, damages arising through the application of any multiplier no Seller shall be obligated to any Losses or punitive damages; provided, that damages payable to a Third Party by an Indemnified Party shall constitute direct damages notwithstanding the characterization pay more than such Seller's Proportionate Share of such damages vis-à-vis the Third Partyclaim.

Limitation on Indemnification. (a a) Notwithstanding anything The Sellers shall be obligated to indemnify as and to the contrary contained extent set forth in this AgreementArticle VI only if and to the extent that the aggregate of all of the Sellers' aggregate liability under such indemnity obligations exceeds $300,000, neither Purchaser nor Seller shall it being understood that said $300,000 figure is to serve as a one time "deductible" (for example, if the indemnity claims for which the Sellers would, but for the provisions of this sentence, be liable aggregate $350,000, the Sellers would then be liable for $50,000 and not $350,000). In addition, in no event shall the aggregate indemnification liability of any claim for Seller under this Article VI exceed the amount resulting by multiplying such Seller's "PROPORTIONATE SHARE" as specified in SCHEDULE 1.1 hereto) by $15,000,000 (i.e., $4,500,000 in the case of 1997-1 Irrevocable Trust; $4,500,000 in the case of R.A. Wilkins 1998 Irrevocable Trust; $4,500,000 in the case of SS-1998 Ixxxxxxxxxx Xrust and $1,500,000 in the case of Lexington Services Corporation); PROVIDED, HOWEVER, that such $15,000,000 limitation on indemnification pursuant liability (and the $300,000 "deductible") shall not be applicable with respect to breaches of Sections 2.3 (i) Section 8.2(a) or (ii) Section 8.3(apartnership interests), 2.5 (title to interests) and 2.6 (options and rights); and FURTHER PROVIDED that the parties agree that indemnification as the case may be, unless and until the aggregate amount of Qualifying Losses which may be recovered from Seller or Purchaser, as the case may be, pursuant to such provisions of provided under this Agreement equals or exceeds the Deductible, in which case Seller, on the one hand, or Purchaser, on the other hand, as the case may be, Article VI shall be liable only the sole and exclusive remedy for the aggregate amount of Qualifying Losses in excess of the Deductible; providedmatters indemnified against under Sections 6.2 and 6.3 above, except that the Qualifying Loss and Deductible limitations notwithstanding such exclusive remedy, nothing herein shall not apply to claims limit Purchaser's remedies for indemnification arising out of breaches of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of indemnifiable Losses which may be recovered for indemnification pursuant to (x) Section 8.2(a) actual fraud under applicable law or (y) Section 8.3(a)equitable remedies (other than the payment of money damages) under applicable law (such as injunctive relief, as the case may bespecific performance, shall be an amount equal to $42,500,000; provided, etc.) The parties further agree that such limitation on the maximum recovery amount shall not apply to claims for indemnification arising out of breaches of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of Losses which may be recovered from Seller pursuant to Section 8.2, on the one hand, and Purchaser pursuant to Section 8.3, on the other hand, in each case, shall not exceed an amount equal to the Final Purchase Price. Without limiting the foregoing, no Indemnified Party shall be entitled to indemnification under this Article VIII with respect to incidental damagesany indemnification claim for which the Sellers are liable to Purchaser under the terms of this Article VI, consequential damages, special damages, damages arising out of business interruption or lost profits, damages arising through the application of any multiplier no Seller shall be obligated to any Losses or punitive damages; provided, that damages payable to a Third Party by an Indemnified Party shall constitute direct damages notwithstanding the characterization pay more than such Seller's Proportionate Share of such damages vis-à-vis the Third Partyclaim.

Limitation on Indemnification. Neither Seller nor Buyer shall be liable to the other in respect of any indemnification hereunder (a) Notwithstanding anything except to the contrary extent that the aggregate Losses of the party to be indemnified under this Agreement exceed Fifty Thousand Dollars ($50,000) (the "Basket Amount"), whereupon the party to be indemnified shall be entitled to indemnification from the other party hereunder for all Losses suffered or incurred by the party to be indemnified; provided, however, any Losses of Buyer in respect of (i) Seller's Taxes, (ii) Seller's failure to comply with any bulk transfer law in accordance with Section 6.2.9, or (iii) Buyer's compliance with its indemnification obligation set forth in clause (iii) in the proviso of the third sentence of Section 15.7 shall not be subject to the Basket Amount; and (b) for any Losses which exceed in the aggregate One Million Dollars ($1,000,000) (the "Cap"). The parties further agree that any Losses received by the Indemnified Party hereunder shall be net of any insurance proceeds received by the Indemnified Party with respect to the event giving rise to the Losses. The parties hereto acknowledge and agree that it is their intention that no standard of materiality or reasonableness shall be implied (by law, in equity or otherwise) in any representation, warranty, covenant or other agreement of Seller or Buyer contained in this AgreementAgreement or the other agreements executed by or on behalf of Seller or Buyer in connection herewith, neither Purchaser nor unless such a standard is expressly set forth in such representation, warranty, covenant or agreement. Following the Closing, the sole and exclusive remedy for Buyer or Seller for any claim arising out of a breach of any representation, warranty, covenant or other agreement contained herein or the other Buyer Documents or Seller Documents or otherwise arising out of or in connection with the transactions contemplated by this Agreement or the other Buyer Documents or Seller Documents, whether such claim is framed in tort, contract or otherwise, shall be liable for any a claim for indemnification pursuant to (i) this Section 8.2(a) or (ii) Section 8.3(a), as the case may be, unless and until the aggregate amount of Qualifying Losses which may be recovered from Seller or Purchaser, as the case may be, pursuant to such provisions of this Agreement equals or exceeds the Deductible, in which case Seller, on the one hand, or Purchaser, on the other hand, as the case may be, shall be liable only for the aggregate amount of Qualifying Losses in excess of the Deductible; provided, that the Qualifying Loss and Deductible limitations shall not apply to claims for indemnification arising out of breaches of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of indemnifiable Losses which may be recovered for indemnification pursuant to (x) Section 8.2(a) or (y) Section 8.3(a), as the case may be, shall be an amount equal to $42,500,000; provided, that such limitation on the maximum recovery amount shall not apply to claims for indemnification arising out of breaches of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of Losses which may be recovered from Seller pursuant to Section 8.2, on the one hand, and Purchaser pursuant to Section 8.3, on the other hand, in each case, shall not exceed an amount equal to the Final Purchase Price. Without limiting the foregoing, no Indemnified Party shall be entitled to indemnification under this Article VIII with respect to incidental damages, consequential damages, special damages, damages arising out of business interruption or lost profits, damages arising through the application of any multiplier to any Losses or punitive damages; provided, that damages payable to a Third Party by an Indemnified Party shall constitute direct damages notwithstanding the characterization of such damages vis-à-vis the Third Party12.

Limitation on Indemnification. Except for Claims arising by reason of fraud, willful misconduct or intentional misrepresentation, no indemnification payment by the Members with respect to any Claims otherwise payable under this Article 8 and arising out of or resulting from the causes enumerated in Section 8.1(b) shall be payable until such time as all such Claims shall aggregate to more than One Hundred Twenty-Five Thousand Dollars (a$125,000) Notwithstanding anything (without giving effect for purposes of such determination to any "Material Adverse Effect" or other materiality qualification set forth in any representation or warranty), after which time NSC and the contrary contained in this Agreement, neither Purchaser nor Seller Members shall be liable in full for any claim for indemnification pursuant to (i) all such Claims; provided that this Section 8.2(a) or (ii) Section 8.3(a), as the case may be, unless and until the aggregate amount of Qualifying Losses which may be recovered from Seller or Purchaser, as the case may be, pursuant to such provisions of this Agreement equals or exceeds the Deductible, in which case Seller, on the one hand, or Purchaser, on the other hand, as the case may be, shall be liable only for the aggregate amount of Qualifying Losses in excess of the Deductible; provided, that the Qualifying Loss and Deductible limitations 8.5 shall not apply to claims for indemnification arising out the obligations of breaches of NSC and the representations and warranties contained in Section 4.2(aMembers (i) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of indemnifiable Losses which may be recovered for indemnification pursuant to (x) Section 8.2(a) or (y) Section 8.3(a), as the case may be, shall be an amount equal to $42,500,000; provided, that such limitation on the maximum recovery amount shall not apply to claims for indemnification arising out of breaches of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of Losses which may be recovered from Seller pursuant to Section 8.24.11 of this Agreement (provided, on however, that if Buyer is reimbursed for any claim under Section 4.15 that a Receivable (other than an Aged Account) is not collectable, then Buyer shall re-assign such Receivable to NSC and NSC shall be entitled to enforce such Receivable as it may elect); and (ii) to deliver the one handPurchased Assets to Buyer free and clear of all security interests, encumbrances and Purchaser pursuant charges or restrictions of any kind, except those specifically agreed to Section 8.3by Buyer. Except for Claims arising by reason of fraud, on the other handwillful misconduct or intentional misrepresentation, in each caseno event shall the obligation of NSC and/or the Members to indemnify Buyer or its Affiliates for claims under Section 8.1(b) of this Agreement exceed Five Million Dollars ($5,000,000) in the aggregate. In addition, in no event shall not the individual indemnification obligations of a Member exceed an amount equal to (i) such Member's percentage interest in NSC as set forth on Schedule 4.3, multiplied by (ii) the Final Purchase Price. Without limiting the foregoing, no Indemnified Party shall be entitled to indemnification under this Article VIII with respect to incidental damages, consequential damages, special damages, damages arising out of business interruption or lost profits, damages arising through the application of any multiplier to any Losses or punitive damages; provided, that damages payable to a Third Party by an Indemnified Party shall constitute direct damages notwithstanding the characterization of such damages vis-à-vis the Third Party.

