Common use of Limitations on Indemnification Clause in Contracts

Limitations on Indemnification. 4.5.1 In the event that a selling holder of Registrable Securities (the “Indemnifying Holder”) is obligated to pay an amount to the Company pursuant to Section 4.2 (the “Indemnification Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount or, in the case of a revised or updated letter, such additional amount to the Company, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 In (a) Except in the event that case of fraud or intentional misrepresentation, the Indemnified Parties, as a selling holder of Registrable Securities group, may not recover any Losses pursuant to an indemnification claim under Section 8.2(a)(i) unless and until the Indemnified Parties, as a group, shall have paid, incurred, suffered or sustained at least $1,500,000 in Losses in the aggregate (the “Indemnifying Holder”) is obligated to pay an amount to the Company pursuant to Section 4.2 (the “Indemnification Deductible Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent Indemnified Parties shall release such amount orbe entitled to recover only those Losses in excess of the Deductible Amount that are paid, incurred, suffered or sustained by the Indemnified Parties as a group. (b) Subject to Section 8.3(c), except in the case of a revised fraud or updated letterintentional misrepresentation, such additional (i) the Company Indemnitors’ indemnity obligations for Losses under Sections 8.1(a)(i)-(vi), (viii)-(x) will be limited, in the aggregate, to an amount equal to the CompanyEscrow Amount, orplus any interest earned thereon, less any amounts previously paid out of the Escrow Fund to satisfy the Losses claimed under Sections 8.1(a)(i)-(vi), (viii)-(x) (and for a particular Company Indemnitor, to its Pro Rata Portion thereof) (the “Cap”). For the avoidance of doubt, the Cap shall apply even after the expiration of the Escrow Period. (bc) a letter Subject to Section 8.3(c) and except in the case of fraud or intentional misrepresentation, the Indemnified Parties’ sole and exclusive sources of recovery for indemnification claims under Section 8.2(a)(i) shall be recourse against (i) the cash held in the Escrow Fund and (ii) the R&W Policy. (d) Subject to the limitations set forth in Section 8.3, the Indemnified Parties shall (i) be entitled to bring indemnification claims directly against the Company Stockholders in their roles as Company Indemnitors and (ii) be permitted to recover Losses directly from the Company’s counsel indicating Company Stockholders for indemnification claims pursuant to Sections 8.2(a)(ii) through 8.2(a)(x), and Section 8.2(a)(i) only with respect to claims for fraud or intentional misrepresentation, if and only to the extent that (x) the Escrow Fund is no longer available and (y) such claim has not been satisfied from the R&W Policy (after compliance with Section 8.3(f)), it being agreed that the Indemnified Parties shall look first to the Escrow Fund (to the extent that the R&W Policy does not cover the Loss in accordance with its terms, including because the retention amount has not been satisfied) and then to the R&W Policy; provided, that in each case of clause (i) and (ii), if the subject matter of such indemnification claim is expressly excluded from coverage pursuant to and as set forth in the R&W Policy, the Indemnified Parties shall have no obligation to look to the R&W Policy for recovery of Losses but rather shall look first to the Escrow Fund and thereafter directly to the Company Indemnitors for recovery of Losses to the extent otherwise permitted under this Article VIII. In no event shall the liability of any Company Indemnitor for any indemnification claim under Section 8.2(a) exceed the Merger Consideration actually received a ruling by such Company Indemnitor (including any funds from the Internal Revenue Service holding Escrow Fund), unless such indemnity claim is being made in respect of fraud and such Company Indemnitor committed such fraud (in which event there shall be no limitation on the liability of such Company Indemnitor hereunder or under applicable Law except to the extent imposed under applicable Law). (e) Any amount of Losses will be calculated: (i) without regard to any punitive, exemplary, special, incidental, or consequential damages unless (x) any such punitive, exemplary, special, incidental, or consequential damages are actually awarded to a third party (provided that all such anticipated Losses may be preliminarily included by an Indemnified Party in an Indemnification Claim Notice), or (y) in the case of special, incidental or consequential damages only, any such special or consequential damages would have been reasonably foreseeable; (ii) such that costs and expenses incurred in investigating, defending or resolving any applicable claim under this Article VIII shall constitute Losses if and solely to the extent that such underlying claim is indemnifiable hereunder; and (iii) with respect to Losses incurred in respect of any representation in Section 3.7, only to the extent in excess of the amount of such Taxes that were included in the Estimated Closing Statement, and excluding such Taxes to the extent such Taxes were included in the Post-Closing Statement and actually reduced the Total Merger Consideration. (f) The amount of any Losses that are subject to indemnification under this Article VIII shall be calculated net of the amount of any insurance proceeds, indemnification payments or reimbursements actually received by the Indemnified Parties from third parties (other than the Company Indemnitors) in respect of such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery). Except for claims under this Article VIII related to fraud or intentional misrepresentations, for all indemnification claims under Section 8.2(a)(i), (ii) and (ix), Parent agrees to first use commercially reasonable efforts to seek recovery under the R&W Policy before seeking indemnification directly from the Company Indemnitors for any Losses; provided further that the receipt Indemnified Parties may provide the Stockholders’ Representative with notice of an indemnification claim at any time for purposes of tolling the expiration of rights to indemnification under Section 8.1. In the event that an insurance recovery is received by any Indemnified Party with respect to any Losses for which any such Person has been indemnified and which Losses such Person had received from the Company Indemnitors hereunder, then a refund equal to the aggregate amount of the recovery (net of costs and expenses incurred in recovering such amounts, and net of any resulting insurance premiums with respect to insurance policies other than the R&W Policy) payable in respect of (i) Employee Company Options held by Specified Optionholders shall be paid to the Surviving Corporation for further payment to such Specified Optionholders through the Surviving Corporation’s payroll processing system net of applicable Tax withholding and deductions and (ii) Company Capital Stock and Company Warrants shall be made to the Payment Agent for distribution to the applicable Company Indemnitors, in each case, in accordance with each such Company Indemnitor’s respective Pro Rata Portion. Nothing in this Agreement shall require Parent or any Indemnified Party to seek recovery of Losses under an insurance policy, except with respect to the R&W Policy as set forth in this Section 8.3(f). (g) Any Losses for indemnification under this Agreement shall be determined without duplication of recovery due to the facts giving rise to such Losses constituting a breach of more than one representation, warranty, covenant or agreement, or being indemnifiable pursuant to more than one clause of Section 8.2(a). (h) Except for the representations and warranties contained in this Agreement (including the Company Disclosure Letter, schedules and exhibits to this Agreement), each of Parent and Merger Sub acknowledges that neither the Company nor any of its Affiliates, nor any other Person, made or shall be deemed to have made (and Parent and Merger Sub have not relied on and shall not rely on) any representation or warranty to Parent or Merger Sub, express or implied, at Law or in equity, on behalf of the Company. Any claims Parent or Merger Sub may have for breach of representation or warranty shall be based solely on the representations and warranties of the Company expressly set forth in this Agreement (including the Company Disclosure Letter, schedules and exhibits to this Agreement) and the certificates and other documents contemplated hereby. (i) Notwithstanding any other provision of this Agreement, the Company Indemnitors shall not have any liability or indemnification obligation for any Taxes of the Company or its Subsidiaries (i) resulting from any election made under Section 338 of the Code with respect to the Merger, (ii) resulting from any action taken by the Company at the direction of Parent on the Indemnification Amount would either constitute Qualifying Income Closing Date after the Closing except as specifically contemplated by this Agreement or would be excluded from gross income within (iii) the meaning ability of Sections 856(c)(2) and (3) of the Code (or alternativelyParent, the Company’s outside counsel has rendered a legal opinion Surviving Corporation or any of their affiliates to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income utilize any net operating losses, Tax credits, Tax basis, or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request other Tax attribute of the Company or its Subsidiaries in order to any Tax period or portion thereof (xincluding any Straddle Tax Period) maximize beginning on or after the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3Closing Date.

Limitations on Indemnification. 4.5.1 In (a) Notwithstanding anything herein to the event that a selling holder contrary, Seller and each Member shall not be obligated to indemnify the Purchaser Indemnified Persons under this Article 11: (i) unless the aggregate of Registrable Securities all Purchaser Damages exceeds 0.5% of the Purchase Price (which, for purposes of this Section 11.6, shall be deemed to be the total purchase price reflected in the purchase price allocation specified on Schedule 2.5, as may be adjusted pursuant to Sections 2.3 and 2.4), as adjusted (the “Indemnifying HolderSeller’s Basket”) is obligated to pay an amount to the Company pursuant to Section 4.2 (the “Indemnification Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case such Purchaser Indemnified Persons shall be entitled to recover all Purchaser Damages in excess of the escrow agent shall release such amount or, in the case of a revised Seller’s Basket or updated letter, such additional amount (ii) to the Company, or (b) a letter from the Company’s counsel indicating extent that the Company received a ruling from aggregate of all Purchaser Damages exceeds 10% of the Internal Revenue Service holding Purchase Price, as adjusted (the “Seller’s Indemnification Cap”); provided, however, that the receipt Seller’s Indemnification Cap and the Seller’s Basket shall not apply to any Seller or Member indemnification obligation (w) arising out of, relating to or resulting from fraud or intentional misrepresentation by the Company Seller or a Member; (x) arising out of, relating to or resulting under Section 11.2(c), (d), (e), (f) or (g); (y) from a breach of the Indemnification Amount would either constitute Qualifying Income any of Seller’s or would be excluded any Member’s representations or warranties in Sections 4.15(a) (Title) or 4.27 (Taxes); or (z) arising out of, relating to or resulting from gross income within the meaning a breach of Sections 856(c)(2) and any of Seller’s or any Member’s representations or warranties in Section 4.26 (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the CodeEnvironmental Matters), in which case Seller and each Member shall not be obligated to indemnify the escrow agent Purchaser Indemnified Persons for Purchaser Damages arising out of, relating to or resulting from a breach of any of Seller’s or any Member’s representations or warranties in Section 4.26 (Environmental Matters) to the extent that the aggregate of all such Purchaser Damages exceeds Twenty Million U.S. Dollars ($20,000,000) (the “Environmental Representation Cap”); provided, however, that (a) any Purchaser Damages counted toward the Seller’s Indemnification Cap shall release not be counted toward the remainder Environmental Representation Cap and vice versa, and (b) the Environmental Representation Cap shall not limit any other indemnification obligation of Seller or the Members under this Agreement. (b) Notwithstanding anything herein to the contrary, Purchaser shall not be obligated to indemnify the Seller Indemnified Persons under this Article 11: (i) unless the aggregate of all Seller Damages exceeds 0.5% of the Indemnification Amount Purchase Price(which, for purposes of this Section 11.6, shall be deemed to be the total purchase price reflected in the purchase price allocation specified on Schedule 2.5, as may be adjusted pursuant to Sections 2.3 and 2.4)), as adjusted (the “Purchaser’s Basket”), in which case such Seller Indemnified Persons shall be entitled to recover all Seller Damages in excess of the Purchaser’s Basket or (ii) to the Company. The escrow agreement shall also provide extent that any portion the aggregate of all Seller Damages exceeds 10% of the Purchase Price, as adjusted (the “Purchaser’s Indemnification Amount held in escrow for five (5) years Cap”); provided, however, that the Purchaser’s Indemnification Cap and the Purchaser’s Basket shall be released by the escrow agent not apply to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to any Purchaser indemnification obligation (x) maximize the portion of the Indemnification Amount that may be distributed arising out of, relating to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, or resulting from fraud or intentional misrepresentation by Purchaser; or (y) improve the Company’s chances of securing a favorable ruling described in arising out of, relating to or resulting under Section 4.5.3 11.3(b) or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3c).

Limitations on Indemnification. 4.5.1 In the event that a selling holder of Registrable Securities (the “Indemnifying Holder”a) is obligated to pay an amount Notwithstanding anything herein to the Company pursuant to Section 4.2 (contrary, the “Indemnification Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 indemnification obligations of the Code Parties shall be limited as follows: (i) an indemnifying party shall not have any Liability under, nor shall an indemnified party be entitled to indemnification pursuant to, Section 10.2(a)(i) or Section 10.2(b)(i) unless and until the aggregate amount of Losses incurred by the indemnified parties and indemnifiable hereunder exceeds, on a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2cumulative basis, an amount equal to 0.75% of the Purchase Price (the “Basket”) and, in such event, the indemnifying party shall be required to pay the entire amount of all such Losses including the Basket; provided, however, that the limitation set forth in this Section 10.4(a)(i) shall not apply to Losses resulting from (A) a breach of any Fundamental Representation, (B) Knowing Breaches, (C) Seller Fraud, (D) Purchaser Knowing Breaches or (E) Purchaser Fraud; (ii) the amount that the Purchaser Indemnified Parties may recover with respect to any and all Losses pursuant to Sections 10.2(a)(i) and 10.2(a)(vi) is and shall be limited, in the aggregate, to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus Loss and (y) the amount then remaining in the event Indemnity Escrow Account; provided, however, that the Company receives either limitation set forth in this Section 10.4(a)(ii) shall not apply to Losses resulting from (A) a breach of any Fundamental Representation, (B) Knowing Breaches, (C) Seller Fraud, or (D) a breach of the Specified IP Representation; (iii) the amount that the Purchaser Indemnified Parties may recover with respect to any and all Losses pursuant to the Specified IP Representation is and shall be limited, in the aggregate, to the lesser of (x) the amount of such Loss and (y) the amount (A) if prior to the General Survival Date, then remaining in the Indemnity Escrow Account or (B) if after the General Survival Date, equal to (1) a ruling the sum of the original amount of the Indemnity Escrow Account less the aggregate amount of any other Losses previously paid to any Purchaser Indemnified Party (including any amounts distributed to any Purchaser Indemnified Party from the Internal Revenue Service described Indemnity Escrow Account); provided, however, that the limitation set forth in this Section 4.5.3 10.4(a)(iii) shall not apply to Losses resulting from (A) Knowing Breaches or (2B) an opinion from Seller Fraud; and (iv) the Company’s outside counsel as described amount that the Seller Indemnified Parties may recover with respect to all Losses pursuant to Section 10.2(b)(i) shall be limited, in Section 4.5.3the aggregate, an amount equal to the Indemnification Amount, lesser of (x) the amount of such Loss and (y) the sum of the original amount of the Indemnity Escrow Account less the amount payable under clause (x) above. 4.5.2 To secure of any other Losses previously paid to any Seller Indemnified Party; provided, however, that the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount limitation set forth in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof 10.4(a)(iii) shall not be released apply to the Company unless the escrow agent receives any one or combination of the following: Losses resulting from (aA) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements breach of Sections 856(c)(2any Fundamental Representation, (B) and Purchaser Knowing Breaches, or (3C) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount or, in the case of a revised or updated letter, such additional amount to the Company, orPurchaser Fraud. (b) a letter from Notwithstanding anything herein to the Company’s counsel indicating contrary, the amount that the Company received a ruling from Purchaser Indemnified Parties may recover with respect to any and all Losses pursuant to Section 10.2(a) is and shall be limited, in the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternativelyaggregate, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company lesser of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion amount of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) such Loss and (3) of the Code, (y) improve the Company’s chances Final Purchase Price; provided, however, that the limitation set forth in this Section 10.4(b) shall not apply to Losses resulting from Seller Fraud. Notwithstanding anything herein to the contrary, the amount that the Seller Indemnified Parties may recover with respect to any and all Losses pursuant to Section 10.2(b) is and shall be limited, in the aggregate, to the lesser of securing a favorable ruling described (x) the amount of such Loss and (y) the Final Purchase Price; provided, however, that the limitation set forth in this Section 10.4(b) shall not apply to Losses resulting from Purchaser Fraud. (c) Notwithstanding anything contained herein to the contrary, no Purchaser Indemnified Party shall have any right to indemnification under Section 10.2 with respect to (i) any Losses or alleged Losses to the extent that such Losses are reflected in the Closing RMR as finally determined pursuant to Section 3.3, or (ii) the failure of the representation and warranty set forth in Section 4.5.3 5.16(a)(iii) to be true and correct. (d) Any claim by an indemnified party shall be limited such that no indemnified party shall be entitled to more than one recovery for any single Loss even though such Loss may have resulted from the breach of more than one of the representations, warranties, covenants or agreements made by Seller or Purchaser, as applicable, in or pursuant to this Agreement, the Seller Documents or the Purchaser Documents. (e) Notwithstanding anything to the contrary contained in this Agreement, any Seller Document or any Purchaser Document or provided for under any applicable Law, no Party shall be liable to any other Person for, nor shall any Party be entitled to recover or make a claim for, any amounts in respect of enhanced, punitive or exemplary damages (in each case, except to the extent payable in connection with a Third-Party Claim) and, other than in connection with Losses based upon, attributable to or resulting from a breach of any representation set forth in Article V or Article VI or any covenant set forth in Section 7.3 or Section 7.4, no loss of future income, revenue or profits, business interruption, loss of business reputation or opportunity, diminution in value, “multiple of profits,” “multiple of cash flow” or similar valuation methodology shall be used or taken into account in calculating the amount of any Losses, in each case, regardless of whether or not the possibility of such damages or Losses has been disclosed to the other party in advance or could have been reasonably foreseen by a party, it being understood that this Section 10.4(e) shall not create a presumption that any such methodologies or damages shall be used or taken in to account in connection with Losses based upon, attributable to or resulting from a breach of any representation, warranty, covenant or agreement in this Agreement, including any representation set forth in Article V or Article VI or any covenant set forth in Section 7.3 or Section 7.4. (f) Notwithstanding anything to the contrary contained in this Agreement, no party shall be entitled to recover or make a claim for any amounts in respect to any Loss to the extent such Loss (i) is a claim, other than a Third-Party Claim, that such party believes may be asserted rather than a Loss, cause of action or claim that has, in fact, been filed of record or asserted against such party or paid or incurred by such party or would reasonably be expected to be filed, asserted, paid or incurred by such party, or (zii) assist would not have arisen but for, or has been increased or not reduced as a result of, any voluntary disclosure to a Governmental Authority by such party or its Representatives after the Company Closing. (g) No indemnifying party shall be required to indemnify any indemnified party to the extent of any Loss that a court of competent jurisdiction shall have determined in obtaining a favorable legal opinion final nonappealable judgment to have resulted from its outside counsel as described the bad faith, gross negligence or willful misconduct of the indemnified party. (h) For purposes of determining the amount of Losses with respect to any breach by Seller of any representation, warranty and covenant made in Section 4.5.3or pursuant to this Agreement or any Seller Document (but not for purposes of determining the existence or occurrence of such breach), any qualifications referencing the terms “materiality,” Material Adverse Effect or other similar terms shall be disregarded.