Limitation on Indemnification. No Seller shall be required to provide any indemnification under the provisions of this Article VII (a) Notwithstanding anything to the contrary contained in this Agreement, neither Purchaser nor Seller shall be liable for any claim for indemnification pursuant to (i) Section 8.2(a) or (ii) Section 8.3(a), as the case may be, unless and until the aggregate amount of Qualifying Losses which may be recovered from Seller or Purchaser, as the case may be, pursuant to such provisions of this Agreement equals or exceeds the Deductible, in which case Seller, on the one hand, or Purchaser, on the other hand, as the case may be, shall be liable only for the aggregate amount of Qualifying Losses in excess of the Deductible; provided, that Persons to whom the Qualifying Loss and Deductible limitations shall not apply to claims for indemnification arising out of breaches of Sellers owe such obligations hereunder exceed $200,000 (the representations and warranties contained in Section 4.2(a"Sellers' Basket") (excluding whereupon the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of indemnifiable Losses which may be recovered for indemnification pursuant to (x) Section 8.2(a) or (y) Section 8.3(a), as the case may be, shall be an amount equal to $42,500,000; provided, that such limitation on the maximum recovery amount shall not apply to claims for indemnification arising out of breaches of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of Losses which may be recovered from Seller pursuant to Section 8.2, on the one hand, and Purchaser pursuant to Section 8.3, on the other hand, in each case, shall not exceed an amount equal to the Final Purchase Price. Without limiting the foregoing, no Indemnified Party Parties shall be entitled to indemnification for the aggregate cumulative amount of all such Losses in excess of $200,000 from the Sellers or (b) after the Sellers have made aggregate indemnification payments hereunder of not less than $15,000,000. WRF shall not be required to provide any indemnification under the provisions of this Article VII (c) unless and until the aggregate Losses of the Persons to whom WRF owes such obligations hereunder exceed $200,000 (the "WRF Basket") whereupon the Indemnified Parties shall be entitled to indemnification for the aggregate cumulative amount of all such Losses in excess of $200,000 or (d) after WRF has made aggregate indemnification payments hereunder of not less than $15,000,000. Notwithstanding the foregoing, it is hereby expressly agreed that the following items shall not be counted towards the WRF Basket or the Sellers' Basket, as applicable, or the limitation on indemnification set forth in this Section 7.7: any payment made by WRF under this Article VIII VII in respect of a Loss arising from a claim of breach or nonperformance by WRF of its obligations to make the Contingent Payments pursuant to Section 2.2(f); any fees and expenses of any Accounting Firm paid by WRF or the Sellers in connection with the resolution of a dispute in the manner set forth in Sections 2.2(e) or 2.2(i); payments made by WRF to LMG pursuant to WRF's obligations set forth in Section 5.16; payments made by WRF or the Sellers pursuant to their respective obligations set forth in Section 5.21; or any indemnification payments by the Sellers hereunder in respect to incidental damages, consequential damages, special damages, damages of Losses incurred or sustained by WRF or its Affiliates arising out of business interruption of, or lost profitsattributable to, damages arising through or resulting from the application of any multiplier actions or circumstances set forth on Schedules 3.15(g) and 3.15(h) to any Losses or punitive damages; provided, that damages payable to a Third Party by an Indemnified Party shall constitute direct damages notwithstanding the characterization of such damages vis-à-vis the Third Partythis Agreement.

Limitation on Indemnification. (a) Notwithstanding anything the foregoing provisions of this Article X, except as provided in Section 10.05(b), (i) neither Party (which term shall, for the purposes of this Article X, treat Purchaser, CB Holding and Cxxxxxx Xxxxx’x as one Party) shall be responsible for any indemnifiable Losses suffered by the other as a result of a breach of any representation or warranty set forth in Article IV or Article V unless a claim therefor is asserted in writing on or prior to the contrary contained first anniversary of the Closing Date (other than a claim with respect to Section 4.16, which may be asserted on or prior to the second anniversary of the Closing Date, or a claim with respect to any failure of the Sellers to own the Assets or the Stock or to deliver the Assets and such Stock free and clear of Liens, other than in this Agreementthe case of Assets other than the Stock, Permitted Liens, and in the case of Stock, Liens for property taxes not yet due and payable, which may be asserted in writing at any time); (ii) neither Purchaser nor Seller Party shall be liable for any claim for indemnification pursuant to (i) Section 8.2(a) Losses suffered by the other as a result of a breach of any representation or (ii) Section 8.3(a), as the case may be, warranty set forth in Article IV or Article V unless and until the aggregate amount of Qualifying such Losses which may be recovered (together with all other indemnifiable Losses of such Party resulting from Seller or Purchaser, as the case may be, pursuant to such provisions of this Agreement equals or exceeds the Deductible, in which case Seller, on the one hand, or Purchaser, on the other handParty’s breach of its representations and warranties) exceeds $190,000 (the “Deductible”), as and then only to the case may be, shall be liable only for the aggregate amount extent of Qualifying Losses in excess of the Deductibleany such excess; provided, however, that the Qualifying Loss and Deductible limitations shall not apply to claims for indemnification arising out of breaches indemnifiable Losses relating to any failure of the representations Sellers to own the Assets or Stock or to deliver the Assets or such Stock free and warranties contained clear of Liens, other than in Section 4.2(a) (excluding the case of Assets other than the Stock, Permitted Liens, and in the case of Stock, Liens for property taxes not yet due and payable, which shall be subject to indemnification from the first sentence thereof), Section 4.14, Section 5.2(adollar; and (iii) the aggregate liability of either Party for Losses suffered by the other as a result of a breach of any representation or warranty set forth in Article IV or Article V shall in no event exceed fifteen percent (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of indemnifiable Losses which may be recovered for indemnification pursuant to (x15%) Section 8.2(a) or (y) Section 8.3(a), as the case may be, shall be an amount equal to $42,500,000; provided, that such limitation on the maximum recovery amount shall not apply to claims for indemnification arising out of breaches of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of Losses which may be recovered from Seller pursuant to Section 8.2, on the one hand, and Purchaser pursuant to Section 8.3, on the other hand, in each case, shall not exceed an amount equal to the Final Purchase Price. Without limiting the foregoing, no Indemnified Party shall be entitled to indemnification under this Article VIII with respect to incidental damages, consequential damages, special damages, damages arising out of business interruption or lost profits, damages arising through the application of any multiplier to any Losses or punitive damages; provided, that damages payable to a Third Party by an Indemnified Party shall constitute direct damages notwithstanding the characterization of such damages vis-à-vis the Third Party.

Limitation on Indemnification. (a) Notwithstanding anything to any of the contrary contained in this Agreementforegoing provisions, neither Purchaser nor Seller shall be liable for any claim for indemnification pursuant to (i) Section 8.2(aany Indemnifying Party shall be obligated to indemnify, defend or hold harmless any Indemnified Party with respect to the matters covered by Sections 9.2(i) or (ii) Section 8.3(a9.3(i), as only to the case may be, extent the aggregate amount of Losses incurred by such Indemnified Party exceeds $100,000,000 (the "Deductible"); provided further that no individual Loss or series of related Losses shall be so asserted unless and until the aggregate amount of Qualifying Losses which may that would be recovered from Seller or Purchaser, as the case may be, payable pursuant to each such provisions Loss or series of this Agreement equals related Losses exceeds an amount equal to $1,000,000, except for breach of Section 5.2(i), for which no individual Loss or exceeds the Deductible, in which case Seller, on the one hand, or Purchaser, on the other hand, as the case may be, series of related Losses shall be liable only for so asserted unless and until the aggregate amount that would be payable pursuant to each such Loss or series of Qualifying related Losses exceeds an amount equal to $10,000,000 (the "Mini-Basket") (it being understood that any such individual Losses or series of related Losses for amounts less than the Mini-Basket shall be ignored in excess determining whether the Deductible has been exceeded and thereafter), (ii) the maximum amount with respect to Investor for which Seller will be obligated to indemnify Indemnified Parties in the aggregate with respect to Section 9.2(i) will be $2,500,000,000 and (iii) the maximum amount with respect to Seller for which Investor will be obligated to indemnify Indemnified Parties in the aggregate with respect to Section 9.3(i) will be $2,500,000,000. Indemnification pursuant to this ARTICLE IX shall be the sole and exclusive remedy of the Deductible; provided, that Indemnified Parties at law or equity for the Qualifying Loss matters described in Sections 9.2(i) and Deductible limitations 9.3(i). This Section 9.7 shall not apply to claims for indemnification arising out of breaches based on common law fraud. The foregoing sentence is merely a recognition of the representations law of State of New York and warranties contained shall not be deemed to expand in Section 4.2(aany way the rights the parties have under New York law. For purposes of any indemnification hereunder, Losses shall be determined without regard to any materiality or Material Adverse Effect qualification set forth herein. Notwithstanding anything herein to the contrary, Losses shall be net of (i) any insurance, indemnity, contribution or other similar payment actually received by the Indemnified Parties in connection with the facts giving rise to the right of indemnification and (excluding ii) any Tax Benefit arising from the first sentence thereofincurrence of any such Losses, even if after the year in which payment pursuant to this ARTICLE IX is made (and to the extent of any Tax Benefit arising after the payment of any Losses pursuant to this ARTICLE IX, the Indemnified Party shall pay to the Indemnifying Party the amount of any such Tax Benefit), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum Indemnified Party shall seek full recovery under all insurance policies and indemnification provisions covering any Loss to the same extent as it would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of indemnifiable Losses which may be recovered for indemnification pursuant the recovery less the out-of-pocket costs to (x) Section 8.2(a) or (y) Section 8.3(a), as the case may be, obtain such recovery shall be an amount equal made promptly to $42,500,000; provided, that such limitation on the maximum recovery amount Indemnifying Party. In no event shall not apply to claims for indemnification arising out of breaches any Party or any of the representations and warranties contained Indemnified Parties be entitled to recover, or make a claim for, any amounts in Section 4.2(a) (excluding respect of consequential, incidental or indirect damages, lost profits or punitive damages, whether due to breach of representation, covenant or otherwise; provided that in the first sentence thereof)event of a breach by Investor of its representations, Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of Losses which may be recovered from Seller pursuant to Section 8.2, on the one hand, and Purchaser pursuant to Section 8.3, on the covenants or other hand, in each case, shall not exceed an amount equal obligations hereunder prior to the Final Purchase Price. Without limiting the foregoingClosing, no Indemnified Party Seller, its Affiliates and their respective officers, directors, employees, partners, members, agents and advisors shall be entitled to indemnification under this Article VIII with recover and make a claim against (A) Investor or (B) the FIM Investors for amounts in respect to of direct, consequential, incidental damages, consequential damages, special damages, or indirect damages arising out of business interruption or lost profits, damages arising through the application of any multiplier to any Losses or profits (but not punitive damages; providedprovided further, that in no event shall the amount of Losses for which Investor and the FIM Investors, collectively, are liable to Seller, its Affiliates or any other Person exceed a maximum amount of $1,000,000,000 in the aggregate and neither Seller, its Affiliates nor any other Person shall have the right to bring claims against Investor or the FIM Investors seeking damages payable to a Third Party by an Indemnified Party shall constitute direct damages notwithstanding the characterization in excess of such damages vis-à-vis amount; and provided further, that in no event shall any FIM Investor have liability to Seller, its Affiliates or any other Person in excess of the Third Partylimits set forth in the Equity Commitment Letter executed by such FIM Investor (which limits are hereby acknowledged by Seller).

Limitation on Indemnification. (a) Notwithstanding anything Anything in this Agreement to the contrary contained notwithstanding, except in this Agreement, neither Purchaser nor Seller shall be liable for any claim for indemnification pursuant to the case of fraud: (i) Section 8.2(a) the sole remedy of Tripath and Enable with respect to claims arising out of this Agreement or any of the transactions contemplated thereby, regardless of whether any such claim arises under contract, breach of warranty, tort or any other legal theory, shall be pursuant to this ARTICLE VIII; (ii) Section 8.3(a), as the case may be, unless and Indemnifying Stockholders shall not have any liability for Loss until the aggregate amount of Qualifying Losses such Loss for which may the Indemnifying Stockholders would be recovered from Seller or Purchaserliable exceeds $1million, as the case may beand then, pursuant to such provisions of this Agreement equals or exceeds the Deductible, in which case Seller, on the one hand, or Purchaser, on the other hand, as the case may be, liability shall be liable only for the aggregate total amount of Qualifying Losses such Loss in excess of $50,000; and (iii) the Deductible; providedIndemnifying Stockholders’ liability hereunder shall, that at the Qualifying Loss and Deductible limitations shall not apply to claims for indemnification arising out of breaches option of the representations and warranties contained Indemnifying Stockholder, be payable in Section 4.2(a) (excluding shares of the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount Surviving Corporation Common Stock issued to them under this Agreement valued at greater of indemnifiable Losses which may be recovered for indemnification pursuant to (x) Section 8.2(a) the value of the shares issued at the Closing, or the (y) Section 8.3(a), the closing price of the Surviving Corporation’s Common Stock as the case may be, shall be an amount equal to $42,500,000; provided, that such limitation reported on the maximum recovery amount shall not apply to claims OTC Bulletin Board or primary trading market for indemnification arising out of breaches of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of Losses which may be recovered from Seller pursuant to Section 8.2, such shares on the one hand, date of payment; and Purchaser pursuant to Section 8.3, on (iv) the other hand, in each case, aggregate liability hereunder shall not exceed an amount equal the number of shares of the Surviving Corporation’s stock issuable to the Final Purchase Price. Without limiting Indemnifying Stockholders at the foregoing, Closing Under no Indemnified Party shall circumstances will Tripath or Enable be entitled to indemnification be indemnified for special, consequential, indirect, punitive or similar damages, including lost profits, lost revenues, business interruptions, or loss of business opportunity or reputation. The Indemnifying Stockholders shall have no obligation under this Article ARTICLE VIII to indemnify Tripath or Enable with respect to incidental damages, consequential damages, special damages, damages arising out of business interruption or lost profits, damages arising through the application any breach of any multiplier to any Losses representation, warranty or punitive damages; providedcovenant expressly waived in writing before the Effective Time by both of Tripath and Enable. Any such expressly waived representation, that damages payable to a Third Party by an Indemnified Party warranty or covenant shall constitute direct damages notwithstanding the characterization be disregarded for all purposes of such damages vis-à-vis the Third Partythis ARTICLE VIII.