Limitations on Indemnification. 4.5.1 In (a) The rights of the event that a selling holder of Registrable Securities (the “Indemnifying Holder”) is obligated Parent Indemnitees to pay an amount indemnification pursuant to the Company provisions of the Indemnity Securityholders’ Side Letter are subject to the following limitations: (i) [Intentionally omitted] (ii) [Intentionally omitted] (iii) the maximum Losses indemnifiable pursuant to the Indemnity Securityholders’ Side Letter shall be $46,000,000, and the Indemnity Securityholders’ Side Letter shall be the sole and exclusive source of recovery with respect to such Losses. (b) The rights of the Securityholder Indemnitees to indemnification pursuant to the provisions of Section 9.2(c) are subject to the following limitations: (i) [Intentionally omitted] (ii) [Intentionally omitted] (iii) the maximum Losses indemnifiable pursuant to Section 4.2 9.2(c) shall be $46,000,000. (the “Indemnification Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 c) The rights of the Code (a “REIT”), Parent Indemnitees or the Indemnifying Holder Securityholder Indemnitees to indemnification pursuant to the provisions of the Indemnity Securityholders’ Side Letter or its affiliatesSection 9.2, as applicable, shall pay are subject to the Companyfollowing limitations: (i) the amount of any and all Losses shall be determined net of any amounts actually received by the Parent Indemnitees or Securityholder Indemnitees, as applicable, under insurance policies or from other collateral sources (such as contractual indemnities of any Person which are contained outside of this Agreement) with respect to such Losses; (ii) neither the Indemnification Amount deposited into escrow in accordance with Section 4.5.2Parent Indemnitees nor the Securityholder Indemnitees, an amount equal respectively, shall be entitled to indemnification pursuant to the lesser Indemnity Securityholders’ Side Letter or Section 9.2(c), respectively, for any Loss to the extent that prior to the date hereof the Group Companies or the Parent Group Companies, respectively, recorded a reserve in their consolidated books and records with respect to such Loss; and (iii) neither the Parent Indemnitees nor the Securityholder Indemnitees shall be entitled to recover or make a claim for any amounts in respect of any consequential damages (Iincluding loss of revenue, income or profits, loss or diminution in value of assets or securities or punitive damages and, in particular, consequential damages calculated by “multiple of profits” or “multiple of cash flow” or other valuation methodology, and in no case shall any such valuation methodology be used in calculating the amount of any Losses) or punitive, special or exemplary damages. Notwithstanding anything contained herein to the Indemnification Amount and (II) contrary, on the sum of (x) date that the maximum aggregate amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal all Parent Indemnitees pursuant to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amountsIndemnity Securityholders’ Side Letter equals $46,000,000, the Indemnifying Holder Parent Indemnitees shall deposit into escrow an amount in cash equal have no further rights to indemnification under the Indemnity Securityholders’ Side Letter or otherwise. Notwithstanding anything contained herein to the Indemnification Amount with an escrow agent selected by contrary, on the Indemnifying Holder and on such customary terms (subject date that the aggregate amount paid to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, all Securityholder Indemnitees pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount or, in the case of a revised or updated letter, such additional amount to the Company, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternativelyArticle 9 equals $46,000,000, the Company’s outside counsel has rendered a legal opinion Securityholder Indemnitees shall have no further rights to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Codeindemnification under Section 9.2(c), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement Parent Indemnitees and the Securityholder Indemnitees shall also provide that use their commercially reasonable efforts to collect any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent amounts available under any insurance coverage or from any collateral source as referred to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.in

Limitations on Indemnification. 4.5.1 In the event that a selling holder of Registrable Securities (the “Indemnifying Holder”) is obligated to pay an amount to the Company pursuant to Section 4.2 (the “Indemnification Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a Code(a “REIT”) pursuant to Section 4.2 (the “Indemnification Amount”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount or, in the case of a revised or updated letter, such additional amount to the Company, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3. 4.5.5 In the event that the Shareholder is entitled to any payments under this Section 4, principles analogous to Section 4.5 shall apply to such payments.

Limitations on Indemnification. 4.5.1 In the event that a selling holder (a) Notwithstanding any provisions of Registrable Securities (the “Indemnifying Holder”) is obligated to pay an amount this Agreement to the Company pursuant contrary, other than with respect to Section 4.2 (the “Indemnification Amount”), during a year that Fundamental Representations and the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”)Specified IP Representations, the Indemnifying Holder Parties shall not have any liability or its affiliates, as applicable, shall pay to obligation under Section 8.1(a) (i) unless the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined aggregate liability for Losses suffered by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise)Indemnified Parties thereunder exceeds $300,000, in which case the escrow agent Indemnified Parties shall release such amount or, in the case of a revised or updated letter, such additional amount be entitled to recover all Losses (subject to the Company, orother limitations herein). (b) Notwithstanding any provisions in this Agreement to the contrary, other than as provided for in clause (ii) of the proviso in Section 8.2(d), (i) the Indemnifying Parties’ aggregate liability and obligations under Section 8.1(a)(i), other than with respect to any inaccuracy or breach of a letter from Fundamental Representation or the Company’s counsel indicating that Specified IP Representations (such matters described in this clause (i) are referred to collectively as the Company received a ruling from the Internal Revenue Service holding that the receipt “General Indemnification Matters”), shall be limited to recovery by the Company Indemnified Parties against the amount then available in the General Escrow Fund plus, to the extent claims for Fundamental Indemnification Matters that have been satisfied in accordance with this Agreement by reducing the General Escrow Fund on or prior to the Final Escrow Release Date (such reduction in the aggregate, the “Fundamental Matter Escrow Amount”), an additional amount equal to the Fundamental Matter Escrow Amount (it being understood, for the avoidance of doubt, that (x) all indemnification claims for General Indemnification Matters that are satisfied outside the General Escrow Fund (whether directly by the Equityholders or pursuant to the setoff rights in Section 8.6) shall be counted towards and reduce the Fundamental Matter Escrow Amount, and (y) claims for General Indemnification Matters shall still be subject, when viewed in the aggregate, to a cap equal to the aggregate amount of General Escrow Property placed in the General Escrow Fund prior to the expiration of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within Final Escrow Period and prior to any reduction thereof, valuing the meaning of Sections 856(c)(2Parent Shares at the Parent Stock Price) and (3ii) of the Code (or alternatively, the Companyeach Indemnifying Party’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) aggregate liability and (3) of the Code), in which case the escrow agent obligations under this Article VIII shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize not exceed the portion of the Indemnification Amount that may be distributed Merger Consideration actually received by such Indemnifying Party (in addition to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) forfeiture of the Codeportion of the Merger Consideration paid to the Indemnified Parties from the General Escrow Fund, (y) improve the Company’s chances Designated Escrow Fund or through the exercise of securing a favorable ruling described the setoff rights set forth in Section 4.5.3 8.6) (with the Parent Shares being valued at the Parent Stock Price). All indemnification obligations under Section 8.1(a) that are not General Indemnification Matters or (z) assist Specified IP Matters are referred to herein as “Fundamental Indemnification Matters”. The Specified IP Matters and the Company in obtaining a favorable legal opinion from its outside counsel Fundamental Indemnification Matters are collectively referred to herein as described in Section 4.5.3the “Designated Indemnification Matters.”

Limitations on Indemnification. 4.5.1 In (a) Minimum Claim. Parent or the event that Surviving Corporation on the one hand and Company (prior to the Effective Time) or the Company Indemnified Persons (subsequent to the Effective Time) on the other hand shall not be entitled to make a selling holder claim for indemnification pursuant to Sections 8.4 or 8.5, respectively, unless and until the aggregate amount of Registrable Securities Damages (as defined in Section 8.4(a)) incurred by the party making such claim exceeds $250,000 (the “Indemnifying Holder”"Basket", provided that such Basket shall be $100,000 for any claims described in Section 8.4(b) is obligated to pay an amount to the Company pursuant to Section 4.2 (the “Indemnification Amount”only), during a year at which time the party seeking indemnification may recover the aggregate amount of Damages beginning with the first dollar thereof irrespective of the Basket; provided, however, that the Company qualifies Basket shall not apply to Damages arising from the Cap Carve Outs (as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”defined in Section 8.3(b)), the Indemnifying Holder failure to pay the Merger Consideration or its affiliatesthe Employee Consideration, or as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow otherwise provided in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3Schedule A1(ii) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) aboveEscrow Agreement. 4.5.2 To secure (b) Cap. Notwithstanding any other provision of this Agreement or the Indemnifying Holder’s obligation to pay these amountsEscrow Agreement, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that except for the payment of the Indemnification Amount would otherwise be Merger Consideration and the Employee Consideration, the indemnification obligations of Company (prior to the Effective Time) and the Company stockholders (subsequent to the Effective Time) on the one hand and Parent and the Surviving Corporation (after the Effective Time) on the other hand pursuant to Sections 8.4 and 8.5, respectively, will not exceed in the aggregate for such person or persons $13,558,804 (the "Cap"); provided, however, that Damages arising out of claims (i) due without regard to this Section 4.5. 4.5.3 The escrow fraud or intentional misrepresentation or (ii) resulting from a breach of any covenant or agreement for the escrow described of Company in Section 4.5.2 shall provide that 9.1 (collectively, the Indemnification Amount in escrow or any portion thereof "Cap Carve Outs"), shall not be released to apply towards the Company unless Cap. Notwithstanding the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise)foregoing, in which case the escrow agent shall release such amount or, in the case of a revised or updated letter, such additional amount to the Company, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize all claims by Indemnified Persons for Damages pursuant to Section 8.4 subsequent to the portion Closing shall be satisfied only from the Escrow Fund and shall be limited to the Cap, and any Damages arising out of claims from the Cap Carve Outs shall be satisfied first out of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) Escrow Fund, if any, and (3) of the Code, (y) improve all claims by Indemnified Persons for Damages pursuant to Section 8.5 shall be limited to the Company’s chances of securing a favorable ruling described Cap, other than in Section 4.5.3 connection with any claims or (z) assist Damages incurred in connection with Parent's failure to pay the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3Merger Consideration or the Employee Consideration pursuant to the terms hereof.

Limitations on Indemnification. 4.5.1 In the event that a selling holder of Registrable Securities (the “Indemnifying Holder”a) is obligated to pay an amount to the Company pursuant to Section 4.2 (the “Indemnification Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof Buyer shall not be released entitled to recovery for any Indemnified Losses or Environmental Costs under this Agreement until the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum aggregate amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from Indemnified Losses and Environmental Costs shall exceed $300,000 (the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise"Sellers' Basket"), in which case event, Buyer may claim indemnification for the escrow agent amount of such claims in excess of $300,000, and Sellers' obligation hereunder shall release such amount ornot exceed, individually or in the case aggregate, the remaining amount of a revised or updated letterthe Performance Escrow Deposit. The foregoing notwithstanding, such additional amount (i) the limitations on recovery contained in this Section 10.3(a) shall not apply to Buyer Exempt Claims, (ii) only $150,000 of the CompanySellers' Basket shall apply to (x) claims for indemnification under Section 10.2(a)(i) for breach of the representations contained in Section 3.10(i), or(y) claims for indemnification under Sections 10.2(a) (v), (vi), and (vii), (z) requests by Buyer to fund Environmental Costs pursuant to Section 6.7 and (zz) requests by Buyer for payment pursuant to Section 6.12 and (iii) the Sellers' Basket shall not apply to requests by Sellers' Representative to fund Environmental Costs pursuant to Section 6.7(e). (b) a letter from The amount of any Indemnified Losses suffered by an Indemnified Party under this Agreement (and the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt amount for which such Party may seek indemnification pursuant to this Article 10 on account of such Indemnified Losses) shall be reduced by the Company amount, if any, of the Indemnification Amount would either constitute Qualifying Income any insurance recovery received by such Party from any insurance policy maintained by such Party 75 88 or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternativelyits Affiliates, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize net of (i) reasonable expenses incurred by such party in obtaining such recovery and (ii) the portion present value of the Indemnification Amount that may be distributed any insurance premium increase attributable to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) claim underlying such recover, including retrospective premium adjustments and (3) of the Code, (y) improve without prejudice to any rights of subrogation the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3insurer may enjoy under such insurance policy.

Limitations on Indemnification. 4.5.1 In The persons or entities indemnified pursuant to this Article IX shall not assert any claim for indemnification hereunder, except with respect to (i) any claim based upon fraud, (ii) any claim based upon a breach of any representation or warranty contained in Sections 2.1, 2.2, 2.3 and 2.5(a)(iii) (with respect to Section 2.5(a)(iii), relating to any Buyer’s GAAP Losses in excess of $50,000), 2.8, 2.30, 2.31 or 2.32 or in Section 2.19 (insofar as such claim is based upon a breach of the event representations and warranties therein relating to the Company’s Defined Benefit Pension Plan), or (iii) any claim for Buyer’s Losses described in clauses (vi), (ix) or (x) of Section 9.1(a) (and with any such claim under Section 9.1(a)(vi) being satisfied first by recovery from the Holdback Amount), until such time as and solely to the extent that a selling holder the aggregate of Registrable Securities all claims that such persons may have against the Indemnifying Parties shall exceed $150,000 with respect to all claims (the “Basket”), but upon reaching the amount of the Basket, from the first dollar of all claims. Claims described in clauses (i) through (iii) of the foregoing sentence may be made under this Article IX on a first dollar basis and without reference to the Basket. Notwithstanding any other provision of this Agreement, except with respect to any claims (a) based upon fraud or (b) for Buyer’s Losses described in clauses (vi), (ix) or (x) of Section 9.1(a), no Indemnifying Holder”) is Party shall be obligated to pay indemnify, defend and hold harmless an amount Indemnified Party with respect to any claim for indemnification hereunder in excess of the Company Total Consideration, as adjusted pursuant to Section 4.2 (1.2, received by such Indemnifying Party as set forth on Schedule 9.10. The parties agree that neither the “Indemnification Amount”), during a year that Basket nor the Company qualifies as a “real estate investment trust” under Sections 856 through 860 cap on the maximum amount of the Code Members’ indemnification obligations set forth above in this Section 9.10 shall be applicable to (i) any claim based upon fraud, (ii) any claim based upon a “REIT”)breach of any representation or warranty contained in Sections 2.1, 2.2, 2.3, 2.8, 2.30, 2.31 or 2.32 or in Section 2.19 (insofar as such claim is based upon a breach of the Indemnifying Holder or its affiliates, as applicable, shall pay representations and warranties therein relating to the Company’s Defined Benefit Pension Plan), from and that such claims shall not be included for purposes of calculating the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) Basket or the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined Members’ indemnification obligations (i.e., as if to whether or not the payment Basket amount has been reached or whether the Members’ indemnification obligations are limited by the amount of Total Consideration received thereby) with respect to any claims for Buyer’s Losses subject to such amount did not constitute income described in Sections 856(c)(2limitations. The parties further agree that (i) or 856(c)(3) claims for a breach of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described representations and warranties set forth in Section 4.5.3 or (22.5(a)(iii) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable limited to each claims for Buyer’s GAAP Losses in excess of $50,000, (ii) the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof Basket shall not be released applicable to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) such claims and (3iii) such claims shall not be included for purposes of calculating the Code determined Basket (i.e., as if to whether or not the payment of such Basket amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwisehas been reached), in which case the escrow agent shall release such amount or, in the case of a revised or updated letter, such additional amount to the Company, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 In (a) The Indemnified Parties, as a group, may not recover any Losses pursuant to an indemnification claim under Section 8.2(a)(i) unless and until the event that Indemnified Parties, as a selling holder of Registrable Securities group, shall have paid, incurred, suffered or sustained at least $1,500,000 in Losses in the aggregate (the “Indemnifying Holder”) is obligated to pay an amount to the Company pursuant to Section 4.2 (the “Indemnification Deductible Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent Indemnified Parties shall release be entitled to recover only those Losses in excess of the Deductible Amount that are paid, incurred, suffered or sustained by the Indemnified Parties as a group. (b) Subject to Section 8.3(e), (i) the Company Indemnitors’ indemnity obligations for Losses under Sections 8.2(a)(i), (iii)-(vi) and (ix) will be limited, in the aggregate, to an amount equal to the Escrow Amount, plus any interest earned thereon, less any amounts previously paid out of the Indemnity Escrow Fund to satisfy the Losses claimed under Sections 8.2(a)(i), (iii)-(vi) and (ix) (and for a particular Company Indemnitor, to its Indemnity Pro Rata Portion thereof) (the “Cap”). For the avoidance of doubt, the Cap shall apply even after the expiration of the Escrow Period. (c) Subject to the limitations set forth in this Section 8.3, the Indemnified Parties’ sole and exclusive sources of recovery for indemnification claims under Section 8.2(a)(i) shall be recourse against (i) first, the R&W Policy (if obtained), it being agreed that, if the subject matter of such indemnification claim is expressly excluded from coverage pursuant to and as set forth in the R&W Policy, or is a Specified Matter, the Indemnified Parties shall have no obligation to first look to the R&W Policy for recovery of Losses and (ii) second, if and only to the extent the Indemnified Parties are unable to recover all or any portion of such Losses from and against the R&W Policy or the R&W Policy is not obtained, the cash held in the Indemnity Escrow Fund. (d) Subject to the limitations set forth in this Section 8.3, the Indemnified Parties shall be permitted to recover Losses directly from the Company Indemnitors for indemnification claims pursuant to Sections 8.2(a)(ii) through 8.2(a)(x), but only if and to the extent that such claim has not been satisfied: (i) first, from the R&W Policy (if obtained), it being agreed that, if the subject matter of such indemnification claim is expressly excluded from coverage pursuant to and as set forth in the R&W Policy or is a Specified Matter, the Indemnified Parties shall have no obligation to first look to the R&W Policy for recovery of Losses; (ii) second, if and only to the extent the Indemnified Parties are unable to recover all or any portion of such Losses from and against the R&W Policy or the R&W policy is not obtained, from the Indemnity Escrow Fund; provided, however, for any Losses arising pursuant to a breach of a Joinder Representation by a Company Indemnitor pursuant to Section 8.2(a)(ii), the Indemnified Parties may recover from the Indemnity Escrow Fund solely up to such Company Indemnitor’s Indemnity Pro Rata Portion of the Indemnity Escrow Fund and (iii) third, if and only to the extent the Indemnity Escrow Fund is exhausted, directly from the Company Indemnitors; provided, however, for any Losses arising pursuant to a breach of a Joinder Representation by a Company Indemnitor pursuant to Section 8.2(a)(ii), the Indemnified Parties may recover may recover Losses under this clause (iii) solely from such Company Indemnitor. In no event shall the liability of any Company Indemnitor for any indemnification claim under Section 8.2(a) exceed the portion of the Acquisition Consideration actually received by such Company Indemnitor (including any funds from the Indemnity Escrow Fund), unless such indemnity claim is being made in respect of fraud in respect of this Agreement and the Transactions and such Company Indemnitor committed such fraud (in which event there shall be no limitation on the liability of such Company Indemnitor hereunder or under applicable Law except to the extent imposed under applicable Law). For the avoidance of doubt, but without limiting the right of the Indemnified Parties to recover Losses from the Indemnity Escrow Fund pursuant to clause (ii) of the first sentence of this paragraph, a Company Indemnitor shall have no indemnity obligations for a breach of a Joinder Representation by any other Company Indemnitor. (e) Any amount of Losses will be calculated: (i) without regard to any punitive, exemplary, special, incidental, or consequential damages unless (x) any such punitive, exemplary, special, incidental, or consequential damages are actually awarded by a court to a third party (provided that all such anticipated Losses may be preliminarily included by an Indemnified Party in an Indemnification Claim Notice), and (y) in the case of special, incidental or consequential damages only, any such special or consequential damages would have been reasonably foreseeable; (ii) such that costs and expenses incurred in investigating, defending or resolving any applicable claim under this Article VIII shall constitute Losses if and solely to the extent that such underlying claim is indemnifiable hereunder; (iii) with respect to Losses incurred in respect of any representation in Section 3.7, only to the extent such Losses were not included in the Post-Closing Statement; and (iv) in a manner that takes into account Purchaser’s Proportion, such that the Company Indemnitors shall not be required to indemnify an Indemnified Party in respect of any Loss for which Purchaser would otherwise have been responsible hereunder if it were a Company Indemnitor on the basis of the Purchaser’s Proportion. (f) The amount of any Losses that are subject to indemnification under this Article VIII shall be calculated net of the amount of any insurance proceeds, indemnification payments or reimbursements actually received by the Indemnified Parties from third parties (other than the Company Indemnitors) in respect of such Losses (net of any costs or expenses incurred in obtaining such insurance (other than the R&W Policy), indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery). In the event that an insurance recovery is received by any Indemnified Party with respect to any Losses for which any such Person has been indemnified and which Losses such Person had received from the Company Indemnitors hereunder, then a refund equal to the lesser of the amount received from the Company Indemnitors in respect of such Losses and the aggregate amount of the recovery (except in the case of the R&W Policy, net of costs and expenses incurred in recovering such amounts, Taxes payable by any Indemnified Party in respect of such amounts, and any resulting insurance premiums with respect to insurance policies) payable in respect of (i) Employee Company Options shall be paid to the Company for further payment to such holders of Employee Company Options through the Company’s payroll processing system net of applicable Tax withholding and deductions (including, to the extent permitted by applicable Law, secondary class 1 (employer’s) National Insurance contributions and any equivalent Tax in any other jurisdiction) and (ii) Non-Employee Company Options, Company Capital Shares and Company Warrants shall be made to the Payment Agent for distribution to the applicable Company Indemnitors, in each case, in accordance with each such Company Indemnitor’s respective Indemnity Pro Rata Portion. Nothing in this Agreement shall require Purchaser or any Indemnified Party to seek recovery of Losses under an insurance policy, except with respect to the R&W Policy (if obtained) as set forth in this Section 8.3. (g) Any Losses for indemnification under this Agreement shall be determined without duplication of recovery due to the facts giving rise to such Losses constituting a breach of more than one representation, warranty, covenant or agreement, or being indemnifiable pursuant to more than one clause of Section 8.2(a). (h) Notwithstanding any other provision of this Agreement, the Company Indemnitors shall not be liable for a Tax Liability of the Company or its Subsidiaries in respect of a Tax Claim (other than a Tax Liability within limbs (ix), (x)or (xi) of the definition of Pre-Closing Taxes) to the extent that: (i) it results from any Tax election made with respect to the Acquisition or made by the Purchaser after the Closing Date with respect to a Pre-Closing Tax Period; (ii) it results directly from a voluntary act of the Company or the Subsidiary after Closing outside the ordinary course of the business of the Company or the Subsidiary, as the case may be, as carried on immediately prior to Closing and which act the Company or the Subsidiary (as applicable) was aware, or ought reasonably have been aware, would give rise to such Tax Liability save where such act is: (A) pursuant to a legally binding obligation of the Company or the Subsidiary entered into prior to Closing; (B) in fulfilment of a legally binding obligation contemplated by this Agreement; (C) at the written request of any of the Company Indemnitors; (D) pursuant to an obligation imposed on the Company, the Subsidiary or any member of the Purchaser’s Tax Group by any law, regulation or directive or the published practice of any Tax Authority; or (E) necessary to comply with any decision of any court or tribunal; provided that, for the avoidance of doubt, any voluntary disclosure to or filing or other communication with any Tax Authority shall not be a transaction or voluntary act to which this Section 8.3(h)(ii) applies where such disclosure or filing (1) is required by applicable Law or published Tax Authority guidance or (2) in the reasonable opinion of the Purchaser after having taken advice from an external tax advisor, is necessary in order to prevent the imposition of penalties on the Company (or reduce an amount of penalties imposed); (iii) it arises or is increased as a result of any change in the date to which the Company or any Subsidiary makes up its accounts, or any change in the bases, methods or policies of accounting of the Company or any Subsidiary in each case where the change was made on or after Closing, other than to comply with generally accepted accounting practice at or prior to the Closing Date; (iv) it arises or is increased by reason of any change in Tax legislation (including the imposition of Tax) or of an increase in the rates of Tax as a consequence of any change in law, regulation, published interpretation or published practice of a Tax Authority or the withdrawal of any previously published interpretation, practice or concession of a Tax Authority, in each case announced and implemented after Closing with retrospective effect, and other than a change introduced to target Tax avoidance; (v) the Purchaser has been compensated for the Tax Liability in question at no Loss to the Company, the Subsidiaries or any member of the Purchaser’s Tax Group; (vi) it would not have arisen but for a failure or omission of the Company or any Subsidiary to make any proper claim, election, surrender or disclaimer or to give any notice or consent or do any other thing after Closing the making, giving or doing of which was taken into account in computing the provision for Tax in the Post-Closing Statement and the details of which the Purchaser was aware or ought reasonably to have been aware; (vii) any Relief (other than a Purchaser’s Relief) is available to the Company or any Subsidiary to set against or otherwise mitigate the Tax Liability; (viii) it would not have arisen but for the cessation of trade or the winding up of the Company or any Subsidiary, or a major change in the nature or conduct of the trade of the Company or any Subsidiary, which, in any such case, occurs after Closing; (ix) it is a liability to interest or penalties: (A) arising as a result of the failure to duly prepare and timely submit the Purchaser Prepared Returns after Closing, unless, in the case of a revised or updated letterfailure to submit on a proper basis, such additional amount to failure arises as a result of any default by the CompanySelling Shareholders, or (b) a letter from the Company’s counsel indicating that the Company received or any Subsidiary prior to Closing, or a ruling from failure of the Internal Revenue Service holding that Shareholders’ Representative to comply with its obligations under Section 6.13(a); or (B) which would not have arisen but for the receipt failure by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion any Subsidiary to make payment to the effect that relevant Tax Authority of an amount of Tax equal to the receipt payment made by the Company Indemnitors in respect of such Tax under this Agreement by the Indemnification Amount would either constitute Qualifying Income or would be excluded due date for payment where the payment from gross income within the meaning of Sections 856(c)(2) and (3) of Company Indemnity was received by the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount Purchaser at least five Business Days prior to the Company. The escrow agreement shall also provide that any portion due date for payment of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holdersuch Tax. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 In the event that a selling holder of Registrable Securities (the “Indemnifying Holder”a) is obligated to pay an amount to the Company pursuant to Section 4.2 (the “Indemnification Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described The indemnification provisions set forth in Section 4.5.3 8.2 and Section 8.3 shall be the sole and exclusive remedy under this Agreement for the matters set forth herein; provided, however, nothing in this Article VIII prevents any party to this Agreement from bringing an action for fraud or intentional misconduct. (2b) an opinion from The Escrow Amount shall be held as the Company’s outside counsel Purchaser Indemnified Parties’ security for the CoolTouch Participating Holders’ indemnification obligations under Section 8.2, until the Expiration Time as described in Section 4.5.39.1(b). (c) The Purchaser Indemnified Parties shall have a right to set off any Loss claimed by a Purchaser Indemnified Party against the Milestone Payments that may be owed pursuant to Section 2.6(b). The amount of Losses for which recovery may be sought by Purchaser Indemnified Parties pursuant to Section 8.2 shall be offset by amounts actually recovered by the applicable Purchaser Indemnified Parties under insurance policies applicable to such Losses (net of any costs of recovery). (d) Recovery against the Escrow Amount and the Milestone Payments (if any) shall be the Purchaser Indemnified Parties’ sole and exclusive remedy under this Agreement for indemnification claims under Section 8.2, an amount equal except in the case of fraud or intentional misconduct. (e) The Purchaser Indemnified Parties and the Participating Holder Indemnified Parties may not recover pursuant to the Indemnification indemnity set forth in Section 8.2 and Section 8.3 unless and until one or more Officer’s Certificates (as defined in the Escrow Agreement) identifying Losses in excess of One Hundred Thousand U.S. Dollars (US$100,000) in the aggregate (the “Threshold Amount, less the amount payable under clause (x”) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal has or have been delivered to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder Escrow Agent and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to Shareholder Representatives in accordance with this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise)Agreement, in which case the escrow agent Indemnified Party shall release such amount or, in the case of a revised or updated letter, such additional amount be entitled to recover pursuant to the Company, orindemnity set forth in Section 8.2 all claimed Losses. (bf) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company Except with respect to claims based upon or arising out of fraud or intentional misconduct, or with respect to claims based upon or arising out of the Indemnification Amount would either constitute Qualifying Income failure of an Excluded Representation to be true and correct, no claim for indemnification hereunder for breach of any representation or would warranty may be excluded from gross income within brought after the meaning Expiration Time or the Extended Expiration Time, as applicable, except for claims of Sections 856(c)(2which the party required to provide indemnification pursuant to Section 8.2 or Section 8.3 (an “Indemnifying Party”) and (3) of has been notified in writing prior to Expiration Time or the Code (or alternativelyExtended Expiration Time, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holderas applicable. 4.5.4 The Indemnifying Holder agrees (g) It is understood that nothing in this Agreement shall eliminate the ability of any party hereto to amend apply for equitable remedies to enforce the other parties’ obligations under this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3Agreement.

Limitations on Indemnification. 4.5.1 In (a) Except in the event that a selling holder case of Registrable Securities Fraud or indemnification claims for breaches of or inaccuracies in the Fundamental Representations or Tax Representations, the Indemnified Parties may not recover any Losses pursuant to an indemnification claim under Section 9.2(a)(i) unless and until the amount of the indemnifiable Qualifying Losses thereunder exceeds one million dollars ($1,000,000) (the “Indemnifying HolderBasket”) is obligated to pay an amount to the Company pursuant to Section 4.2 (the “Indemnification Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent Indemnified Parties shall release be entitled to recover all Losses, including the amount of the Basket paid, incurred, suffered or sustained by the Indemnified Parties. For the avoidance of doubt, the limitations set forth in this Section 9.3(a) shall not apply to indemnification claims under clauses (ii) – (viii) of Section 9.2(a), inclusive. (b) Except in the case of Fraud or indemnification claims for breaches of or inaccuracies in the Fundamental Representations or Tax Representations the Indemnifying Parties shall only be liable for any Loss relating to a single claim (or series of claims arising from the same or substantially similar facts or circumstances) in excess of twenty-five thousand dollars ($25,000) (such Loss or Losses, a “Qualifying Loss”). For the avoidance of doubt, the limitations set forth in this Section 9.3(b) shall not apply to indemnification claims under clauses (ii) – (viii) of Section 9.2(a), inclusive. (c) Subject to Section 9.3(d) and Section 9.3(f), recourse by the Indemnified Parties to the Escrow Fund shall be the Indemnified Parties’ sole and exclusive remedy under this Agreement for Losses resulting from the matters referred to in Section 9.2(a)(i). (d) The limitations set forth in Section 9.3(a), Section 9.3(b) and Section 9.3(c) shall not apply to indemnification claims (and shall not limit the indemnification or other obligations of such Indemnifying Party): (i) for inaccuracies in or breaches of any of the Fundamental Representations or Tax Representations; or (ii) under clauses (ii) – (viii) of Section 9.2(a), inclusive; provided that, Buyer may not recover any Losses pursuant to an indemnification claim under Section 9.2(a)(viii) in excess of the Scheduled Matters Cap. To the extent that the Indemnifying Parties are entitled to recovery under this Article IX in excess of the Escrow Fund, the Indemnified Parties shall not be entitled to recover amounts directly from an Indemnifying Party under this Article IX in respect of its, his or her indemnification obligations until such time as the Escrow Fund has been fully exhausted or the amounts contained in the Escrow Fund are otherwise allocated to cover existing, unresolved indemnification, compensation or reimbursement claims that have been set forth in Indemnification Claim Notices delivered pursuant to Section 9.5(a). Any amounts recovered by the Indemnified Parties from the Escrow Fund pursuant to Section 9.2(a) with respect to breaches of the Fundamental Representations or Tax Representations, or pursuant to any of the matters referred to in clauses (ii) – (viii) of Section 9.2(a), inclusive, shall not count towards or reduce the amount orthat the Indemnified Parties may recover with respect to claims for indemnification, compensation or reimbursement pursuant to Sections 9.2(a)(i) for all other matters (it being understood that, in the case of a revised such recovery from the Escrow Fund with respect to Losses arising from breaches of the Fundamental Representations or updated letterTax Representations, such additional amount or pursuant to any of the matters referred to in clauses (ii) – (viii) of Section 9.2(a), inclusive, or Section 2.4(c) the Indemnified Parties shall be entitled to recover indemnifiable Losses directly against the Indemnifying Parties up to the Companyamount of any Losses recovered from the Escrow Fund in respect of such Losses arising from breaches of the Fundamental Representations or Tax Representations, oror pursuant to any of the matters referred to in clauses (ii) – (viii) of Section 9.2(a), inclusive or Section 2.4(c)). (be) a letter from Subject to Section 9.3(f), the Company’s counsel indicating total amount of indemnification payments that each Indemnifying Party can be required to make to the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company Indemnified Parties pursuant to Section 9.2 (in excess of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within amount, if any, paid to the meaning of Sections 856(c)(2) and (3) Indemnified Parties out of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2Escrow Fund) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent limited to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may Total Closing Consideration actually paid to such Indemnifying Party pursuant to Section 1.3 and Section 2.3 (without regard to any Taxes deducted or to be distributed deducted). For the avoidance of doubt, to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) extent any part of the CodeEscrow Amount is paid in to the Escrow Fund on behalf of a Key Employee but is subsequently paid back to Buyer in accordance with the terms of such Key Employee’s Holdback Agreement and the Escrow Agreement, Buyer shall have no recourse, in respect of such Key Employee’s liabilities resulting from the matters referred to in Section 9.2(a)(i) for all other matters, against any amounts withheld from other Indemnifying Parties and paid in (yand released to) improve the Company’s chances Escrow Fund. (f) Nothing in this Agreement shall limit the liability of, or the Indemnified Parties’ remedies against, any Indemnifying Party who perpetrates, or who has actual knowledge of securing (without a favorable ruling duty to investigate), Fraud in relation to the transactions contemplated hereby. Except as set forth in this Section 9.3(f), in no event shall any Indemnifying Party have any liability for any fraud committed by any other Indemnifying Party. (g) Notwithstanding any other provision of this Agreement to the contrary, the indemnification rights set forth in this Article IX shall be the sole and exclusive remedy of the Indemnified Parties from and after the Effective Time for monetary remedies in connection with this Agreement and the transactions contemplated hereby, including the matters described in Section 4.5.3 9.2(a) (which means that the survival periods and liability limits set forth in this Article IX shall control notwithstanding any statutory or common law provisions or principles to the contrary); provided, however, that nothing in this Agreement shall limit the Indemnified Parties’ ability to pursue (zi) assist specific performance or injunctive relief or other non-monetary equitable remedies, (ii) remedies under any Related Agreements against any Company Shareholders who are parties thereto, and (iii) remedies against any Indemnifying Party who perpetrates, or who has actual knowledge of (without a duty to investigate), Fraud in relation to the Company transactions contemplated hereby. (h) To the extent the Indemnified Parties are entitled to recover indemnifiable Losses in obtaining respect of amounts which are indemnifiable pursuant to Section 2.5 by a favorable legal opinion particular Person who had received amounts pursuant to this Agreement, Buyer shall first use reasonable best efforts to recover such indemnifiable Losses from such Person prior to seeking recourse against the Escrow Fund pursuant to the terms of this Article IX. (i) The amount of any Losses recoverable by any Indemnified Party under Section 9.2(a) shall be calculated net of any insurance proceeds actually received by, and/or any indemnification or contribution payments actually paid by any third party to, such Indemnified Party in respect of such Losses in, each case net all costs of recovery, including reasonably anticipated increases in insurance premiums; provided, however, that in no event shall any Indemnified Party be required to seek or obtain any such insurance proceeds or third-party indemnification or contribution. If an Indemnified Party receives any amounts under applicable insurance policies or third-party indemnification or contribution payments subsequent to its outside counsel as described receipt of an indemnification payment by the Indemnifying Parties (including from the Escrow Fund), then such Indemnified Party will, without duplication, promptly reimburse the Indemnifying Parties (including via replenishing the Escrow Fund, if applicable) for any payment made by such Indemnifying Parties up to the amount received by the Indemnified Party; provided that the aggregate amount of reimbursement payments to the Indemnifying Parties will not in any event exceed the aggregate indemnification payment received by the Indemnified Party from the Indemnifying Parties. For clarity, nothing in this Section 4.5.39.3(i) will be deemed to prejudice the ability of any Indemnified Party to seek recourse against the Escrow Fund at any time according to the other terms and conditions of this Article IX, but rather this Section 9.3(i) is intended solely to prevent multiple recoveries by any Indemnified Party for the same Losses.