Limitation on Indemnification. (a) Notwithstanding anything to the contrary contained set forth in Section 11.1(a) of this Agreement or elsewhere in this Agreement, neither (a) Purchaser nor hereby expressly waives, relinquishes and releases any right or remedy available to it at law, in equity or under this Agreement, in the event the Closing occurs, to make a claim against Seller shall be liable for any claim for indemnification pursuant Losses that Purchaser may incur, or to (i) Section 8.2(a) or (ii) Section 8.3(a)rescind this Agreement and the transactions contemplated hereby, as the case may beresult of any of Seller’s representations or warranties in Articles II or VIII hereof or in any Seller Subtenant Estoppel or Seller Tenant Estoppel being untrue, unless inaccurate or incorrect in any material respect if Purchaser has actual knowledge that such representation or warranty was untrue, inaccurate or incorrect at the time of the Closing and until Purchaser nevertheless proceeds with the aggregate amount Closing hereunder, (b) Seller’s liability for the breach of Qualifying Losses which may be recovered from any representations or warranties of Seller contained in Articles II or Purchaser, as the case may be, VIII or pursuant to such provisions Section 11.1(a)(i) of this Agreement equals or exceeds the Deductible, in which case Seller, on the one hand, or Purchaser, on the other hand, as the case may beAgreement, shall be liable only for the aggregate amount of Qualifying Losses limited to claims in excess of $1,500,000 in the Deductibleaggregate; providedupon reaching such claims which exceed $1,500,000 in the aggregate, that Purchaser may pursue such claims against Seller for Losses resulting from Seller’s breach of any representations and warranties under this Agreement (including the Qualifying Loss first $1,500,000 of such claims) and Deductible limitations shall not apply to (c) Seller’s aggregate liability for all claims for indemnification arising out of any breach of such representations or warranties shall not exceed $62,100,000, except that there shall be no cap on Seller’s liability for such breaches of the representations and or warranties contained set forth in Section 4.2(a) (excluding the first sentence thereofSections 8.1(a), Section 4.14, Section 5.2(a) (excluding the first sentence thereofb), and Section 5.6. The maximum aggregate amount of indemnifiable Losses which may be recovered for indemnification pursuant to (x) Section 8.2(a) or (yc) Section 8.3(a)hereof or in any Seller Tenant Estoppel or Seller Subtenant Estoppel. As used in this paragraph, the term “actual knowledge” of Purchaser shall mean the actual knowledge of Txxx Will with no duty of inquiry or investigation. Notwithstanding anything to the contrary set forth in this Agreement, (a) Seller hereby expressly waives, relinquishes and releases any right or remedy available to it at law, in equity or under this Agreement, in the event the Closing occurs, to make a claim against Purchaser for Losses that Seller may incur, or to rescind this Agreement and the transactions contemplated hereby, as the case may beresult of any of Purchaser’s representations or warranties in Section 11.1(b)(i) being untrue, inaccurate or incorrect if Seller has actual knowledge (as defined in Section 8.3 hereof) that such representation or warranty was untrue, inaccurate or incorrect at the time of the Closing and Seller nevertheless proceeds with the Closing hereunder, and (b) Purchaser’s liability for breach of any representations or warranties of Purchaser contained in Article VIII hereof or pursuant to Section 11.1(b)(i) shall be an amount equal to $42,500,000; provided, that such limitation on the maximum recovery amount shall not apply limited to claims in excess of $1,500,000 in the aggregate. Upon reaching such claims which exceed $1,500,000 in the aggregate, Seller may pursue such claims against Purchaser for indemnification Losses resulting from Purchaser’s breach of any representations and warranties under this Agreement (including the first $1,500,000 of such claims). Purchaser’s aggregate liability for all claims arising out of any breach of such representations or warranties shall not exceed $62,100,000, except that there shall be no cap on Purchaser’s liability for breaches of the representations and or warranties contained set forth in Section 4.2(a) (excluding the first sentence thereofSections 8.2(a), Section 4.14, Section 5.2(a) (excluding the first sentence thereofb), and Section 5.6. The maximum aggregate amount of Losses which may be recovered from Seller pursuant to Section 8.2, on the one hand, and Purchaser pursuant to Section 8.3, on the other hand, in each case, shall not exceed an amount equal to the Final Purchase Price. Without limiting the foregoing, no Indemnified Party shall be entitled to indemnification under this Article VIII with respect to incidental damages, consequential damages, special damages, damages arising out of business interruption or lost profits, damages arising through the application of any multiplier to any Losses or punitive damages; provided, that damages payable to a Third Party by an Indemnified Party shall constitute direct damages notwithstanding the characterization of such damages vis-à-vis the Third Party(c) hereof.

Limitation on Indemnification. Notwithstanding any other provision hereof or of any applicable law, Buyer shall not be entitled to make a claim against the Seller as a result of a breach of representation, warranty or covenant which survives the Closing pursuant to Section 4 hereof against Seller unless such Claim, together with all other Claims of Buyer under Section 15.2 hereof, as well as all Claims under the Asset Purchase Agreement, exceed in the aggregate $200,000.00 (ain which case Buyer shall be entitled to the entirety of such Claims); provided, however, that (i) such $200,000.00 minimum threshold with respect to indemnifiable Damages shall not apply to any Claim for indemnification made by Buyer under this Agreement with respect to (w) the breach or inaccuracy of any of the representations or warranties contained in Section 4.1 (Organization, Standing in Authority), Section 4.2 (Title), Section 4.3 (Litigation) or Section 4.6 (Taxes), (x) the gross negligence, willful misconduct or fraud of Seller, (y) any Excluded Obligation, or (z) the failure of Seller to pay the amount of any adjustment to the Purchase Price in accordance with the provisions of this Agreement (the items described in the immediately preceding clauses (w), (x), (y) and (z), collectively, the "Seller Retained Liabilities" and (ii) except with respect to an indemnification obligation in respect to a Seller Retained Liability, Seller's indemnification obligation for Damages under Section 15.2 of this Agreement (including, without limitation, indemnification obligations with respect to environmental Claims under Section 4.22) shall not exceed in the aggregate (including Claims made under the Asset Purchase Agreement) $3,000,000.00. The amount of any indemnifiable Damages under Section 15.2 shall be reduced by (i) any insurance proceeds actually received with respect thereto (it being understood that after the satisfaction for indemnifiable Damages, hereunder, Buyer shall assign to Seller all of its right to unpaid insurance proceeds with respect to insurance coverage, but only to the extent applicable to such Damages), and (ii) the value of tax benefits actually obtained by Buyer, including without limitation by way of exclusion from income, deduction, credit or refund, or other taxable periods as a result of any adjustment. Notwithstanding anything to the contrary contained in this Agreement or in the Asset Purchase Agreement, neither Purchaser nor Seller shall be liable for any claim for indemnification pursuant to (i) Section 8.2(a) or (ii) Section 8.3(a), as the case may be, unless and until the aggregate amount of Qualifying Losses which may be recovered from Seller or Purchaser, as the case may be, pursuant to such provisions of this Agreement equals or exceeds the Deductible, in which case Seller, on the one hand, or Purchaser, on the other hand, as the case may be, shall be liable only for the aggregate amount of Qualifying Losses in excess of the Deductible; provided, that the Qualifying Loss and Deductible limitations shall not apply to claims for indemnification arising out of breaches of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of indemnifiable Losses which may be recovered for indemnification pursuant to (x) Section 8.2(a) or (y) Section 8.3(a), as the case may be, shall be an amount equal to $42,500,000; provided, that such limitation on the maximum recovery amount shall not apply to claims for indemnification arising out of breaches of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of Losses which may be recovered from Seller pursuant to Section 8.2, on the one hand, and Purchaser pursuant to Section 8.3, on the other hand, in each case, shall not exceed an amount equal to the Final Purchase Price. Without limiting the foregoing, no Indemnified Party Buyer shall be entitled to satisfy any Claim for indemnification under this Article VIII Agreement or the Asset Purchase Agreement, except any indemnification obligation with respect of a Seller Retained Liability which shall be paid in cash or applied as an offset to incidental damagesthe Purchase Price, consequential damages, special damages, damages arising out by applying and offsetting such indemnification obligation against the Three Million Dollars ($3,000,000.00) of business interruption or lost profits, damages arising through Preferred Membership Interests held in escrow pursuant to the application terms of any multiplier to any Losses or punitive damages; provided, that damages payable to a Third Party by an Indemnified Party shall constitute direct damages notwithstanding this Agreement and the characterization of such damages vis-à-vis the Third PartyAsset Purchase Agreement.