Limitations on Indemnification. 4.5.1 In (a) Notwithstanding anything herein to the event that a selling holder contrary, with respect to Section 8.2(a)(i) and Section 8.2(b)(i), Seller shall not be obligated to indemnify Purchaser Indemnified Parties and Purchaser shall not be obligated to indemnify Seller Indemnified Parties for any Damages unless and until the aggregate of Registrable Securities all Damages incurred by Purchaser Indemnified Parties (or any of them), or the aggregate of all Damages incurred by Seller Indemnified Parties (or any of them), in either case, exceeds [***] (the “Indemnifying HolderBasket”) is obligated ), after which the party sustaining, incurring or suffering such Damages shall be entitled to pay an amount recover all such Damages including the Basket; provided, however, that under no circumstances will Purchaser Indemnified Parties or Seller Indemnified Parties be entitled to be indemnified for any Damages which exceed [***] in the Company pursuant to Section 4.2 aggregate (the “Indemnification AmountCap”); provided, during a year however, further, that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 Indemnification Cap and the Basket shall not apply to (i) any of the Code (a “REIT”)Seller’s indemnification obligations arising out of, the Indemnifying Holder relating to or its affiliates, as applicable, shall pay to the Company, resulting from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements a breach of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus a Seller Fundamental Rep; (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 fraud or intentional misrepresentation by Seller; or (2z) an opinion Section 8.2(a)(ii), 8.2(a)(iii) or 8.2(a)(iv) or (ii) any of Purchaser’s indemnification obligations arising out of, relating to or resulting from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected a breach of a Purchaser Fundamental Rep; (y) fraud or intentional misrepresentation by the Indemnifying Holder and on such customary terms Purchaser; or (subject to z) Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise8.2(b)(ii), in which case the escrow agent shall release such amount or, in the case of a revised 8.2(b)(iii) or updated letter, such additional amount to the Company, or8.2(b)(iv). (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternativelyPURCHASER ACKNOWLEDGES THAT, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code)EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND THE EXHIBITS AND SCHEDULES HERETO, in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the CodeTHERE ARE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, (yI) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or WITH RESPECT TO SELLER AND ITS SUBSIDIARIES, THEIR RESPECTIVE ASSETS AND LIABILITIES, THE BUSINESS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR (zII) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION REGARDING THE BUSINESS FURNISHED OR MADE AVAILABLE TO PURCHASER AND ITS REPRESENTATIVES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND THE EXHIBITS AND SCHEDULES HERETO, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Limitations on Indemnification. 4.5.1 In (a) Notwithstanding anything to the event contrary set forth in this Agreement: (i) the maximum aggregate amount of indemnifiable Losses that a selling holder may be recovered from the Seller Parties by the Purchaser Indemnified Parties pursuant to Section 7.3(a) or Section 7.3(d) shall be fifteen percent (15%) of Registrable Securities the Purchase Price, (“Purchaser Cap”). (ii) the maximum aggregate amount of indemnifiable Losses that may be recovered from the Purchaser by the Seller Indemnified Parties pursuant to Section 7.2(a) shall be fifteen percent (15%) of the Purchase Price (“Seller Cap”). (iii) The Seller Parties shall not be liable to the Purchaser Indemnified Parties under Section 7.3(a) or Section 7.3(d) unless and until the Losses incurred by the Purchaser Indemnified Parties exceed, in the aggregate, Two Hundred Ninety-Four Thousand Six Hundred Fifty-Five and 00/100 Dollars ($294,655) (the “Indemnifying HolderDeductible”) is obligated to pay an amount to the Company pursuant to Section 4.2 (the “Indemnification Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent Seller Parties shall release such be liable to the applicable Purchaser Indemnified Party back to the first dollar. Notwithstanding the foregoing, (i) the Deductible shall be reduced to an amount orequal to One Hundred Twenty Thousand and 00/100 Dollars ($120,000) (the “Mini-Deductible”) for any claim related to or in respect of any labor or employment matter (provided, however, that any costs relating to immigration issues shall be excluded from this Mini-Deductible); (ii) any claim related to or in respect of: (a) any Tax Clearance Certificate Amount, or (b) Bad Debt shall not be restricted from recovery if the Deductible threshold has not been met (each a “No Deductible Claim”); and (iii) each No Deductible Claim shall be counted towards the Deductible in respect of the treatment of any other claims. (iv) The Purchaser Indemnified Parties shall not be liable to the Seller Indemnified Parties under Section 7.2(a) unless and until the Losses incurred by all Seller Indemnified Parties exceed, in the case of a revised or updated letteraggregate, such additional amount to the Company, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code Deductible (or alternativelythe Mini-Deductible, as the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Codecase may be), in which case the escrow agent Purchaser Indemnified Parties shall release be liable to the remainder applicable Seller Indemnified Party back to the first dollar. (v) no Indemnified Party shall be entitled to recover any amount relating to any matter arising under one provision of this Agreement to the extent such Indemnified Party (or other Purchaser Indemnified Parties in the event of a Purchaser Indemnified Party, or other Seller Indemnified Parties in the event of a Seller Indemnified Party) has already recovered such amount with respect to such matter pursuant to that or other provisions of this Agreement. (vi) Notwithstanding anything to the contrary contained herein, (i) Section 7.4(a)(i)-(v) shall not apply to Losses in connection with, resulting from or arising out of directly or indirectly any inaccuracy in or breach of a Fundamental Reps, fraud or intentional misrepresentation, and (ii) no indemnification payment made by any Seller Party or Purchaser, as the case may be, with respect to any Fundamental Reps shall be considered in determining whether the Seller Cap or Purchaser Cap has been exceeded. (b) In no event shall an Indemnifying Party have liability to a Indemnified Party for any consequential, special, incidental, punitive or exemplary damages, except if and to the extent any such damages are recovered against a Seller Indemnified Party pursuant to a Third Party Claim. (c) The parties acknowledge and agree that, following the Effective Date, their sole and exclusive remedy with respect to any and all claims relating to this Agreement and the transactions contemplated hereby (other than claims arising from fraud or intentional misrepresentation or willful misconduct) shall be pursuant to the indemnification provisions set forth in this ARTICLE VII. In furtherance of the Indemnification Amount foregoing, each party hereby waives on its own behalf and (in the case of the Purchaser, on behalf of the Purchaser Indemnified Parties and in the case of the Seller Parties, on behalf of the Seller Indemnified Parties) to the Company. The escrow agreement shall also provide that fullest extent permitted under Law, any portion and all claims it may have against any of the Indemnification Amount held other parties or their Affiliates arising under or based upon this Agreement, any document or certificate delivered in escrow for five (5connection herewith, any Law or otherwise, except pursuant to the indemnification provisions set forth in this ARTICLE VII. Nothing in this Section 7.4(c) years shall limit any Person’s right to seek and obtain any equitable relief to which any Person shall be released by the escrow agent entitled or to the Indemnifying Holderseek any remedy on account of any Person’s fraudulent, or intentional misrepresentation or willful misconduct. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 In (a) Notwithstanding anything herein to the event contrary, the Acquiror Indemnified Parties shall not be entitled to seek indemnification with respect to any Losses pursuant to Section 10.02(a) unless, until and only to the extent that the aggregate amount of all Losses suffered by the Acquiror Indemnified Parties as a selling holder result of Registrable Securities such breach(es) exceeds in the aggregate the Deductible, in which case, the Acquiror Indemnified Parties shall be entitled to indemnification from the Indemnity Escrow Fund and as provided in Section 10.06(b) for all Losses suffered or incurred by Acquiror Indemnified Parties in excess of the Deductible. Any Claim for indemnification by the Acquiror Indemnified Parties pursuant to Section 9.01(j), Section 10.02(b), Section 10.02(c), Section 10.02(d), Section 10.02(e), Section 10.02(f) or Section 10.02(g) shall not be subject to the Deductible and the Acquiror Indemnified Parties shall be entitled, at their election, to indemnification from the Indemnity Escrow Fund and directly from the Equityholders for all Losses suffered or incurred by the Acquiror Indemnified Parties arising thereunder; provided, however, any indemnification Claim made pursuant to Section 10.02(g) shall be subject to indemnification solely from the Special Indemnity Escrow Fund and not directly from the Equityholders. (b) Notwithstanding anything herein to the contrary, the Acquiror Indemnified Parties shall not be entitled to any indemnification for any amount of indemnifiable Losses pursuant to Section 10.02(a) in excess of ten percent (10%) of the Base Purchase Price (the “Indemnifying Holder10% Cap”) is obligated and, for the avoidance of doubt, the Acquiror Indemnified Parties shall be entitled to pay an amount recover Losses directly from the Equityholders to the Company extent there are not sufficient amounts remaining in the Indemnity Escrow Fund to satisfy such Losses; subject in all respects to the 10% Cap; provided, however, that the 10% Cap set forth in this Section 10.06(b) is not applicable to Fraud. (c) The aggregate amount of all Losses for which the Equityholders shall be liable pursuant to Section 4.2 (the “Indemnification Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, 10.02(b) shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, not exceed an amount equal to the lesser Base Purchase Price (such amount, the “Cap”) and each Equityholder’s liability for indemnification pursuant to Section 10.02(b) shall be capped at such Equityholder’s Pro Rata Share of the Base Purchase Price, in each case, provided, however, that the Cap set forth in this Section 10.06(c) is not applicable to Fraud. (Id) No Equityholder shall be liable for any Losses under Section 10.02(c) or Section 10.02(d) arising out of or resulting from a breach of, inaccuracy in, or default in performance of, any representation, warranty, covenant or agreement made by any other Equityholder in this Agreement or any other Transaction Document to which it is a party and the Indemnification Amount and Equityholder who has breached any Equityholder Representation or defaulted on the performance of such covenant shall be liable for such Losses which shall be capped at the breaching Equityholder’s Pro Rata Share of the aggregate amount of the Base Purchase Price; provided, however, that the limitation set forth in this Section 10.06(d) is not applicable to Fraud. (IIe) the sum of (x) the maximum amount that can be paid Notwithstanding anything herein to the Company without causing contrary, the Company aggregate amount of all Losses for which the Equityholders shall be liable pursuant to fail Section 10.02(g) shall not exceed the Special Indemnity Escrow Amount. (f) Notwithstanding anything herein to meet the requirements contrary, the Equityholder Indemnified Parties shall not be entitled to any indemnification for any amount of Sections 856(c)(2indemnifiable Losses pursuant to Section 10.03(a) and (3) in excess of the Code determined 10% Cap; provided, however, that the 10% Cap set forth in this Section 10.06(f) is not applicable to Fraud. (g) The aggregate amount of Losses for which Acquiror shall be liable under to Section 10.03(b) shall not exceed the Cap; provided, however, that the Cap set forth in this Section 10.06(g) is not applicable to Fraud. (h) Without limiting, and in addition to the provisions set forth in Section 10.06(a), the Indemnified Party shall use its commercially reasonable efforts to seek recovery from available insurance policies or other third party indemnitors in respect of Claims for indemnification pursuant to Section 10.02(a), Section 10.02(b), or Section 10.02(c) (including, for the avoidance of doubt, recovery under the R&W Insurance Policy); provided, however, that in no event shall the Indemnified Party be required to commence or threaten litigation against any third party (including the Carrier) in respect of such recovery; and provided further, however, that the Acquiror Indemnified Party shall have no obligation to submit indemnification Claims against the R&W Insurance Policy under (i) Section 10.02(b) or Section 10.02(c), if (A) indemnification Claims have been asserted under the R&W Insurance Policy in excess of the R&W Insurance Policy’s limit or the R&W Insurance Policy limit has been fully reached and exhausted or (B) such indemnification Claims are explicitly excluded from coverage under the R&W Insurance Policy or (ii) Section 9.01(j), Section 10.02(d), Section 10.02(e) Section 10.02(f) or Section 10.02(g); and provided further, however, that subject to the procedures set forth in Section 10.04 or Section 10.05, as if applicable, the Equityholders, as the Indemnifying Party, shall not be entitled to delay the payment of such amount did not constitute income described in Sections 856(c)(2indemnifiable Losses arising under Section 10.02(a), Section 10.02(b) or 856(c)(3Section 10.02(c) while any Acquiror Indemnified Party pursues recovery from any available insurance policies or third party indemnitors and, at their election, may seek indemnity directly from the Equityholders for all Losses. Any actual recovery of Losses (or portion of Losses) by an Indemnified Party from a third party (net of any fees, expenses and other costs of recovery) after payment of the Code Losses by an Indemnifying Party to the Indemnified Party shall be repaid promptly by the Indemnified Party to the Indemnifying Party; provided, however, that the Indemnified Party shall not be required to make such reimbursement payment to the Indemnifying Party to the extent there is, or such payment would result in, outstanding or unpaid Losses. (“Qualifying Income”i) Subject to the procedures set forth in Section 10.04 or Section 10.05, as applicable, (i) any payment for indemnifiable Losses required to be made pursuant to Section 10.02 shall be paid in immediately available funds to the applicable Acquiror Indemnified Party within fifteen (15) Business Days after the Acquiror Indemnified Party makes written demand for payment to the Representative; and (ii) any payment for indemnifiable Losses required to be made pursuant to Section 10.03 shall be paid in immediately available funds to the applicable Equityholder Indemnified Party within fifteen (15) Business Days after the Equityholder Indemnified Party makes written demand for payment to Acquiror. (j) The limitations set forth in this Section 10.06 do not in any way limit the obligations of an Indemnifying Party to indemnify the Indemnified Party from and against any Losses arising from any nonfulfillment or breach of covenant or agreement (including the Indemnified Liabilities with respect to the Acquiror Indemnified Parties), as determined by the Company independent certified public accountantseven if such breach also constitutes a misrepresentation, plus inaccuracy or breach of representation or warranty. (yk) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less For purposes of calculating the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment any Losses or deposit into escrow determining whether a breach of the Indemnification Amount, a representation or warranty has occurred pursuant to this Section 4.5Article X any “material”, “materiality”, “Material Adverse Effect” or similar qualifiers, limitations or exceptions as to materiality contained or incorporated in the representations and warranties in this Agreement shall be made at the time that the payment disregarded. (l) The representations, warranties and covenants of the Indemnification Amount would otherwise be due without regard Company and the Equityholders, and the Acquiror Indemnified Parties’ right to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof indemnification with respect thereto, shall not be released to the Company unless the escrow agent receives affected or deemed waived by reason of any one investigation made by or combination on behalf of Acquiror or by reason of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount fact that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income Acquiror knew or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount or, in the case of a revised or updated letter, such additional amount to the Company, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide should have known that any portion of the Indemnification Amount held in escrow for five (5) years shall such representation or warranty is, was or might be released by the escrow agent to the Indemnifying Holderinaccurate. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 In (a) Seller will have no liability for indemnification pursuant to clause (i) of Section 11.02(a) or, but solely in respect of Non-Income Taxes, Section 7.04(a) with respect to: (i) Covered Losses for which indemnification is provided thereunder unless such Covered Losses exceed in the event that a selling holder aggregate an amount equal to 1.0% of Registrable Securities the Final Closing Tangible Net Assets (the “Indemnifying HolderDeductible”), in which case Seller will be liable for all such Covered Losses in excess of such amount (subject to the other limitations set forth in this Agreement, including those set forth in clause (ii) of this Section 11.05(a)); provided, however, that the Deductible shall not apply to the representations and warranties contained in Sections 2.01 (Organization), 2.02 (Authority; Enforceability), or 2.05 (Ownership of Shares), or 2.06 (Capitalization), or (ii) Covered Losses for which indemnification is obligated provided thereunder to pay the extent that such Covered Losses exceed in the aggregate an amount equal to the Company pursuant to Section 4.2 $250,000,000 (the “Indemnification AmountCap”), during a year in which case Seller will not be liable for the portion of such Covered Losses in excess of such amount; provided, however, that the Company qualifies as a “real estate investment trust” under Cap shall be the Purchase Price with respect to the representations and warranties contained in Sections 856 through 860 of the Code 2.01 (a “REIT”Organization), 2.02 (Authority; Enforceability), 2.05 (Ownership of Shares) or 2.06 (Capitalization). (b) Purchaser will have no liability for indemnification pursuant to clause (i) of Section 11.03(a) with respect to: (i) Covered Losses for which indemnification is provided thereunder unless such Covered Losses exceed in the Indemnifying Holder or its affiliatesaggregate the Deductible, as applicable, shall pay in which case Purchaser will be liable for all such Covered Losses in excess of such amount (subject to the Companyother limitations set forth in this Agreement, from including those set forth in clause (ii) of this Section 11.05(b)); provided, however, that the Indemnification Amount deposited into escrow Deductible shall not apply to the representations and warranties contained in accordance with Section 4.5.2, Sections 3.01 (Organization) or 3.02 (Authority; Enforceability); or (ii) Covered Losses for which indemnification is provided thereunder to the extent that such Covered Losses exceed in the aggregate an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise)Cap, in which case the escrow agent shall release such amount or, in the case of a revised or updated letter, such additional amount to the Company, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would Purchaser will not be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow liable for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of such Covered Losses in excess of such amount; provided, however, that the Indemnification Amount that may Cap shall be distributed the Purchase Price with respect to the Company hereunder without causing the Company representations and warranties contained in Sections 3.01 (Organization) or 3.02 (Authority; Enforceability). (c) No indemnified party will be entitled to fail to meet the requirements of Sections 856(c)(2) and (3) recover from an indemnifying party more than once in respect of the Codesame Covered Loss. (d) For the avoidance of doubt, (y) improve losses relating to Income Taxes and Transfer Taxes indemnified under Section 7.04 shall not be subject to the Company’s chances limitations of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.311.05.

Limitations on Indemnification. 4.5.1 In (a) Notwithstanding the event that a selling holder provisions of Registrable Securities Section 8 of this Agreement, neither party (with Transcend and the “Indemnifying Holder”Surviving Corporation being considered one party and the Shareholders being considered the other party) is shall be entitled to claim, receive or collect, and the other party shall not be obligated to pay an amount or defend against, any Loss of Transcend (in the case of Transcend and the Surviving Corporation) or any Loss of Shareholders (in the case of the Shareholders), except to the Company pursuant to Section 4.2 extent that the Loss of Transcend or Loss of Shareholders, as the case may be, exclusive in either case of the costs and expenses of collection, including attorneys' fees and expenses, exceeds $10,000 (the “Indemnification Amount”"BASKET"), during a year at which time the aggrieved party shall be entitled to claim, ------ receive or collect, and the other party shall be obligated to pay or defend against, all Losses of Transcend or Losses of Shareholders, as the case may be, back to the first dollar of the Basket. Thereafter, the Basket shall no longer, as to claims made by such aggrieved party, apply, and Losses of Transcend or Losses of Shareholders, as the case may be, may be asserted as they are incurred without reference to the Basket; provided, however, that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 limitation contained in this paragraph (a) shall not apply to any Loss of Transcend arising by reason of the Code circumstances set forth in Section 8.2 (a “REIT”)e) above, it being the understanding and agreement of the parties that the Shareholders' obligation under said Section 8.2 (e) hereof shall be to pay the Surviving Corporation, subject only to the limitation with respect to Minority Shareholders set forth in paragraph (b) of this Section 8.6, the Indemnifying Holder or its affiliatesamount, as applicableif any, by which the Excess Bank Closing Payment exceeds the Northwest Region Net Operating Contribution. (b) The liability of each Minority Shareholder under this Section 8 shall pay be limited to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the aggregate sum of the Cash Consideration, the face amount of the Notes Consideration and shares of Transcend Common Stock (x) valued at the maximum amount that can be paid same price per share as was applicable on the Closing Date, regardless of fluctuation in market price subsequent to the Company without causing Closing Date) paid or payable, whether or not due, to such Minority Shareholder by Transcend or the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, Surviving Corporation pursuant to this Section 4.5Agreement and the Non-competition Agreement with such Minority Shareholder, shall be made at plus the time that the payment costs and expenses of the Indemnification Amount would otherwise be due without regard to this Section 4.5collection from or enforcement against such Minority Shareholder, including attorneys' fees and expenses. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount or, in the case of a revised or updated letter, such additional amount to the Company, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 In the event that a selling holder of Registrable Securities (the “Indemnifying Holder”) is obligated to pay an amount Notwithstanding anything to the Company pursuant to Section 4.2 (the “Indemnification Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow contrary contained in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the followingAgreement: (a) a letter except for Losses in respect of (i) any indemnification claim based upon, arising out of, resulting from or because of fraud, criminal activity, intentional misconduct or intentional misrepresentation by Sellers in connection with this Agreement or any Ancillary Agreement, (ii) breaches of the Company’s independent certified public accountants indicating representations and warranties set forth in Section 3.4 (Tax Matters) or (iii) the maximum amount Seller Fundamental Representations (it being understood that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements Losses based upon, arising out of, resulting from or because of Sections 856(c)(2subclauses (i), (ii) and (3iii) of this Section 8.4(a) shall not be subject to the Code determined as if limitations of this Section 8.4(a) and shall not count towards the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwiseDeductible), no Buyer Indemnified Party may shall be entitled to recover for any claim for indemnification pursuant to Section 8.2(a) in respect of the Seller General Representations until the aggregate amount of Losses recoverable under Section 8.2(a) equals or exceeds 0.75% of the Purchase Price (the “Deductible”), after which case the escrow agent Buyer Indemnified Parties may seek recovery for Losses in excess of the Deductible; provided, however, that no Losses may be claimed by any Buyer Indemnified Party or shall release such amount orbe reimbursable or shall be included in calculating the aggregate Losses for purposes of this clause (a) other than Losses in excess of $25,000 (the “Per-Claim Deductible”) resulting from any single claim or aggregated claims arising out of the same facts, in the case of a revised events or updated letter, such additional amount to the Company, orcircumstances; (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt except for any Losses in respect of (i) any indemnification claim arising out of fraud, criminal activity, intentional misconduct or intentional misrepresentation by the Company Sellers in connection with this Agreement or any Ancillary Agreement, (ii) breaches of the Indemnification Amount would either constitute Qualifying Income representations and warranties set forth in Section 3.4 (Tax Matters) or would be excluded (iii) the Seller Fundamental Representations (it being understood that Losses arising from gross income within the meaning of Sections 856(c)(2subclauses (i), (ii) and (3iii) of this Section 8.4(b) shall not be subject to the Code limitations of this Section 8.4(b)), the funds held in the Indemnity Escrow Account shall be the sole source of recovery with respect to all indemnifiable Losses that may be recovered by a Buyer Indemnified Party pursuant to Section 8.2(a) in respect of the Seller General Representations (such amount, as of the Closing, the “Cap”); (c) except for Losses in respect of any indemnification claim arising out of fraud, criminal activity, intentional misconduct or intentional misrepresentation by Sellers in connection with this Agreement or any Ancillary Agreement (it being understood that Losses shall not be subject to the limitations of this Section 8.4(c)), in no event shall the aggregate amount of Losses for which Sellers are obligated to indemnify the Buyer Indemnified Parties with respect to any matter set forth in Section 8.2 exceed in the aggregate the Purchase Price; (d) for purposes of determining the amount of Loss resulting from any inaccuracy in or breach of any representation or warranty, any breach or default in compliance with or performance of any covenant, agreement or other obligation, calculating Losses under this ARTICLE VIII, and satisfying the Deductible and Per-Claim Deductible, any materiality or Material Adverse Effect qualifications contained in the representations, warranties, covenants, agreements and other obligations shall be disregarded such that each representation, warranty, covenant, agreement and other obligation shall be deemed to be made or given without any such materiality qualifications; (e) no Indemnified Party shall be entitled to recover any amount of Losses relating to any matter arising under one provision of this Agreement to the extent such Indemnified Party (or alternativelyother Buyer Indemnified Parties in the event of a Buyer Indemnified Party, or other Seller Indemnified Parties in the Company’s outside counsel event of a Seller Indemnified Party) has rendered a legal opinion already recovered such amount with respect to such matter pursuant to such provision or any other provision of this Agreement, including to the effect extent such amount is included in the calculation of any adjustment to the Purchase Price, provided that the receipt nothing herein shall limit an Indemnified Party’s recovery for multiple occurrences of any inaccuracy or breach of any representation, warranty, covenant or agreement; (f) except for Losses in respect of (i) any indemnification claim arising out of fraud, criminal activity, intentional misconduct or intentional misrepresentation by the Company Buyers in connection with this Agreement or any Ancillary Agreement, (ii) breaches of the Indemnification Amount would either constitute Qualifying Income representations and warranties set forth in Section 3.4 (Tax Matters) or would be excluded (iii) the Buyer Fundamental Representations (it being understood that Losses arising from gross income within the meaning of Sections 856(c)(2subclauses (i), (ii) and (3iii) of this Section 8.4(f) shall not be subject to the Codelimitations of this Section 8.4(f) and shall not count towards the Deductible), no Seller Indemnified Party may shall be entitled to recover for any claim for indemnification pursuant to Section 8.3(a) in respect of the Buyer General Representations until the aggregate amount of Losses recoverable under Section 8.3(a) equals or exceeds the Deductible, after which the Seller Indemnified Parties may seek recovery only for Losses in excess of the Deductible; provided, however, that no Losses may be claimed by any Seller Indemnified Party or shall be reimbursable or shall be included in calculating the aggregate Losses for purposes of this clause (f) other than Losses in excess of the Per-Claim Deductible resulting from any single claim or aggregated claims arising out of the same facts, events or circumstances; (g) except for Losses in respect of (i) any indemnification claim arising out of fraud, criminal activity, intentional misconduct or intentional misrepresentation by Buyers in connection with this Agreement or any Ancillary Agreement, (ii) breaches of the representations and warranties set forth in Section 3.4 (Tax Matters) or (iii) the Buyer Fundamental Representations (it being understood that Losses arising from subclauses (i), (ii) and (iii) of this Section 8.4(g) shall not be subject to the limitations of this Section 8.4(g)), the aggregate amount of Losses for which Buyers are obligated to indemnify the Seller Indemnified Parties under Section 8.3(a) in respect of the Buyer General Representations shall not exceed the Cap; (h) except for Losses in respect of any indemnification claim arising out of fraud, criminal activity, intentional misconduct or intentional misrepresentation by Buyers in connection with this Agreement or any Ancillary Agreement (it being understood that Losses shall not be subject to the limitations of this Section 8.4(h)), in no event shall the aggregate amount of Losses for which case Buyers are obligated to indemnify the escrow agent Seller Indemnified Parties with respect to any matter set forth in Section 8.3 exceed in the aggregate the Purchase Price; and (i) NO PARTY SHALL BE LIABLE TO ANY INDEMNIFIED PARTY FOR CLAIMS FOR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, REGARDLESS OF WHETHER A CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, VIOLATION OF ANY APPLICABLE DECEPTIVE TRADE PRACTICES ACT OR SIMILAR LAW OR ANY OTHER LEGAL OR EQUITABLE PRINCIPLE, EXCEPT TO THE EXTENT SUCH DAMAGES ARE INCLUDED IN AND AWARDED (AND ACTUALLY PAID) TO A GOVERNMENTAL ENTITY OR OTHER THIRD PARTY AS PART OF A CLAIM AGAINST THE INDEMNIFIED PARTY THAT IS OTHERWISE INDEMNIFIABLE PURSUANT TO THIS ARTICLE VIII, AND EACH PARTY (AND BY ACCEPTANCE OF THE BENEFITS OF THE PROVISIONS OF THIS ARTICLE VIII EACH INDEMNIFIED PARTY) RELEASES THE INDEMNIFYING PARTY FROM LIABILITY FOR ANY SUCH DAMAGES. (j) WITH RESPECT TO CLAIMS ARISING UNDER ENVIRONMENTAL LAWS, INCLUDING CERCLA, THE INDEMNIFICATION PROVISIONS OF THIS ARTICLE VIII ARE INTENDED TO ALLOCATE, WITHOUT LIMITATION, STATUTORY AND COMMON LAW NEGLIGENCE AND STRICT LIABILITY CLAIMS AS WELL AS NEGLIGENCE, STRICT LIABILITY, AND ALL OTHER CLAIMS ARISING UNDER ENVIRONMENTAL LAWS, INCLUDING CERCLA. (k) If any Buyer Indemnified Party is entitled to assert a claim for indemnification either under Section 8.2(a) or Section 8.2(b) on the basis of Sellers’ breach or default in, or failure to carry out, perform, satisfy and discharge their obligations under Section 5.3, then the Buyer Indemnified Party shall release assert the remainder claim (i) under Section 8.2(a) if the change, event, circumstance, development, condition, occurrence or effect that was not disclosed would not have resulted in any of the Indemnification Amount to conditions set forth in Article VII not being satisfied if it had been disclosed or (ii) under Section 8.2(b) if the Company. The escrow agreement shall also provide change, event, circumstance, development, condition, occurrence or effect that was not disclosed would have resulted in any portion of the Indemnification Amount held conditions set forth in escrow Article VII not being satisfied if it had been disclosed. If any Seller Indemnified Party is entitled to assert a claim for five indemnification either under Section 8.3(a) or Section 8.3(b) on the basis of Buyers’ breach or default in, or failure to carry out, perform, satisfy and discharge their obligations under Section 5.3, then the Seller Indemnified Party shall assert the claim (5i) years shall be released by under Section 8.3(a) if the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request change, event, circumstance, development, condition, occurrence or effect that was not disclosed would not have resulted in any of the Company conditions set forth in order to Article VII not being satisfied if it had been disclosed or (xii) maximize under Section 8.3(b) if the portion change, event, circumstance, development, condition, occurrence or effect that was not disclosed would have resulted in any of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described conditions set forth in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3Article VII not being satisfied if it had been disclosed.