Limitation on Indemnification. (a) Notwithstanding anything Except as set forth herein, the following limitations shall apply to the contrary contained rights of indemnification set forth in this Agreement, neither Purchaser nor Seller shall be liable for any claim for indemnification pursuant to Section 9.1 and 9.2 hereof as applicable: (i) Section 8.2(athe liability of the Indemnitor shall be net of any insurance benefits received by Indemnitee (or in the case of indemnification by Shareholders, insurance benefits received by Corporation) and any tax benefits received by Indemnitee (or in the case of indemnification by Shareholder's, tax benefits received by Corporation) in respect of the loss giving rise to the Claim for indemnification; (ii) Section 8.3(a)any indemnification payments made by Buyer shall constitute a reduction, as and any indemnification payments made by Shareholders shall constitute an increase, of the case may be, unless and Purchase Price; (iii) no indemnification shall be required from Shareholders until the aggregate amount of Qualifying Buyer's Losses exceeds $200,000.00, and in the event that Buyer's damages exceed $200,000.00, in the aggregate, from 1 or more Claims, Shareholders' indemnity obligations will be for indemnification of only such amount of Buyer's damages in excess of $200,000.00, (and where such damages are with respect to one or more uncollected accounts receivable pursuant to Section 2.12, the amount of damages must also exceed the reserve established for accounts receivable on the books of Corporation at the Closing Date and in the event indemnification is paid to Buyer with respect to certain uncollected accounts receivable pursuant to Section 2.12, Buyer shall assign such accounts receivable to Shareholders); (iv) each Shareholder's indemnity obligation will be limited to the amount of Equity Payment received by such Shareholder; (v) each Shareholder will be solely responsible for his breach of or failure to perform under Sections 2.3, 4.6.C., 8.1 or 8.2 of this Agreement; (vi) no indemnification shall be required unless a Claim for indemnification is first made within 12 months of the Closing Date except for claims arising out of Section 2.2 or 2.3 hereof which may shall be recovered from Seller of unlimited duration; and (vii) the indemnifying parties shall not be liable for consequential damages except for attorney fees. In order to facilitate the payment of any indemnification owed to Buyer by Shareholders, Management Shareholders agree to escrow the Lason Shares they receive (Section 1.2.B.2 Shares") in accordance with Section 1.2.B.2 above (together with any Lason Shares received in addition to, in substitution of, or Purchaserin exchange for any Section 1.2.B.2 Shares (whether as a distribution in connection with any reorganization or reclassification, as the case may bestock dividend or otherwise)) with Seyburn, Kahn, Ginn, Bess, Deitxx xxx Serlxx, X.C., counsel to Lason, Inc., pursuant to such provisions an Escrow Agreement in the form of this Agreement equals Exhibit 9.8 hereto and to execute assignments separate from certificate in blank to enable a re-assignment of their Section 1.2.B.2 Shares in case Buyer determines to use any or exceeds the Deductible, in which case Seller, on the one hand, or Purchaser, on the other hand, as the case may be, shall be liable only for the aggregate amount of Qualifying Losses in excess all of the Deductible; provided, that the Qualifying Loss and Deductible limitations shall not apply to claims for indemnification arising out of breaches of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of indemnifiable Losses which may be recovered for indemnification pursuant to (x) Section 8.2(a) or (y) Section 8.3(a), 1.2.B.2 Shares as the case may be, shall be an amount equal to $42,500,000; provided, that such limitation on the maximum recovery amount shall not apply to claims for indemnification arising out of breaches of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of Losses which may be recovered from Seller pursuant to Section 8.2, on the one hand, and Purchaser pursuant to Section 8.3, on the other hand, in each case, shall not exceed an amount equal to the Final Purchase Price. Without limiting the foregoing, no Indemnified Party shall be entitled to indemnification under this Article VIII with respect to incidental damages, consequential damages, special damages, damages arising out of business interruption or lost profits, damages arising through the application of any multiplier to any Losses or punitive damages; provided, that damages payable to a Third Party by an Indemnified Party shall constitute direct damages notwithstanding the characterization of such damages vis-à-vis the Third Party.payment

Limitation on Indemnification. (a) Notwithstanding anything to the contrary contained in any other provision of this AgreementArticle VII, neither Purchaser nor Seller shall be liable for any claim except for indemnification pursuant to (i) Section 8.2(a) or (ii) Section 8.3(a7.2(a)(2), as the case may be, unless and until the aggregate amount of Qualifying Losses which may be recovered from Seller or Purchaser, as the case may be, pursuant to such provisions of this Agreement equals or exceeds the Deductible, in which case Seller, on the one hand, or Purchaser, on the other hand, as the case may be, shall be liable only for the aggregate amount of Qualifying Losses in excess of the Deductible; provided, that the Qualifying Loss and Deductible limitations shall not apply to claims for indemnification arising out of breaches of pursuant to the representations and warranties contained in Section 4.2(a3.1 and in cases of fraud or willful misconduct, (i) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding maximum amount for which either the first sentence thereof), and Section 5.6. The maximum aggregate amount of indemnifiable Losses which may Buyer or Sellers shall be recovered for entitled to indemnification pursuant to (x) Section 8.2(a) or (y) Section 8.3(a), as from the case may be, other party shall be an amount equal to $42,500,000; provided, that such limitation on the maximum recovery amount shall not apply to claims for indemnification arising out of breaches 20% of the representations aggregate Purchase Price (which aggregate Purchase Price shall include, for purposes of this Section, any amounts payable to Sellers pursuant to Sections 1.5 and warranties contained in 1.6 hereof and the value of any consideration given to Optionees pursuant to Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof1.9), and each individual Seller’s liability shall be limited to 20% of its pro rata share of the aggregate Purchase Price (including potential payments under Sections 1.5 and 1.6 and the value of any consideration given to Optionees pursuant to Section 5.61.9) actually received by the Seller; and (ii) neither the Buyer or Sellers shall be liable under this Article VII unless and until the aggregate Claims for which they or it would otherwise be liable under this Article VII shall exceed $200,000 (at which point the Indemnifying Party (as defined below) shall become liable for the aggregate Claims under this Article VII, and not just amounts in excess of $200,000). The maximum aggregate amount of Losses which may be recovered from No Seller shall have any liability for Claims against such Seller pursuant to Section 8.2, on 7.2(a)(2) or by reason of a misrepresentation by such Seller under Section 3.1 hereof in an aggregate amount (after taking into account all other Claims that shall be made against such Seller under this Article VII) in excess of 100% of its pro rata share of the one hand, aggregate Purchase Price (including potential payments under Sections 1.5 and Purchaser 1.6 and the value of any consideration given to Optionees pursuant to Section 8.31.9) actually received by the Seller. Except for covenants to be performed after the Closing and actions grounded in fraud or willful misconduct, on the other handparties hereto acknowledge and agree that in the event the Closing occurs, the indemnification provisions in each case, this Article VII shall not exceed an amount equal be the exclusive remedy of Buyer and Sellers with respect to the Final Purchase Pricetransactions contemplated by this Agreement. Without limiting With respect to a covenant to be performed after the foregoingClosing and actions grounded in fraud and willful misconduct, no Indemnified Party (i) the right of a party to be indemnified and held harmless pursuant to the indemnification provisions in this Agreement shall be entitled in addition to indemnification and cumulative of any other remedy of such party at law or in equity and (ii) no such party shall, by exercising any remedy available to it under this Article VIII with respect VII, be deemed to incidental damageshave elected such remedy exclusively or to have waived any other remedy, consequential damageswhether at law or in equity, special damagesavailable to it. In the event that any Earnout Shares shall be earned by the Sellers pursuant to Section 1.6, damages arising out Buyer agrees that any indemnification obligation on the part of business interruption the Sellers under this Article VII may be satisfied, in whole or lost profitsin part based on the number of Earnout Shares actually earned, damages arising through the application of any multiplier to any Losses or punitive damages; provided, by directing that damages payable to a Third Party by Buyer retain and cancel an Indemnified Party shall constitute direct damages notwithstanding the characterization appropriate number of such damages vis-à-vis Earnout Shares as an offset against a validly made Claim. If a Seller shall direct Buyer to offset in this manner, the Third PartyEarnout Shares shall be valued at the Average Price. All shares of CyberGuard Common Stock issued as part of the aggregate Purchase Price under this Agreement shall be valued at the Average Price for purposes of applying the limitations set forth in this Section 7.4.