Limitations on Indemnification. 4.5.1 (i) Notwithstanding anything contained in this Agreement to the contrary, Gerszberg, ▇▇▇▇▇▇▇ and the Transferors, on the one hand, and Iconix, on the other hand, shall not be obligated to indemnify the other party unless and until a claim is asserted before the end of the relevant survival period specified in Section 4.11(a)(ii). In addition, notwithstanding anything contained in this Agreement to the event that a selling holder contrary, Gerszberg, ▇▇▇▇▇▇▇ or the Transferors shall not be required to pay an aggregate amount in excess of Registrable Securities Twenty Million Dollars ($20,000,000) (the “Indemnifying HolderCap”) is obligated in respect of all Losses incurred by the Iconix Indemnified Parties by reason of the breach of warranty or misrepresentation of Gerszberg, ▇▇▇▇▇▇▇ or the Transferors, and Iconix shall not be required to pay an aggregate amount in excess of the Cap in respect of all Losses incurred by the MEE Indemnified Parties by reason of the breach of warranty or misrepresentation of Iconix. No party to this Agreement shall have an obligation for indemnification under this Section 4.11 unless the Company pursuant to aggregate Losses suffered by the MEE Indemnified Parties or Iconix Indemnified Parties, as the case may be, under Section 4.2 4.11(c) or 4.11(b), respectively, exceed Two Hundred Fifty Thousand Dollars ($250,000) (the “Indemnification AmountBasket”). Losses to which the Basket applies, during a year that as described in the Company qualifies preceding sentence, are hereinafter referred to as a the “real estate investment trustBasket Losses” under Sections 856 through 860 of At such time as their Basket Losses exceed Two Hundred Fifty Thousand Dollars ($250,000) in the Code (a “REIT”)aggregate, the Indemnifying Holder MEE Indemnified Parties or its affiliatesIconix Indemnified Parties, as applicable, shall pay be entitled to be indemnified against the full amount of all such Basket Losses that have been incurred or suffered by such indemnitees for which they are entitled to be indemnified under this Agreement (and not merely the portion of such Basket Losses exceeding Two Hundred Fifty Thousand Dollars ($250,000), subject to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal Cap). Notwithstanding anything to the lesser contrary contained in this Section 4.11(f) the amount of indemnity payable (i) by Gerszberg, ▇▇▇▇▇▇▇ and the Transferors as a result of any Losses arising out of (IA) a breach of the representations and warranties contained in Sections 3.1(a) (Organization, Power, Qualification), 3.1(b) (Authorization, Enforceability), 3.1(d) (The Assets), 3.1(j) (No Brokers or Finders), 3.1(l) (Taxes), 3.1(q) (Taxes), 3.1(v) (Ownership of the Trademarks), 3.3(a) (Organization, Power, Qualification), or 3.3(b) (Authorization, Enforceability) of this Agreement or (B) the Indemnification Amount Excluded Liabilities or the Excluded Assets shall not be subject to the Cap or the Basket; (ii) by Iconix as a result of any Losses arising out of Sections 3.2(a) (Organization, Power, Qualification), 3.2(b) (Authorization, Enforceability) and 3.1(j) (No Brokers or Finders) of this Agreement shall not be subject to the Cap or the Basket and (IIiii) by either Iconix, on the sum one hand, or ▇▇▇▇▇▇▇, Gerszberg and the Transferors, on the other hand, as a result of (x) Losses arising out of the maximum amount covenants or agreements of the parties contained in this Agreement that can by their terms are to be paid satisfied after the Closing Date shall not be subject to the Company without causing Cap or the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) aboveBasket. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an (ii) In calculating any amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, Losses recoverable pursuant to this Section 4.54.11, the amount of such Losses shall be made at reduced by any insurance proceeds actually received by the time that indemnified party relating to such Loss (net of any costs of collection of such amounts, including, but not limited to, attorneys fees and expenses) and any recoveries actually received by the indemnified party from third parties pursuant to indemnification or similar obligations and increased by the cost of enforcing such claim for indemnification (including, but not limited to, attorney’s fees and expenses). The parties agree to treat any indemnification payment of the Indemnification Amount would otherwise be due without regard pursuant to this Section 4.54.11 as an adjustment to the Purchase Price for tax purposes. 4.5.3 The escrow agreement (iii) Notwithstanding anything contained herein, each indemnifying party shall be liable only for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof actual Losses and shall not be released to the Company unless the escrow agent receives any one liable for special, incidental, indirect, consequential or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount or, in the case of a revised or updated letter, such additional amount to the Company, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holderpunitive damages. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 In the event that a selling holder of Registrable Securities (the “Indemnifying Holder”a) is obligated to pay an amount Notwithstanding anything to the Company contrary provided elsewhere in this Agreement, the obligations of any Indemnitor under this Agreement to indemnify an Indemnified Party with respect to any Claim pursuant to Section 4.2 7.3, or any obligation for any liability under this Agreement, shall be of no force and forever barred unless such Indemnified Party has given such Indemnitor notice of such claim prior to the second anniversary of the Closing; provided, that claims for breach of Sections 4.1, 4.2, 4.10, 4.17, 4.18 and 4.20, shall survive until the expiration of the applicable statute of limitations. (b) No Claim by an Indemnified Party for indemnification pursuant to this Article VII or for damages for breach of this Agreement, may be made unless and until the Indemnified Party has incurred, sustained or suffered Damages in respect of which the Indemnitor would be liable under this Article VII in excess of $200,000 in the aggregate (the “Indemnification Amount”"Basket"), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 at which time all amounts of such Damages in excess of the Code (a “REIT”)Basket amount may be claimed and recovered as provided in this Agreement; provided, however, the Indemnifying Holder or its affiliates, as applicable, Basket shall pay not apply to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, Claims by Purchaser for Chargeback Allowances. (c) The maximum aggregate amount of Damages for which an Indemnitor may be liable pursuant to this Article VII shall be an amount equal to $7,900,000 plus Purchaser's set-off rights against any Earn-Out Payments held in the lesser Escrow Agreement for Earn-Out. (d) If Purchaser is entitled to indemnity for a Claim, it may (i) demand payment directly from the Seller or, at its election, (ii) may, in its discretion and without obligation, offset all or any portion of (I) the Indemnification Amount and (II) the sum such Claims against any obligation of Purchaser (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) pay Seller any Earn-Out Payments or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 to pay Seller or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) aboveSolomon any Incentive Bonus payments. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts(e) Except as otherwise provided herein, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as remedies provided herein shall be mutually acceptable to each of the Company, the Indemnifying Holder cumulative and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to preclude the Company unless assertion by any party hereto of any other rights or the escrow agent receives seeking of any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount or, in the case of a revised or updated letter, such additional amount to the Company, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that other remedies against any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holderother party hereto. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 In the event that a selling holder of Registrable Securities (the “Indemnifying Holder”) is obligated to pay an amount Notwithstanding anything to the Company pursuant to Section 4.2 (the “Indemnification Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow contrary in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the followingAgreement: (a) Any claim under Section 8.2 or Section 8.3 or Article IX required to be made on or prior to the expiration of the applicable survival period set forth in Section 8.1 and not made on or prior to such expiration in accordance with Section 8.1 shall be irrevocably and unconditionally released and waived by the party seeking indemnification with respect thereto. It is the express intent of the Parties that, if the applicable period for an item as contemplated by Section 8.1 and this Section 8.5 is shorter than the statute of limitations that would otherwise have been applicable to such item, then, by contract, the applicable statute of limitations with respect to such item shall be reduced to the shortened survival period contemplated hereby. The Parties further acknowledge that the time periods set forth in Section 8.1 for the assertion of claims under this Agreement are the result of arm’s-length negotiation among the Parties and that they intend for the time periods to be enforced as agreed by the Parties. (i) The Seller Indemnitees shall not be entitled to recover from any Seller for any claim pursuant to Section 8.2(a), Section 8.2(b) or Article IX unless such claim individually or a letter series of related claims involves Losses in excess of $25,000 (the “De Minimis Threshold”), it being understood that if such Losses do not exceed the De Minimis Threshold, such Losses shall not be applied to or considered for purposes of calculating the aggregate amount of Seller Indemnitee’s indemnifiable Losses under Section 8.2(a), Section 8.2(b) or Article IX; (ii) the Seller Indemnitees shall not be entitled to recover from any Seller for any claims pursuant to Section 8.2(a)(ii) or Section 8.2(b)(ii) until the Company’s independent certified public accountants indicating aggregate amount of the Seller Indemnitees indemnifiable Losses under Section 8.2(a)(ii) and Section 8.2(b)(ii) exceeds $4,500,000 (the “Deductible”), it being understood that if such Losses exceed the Deductible, the Seller Indemnitees shall only be entitled to indemnification for Losses under Section 8.2(a)(ii) or Section 8.2(b)(ii) in excess of the amount of the Deductible; (iii) the maximum amount that can of indemnifiable Losses for which a Seller may be paid by the escrow agent liable pursuant to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2Section 8.2(a)(ii) and Section 8.2(b)(ii) shall be an amount equal to such Seller’s proportion (3determined in accordance with the Seller Proportions) of $34,000,000; and (iv) the maximum amount of indemnifiable Losses for which a Seller may be liable pursuant to Section 8.2 and Article IX shall be an amount equal to such Seller’s proportion (determined in accordance with the Seller Proportions) of the Code Total Seller Payment. (c) Sellers shall not be required to indemnify or hold harmless any Seller Indemnitees against any Losses or Taxes to the extent the related liabilities were reflected in, reserved for or taken into account in the determination of Working Capital as of immediately prior to the Closing and reduced the Aggregate Common Equity Price accordingly, or Closing Date Indebtedness. (d) The amount of any Losses or Taxes for which indemnification is provided under this Article VIII or Article IX shall be net of any amounts recovered by the Indemnified Party under insurance policies, indemnity or contribution agreements, Contracts or otherwise with respect to such Losses (in each case, with a third party), as applicable (it being agreed that if any such amounts are recovered by the Indemnified Party in respect of any such Losses subsequent to the Indemnifying Party’s making of an indemnification payment in satisfaction of its applicable indemnification obligation, such amounts shall be promptly remitted to the Indemnifying Party to the extent of the indemnification payment made), and the Indemnified Parties shall use, and cause their Affiliates to use, commercially reasonable efforts to seek recovery under all provisions covering such Losses to the same extent as it would if such Losses were not subject to indemnification hereunder. Any amount of Losses or Taxes for which reimbursement or indemnification is provided under this Agreement shall be determined as if net of any Tax Benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Loss or Tax. Claims for Taxes shall be made solely pursuant to Article IX, and no claims therefor shall be made under this Article VIII, in each case subject to the provisions of this Section 8.5. In the event of any conflict between this Article VIII and Article IX, the provisions of Article IX shall govern, in each case subject to the provisions of this Section 8.5. (e) Except to the extent of Losses payable by an Indemnified Party to a third party in respect thereof, no Indemnifying Party shall, in any event, be liable hereunder to any Indemnified Party for any consequential, incidental, indirect, special or punitive damages, loss of revenue, income or profits, diminution of value or loss of business reputation or opportunity. (f) For purposes of determining the amount did not constitute Qualifying Income of Losses subject to indemnification pursuant to this Article VIII for a breach of representation or warranty (but not, for the avoidance of doubt, for determining whether a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwisebreach exists), any limitations or qualifications as to materiality (including the word “material”), Material Adverse Effect or other similar limitation or qualification contained in which case the escrow agent or otherwise applicable to such representation or warranty shall release such amount orbe disregarded (other than in Section 4.4(a), Section 4.5(b) or in the case definitions of a revised or updated letterMaterial Adverse Effect, such additional amount Material Contract and Material IP). (g) No Indemnified Party shall be entitled to any indemnification hereunder to the Company, orextent that such indemnification would constitute a duplicative payment for the same Loss. (bh) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3Except as set forth in Section 8.5(h) of the Code Company Disclosure Schedule, (i) each of the Parties and the Indemnified Parties shall use its commercially reasonable efforts to mitigate its respective Losses upon and after becoming aware of any event or alternativelycondition that would reasonably be expected to give rise to any Losses that are indemnifiable hereunder, the Company’s outside counsel has rendered a legal opinion and (ii) no Indemnifying Party shall be liable for any Losses to the effect that extent they arise out of or result from the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount Indemnified Party’s failure to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent use commercially reasonable efforts to the Indemnifying Holdermitigate such Losses. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 In (a) No claim for indemnification under Section 8.2 or Section 8.3 may be asserted nor may any Proceeding be commenced against an Indemnifying Party in respect of such claim unless written notice of such claim or Proceeding is received by such Indemnifying Party describing in reasonable detail the event that a selling holder facts and circumstances with respect to the subject matter of Registrable Securities such claim or Proceeding on or prior to the date on which the representation, warranty, covenant or agreement on which such claim or Proceeding (taking into account the “Indemnifying Holder”information then available to the Indemnified Party) is obligated based ceases to pay an amount to survive as set forth in Section 8.1. (b) The following order of priority shall apply for the Company recovery of Losses against the Sellers pursuant to Section 4.2 (the “Indemnification Amount”8.2(a), during a year that Section 8.2(b), Section 8.2(d), Section 8.2(e), Section 8.2(f) and Section 8.2(g): (i) first, to the Company qualifies extent the Losses are covered by the Representation and Warranty Insurance (including Losses covered by or applied to any deductible or retention amount thereunder), then the Buyer Indemnified Parties shall recover such Losses by collecting insurance proceeds from the Representation and Warranty Insurance; (ii) second, to the extent the Losses relate to the Excluded Representations, Excluded Liabilities, Indemnified Taxes, or those items in Section 8.2(e), but excluding Losses related to the Fundamental Representations or the item in Section 8.2(g), then the Buyer Indemnified Parties shall recover such Losses from the amounts then remaining in the Indemnity Escrow Account until the cumulative amount of such Losses recovered has depleted the Indemnification Escrow Amount; (iii) third, to the extent the Losses relate to the item in Section 8.2(g), then the Buyer Indemnified Parties shall recover such Losses from the amounts then remaining in the Scheduled Matter Escrow Account until the cumulative amount of such Losses recovered has depleted the Scheduled Matter Escrow Amount; and (iv) fourth, solely to the extent such Losses or any portion thereof relate to breaches or inaccuracies of Fundamental Representations, Indemnified Taxes or the item in Section 8.2(g) and either (i) the Representation and Warranty Insurance is not sufficient to cover the amount of such Losses (excluding Losses covered by or applied to any deductible or retention amount thereunder), or (ii) such Losses are not covered by the Representation and Warranty Insurance, then the Buyer Indemnified Parties shall recover such Losses from the Sellers. (c) Notwithstanding anything in this Agreement, except as a “real estate investment trust” under Sections 856 through 860 otherwise set forth in Section 8.4(e)(ii), in no event shall the Sellers have any Liability for Losses pursuant to (i) Section 8.2(b), until the aggregate amount of the Code Buyer Indemnitees’ claims for indemnification thereunder exceed $25,000, and thereafter, subject to the other limitations set forth in this Section 8.4, the Buyer Indemnified Parties shall only be entitled to indemnification thereunder for amounts in excess thereof; (a “REIT”ii) Section 8.2(b), Section 8.2(e) and Section 8.2(f) in excess of the Indemnifying Holder or its affiliatesamount of the then remaining Indemnification Escrow Amount, as applicable, which Indemnification Escrow Amount then remaining shall pay to be Buyer’s sole and exclusive remedy for recovery of such Losses by Buyer and the Companysole source of recovery for Sellers’ indemnity and defense obligations therefor; (iii) Section 8.2(g) after the Scheduled Matter Release Date; and (iv) Section 8.2(d) until the Buyer Indemnified Parties have recovered such Losses first, from the Representation and Warranty Insurance and second, from the then remaining Indemnification Escrow Amount; provided, that in no event shall any Buyer Indemnified Party be permitted to recover any amounts in excess of the then remaining Indemnification Escrow Amount deposited into escrow from Sellers in accordance with respect of Section 4.5.28.2(d) to the extent such Losses for Indemnified Taxes thereunder relate to the Excluded Liabilities; provided, further, that the foregoing limitation in clause (ii) above shall not apply to any Excluded Representation that is also an Indemnified Tax. (d) The maximum Liability for all Losses for which indemnification is sought under Section 8.2 shall not exceed, in the aggregate, the Purchase Price; provided, that, such limitations, or any other limitations set forth in this Article VIII, shall not apply in the case of Fraud. Notwithstanding anything herein to the contrary, in no event shall any Seller’s Liability under this Agreement and the other Transaction Documents exceed, in the aggregate, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of proceeds received by such amount did not constitute income described Seller hereunder; provided, that, such limitations, or any other limitations set forth in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5Article VIII, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount or, apply in the case of a revised or updated letterFraud. (e) For the avoidance of doubt, such additional amount (i) the Buyer Indemnified Parties shall not be entitled to indemnification under this Agreement if and to the Companyextent that the Losses are reflected on the Final Purchase Price Adjustment Statement and are paid by the Sellers as set forth in Section 1.7 and (ii) the order of priority set forth in Section 8.4(b) and the other limitations set forth in this Article VIII shall not apply to the payment by the Sellers of any amounts owed to Buyer as reflected in the Final Purchase Price Adjustment Statement or pursuant to Section 6.17(b) or Section 6.17(e), orwhich amounts are to be paid directly by the Sellers as set forth therein. Notwithstanding anything herein to the contrary, in calculating the Closing Date Working Capital, no reserve with respect to the Excluded Liabilities or the Scheduled Matter shall be included. For the avoidance of doubt, the indemnity under Section 8.2 shall not include any Losses paid prior to 11:59 p.m. on the date immediately preceding the Closing Date (to the extent such Losses paid have in fact reduced the amount of Company Cash at Closing). (bf) a letter from the Company’s counsel indicating that the Company The amount of Losses shall be determined net of any amounts actually received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying HolderBuyer Indemnified Parties under insurance policies. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 In (a) Notwithstanding anything to the event that a selling holder contrary in this Agreement, the right of Registrable Securities Buyer Indemnitees to indemnification in respect of Losses under Section 8.2 shall be subject to the following limitations: (i) the Buyer Indemnitees will not be entitled to indemnification pursuant to Section 8.2(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.2(a) exceeds $220,000 (the “Indemnifying Holder”) is obligated to pay an amount to the Company pursuant to Section 4.2 (the “Indemnification Deductible Amount”), during a year in which case Buyer Indemnitees shall have the right to seek indemnification for Losses in excess of, but not including, the Deductible Amount; provided, however, that the limitation set forth in this Section 8.6(a)(i) shall not apply to Losses arising out of or resulting from a breach of the Seller’s Fundamental Representations and Warranties or a Fraud Claim; and (ii) in no event shall Seller’s aggregate liability pursuant to Section 8.2(a) and Section 8.2(j) exceed $1,100,000 (the “Cap”); provided, however, that the limitation set forth in this Section 8.6(a)(ii) shall not apply to Losses arising out of or resulting from a breach of the Seller’s Fundamental Representations and Warranties or a Fraud Claim; and (iii) the Parties acknowledge and agree that no waiver, release, limitation or exclusion of liability in this Agreement or otherwise, including the Cap, survival periods or limitations on types of damages available, does not apply to or limit recovery for any Losses for which there is coverage available under the R&W Insurance Policy, the Tail Policy, the Seller’s ▇▇ ▇▇▇▇▇ or any insurance policy maintained by Seller or any of its Affiliates where the Seller, the Company qualifies or the Operating Company is a named insured or which otherwise has coverage available for the Seller, Company or the Operating Company, whether directly or indirectly as a result of this Agreement being an “real estate investment trust” under Sections 856 through 860 insured contract”. (b) The Parties acknowledge that the R&W Insurance Policy has been issued to Buyer by Ambridge Partners LLC for coverage of Seller’s indemnification obligations hereunder with respect to Section 8.2(a). Prior to the Closing Date, Seller has paid one hundred percent (100%) of the Code (a “REIT”total premium of the R&W Insurance Policy. Subject to Section 8.6(a)(i), the Indemnifying Holder or its affiliates, as applicable, any Losses payable for any Claims for Indemnification under Section 8.2(a) shall pay to the Companybe satisfied: (i) first, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2Escrow Amount, but only up to an amount equal to the lesser R&W Insurance Policy Retention Amount less the Deductible Amount; (ii) second, to the extent coverage is available under the R&W Insurance Policy, pursuant to the R&W Insurance Policy, up to the R&W Insurance Policy Coverage Limit; (iii) third, from the Escrow Amount; and (iv) finally, from Seller, subject to the Cap. (c) Subject to Section 8.6(b) and Section 8.6(f), the amount of any and all Losses shall be determined net of (Ii) any amounts actually recovered by the Indemnification Amount Buyer Indemnitees or the Seller Indemnitees, as applicable, under insurance policies or from other collateral sources (such as contribution agreements or contractual indemnities of any Person that are contained outside of this Agreement) with respect to such Losses and (IIii) any Tax Benefits actually realized by the sum of (x) Buyer Indemnitees or the maximum Seller Indemnitees, as applicable, with respect to such Losses. If an Indemnified Party receives a Tax Benefit or recovers any amount that can be paid under insurance policies or from other collateral sources after an indemnification payment is made to him, her, or it pursuant to this Article VIII, the Indemnified Party shall promptly pay to the Company without causing Indemnifying Party that made such indemnification payment the Company amount of such Tax Benefit or recovered amount; provided that in no event shall the amount of such payment to fail the Indemnifying Party exceed the amount of such indemnification payment. For purposes of determining when an Indemnified Party recognizes a Tax Benefit from the utilization of any tax losses recognized as a result of a Loss, all tax losses shall be deemed to meet be used on a first-in, first-out basis. The determination of any Losses pursuant to this subsection (c) shall reflect any increase in costs or liabilities associated with any mitigating actions taken under insurance policies. (d) If any Losses result from any matter that resulted in a reduction in the requirements Final Working Capital as determined pursuant to Section 2.4, then Buyer Indemnitees’ recovery under Section 8.2 in respect of Sections 856(c)(2such Losses shall be reduced by the amount of such reduction in the Final Working Capital. (e) Subject to Section 8.6(b) and (3) Section 8.6(f), the Escrow Amount held by the Escrow Agent pursuant to the Escrow Agreement shall be the first source for satisfaction of all Claims for Indemnification payable by Seller pursuant to Section 8.2. Notwithstanding the foregoing any release of the Code determined as if Escrow Amount pursuant to the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) terms of the Code Escrow Agreement shall not impact Buyer’s right to proceed against Seller directly pursuant to the terms hereof. (“Qualifying Income”)f) The Parties acknowledge that the Escrow Amount is being held by the Escrow Agent, in part, as determined by security that Seller will maintain the Company independent certified public accountants, plus (y) in Seller’s ▇▇ ▇▇▇▇▇ pursuant to the terms of Section 6.14 hereof. In the event the Company receives either Seller’s ▇▇ ▇▇▇▇▇ is not maintained in any of the five policy years pursuant to the terms of Section 6.14 hereof, the Parties shall cause the Escrow Agent to release to Buyer the lesser of the actual cost for Buyer to purchase its ▇▇ ▇▇▇▇▇ for said policy period and the remaining Escrow Amount for said year and any following year. Any Losses payable for any Claims for Indemnification or any other claims under Section 8.2(j) and Section 8.2(a) solely with regard to a breach of Section 5.23 (1Warranties; Product and Service Liability) a ruling shall be satisfied from any applicable coverage from the Internal Revenue Service described in Seller’s ▇▇ ▇▇▇▇▇, and only if the Seller’s ▇▇ ▇▇▇▇▇ has not been maintained pursuant to the terms of Section 4.5.3 or (2) an opinion 6.14 hereof, then, from any applicable insurance coverage, and, only if such coverage is unavailable, from the Company’s outside counsel as described in Section 4.5.3, an amount equal Escrow Amount up to the Indemnification Amount, less the amount payable under clause (x) aboveCap. 4.5.2 To secure the Indemnifying Holder’s obligation (g) Subject to pay these amountsSection 8.8, the Indemnifying Holder Parties acknowledge that the indemnification obligations of Seller and Buyer set forth in this Article VIII shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each apply regardless of the Companyfault or negligence, the Indemnifying Holder and the escrow agent. The payment including that which is active, passive, sole, joint or deposit into escrow concurrent, of the Indemnification Amounta Buyer Indemnitee or a Seller Indemnitee; provided, pursuant to however, that this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof 8.6(g) shall not be released limit a claim by Seller or Buyer, as applicable, against such Buyer Indemnitee or such Seller Indemnitee, as applicable, with respect to such fault or negligence (other than the Company unless or the escrow agent receives any one Operating Company with respect to such fault or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent negligence which occurred on or prior to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwiseClosing), in which case the escrow agent shall release such amount or, in the case of a revised or updated letter, such additional amount to the Company, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 In the event that a selling holder of Registrable Securities (the “Indemnifying Holder”) is obligated to pay an amount Notwithstanding anything herein to the Company pursuant to Section 4.2 (the “Indemnification Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the followingcontrary: (a) a letter the Seller shall not be required to indemnify or hold harmless any Buyer Indemnified Party for any Losses resulting from or arising out of Section 9.01(a): (i) unless and until the Company’s independent certified public accountants indicating Buyer Indemnified Parties have incurred aggregate Losses for which the maximum amount that can be paid by Buyer Indemnified Parties are entitled to indemnification resulting from or arising out of Section 9.01(a) are in excess of One Million One Hundred Thousand US Dollars (US$1,100,000) in the escrow agent aggregate (the “General Deductible Amount”) (and then, for the avoidance of doubt, only with respect to the Company without causing the Company to fail to meet the requirements such Losses resulting from or arising out of Sections 856(c)(29.01(a) and (3) in excess of the Code determined as if General Deductible Amount); or (ii) for any individual claim or series of like claims for which the payment Buyer Indemnified Parties are entitled to indemnification resulting from or arising out of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwiseSection 9.01(a), where the Losses relating thereto are less than Four Million Yen (¥4,000,000); provided that the foregoing shall not apply in determining whether the General Deductible Amount has been met. (b) the Seller shall not be required to indemnify or hold harmless any Buyer Indemnified Party for any Losses resulting from or arising out of Section 9.01(b): (i) unless and until the Buyer Indemnified Parties have incurred aggregate Losses for which case the escrow agent Buyer Indemnified Parties are entitled to indemnification resulting from or arising out of Section 9.01(b) are in excess of One Million One Hundred Thousand US Dollars (US$1,100,000) in the aggregate (the “IP Deductible Amount”) (and then, for the avoidance of doubt, only with respect to such Losses resulting from or arising out of Section 9.01(b) in excess of the IP Deductible Amount); (ii) for any individual claim or series of like claims for which the Buyer Indemnified Parties are entitled to indemnification resulting from or arising out of Section 9.01(b), where the Losses relating thereto are less than Four Million Yen (¥4,000,000) (provided that the foregoing shall release such not apply in determining whether the IP Deductible Amount has been met); or (iii) for any individual claim or series of like claims for which the Seller has indemnified Buyer Indemnified Parties in the aggregate amount or, of Three Million US Dollars (US$3,000,000); (c) The maximum aggregate indemnification for Losses resulting from or arising out of Section 9.01(a) to which all of the Buyer Indemnified Parties are entitled shall not exceed an amount equal to Eight Million Eight Hundred Thousand US Dollars (US$8,800,000). (d) The maximum aggregate indemnification for Losses resulting from or arising out of Section 9.01(b) to which all of the Buyer Indemnified Parties are entitled shall not exceed an amount equal to Eight Million Eight Hundred Thousand US Dollars (US$8,800,000). (e) The limitations on liability stated in this shall not apply in the case of a revised fraud, intentional misrepresentation or updated letterin the case of any breach of Section 3.01, such additional amount to Section 3.02, Section 3.05, Section 3.10 or the Company, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company last sentence of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the CodeSection 3.11(b), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 In the event that a selling holder Except for claims arising out of Registrable Securities fraud, intentional misrepresentation or willful breach, or for claims in respect of Assumed Liabilities or Excluded Liabilities (the “Indemnifying Holder”) is obligated to pay an amount to the Company pursuant to Section 4.2 (the “Indemnification Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 other than claims in respect of the Code (a “REIT”)Specified Matters, the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow which are specifically addressed in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following:section): (a) The Buyer Indemnified Parties shall not be entitled to recover any Losses under Section 12.2(a)(ii) in respect of any breach of or inaccuracy in any representations or warranties made by Sellers set forth in this Agreement or in the certificate delivered by or on behalf of Sellers pursuant to Section 4.3(b)(iv): (i) which, in respect of a letter from breach of or inaccuracy in the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) Sufficiency Representation, are, individually, less than $10,000; and (3ii) otherwise until such time as the total amount of all Losses (including the Losses described in clause (i) above) suffered or incurred by any one or more of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error Buyer Indemnified Parties, or to reflect which any one or more of the passage of time Buyer Indemnified Parties has or otherwisehave otherwise directly or indirectly become subject, exceeds Five Hundred Thousand U.S. Dollars (US $500,000) (the “Loss Threshold”), in which case the escrow agent Buyer Indemnified Parties shall release be entitled to recovery for all such Losses (including the amount orof the Loss Threshold); provided, however, that the limitation contained in this Section 12.3(a) shall not apply to any breach of or inaccuracy in any Seller Fundamental Representation or any IP Representation. (b) The maximum aggregate amount of Losses that the Buyer Indemnified Parties shall be entitled to recover: (i) under Section 12.2(a)(ii) and Section 12.2(a)(vi), in each case, in respect of all breaches of or inaccuracies in all representations or warranties made by Sellers set forth in this Agreement or in the certificate delivered by or on behalf of Sellers pursuant to Section 4.3(b)(iv) (other than the IP Representation and the Sufficiency Representation), collectively shall be limited to the amount then available in the Escrow Fund; (ii) under (A) Section 12.2(a)(i) and Section 12.2(a)(vi), in each case, in respect of the Specified Matters and (B) Section 12.2(a)(ii) and Section 12.2(a)(vi), in each case, in respect of all breaches of or inaccuracies in the IP Representation, collectively (that is, Section 12.3(b)(ii)(A) and Section 12.3(b)(ii)(B)) shall be limited in the aggregate to Forty-One Million Four Hundred Thousand U.S. Dollars (US $41,400,000); (iii) under Section 12.2(a)(ii) and Section 12.2(a)(vi), in each case, in respect of all breaches of or inaccuracies in the Sufficiency Representation, collectively shall be limited in the aggregate to Sixty-Nine Million Dollars (US $69,000,000); and (iv) under Section 12.2(a)(v) and Section 12.2(a)(vi), in each case, in respect of Losses described in Section 12.2(a)(v), collectively shall be limited in the aggregate to Four Million Dollars (US $4,000,000); provided, however, that the limitations contained in this Section 12.3(b)(i), Section 12.3(b)(ii), Section 12.3(b)(iii) and Section 12.3(b)(iv) shall not apply to any breach of or inaccuracy in any Seller Fundamental Representation. (c) The maximum aggregate amount of Losses (i) that the Buyer Indemnified Parties shall be entitled to recover under Section 12.2(a)(ii) (subject to the maximum amounts specified in Section 12.3(b)), Section 12.2(a)(iii) and Section 12.2(a)(vi) (but in the case of a revised Section 12.2(a)(vi) solely in respect of any Action relating to any matter of the type referred to in Section 12.2(a)(ii) or updated letterSection 12.2(a)(iii)), collectively, shall be limited to the Final Adjusted Cash Purchase Price and (ii) that the Seller Indemnified Parties shall be entitled to recover under Section 12.2(b)(ii) and Section 12.2(b)(iii) (but in the case of Section 12.2(b)(iii) solely in respect of any Action relating to any matter of the type referred to in Section 12.2(b)(ii)), collectively, shall be limited to the Final Adjusted Cash Purchase Price; provided, however, that the limitations contained in this Section 12.3(c) shall not apply to any non-fulfillment or breach of any covenant or other agreement contained in Section 8.5 and Section 8.7. (d) So long as the amount available in the Escrow Fund exceeds the aggregate amount of all claims for indemnification, compensation or reimbursement that have been asserted but not resolved, the Buyer Indemnified Parties shall seek to recover amounts in respect of any claims for indemnification, compensation or reimbursement under Section 12.2(a)(ii), Section 12.2(a)(iii) and Section 12.2(a)(vi) (but in the case of Section 12.2(a)(vi) solely in respect of any Action relating to any matter of the type referred to in Section 12.2(a)(ii) or Section 12.2(a)(iii)) from the Escrow Fund prior to seeking to recover amounts in respect of such claims directly from Sellers; provided, however, that to the extent any amounts are released from the Escrow Fund to any Buyer Indemnified Party with respect to claims for indemnification, compensation or reimbursement that are not subject to the limitation set forth in Section 12.3(b)(i), such additional recovered amounts shall not reduce the amount that the Buyer Indemnified Parties may recover with respect to claims for indemnification, compensation or reimbursement that are subject to the Company, orlimitation contained in Section 12.3(b)(i). (be) All Losses shall be net of any third-party insurance proceeds which have been paid in connection with the facts giving rise to the right of indemnification, which proceeds shall be net of any related costs and expenses, including the cost of pursuing any related insurance claims; provided, however, that no Indemnified Party shall have any obligation to pursue or recover any insurance claim in connection with any Losses sustained by such Indemnified Party. (f) For the avoidance of doubt, (i) in the event that a letter from particular matter entitles a Buyer Indemnified Party to indemnification pursuant to more than one clause of Section 12.2(a) or pursuant to any other Transaction Agreement, such Buyer Indemnified Party shall be entitled to recover a particular dollar of Losses associated with such matter only once under this Article 12 and the Company’s counsel indicating Transaction Agreements, and (ii) in the event that a particular matter entitles a Seller Indemnified Party to indemnification pursuant to more than one clause of Section 12.2(b) or pursuant to any other Transaction Agreement, such Seller Indemnified Party shall be entitled to recover a particular dollar of Losses associated with such matter only once under this Article 12 and the Company received Transaction Agreements. (g) The Buyer Indemnified Parties shall not be entitled to recover any Losses under Section 12.2(a)(ii) and Section 12.2(a)(vi) in each case in respect of any breach of or inaccuracy in the Sufficiency Representation unless and until the remediation process next described is complied with and fully implemented and completed. In the event of any breach of or inaccuracy in the Sufficiency Representation, the Parties shall work together promptly and diligently in a ruling from cooperative and collaborative manner to address such breach or inaccuracy through the Internal Revenue Service holding that addition of, or modification to, the receipt services provided by Sellers and their Subsidiaries under the Transition Services Agreement, or by the Company transfer, for no additional consideration, of an asset (or assets) or property (or properties) by Sellers and their Subsidiaries to Buyers or through such other means as the Parties may agree. Any continuing failure to work in a cooperative and collaborative manner shall be referred to the Chief Executive Officers of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income Canadian Seller and US Buyer for resolution. If resolution satisfactory to Buyers, acting reasonably and in good faith, is not reached within the meaning of Sections 856(c)(2fifteen (15) and (3) Business Days of the Code (or alternativelydate Buyers first notify Sellers, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company in writing, of the Indemnification Amount would either constitute Qualifying Income breach or would be excluded from gross income within inaccuracy in the meaning of Sections 856(c)(2) and (3) of Sufficiency Representation, only then may Buyers elect to pursue the Code), indemnification remedies available in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holderthis Article. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 (a) The amount of any Losses for which indemnification is provided under this Section 9 shall be net of any amounts (i) recovered by an Indemnified Party or its Affiliates under or pursuant to any insurance policy, and (ii) recovered by any such Person from any third party with respect to such Losses. In the event that a selling holder of Registrable Securities (the “Indemnifying Holder”) any such recovery is obligated to pay made by an amount to the Company pursuant to Section 4.2 (the “Indemnification Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder Indemnified Party or its affiliatesAffiliates with respect to any Losses, as applicable, shall pay for which any such Indemnified Party has been indemnified hereunder and has received funds in the amount of such Losses, then a refund equal to the Companyaggregate amount of the recovery shall be made promptly to the Indemnifying Party. (b) Notwithstanding anything herein to the contrary, (i) the Company shall not be liable to the Investors Indemnified Parties for any Loss pursuant to Section 9.2(a)(i) or Section 9.2(a)(iii) (any such Loss, an “Investors Applicable Loss”) if the sum total of (X) such Investors Applicable Loss and (Y) all other Losses that arise from the Indemnification Amount deposited same or from one or more similar or related events, occurrences or circumstances as such Investors Applicable Loss, does not, in the aggregate, exceed an amount equal to US$100,000 (the “De Minimis Exclusion”), and no claim for an Investors Applicable Loss that does not exceed the De Minimis Exclusion shall be considered in determining the amount of Losses under Section 9.2(a)(i) or Section 9.2(a)(iii) unless the sum total of (A) such Investors Applicable Loss and (B) any other Losses arising from the same or from one or more similar or related events, occurrences or circumstances as such Investors Applicable Loss, shall exceed, in the aggregate, the De Minimis Exclusion; (ii) the Company shall not be liable to the Investors Indemnified Parties for any Losses pursuant to Section 9.2(a)(i) or Section 9.2(a)(iii), other than in respect of Fraud or breach of any Company Fundamental Representation, until the aggregate amount of such Losses (excluding, for the avoidance of doubt, any Losses pursuant to Section 9.2(a)(i) or Section 9.2(a)(iii) which do not exceed the De Minimis Exclusion) exceeds an amount equal to US$1,000,000, at which time the Company shall be liable for the entire amount of all such Losses, subject to the other limitations herein; (iii) the Company shall not be liable to the Investors Indemnified Parties for any Losses pursuant to Section 9.2(a)(i), other than in respect of Fraud or breach of any Company Fundamental Representation, in excess of US$4,000,000, subject to the other limitations herein; (iv) the Company shall not be liable to the Investors Indemnified Parties for any Losses pursuant to Section 9.2(a)(iii), other than in respect of Fraud, in excess of US$12,000,000, subject to the other limitations herein; and (v) the Company shall not be liable to the Investors Indemnified Parties for any Losses arising under or in connection with this Agreement, other than in respect of Fraud, in excess of US$38,548,333.33, subject to the other limitations herein. (c) Notwithstanding anything herein to the contrary, (i) no Investor shall be liable to the Company Indemnified Parties for any Loss pursuant to Section 9.2(b)(i) or Section 9.2(b)(iii) (any such Loss, a “Company Applicable Loss”) if the sum total of (X) such Company Applicable Loss and (Y) all other Losses that arise from the same or from one or more similar or related events, occurrences or circumstances as such Company Applicable Loss, does not, in the aggregate, exceed the De Minimis Exclusion and no claim for a Company Applicable Loss that does not exceed the De Minimis Exclusion shall be considered in determining the amount of Losses under Section 9.2(b)(i) or Section 9.2(b)(iii) unless the sum total of (A) such Company Applicable Loss and (B) any other Losses arising from the same or from one or more similar or related events, occurrences or circumstances as such Company Applicable Loss, shall exceed, in the aggregate, the De Minimis Exclusion; (ii) no Investor shall be liable to the Company Indemnified Parties for any Losses pursuant to Section 9.2(b)(i) or Section 9.2(b)(iii), other than in respect of Fraud or breach of any Investor Fundamental Representation, until the aggregate amount of such Losses (excluding, for the avoidance of doubt, any Losses pursuant to Section 9.2(b)(i) or Section 9.2(b)(iii) which do not exceed the De Minimis Exclusion) exceeds an amount equal to US$1,000,000, at which time an Investor shall be severally but not jointly liable for the entire amount of all such Losses, subject to the other limitations herein; (iii) no Investor shall be liable to the Company Indemnified Parties for any Losses pursuant to Section 9.2(b)(i) or Section 9.2(b)(iii), other than in respect of Fraud or breach of any Investor Fundamental Representation, in excess of US$4,000,000, subject to the other limitations herein; and (iv) no Investor shall be liable to the Company Indemnified Parties for any Losses arising under or in connection with this Agreement, other than in respect of Fraud, in excess of the Subscription Amount, subject to the other limitations herein. For the avoidance of doubt, any liability of an Investor under this Section 9 shall be several and not joint (in accordance with such Investor’s Percentage Allocation). (d) Notwithstanding anything herein to the contrary, (i) no Indemnifying Party will have any obligation to indemnify for any Losses until a final, non-appealable Judgment is rendered with respect to such Claim Notice or a written agreement is entered into escrow by the parties; and (ii) where substantially the same events or circumstances qualify under one or more single or multiple claims or under one or more provisions of this Agreement, the Indemnified Party shall not be entitled to double or duplicative recovery of Losses arising out of such events or circumstances, or to calculate its Losses by duplicating or double counting its Losses arising out of such events or circumstances. (e) In the event that the Company has an obligation to indemnify any Investors Indemnified Party for any Losses under this Section 9, the Company shall, within ten (10) Business Days (or any other date agreed in writing by the Company and such Investors Indemnified Party) after such Losses have been finally determined and are owed by the Company in accordance with Section 4.5.29.4(d), at its option, pay the amount of such Losses either by (i) wire transfer of immediately available funds to an amount equal account designated in writing by such Investors Indemnified Party, or (ii) issuing a warrant exercisable into Ordinary Shares to such Investors Indemnified Party in the lesser form attached hereto as Exhibit K (the “Indemnity Warrant”), that will entitle such Investors Indemnified Party to a number of (I) Ordinary Shares resulting from the Indemnification Amount and (II) the sum quotient of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”)Losses, as determined by the Company independent certified public accountants, plus and (y) the fair market value of an Ordinary Share at the time of the payment obligation, which, to the extent the Ordinary Shares of the Company are traded over-the-counter (OTC) or in any stock exchange, shall be equivalent to the Company’s Ordinary Shares VWAP for the period of thirty (30) consecutive trading days ending on the trading day immediately prior to the date of payment. The Exercise Price (as defined in the Indemnity Warrant) under such Indemnity Warrant shall be US$0.01. (f) In the event that any Investor has an obligation to indemnify a Company Indemnified Party for any Losses under this Section 9, such Investor shall pay the amount of such Losses within ten (10) Business Days (or any other date agreed in writing by such Investor and such Company Indemnified Party) after such Losses have been finally determined and are owed by such Investor in accordance with Section 9.4(d) by wire transfer of immediately available funds to an account designated in writing by such Company Indemnified Party. (g) Each Indemnified Party agrees that in the event the Company receives either (1) a ruling from the Internal Revenue Service described in of any breach giving rise to an indemnification obligation under this Section 4.5.3 9 such Indemnified Party shall take and shall cause its Affiliates to take, or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure cooperate with the Indemnifying Holder’s obligation to pay these amountsParty, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected if so requested by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the CompanyParty, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount or, in the case of a revised or updated letter, such additional amount to the Company, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize take, all reasonable measures to mitigate the portion consequences of the Indemnification Amount that may be distributed related breach (including taking steps to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion prevent any contingent liability from its outside counsel as described in Section 4.5.3becoming an actual liability).

Limitations on Indemnification. 4.5.1 In (a) Notwithstanding Section 9.02, the event that a selling holder rights of Registrable Securities (the “Indemnifying Holder”) is obligated to pay an amount Indemnitees and the obligations of the Indemnitors are subject to the Company pursuant following: (1) an Indemnitee shall not be entitled to Section 4.2 (the “Indemnification Amount”), during any recovery unless a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow claim for indemnification is made in accordance with of Section 4.5.2, an amount equal to 9.04(a) and within the lesser time period of survival set forth in Section 9.01 and the person seeking indemnification complies with the procedures set forth in Section 9.04(b) and(c); (I2) the Indemnification Amount Buyer Indemnitee Group, on the one hand, and the Seller Indemnitee Group, on the other hand, shall not be entitled to any indemnification hereunder unless and until the Losses that the relevant group are entitled to recover hereunder exceed, in the aggregate, (II$100,000) (the "Threshold"), in which event (subject to clause (3) below) the sum relevant group shall be entitled to recover the Losses in excess of $50,000; and (x3) the maximum amount that can be paid to recoverable by the Company without causing Buyer Indemnitee Group, on the Company to fail to meet one hand, and the requirements Seller Indemnitee Group, on the other hand, for indemnification claims is $5,250,000 less the amount of Sections 856(c)(2the Purchase Price Adjustment (the "Cap"). Notwithstanding the provisions of clauses (2) and (3) of the Code determined as if preceding sentence, Losses arising from a breach of the payment of such amount did not constitute income described representations and warranties set forth in Sections 856(c)(2) 2.03 and 2.04 or 856(c)(3) from a breach of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) covenants set forth in the event the Company receives either (1) a ruling Article X shall be indemnifiable from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due first dollar without regard to the Threshold or Cap. Notwithstanding anything herein to the contrary, the limitations set forth in this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof 9.03 shall not be released apply to the Company unless the escrow agent receives any one claims arising out of fraud or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount or, intentional misconduct in the case making of a revised or updated letter, such additional amount to the Company, orrepresentations and warranties set forth herein. (b) a letter from The indemnification provisions in this Article IX and Article X shall be the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company exclusive remedy for any breach of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) representations and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), warranties set forth in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holderthis Agreement. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 In (a) Nothing herein shall limit the event that a selling holder liability of Registrable Securities the Company for any willful or intentional breach of any representation, warranty or covenant set forth in this Agreement if the transactions contemplated hereby are not consummated. (b) If the “Indemnifying Holder”) is obligated to pay an amount transactions contemplated hereby are consummated, the indemnification provisions set forth in Section 8.2 shall be the sole and exclusive remedy available to the Indemnified Parties for the matters set forth therein (except as otherwise contemplated by Section 8.3(b)), except in the case of fraud, willful breach or intentional misrepresentation (with respect to which such limitation shall not apply). (c) The Escrowed Cash and Escrowed Stock shall be held as a source of security for the Company Stockholders’ indemnification obligations under Section 8.2(i) – (iv)). If the transactions contemplated hereby are consummated, the maximum amount the Indemnified Parties may recover pursuant to the indemnity set forth in Section 4.2 (the “Indemnification Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, 8.2(i) shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, be an amount equal to the lesser Escrowed Cash and the Escrowed Stock, except in the case of fraud, willful breach or intentional misrepresentation (with respect to which such limitation shall not apply). Notwithstanding the foregoing, in cases of breaches of any of the Specified Representations or a claim under Section 8.2(v), in no event shall the Indemnified Parties be entitled to recover from any Company Stockholder pursuant to any indemnity hereunder an amount in excess of the aggregate proceeds actually received hereunder by such Company Stockholder in connection with the disposition of their Company Capital Stock (less the aggregate amount of all other indemnity recoveries made against such Company Stockholder under the terms of this Agreement). (d) If the transactions contemplated hereby are consummated, the Indemnified Parties may not recover pursuant to the indemnity set forth in Section 8.2(i) or Section 8.2(v) unless and until one or more Officer’s Certificates identifying Losses in excess of One Hundred Twenty Thousand Dollars ($120,000) in the aggregate (the “Basket”) has or have been delivered to the Stockholder Representative in accordance with this Agreement, in which case Parent shall be entitled to recover pursuant to the indemnity set forth in Section 8.2(i) all such Losses; provided, however, that the foregoing Basket limitation shall not apply to indemnification claims under Section 8.2(i) that arise out of (IX) any breach or inaccuracy of one or more of the Indemnification Amount Specified Representations (other than claims arising out of a breach or inaccuracy of Section 3.10 (Tax Matters) which shall have the benefit of the Basket as shall any claim under Section 8.2(v)), (Y) any Losses in respect of or in any way related to or arising out of the employment (including, without limitation, the termination of such employment) of the former Employees identified on Schedule 8.3(d). (e) Within forty-five (45) days following the Closing Date, Parent may, at its election, cause to be prepared and delivered to the Stockholder Representative an unaudited balance sheet of the Surviving Entity, as of the Closing Date applying the same principles and assumptions used in preparing the Current Balance Sheet (IIthe “Closing Balance Sheet”). Any indemnification claims based on the difference between the Closing Balance Sheet and the Current Balance Sheet shall be governed by the terms and procedures of this Section 8.3(e). (i) In the event that the Net Asset Value based on the Closing Balance Sheet is less than negative $1,445,592 (such an amount is equal to the sum of (xA) $125,000 plus (B) $1,320,592 (which represents the maximum amount that can be paid to negative Net Asset Value as set forth in the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”Current Balance Sheet), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, then an amount equal to such difference (such amount, the Indemnification Amount“Post-Closing Balance Sheet Adjustment”) shall be paid to Parent out of the Escrow Fund in accordance with the expedited dispute resolution procedures set forth below. (ii) Subject to the expedited dispute resolution procedures set forth below, less if the Post-Closing Balance Sheet Adjustment exceeds the amount payable under clause in the Escrow Fund, Parent shall be entitled to recover directly from the Company Stockholders any amount of the Post-Closing Balance Sheet Adjustment not covered by the Escrow Fund. (iii) The parties acknowledge that the Post-Closing Balance Sheet Adjustment is not intended to result in any double-counting for purposes of the other indemnification obligations of the Company Stockholders pursuant to Article VIII of this Agreement and therefore no items taken into account for purposes of compiling the Closing Balance Sheet and calculating Post-Closing Balance Sheet Adjustments shall be treated as valid indemnification items hereunder. (iv) Following delivery by Parent to the Stockholder Representative of the Closing Balance Sheet, Parent shall give the Stockholder Representative reasonable access during Parent’s business hours to those books and records of the Surviving Corporation in the possession of Parent and any personnel which relate to the preparation of the Closing Balance Sheet for purposes of resolving any disputes concerning the Closing Balance Sheet and the calculation of the Net Asset Value at Closing. (v) The Stockholder Representative shall have ten (10) days following delivery of the Closing Balance Sheet during which to notify Parent in writing (the “Notice of Objection”) of any good faith objections to the calculation of the Net Asset Value at Closing or the Closing Balance Sheet, as it affects such calculation, setting forth a reasonably specific and detailed description of its objections and the dollar amount of each objection. (vi) If the Stockholder Representative objects to the Closing Balance Sheet or Parent’s calculation of the Net Asset Value at Closing as reflected thereon, Parent and the Stockholder Representative shall attempt to resolve any such objections within ten (10) days of the receipt by Parent of the Notice of Objection. If Parent and the Stockholder Representative are unable to resolve any such dispute within the ten (10) day period referred to above, Parent and the Stockholder Representative shall submit the dispute to mutually agreeable independent registered public accounting firm (the “Independent Accounting Firm”). Each of the parties to this Agreement shall, and shall cause their respective affiliates and representatives to, provide full cooperation to the Independent Accounting Firm. The Independent Accounting Firm shall (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow act in its capacity as an amount in cash equal to the Indemnification Amount with expert and not as an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount or, in the case of a revised or updated letter, such additional amount to the Company, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Codearbitrator, (y) improve consider only those matters as to which there is a dispute between the Company’s chances of securing a favorable ruling described in Section 4.5.3 or parties and (z) assist be instructed to reach its conclusions regarding any such dispute within thirty (30) days after its appointment and provide a written explanation of its decision. In the event that Parent and the Stockholder Representative submit any dispute to the Independent Accounting Firm, each such party may submit a “position paper” to the Independent Accounting Firm setting forth the position of such party with respect to such dispute, to be considered by such Independent Accounting Firm as it deems fit. Each of Parent and the Stockholder Representative shall bear their own respective costs in connection with this Section 8.3(e)(vi). The expenses relating to the engagement of the Independent Accounting Firm shall be split equally between Parent and the Stockholder Representative; provided, however, that if the position of either such party is more than 10% different from the conclusion reached by the Independent Accounting Firm (or if both parties positions are more than 10% different, then the party whose variance is the highest from the conclusion of the Independent Accounting Firm), then such party shall bear all of the expenses of the Independent Accounting Firm, all reasonable costs incurred by the Independent Accounting Firm, and notwithstanding anything else in this Section 8.3(e)(vi) or in this Agreement to the contrary, the costs and expenses of the other party incurred with respect to this Section 8.3(e)(vi). (vii) If the Stockholder Representative does not deliver a Notice of Objection in accordance with the terms of Section 8.3(e)(v), the Closing Balance Sheet (together with Parent’s calculation of the Net Asset Value at Closing reflected thereon), shall be deemed to have been accepted by all of the parties to this Agreement. In the event that the Stockholder Representative delivers a Notice of Objection in accordance with the provisions above and Parent and the Stockholder Representative are able to resolve such dispute by mutual agreement, the Closing Balance Sheet, together with Parent’s calculation of the Net Asset Value at Closing reflected thereon, to the extent modified by mutual agreement of such parties, shall be deemed to have been accepted by all of the parties to this Agreement. (viii) In the event that the Stockholder Representative delivers a Notice of Objection in accordance with the provisions set forth above and Parent and the Stockholder Representative are unable to resolve such dispute by mutual agreement, the determination of the Independent Accounting Firm shall be final and binding on the parties, and the Closing Balance Sheet, together with Parent’s calculation of the Net Asset Value at Closing reflected thereon, to the extent modified by the Independent Accounting Firm, shall be deemed to have been accepted by all of the parties to this Agreement. Subject to the foregoing provisions, the calculation of the Net Asset Value at Closing reflected on any such Closing Balance Sheet shall be conclusive and binding on all of the parties to this Agreement, no further adjustments shall be made thereto and neither Parent, the Stockholder Representative nor the Company Stockholders shall have any further right to challenge such calculation of the Net Asset Value at Closing, whether pursuant to the terms of Section 8.3 or otherwise. (f) Nothing in obtaining this Agreement shall limit the liability of the Company Stockholders (and the indemnification shall not be the exclusive remedy) in respect of any Losses arising out of any fraud, willful breach or intentional misrepresentation. (g) It is understood that nothing in this Agreement shall eliminate the ability of any party hereto to apply for equitable remedies to enforce the other parties’ obligations under this Agreement. (h) Notwithstanding anything to the contrary in this Agreement, the parties hereto agree and acknowledge that any Indemnified Party may bring a favorable legal opinion from its outside counsel as described in Section 4.5.3claim for indemnification for any Loss under this Article VIII notwithstanding the fact that any Indemnified Party had knowledge of the breach, event or circumstance giving rise to such Loss prior to the Closing or waived any condition to the Closing related thereto.