Limitation on Indemnification. (a) Notwithstanding anything The following limitations shall apply to the contrary contained rights of indemnification set forth in this AgreementSections 11.1 and 11.2 hereof, neither Purchaser nor Seller shall be liable for any claim for indemnification pursuant to as applicable: (i) Section 8.2(athe liability of the Indemnitor shall be net of any insurance benefits received by Indemnitee (or, in the case of indemnification by Shareholders, insurance benefits received by Buyer) or and any tax benefits received by Indemnitee (or, in the case of indemnification by Shareholders, tax benefits received by Buyer) in respect of the loss giving rise to the Claim for indemnification; (ii) Section 8.3(a)any indemnification payments made by Seller or Shareholders shall constitute a reduction, and any indemnification payments made by Buyer shall constitute an increase, of the Purchase Price; (iii) the amount of damages claimed as a subject of indemnification shall be limited to the case may be, unless actual dollar amount of such losses and shall not include any multiple of earnings or consequential damages suffered by the Indemnitee except for attorneys fees and costs; (iv) no indemnification shall be required from Seller or Shareholders until the aggregate amount of Qualifying Losses which may be recovered from Seller or Purchaser, as the case may be, pursuant to such provisions Buyer's damages (determined in accordance with clause (i) of this Agreement equals or Section 11.8) exceeds the Deductible, in which case Seller, on the one hand, or Purchaser, on the other hand, as the case may be, shall be liable $250,000 and then only for the aggregate amount of Qualifying Losses in excess of $250,000; and (v) the Deductibleliability of each the Shareholders shall be limited, in any one instance, to one-third ( 1/3) of the finally determined amount of the Claim, and, in the aggregate, to one-third ( 1/3) of the Purchase Price. Each Shareholder may, at his option, satisfy any indemnification obligation hereunder by surrendering Lason Shares valued at the price such shares were issued to such Shareholder; provided, however, that the Qualifying Loss and Deductible foregoing limitations shall not apply on indemnification are agreed to claims for indemnification be inapplicable to Claims arising out of breaches any of the representations and warranties contained Excluded Liabilities, as that term is defined in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of indemnifiable Losses which may be recovered for indemnification pursuant to (x) Section 8.2(a) or (y) Section 8.3(a), as the case may be, shall be an amount equal to $42,500,000; provided, that such limitation on the maximum recovery amount shall not apply to claims for indemnification arising out of breaches of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of Losses which may be recovered from Seller pursuant to Section 8.2, on the one hand, and Purchaser pursuant to Section 8.3, on the other hand, in each case, shall not exceed an amount equal to the Final Purchase Price. Without limiting the foregoing, no Indemnified Party shall be entitled to indemnification under this Article VIII with respect to incidental damages, consequential damages, special damages, damages arising out of business interruption or lost profits, damages arising through the application of any multiplier to any Losses or punitive damages; provided, that damages payable to a Third Party by an Indemnified Party shall constitute direct damages notwithstanding the characterization of such damages vis-à-vis the Third Party3.2 hereof.

Limitation on Indemnification. Notwithstanding anything to the ----------------------------- contrary contained in this Agreement, (a) the aggregate liability of the Shareholder for any and all Losses incurred by Buyer (and all related Indemnitees) and for which Buyer (and all related Indemnitees) would otherwise be entitled to indemnification hereunder, except with respect to Losses arising from a breach of the representations and warranties contained in Sections 4.1, 4.3, 4.7, 4.12 and 4.25 and/or the covenants of the Shareholder contained in Section 6.2(a),(b) and (c) hereof, shall not exceed $3,200,000 and (b) the aggregate liability of the Shareholder for any and all Losses incurred by Buyer (and all related Indemnitees) arising from a breach of the representations and warranties contained in Sections 4.1, 4.3, 4.7, 4.12 and 4.25 and/or the covenants of the Shareholder contained in Section 6.2(a),(b) and (c) hereof and for which Buyer (and all related Indemnitees) would otherwise be entitled to indemnification hereunder shall not exceed the Closing Payment plus any Contingent Payment(s) actually paid to the Shareholder less the amount of any Losses actually indemnified pursuant to the preceding clause (a). Notwithstanding anything to the contrary contained in this Agreement, neither Purchaser nor Seller (A) the aggregate liability of Buyer for any and all Losses incurred by the Shareholder (and all related Indemnitees) and for which the Shareholder (and all related Indemnitees) would otherwise be entitled to indemnification hereunder, except with respect to Losses arising from a breach of Sections 3.4, 10.2(a)(ii) and (iii) and 10.2(b) hereof, shall not exceed $2,000,000 and (B) the aggregate liability of Buyer for any and all Losses incurred by the Shareholder (and all related Indemnitees) arising from a breach of Sections 10.2(a)(ii) and (iii) and 10.2(b) hereof and for which the Shareholder (and all related Indemnitees) would otherwise be entitled to indemnification hereunder shall not exceed $1,500,000. A breach of Section 3.4 hereof shall be liable fully indemnifiable hereunder, and shall not be subject to, or covered by, the foregoing limitation on liability. The Shareholder, on the one hand, and Buyer, on the other hand, shall be obligated to indemnify, defend and hold harmless any Indemnitee pursuant to this Section 10 with respect to any Loss incurred by such Indemnitee only (i) if the amount of Losses arising out of or resulting from an individual claim (or series of related or similar claims) is equal to or greater than $7,500 and (ii) to the extent that the aggregate amount of all Losses for any claim all claims made by Indemnitees shall exceed $200,000, in which case only the excess over $200,000 shall be subject to indemnification; provided, however, that the foregoing -------- ------- $200,000 limitation shall not apply in respect of claims arising out of or resulting from (x) a breach of Sections 4.1, 4.3, 4.28 or 5.5 hereof or (y) a breach by Buyer of Section 3.4 or for indemnification pursuant to Sections 10.2(a) (i) Section 8.2(aii) or (iiiii) or Section 8.3(a10.2(b). In no event shall the Shareholder or Buyer, as the case may be, unless and until the aggregate amount of Qualifying Losses which may be recovered from Seller or Purchaser, as the case may be, pursuant to such provisions of this Agreement equals or exceeds the Deductible, in which case Seller, on the one hand, or Purchaser, on the other hand, as the case may be, shall be liable only for the aggregate amount of Qualifying Losses in excess of the Deductible; provided, that the Qualifying Loss and Deductible limitations shall not apply to claims for indemnification arising out of breaches of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of indemnifiable Losses which may be recovered for indemnification pursuant to (x) Section 8.2(a) or (y) Section 8.3(a), as the case may be, shall be an amount equal to $42,500,000; provided, that such limitation on the maximum recovery amount shall not apply to claims for indemnification arising out of breaches of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of Losses which may be recovered from Seller pursuant to Section 8.2, on the one hand, and Purchaser pursuant to Section 8.3, on the other hand, in each case, shall not exceed an amount equal to the Final Purchase Price. Without limiting the foregoing, no Indemnified Party shall be entitled to indemnification under this Article VIII with respect to incidental damages, consequential damages, special damages, damages arising out of business interruption or lost profits, damages arising through the application of any multiplier to any Losses Indemnitee hereunder for special, indirect, incidental or punitive damages; provided, that damages payable to a Third Party by an Indemnified Party shall constitute direct damages notwithstanding the characterization of such damages vis-à-vis the Third Party.

Limitation on Indemnification. (a) Notwithstanding anything The Indemnity Holdback Shares are the source from which any and all potential claims for indemnification by the BCC Parties and any other Indemnitee other than the Stockholders under this Article 11 shall be satisfied and the Escrow Stockholders shall not have any liability for indemnity claims hereunder other than the Indemnity Holdback Shares, except (i) to the contrary contained extent otherwise provided in this AgreementSection 12.5 and Article 13 below, neither Purchaser nor Seller (ii) with respect to claims for indemnification under Section 11.5 hereof, for which Damages shall be liable for paid in cash by the BCC Parties in an amount not to exceed the Merger Consideration received by each Escrow Stockholder, (iii) any claim for indemnification pursuant to (i) Section 8.2(a) based on a breach of a representation, warranty or (ii) Section 8.3(a), as the case may be, unless and until the aggregate amount of Qualifying Losses which may be recovered from Seller or Purchaser, as the case may be, pursuant to such provisions of this Agreement equals or exceeds the Deductible, in which case Seller, on the one hand, or Purchaser, on the other hand, as the case may be, shall be liable only for the aggregate amount of Qualifying Losses in excess of the Deductible; provided, that the Qualifying Loss and Deductible limitations shall not apply to claims for indemnification arising out of breaches of the representations and warranties covenant contained in Section 4.2(a4.18 or Section 4.25 for which Damages shall be paid in cash by the Escrow Stockholders (without regard to the Indemnity Holdback Shares) (excluding in an amount not to exceed the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof)aggregate Merger Consideration received by Escrow Stockholders, and Section 5.6(iv) any claim involving the assertion of an intentional fraud, fraud in the inducement or intentional misrepresentation or breach, for which Damages shall be paid in cash by the Escrow Stockholders (without regard to the Indemnity Holdback Shares) in an amount not to exceed the aggregate Merger Consideration received by Escrow Stockholders. The maximum aggregate amount indemnification obligations of indemnifiable Losses which may be recovered for indemnification the Escrow Stockholders pursuant to (x) Section 8.2(a) or (y) Section 8.3(a), as the case may be, Sections 11.1 through 11.4 above shall be an amount equal to $42,500,000; provided, that such limitation on the maximum recovery amount shall not apply to claims for indemnification arising out of breaches satisfied through a reduction of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount Merger Consideration effected by cancellation or other disposition by BCC of Losses which may be recovered from Seller Indemnity Holdback Shares pursuant to Section 8.2, on the one hand, and Purchaser pursuant to Section 8.3, on the other hand, in each case, shall not exceed an amount equal to the Final Purchase Price11.7 of this Agreement. Without limiting the foregoing, no Indemnified Party shall be entitled to For purposes of any indemnification claim under this Article VIII with respect to incidental damages11, consequential damages, special damages, damages arising out of business interruption or lost profits, damages arising through the application of any multiplier to any Losses or punitive damages; provided, that damages payable to a Third Party by an Indemnified Party Indemnity Holdback Shares shall constitute direct damages notwithstanding the characterization of such damages vis-à-vis the Third Partybe valued at $6.50 per share.

Limitation on Indemnification. (a) Notwithstanding anything to the contrary contained set forth in Section 11.1(a) of this Agreement or elsewhere in this Agreement, neither (a) Purchaser nor hereby expressly waives, relinquishes and releases any right or remedy available to it at law, in equity or under this Agreement, in the event the Closing occurs, to make a claim against Seller shall be liable for any claim for indemnification pursuant Losses that Purchaser may incur, or to (i) Section 8.2(a) or (ii) Section 8.3(a)rescind this Agreement and the transactions contemplated hereby, as the case may beresult of any of Seller's representations or warranties in Articles II or VIII hereof or in any Seller Subtenant Estoppel or Seller Tenant Estoppel being untrue, unless inaccurate or incorrect in any material respect if Purchaser has actual knowledge that such representation or warranty was untrue, inaccurate or incorrect at the time of the Closing and until Purchaser nevertheless proceeds with the aggregate amount Closing hereunder, (b) Seller's liability for the breach of Qualifying Losses which may be recovered from any representations or warranties of Seller contained in Articles II or Purchaser, as the case may be, VIII or pursuant to such provisions Section 11.1(a)(i) of this Agreement equals or exceeds the Deductible, in which case Seller, on the one hand, or Purchaser, on the other hand, as the case may beAgreement, shall be liable only for the aggregate amount of Qualifying Losses limited to claims in excess of $1,500,000 in the Deductibleaggregate; providedupon reaching such claims which exceed $1,500,000 in the aggregate, that Purchaser may pursue such claims against Seller for Losses resulting from Seller's breach of any representations and warranties under this Agreement (including the Qualifying Loss first $1,500,000 of such claims) and Deductible limitations shall not apply to (c) Seller's aggregate liability for all claims for indemnification arising out of any breach of such representations or warranties shall not exceed $62,100,000, except that there shall be no cap on Seller's liability for such breaches of the representations and or warranties contained set forth in Section 4.2(a) (excluding the first sentence thereofSections 8.1(a), Section 4.14, Section 5.2(a) (excluding the first sentence thereofb), and Section 5.6. The maximum aggregate amount of indemnifiable Losses which may be recovered for indemnification pursuant to (x) Section 8.2(a) or (yc) Section 8.3(a)hereof or in any Seller Tenant Estoppel or Seller Subtenant Estoppel. As used in this paragraph, the term "actual knowledge" of Purchaser shall mean the actual knowledge of Xxxx Will with no duty of inquiry or investigation. Notwithstanding anything to the contrary set forth in this Agreement, (a) Seller hereby expressly waives, relinquishes and releases any right or remedy available to it at law, in equity or under this Agreement, in the event the Closing occurs, to make a claim against Purchaser for Losses that Seller may incur, or to rescind this Agreement and the transactions contemplated hereby, as the case may beresult of any of Purchaser's representations or warranties in Section 11.1(b)(i) being untrue, inaccurate or incorrect if Seller has actual knowledge (as defined in Section 8.3 hereof) that such representation or warranty was untrue, inaccurate or incorrect at the time of the Closing and Seller nevertheless proceeds with the Closing hereunder, and (b) Purchaser's liability for breach of any representations or warranties of Purchaser contained in Article VIII hereof or pursuant to Section 11.1(b)(i) shall be an amount equal to $42,500,000; provided, that such limitation on the maximum recovery amount shall not apply limited to claims in excess of $1,500,000 in the aggregate. Upon reaching such claims which exceed $1,500,000 in the aggregate, Seller may pursue such claims against Purchaser for indemnification Losses resulting from Purchaser's breach of any representations and warranties under this Agreement (including the first $1,500,000 of such claims). Purchaser's aggregate liability for all claims arising out of any breach of such representations or warranties shall not exceed $62,100,000, except that there shall be no cap on Purchaser's liability for breaches of the representations and or warranties contained set forth in Section 4.2(a) (excluding the first sentence thereofSections 8.2(a), Section 4.14, Section 5.2(a) (excluding the first sentence thereofb), and Section 5.6. The maximum aggregate amount of Losses which may be recovered from Seller pursuant to Section 8.2, on the one hand, and Purchaser pursuant to Section 8.3, on the other hand, in each case, shall not exceed an amount equal to the Final Purchase Price. Without limiting the foregoing, no Indemnified Party shall be entitled to indemnification under this Article VIII with respect to incidental damages, consequential damages, special damages, damages arising out of business interruption or lost profits, damages arising through the application of any multiplier to any Losses or punitive damages; provided, that damages payable to a Third Party by an Indemnified Party shall constitute direct damages notwithstanding the characterization of such damages vis-à-vis the Third Party(c) hereof.

Limitation on Indemnification. (ai) Notwithstanding anything Subject to Section 6(d)(ii), and Section 6(d)(iii) below, (x) (A) Buyer shall not be entitled to recover for or assert any claim for indemnification under Section 6(b)(i) (other than with respect to Fundamental Representations), and (B) Seller shall not be entitled to recover for or assert any claim for indemnification under Section 6(c)(i) (other than with respect to Buyer Fundamental Representations), unless, in any such case, the Losses incurred by the Buyer or the Seller, as applicable, arising from such claim (or related claim(s) arising from the same or substantially similar set of facts and circumstances) exceed $15,000 (the “Mini-Basket”); any such claim (or related claim(s) arising from the same or substantially similar set of facts and circumstances) that does not result in Losses incurred by the Buyer or the Seller, as applicable, in excess of the Mini-Basket will not count toward determining whether the Deductible has been satisfied; (y) Buyer shall not be liable for any claim for indemnification pursuant Section 6(c)(i) (other than with respect to Buyer Fundamental Representations) unless and until the aggregate amount of Losses that may be recovered from Buyer under Section 6(c)(i) (other than with respect to Buyer Fundamental Representations) exceeds $327,500 (the “Deductible”), in which case Buyer shall be liable for all such Losses to the contrary contained extent in excess of the Deductible, subject to the other provisions in this Agreement, neither Purchaser nor Section 6 and (z) Seller shall not be liable for any claim for indemnification pursuant to Section 6(b)(i) (iother than with respect to Fundamental Representations) Section 8.2(a) or (ii) Section 8.3(a), as the case may be, unless and until the aggregate amount of Qualifying Losses which that may be recovered from Seller or Purchaser, as the case may be, pursuant under Section 6(b)(i) (other than with respect to such provisions of this Agreement equals or Fundamental Representations) exceeds the Deductible, in which case Seller, on the one hand, or Purchaser, on the other hand, as the case may be, Seller shall be liable only for all such Losses to the aggregate amount of Qualifying Losses extent in excess of the Deductible; provided, that the Qualifying Loss and Deductible limitations shall not apply subject to claims for indemnification arising out of breaches of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of indemnifiable Losses which may be recovered for indemnification pursuant to (x) Section 8.2(a) or (y) Section 8.3(a), as the case may be, shall be an amount equal to $42,500,000; provided, that such limitation on the maximum recovery amount shall not apply to claims for indemnification arising out of breaches of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of Losses which may be recovered from Seller pursuant to Section 8.2, on the one hand, and Purchaser pursuant to Section 8.3, on the other hand, provisions in each case, shall not exceed an amount equal to the Final Purchase Price. Without limiting the foregoing, no Indemnified Party shall be entitled to indemnification under this Article VIII with respect to incidental damages, consequential damages, special damages, damages arising out of business interruption or lost profits, damages arising through the application of any multiplier to any Losses or punitive damages; provided, that damages payable to a Third Party by an Indemnified Party shall constitute direct damages notwithstanding the characterization of such damages vis-à-vis the Third PartySection 6.

Limitation on Indemnification. (a) Notwithstanding anything to the contrary contained in this Agreement, neither Purchaser nor Seller Seller, as the case may be, shall be liable for any claim for indemnification pursuant to (i) Section 8.2(a) or (ii) Section 8.3(a), as the case may be, unless and until the aggregate amount of Qualifying Losses which may be recovered from Seller or Purchaser, as the case may be, pursuant exceeds an amount equal to such provisions one percent (1%) of this Agreement equals or exceeds the Deductible, Initial Purchase Price in which case Seller, on the one hand, Seller or Purchaser, on the other hand, as the case may be, shall be liable for all such Losses from the first dollar; provided, that (a) Seller or Purchaser, as the case may be, shall only be liable for the aggregate amount any individual Loss or group of Qualifying related Losses in excess of the Deductible; provided, that the Qualifying Loss and Deductible limitations shall not apply to claims for indemnification arising out of breaches of the representations and warranties contained in Section 4.2(aTwenty-Five Thousand Dollars ($25,000) (excluding such Loss or Losses, a “Qualifying Loss”) and (b) the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of indemnifiable Losses which may be recovered for indemnification pursuant to (x) Section 8.2(a) or (y) Section 8.3(a), as the case may be, shall be an amount equal to $42,500,000; providedten percent (10%) of the Adjusted Initial Purchase Price. Notwithstanding anything herein to the contrary, that such limitation on the maximum recovery amount limitations set forth in the first sentence of this Section 8.4 shall not apply to claims for Losses incurred by (i) any Purchaser Indemnitee in connection with or arising from any matter with respect to which any Purchaser Indemnitee is entitled to indemnification arising out of breaches of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of Losses which may be recovered from Seller pursuant to Section 8.28.2(b) or Section 8.2(c), on as to which the one hand, and Purchaser pursuant to Section 8.3, on the other hand, in each case, maximum amount of indemnifiable Losses shall not exceed be an amount equal to the Final Adjusted Initial Purchase Price. Without limiting the foregoing, or Section 8.2(d), as to which no Indemnified Party limitation shall be apply, or (ii) any Seller Indemnitee in connection with or arising from any matter with respect to which any Seller Indemnitee is entitled to indemnification under this Article VIII with respect Section 8.3(b) or Section 8.3(c), as to incidental damageswhich the maximum amount of indemnifiable Losses shall be an amount equal to the Adjusted Initial Purchase Price, consequential damagesor Section 8.3(d), special damages, damages arising out of business interruption or lost profits, damages arising through the application of any multiplier as to any Losses or punitive damages; provided, that damages payable to a Third Party by an Indemnified Party which no limitation shall constitute direct damages notwithstanding the characterization of such damages vis-à-vis the Third Party.apply. 

Limitation on Indemnification. No Seller shall be required to ----------------------------- provide any indemnification under the provisions of this Article VII (a) unless and until the aggregate Losses of the Buyer Indemnified Parties hereunder exceed $15 million whereupon the Buyer Indemnified Parties shall be entitled only to indemnification from such Seller in an amount (i), in the case of Direct Seller Losses, equal to the amount by which such Losses exceed $15 million and (ii), in the case of all other Losses, an amount equal to the product of the aggregate cumulative amount of all such Losses in excess of $15 million multiplied by such Seller's Purchase Price Percentage with respect to the Earnout Payments or (b) after such Seller has made aggregate indemnification payments hereunder in an amount, in the case of Direct Seller Losses, equal to $500 million minus the aggregate amount of all indemnification payments made by the Sellers hereunder and, in the case of all other Losses, an amount equal to the product of $500 million multiplied times such Seller's Purchase Price Percentage with respect to the Earnout Payments. Notwithstanding anything to the contrary contained set forth in this Agreementthe preceding sentence or in Section 7.1, neither Purchaser nor Seller shall be liable for any claim for indemnification pursuant to (i) Losses incurred by Buyer as a result of any failure of any Seller's representations with respect to such Seller's title to the Equity Interests in the Companies set forth in Section 8.2(a3.1(b) or with respect to Taxes or ERISA matters set forth in Sections 3.11 or 3.14 to be true at the date hereof or on the Closing Date shall not be subject to the limitations set forth in this Section 7.7, (ii) Section 8.3(a)Direct Seller Losses relating to any of the Companies or PCM GP as opposed to the capacity, title, qualification or compliance of, or action or inaction by, a Seller who is an individual acting in his individual capacity shall not be treated as Direct Seller Losses but as all other Losses and (iii) if the case may beamount of Loss and Direct Seller Loss payable by a particular Seller pursuant to this Article VII (other than clause (b)(i) above) would exceed the portion of the Purchase Price paid to such Seller, such Seller shall not be responsible for the amount of any further Losses or Direct Seller Losses in excess of the portion of the Purchase Price paid to such Seller pursuant to this Article VII (other than clause (b)(i) above) and the remaining Sellers shall, subject to their limitations, be responsible for any such excess Losses or Direct Seller Losses in the proportion that their Purchase Price Percentage with respect to the Earnout Payments bears to the sum of the Purchase Price Percentages with respect to the Earnout Payments of such remaining Sellers. Buyer shall not be required to provide any indemnification under the provisions of this Article VII (x) unless and until the aggregate amount Losses of Qualifying Losses which may be recovered from the Seller or Purchaser, as Indemnified Parties exceed $15 million whereupon the case may be, pursuant to such provisions of this Agreement equals or exceeds the Deductible, in which case Seller, on the one hand, or Purchaser, on the other hand, as the case may be, Seller Indemnified Parties shall be liable entitled only to indemnification for the aggregate cumulative amount of Qualifying all such Losses in excess of the Deductible; provided, that the Qualifying Loss and Deductible limitations shall not apply to claims for indemnification arising out of breaches of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of indemnifiable Losses which may be recovered for indemnification pursuant to (x) Section 8.2(a) $15 million or (y) Section 8.3(a), as after Buyer has made aggregate indemnification payments hereunder of not less than $500 million. To the case may be, shall be an amount equal extent Buyer waives or fails to $42,500,000; provided, that such limitation on the maximum recovery amount shall not apply to claims for indemnification arising out of breaches of the representations and warranties contained in Section 4.2(a) (excluding the first sentence thereof), Section 4.14, Section 5.2(a) (excluding the first sentence thereof), and Section 5.6. The maximum aggregate amount of Losses which may be recovered from Seller pursuant to Section 8.2, on the one hand, and Purchaser pursuant to Section 8.3, on the other hand, in each case, shall not exceed an amount equal to the Final Purchase Price. Without limiting the foregoing, no Indemnified Party shall be entitled pursue its rights to indemnification under this Article VIII from or against any Management Seller with respect to incidental damagesany particular claim, consequential damagesit shall also waive its right to indemnification with respect to such claim from any Xxxxxxx Seller. For purposes of the foregoing sentence, special damages, damages arising out of business interruption a good faith settlement shall not be treated as a waiver or lost profits, damages arising through the application of any multiplier failure to any Losses or punitive damages; provided, that damages payable perform if made available to a Third Party by an Indemnified Party shall constitute direct damages notwithstanding the characterization of such damages vis-à-vis the Third Partyeach Xxxxxxx Seller.