Limitations on Indemnification. 4.5.1 In (a) Other than in the event that a selling holder case of Registrable Securities (any claims for breaches of Company Fundamental Representations, breaches of the “Indemnifying Holder”) is obligated to pay an amount to representations and warranties of the Company pursuant to Section 4.2 (the “Indemnification Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described set forth in Section 4.5.3 4.14, claims resulting from Fraud by or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each behalf of the Company, claims pursuant to Section 10.02(a)(iii) (collectively, the Indemnifying Holder “Special Losses”) or claims resulting from Special Indemnity Matters, as set forth in Section 10.04(e), the sole and exclusive source of recovery for indemnification available to any Parent Indemnified Parties shall be (i) first, the escrow agent. The payment or deposit into escrow then-remaining balance of the Indemnification AmountIndemnity Holdback, pursuant to this Section 4.5and (ii) second, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released R&W Policy to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount or, extent covered thereby. Other than in the case of Special Losses, in no event will the Unitholders be liable hereunder for any indemnification claim for any amount in excess of the Indemnity Holdback. Parent, on behalf of itself and each other Parent Indemnified Party, hereby acknowledges and agrees that the provisions of this Section 10.04(a) shall apply and shall remain in full force and effect regardless of whether (a) Parent obtains at or following the Closing, or maintains following the Closing, the R&W Policy; (b) Parent amends, modifies, supplements, waives or terminates any provision of the R&W Policy; or (c) any claims are made by a revised or updated letter, Parent Indemnified Party under the R&W Policy and such additional amount to claim is denied by the Company, orinsurer. (b) a letter In connection with any indemnifiable claim arising out of, resulting from or in connection with any Special Losses, after Parent Indemnified Parties have exhausted or made claims upon all amounts held in the Indemnity Holdback (after taking into account all other claims for indemnification from the Company’s counsel indicating that Indemnity Holdback made by Indemnified Parties), the Company received a ruling sole and exclusive source of recovery for indemnification shall be (i) first, the R&W Policy to the extent covered thereby, and (ii) second (for the avoidance of doubt, only after there are no amounts available pursuant to (i) of this sentence), from the Internal Revenue Service holding that the receipt by the Company each Unitholder for their Indemnification Pro Rata Share of the Special Losses; provided that in no event shall such Unitholder be liable for any amount in excess of the Per Unit Merger Consideration actually received by such Unitholder as of the time of such indemnifiable claim; provided, further, that any limitation of liability in this Section 10.04(b) with respect to an Unitholder shall not apply in the case of Fraud committed by such Unitholder. (c) In connection with any indemnifiable claim arising out of, resulting from or in connection with any Payable Overstatement, after Parent Indemnified Parties have exhausted or made claims upon all amounts held in the Purchase Price Holdback, the sole and exclusive source of recovery for indemnification shall be from (i) first, the then-remaining balance of the Indemnity Holdback and (ii) second, the then-remaining balance of the Special Indemnity Holdback and (iii) third, each Unitholder for their Indemnification Amount would either constitute Qualifying Income or would Pro Rata Share of the Payable Overstatement; provided, that in no event shall such Unitholder be excluded from gross income within liable for any amount in excess of the meaning Per Unit Merger Consideration actually received by such Unitholder as of Sections 856(c)(2the time of such indemnifiable claim. (d) Notwithstanding anything to the contrary in this Agreement, (i) in no event will the Unitholders be liable for any amounts taken into account in the calculation of Final Aggregate Purchase Price (including any amounts included in Closing Indebtedness) and (3ii) in no event will any Unitholder be liable hereunder for any amount in excess of the Code Per Unit Merger Consideration actually received by such Unitholders, except with respect to Fraud committed by such Unitholder. (or alternatively, the Company’s outside counsel has rendered a legal opinion e) Notwithstanding anything to the effect that contrary in this Agreement, other than in the receipt case of any claims resulting from Fraud by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request on behalf of the Company in order (which shall be considered Special Losses for purposes of this Section 10.04), with respect to any Losses resulting from the Special Indemnity Matters, the sole and exclusive source of recovery for indemnification shall be from (i) first, the then-remaining balance of the Special Indemnity Holdback and (ii) second (for the avoidance of doubt, only after there are no amounts available pursuant to (xi) maximize of this sentence), from each Unitholder for their Indemnification Pro Rata Share of any Losses resulting from the portion Special Indemnity Matters. (f) Notwithstanding anything to the contrary in this Agreement, other than in the case of any claims resulting from Fraud by or on behalf of the Indemnification Amount Company (which shall be considered Special Losses for purposes of this Section 10.04), with respect to any Losses resulting from the Special Indemnity Regulatory Matters, the sole and exclusive source of recovery for indemnification shall be by making deductions from any amounts payable to Unitholders (or to the Payments Administrator on their behalf) pursuant to Section 3.08 of this Agreement, with such deductions not being greater, in the aggregate, than $750,000. (g) Each Person entitled to indemnification hereunder or otherwise to reimbursement for Losses in connection with the transactions contemplated by this Agreement shall use all reasonable efforts to mitigate all Losses upon becoming aware of any event or circumstance that would reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith; provided, however, any and all such direct and indirect reasonable costs and expenses related to such mitigation may be distributed included with the Losses for which indemnification may be sought under this Article X. (h) The right to indemnification, payment of Losses or other remedies based on any representations, warranties, covenants or agreements set forth in this Agreement or in any certificate delivered with respect hereto will not be affected by any investigation conducted with respect to, or any knowledge or information acquired (or capable of being acquired) by any Party at any time (other than, for the avoidance of doubt, any disclosures set forth in the Company Disclosure Schedule), whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the Company hereunder without causing the Company to fail to meet the requirements accuracy or inaccuracy of Sections 856(c)(2) and (3) of the Codeor compliance with, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 any such representation, warranty, covenant or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3agreement.

Limitations on Indemnification. 4.5.1 In (a) No indemnification claims for Losses will be asserted by or payable to the event Buyer Indemnitees pursuant to Section 8.2(a)(i) or Section 8.2(a)(iii) (Indemnification Obligations) or the Seller Indemnitees pursuant to Section 8.2(b)(i) (Indemnification Obligations) (i) for any individual claim, or series of individual claims that a selling holder are related or that otherwise arise or result from the same or substantially similar facts and circumstances, unless the amount of Registrable Securities Losses that otherwise would be payable under the applicable Section for such individual claim or such series of claims exceeds $25,000 (the “Indemnifying HolderPer Claim Minimum”); and (ii) is obligated to pay an until the aggregate amount to the Company pursuant to Section 4.2 of all Losses for claims exceeds $1,000,000 (the “Indemnification AmountBasket”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release Buyer Indemnitees or the Seller Indemnitees, as applicable, will be entitled to recover all Losses, except, for the avoidance of doubt, for such Losses that do not satisfy the Per Claim Minimum; provided, that the Basket will not apply to any claims for Losses attributable to actual, knowing and intentional fraud or Losses based on claims for inaccuracies in or breaches of any Fundamental Representation. (b) No indemnification claims for Losses will be asserted by or payable to any of the Buyer Indemnitees pursuant to Section 8.2(a)(i) and Section 8.2(a)(iii) (Indemnification Obligations) or any of the Seller Indemnitees pursuant to Section 8.2(b)(i) (Indemnification Obligations) for an aggregate amount orof Losses in excess of $7,640,000 (the “Cap”); provided, that the Cap will not apply to claims for Losses attributable to actual, knowing and intentional fraud or Losses based on claims for inaccuracies in or breaches of any Fundamental Representation. (c) No indemnification claims for Losses under this ARTICLE VIII (Indemnification) will be asserted by or payable to any of the Buyer Indemnitees for any Losses to the extent that such Losses were expressly taken into account in the Closing Statement or any adjustments thereto. In no event will the cumulative indemnification obligations of the Seller pursuant to Section 8.2(a) (Indemnification Obligations), on the one hand, or of the Buyer pursuant to Section 8.2(b) (Indemnification Obligations), on the other hand, in the aggregate exceed the Purchase Price. (d) The amount of insurance proceeds actually received by an Indemnitee and its Affiliates in respect of the given Losses for which indemnification is claimed, less (i) the related reasonable out-of-pocket fees and expenses incurred by such Indemnitee and its Affiliates in recovering such insurance proceeds and (ii) any actual or reasonably estimated insurance premium increase attributable to the claim with respect to which such insurance proceeds are paid, will reduce such Losses that such Indemnitee may recover under this ARTICLE VIII (Indemnification); provided, that no Indemnitee will be obligated to pursue any such insurance as a condition to receipt of indemnification under this Agreement. If an Indemnitee and its Affiliates receive net insurance proceeds after an indemnification payment has been made in respect of the Losses to which such net insurance proceeds relate, then the Indemnitee and its Affiliates promptly will remit such net insurance proceeds, up to the aggregate amount of indemnification payment in respect of the Losses to which such net insurance proceeds relate (i) in the case of a revised the Buyer Indemnitees, to the Seller and (ii) in the case of the Seller Indemnitees, to the Buyer. The Seller agrees that neither it nor any of its Affiliates or updated letterRepresentatives will seek, nor will any such additional amount to Person be entitled to, reimbursement or contribution from, subrogation to, or indemnification by the Buyer, the Company, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company Subsidiaries or any of their respective Affiliates, under their respective Organizational Documents or any other contract for indemnification or insurance, or under this Agreement, applicable Law or otherwise, in order respect of any amounts due from any such Person to any Buyer Indemnitee pursuant to this ARTICLE VIII (xIndemnification) maximize the portion or otherwise in connection with this Agreement. (e) The amount of any Losses for which indemnification is provided under this ARTICLE VIII (Indemnification) will be measured net of any Tax benefit actually realized by an Indemnitee and its Affiliates, as a result of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) incurrence of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3Losses for which indemnification is sought.

Limitations on Indemnification. 4.5.1 In (a) The parties will, to the event that a selling holder extent permitted by Law, treat any indemnification payment under this Article VII as an adjustment to the Purchase Price on all Tax Returns. (b) Subject to Section 7.2(d), neither the Seller nor the Purchaser shall have Liability under or in connection with this Agreement for Indemnifiable Losses pursuant to Section 7.3(a)(i) or Section 7.3(b)(i) in excess of Registrable Securities an aggregate amount equal to $1,750,000 (the “Indemnifying Holder”) is obligated to pay an amount to the Company pursuant to Section 4.2 (the “Indemnification Cap Amount”), during . (c) No Indemnitee will be entitled to recover Indemnifiable Losses from an Indemnifying Party in respect of any breach of a year that representation or warranty under Section 7.3(a)(i) or Section 7.3(b)(i) unless and until the Company qualifies as a “real estate investment trust” aggregate amount of Indemnifiable Losses in respect of breaches of representations and warranties asserted for Indemnifiable Losses under Sections 856 through 860 of the Code (a “REIT”Section 7.3(a)(i) or Section 7.3(b)(i), the Indemnifying Holder or its affiliates, as applicable, shall pay to exceeds $100,000 (the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying IncomeDeductible”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case event the escrow agent shall release such amount orIndemnitee will be entitled to recover Indemnifiable Losses in respect of breaches of representations and warranties asserted for Indemnifiable Losses under Section 7.3(a)(i) or Section 7.3(b)(i), as applicable, from an Indemnifying Party for all Indemnifiable Losses under Section 7.3(a)(i) or Section 7.3(b)(i), as applicable, in excess of the case of a revised or updated letter, such additional amount Deductible. (d) Anything to the Companycontrary herein notwithstanding, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2limitations set forth in Section 7.2(b) and (3Section 7.2(c) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion shall not apply to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the CodeIndemnifiable Losses related to indemnification Claims under Section 7.3(a)(i), in which case the escrow agent shall release the remainder Section 7.3(a)(ii) or Section 7.3(b)(i) arising out of, relating to or incurred as a result of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holderfraud, intentional misrepresentation or willful misconduct. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 In (a) Except in the event that case of Fraud, the Indemnified Parties, individually and as a selling holder of Registrable Securities group, may not recover any Losses pursuant to an indemnification claim under Section 6.2(a)(i) unless and until all such claims under Section 6.2(a)(i) equal or exceed $270,000 in Losses in the aggregate (the “Indemnifying Holder”) is obligated to pay an amount to the Company pursuant to Section 4.2 (the “Indemnification Deductible Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent Indemnified Parties shall release such amount orbe entitled to recover all Losses in excess of the Deductible Amount that are paid, incurred, suffered or sustained by the Indemnified Parties as a group. (b) Subject to Section 6.3(c) and except in the case of Fraud, the Indemnified Parties, individually and as a revised or updated lettergroup, such additional amount may not recover any Losses pursuant to an indemnification claim under Section 6.2(a)(i) to the Companyextent that the total amount of Losses recovered by the Indemnified Parties pursuant to all such indemnification claims equals or exceeds $4,725,000 and in no event shall the aggregate liability of Seller for indemnification claims under Section 6.2(a)(i) exceed $4,725,000; provided, orthat in the event of a claim for Fraud there shall be no such limitation. (bc) a letter Any amounts payable pursuant to an indemnification claim by an Indemnified Party pursuant to Sections 6.2(a)(i) and 6.2(a)(ii) shall be paid first, from the Company’s counsel indicating that Indemnity Escrow Fund and second, following exhaustion of such Indemnity Escrow Fund, by Seller. Subject to the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of limitations set forth in Sections 856(c)(26.3(a) and 6.3(b), th e Indemnified Parties shall (3i) of the Code be entitled to bring indemnification claims directly against Seller and (or alternatively, the Company’s outside counsel has rendered a legal opinion ii) subject to the effect that preceding sentence, be permitted to recover Losses directly from Seller for indemnification claims. In no event shall the receipt by the Company aggregate liability of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Seller for all indemnification claims under Sections 856(c)(26.2(a)(ii) through 6.2(a)(vi) and (36.2(a)(viii) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize exceed the portion of the Indemnification Amount Purchase Price actually received by Seller (including any funds deposited into the Indemnity Escrow Fund); provided, that may in the event of a claim for Fraud there shall be distributed no such limitation. (d) Any Losses for indemnification under this Agreement shall be determined without duplication of recovery due to the facts giving rise to such Losses constituting a breach of more than one representation, warranty, covenant or other Indemnifiable Matter. (e) The amount of Losses payable under this Article VI by Seller shall be reduced by any and all amounts actually recovered by Parent or any other Indemnified Party under applicable insurance policies or from any other Person responsible therefor (in each case net of any expenses incurred by Parent or any other Indemnified Party in collecting such amount and any increase in insurance premiums (but only to the extent such increase is attributable to the applicable indemnity claim)). If Parent or any other Indemnified Party receives any amounts under applicable insurance policies or from any other Person responsible for any Losses, subsequent to an indemnification payment by Seller, then Parent or such other Indemnified Party shall promptly reimburse Seller for any payment made or expense incurred by Seller in connection with providing such indemnification up to the amount received by Parent or such other Indemnified Party, net of any expenses incurred by Parent or such other Indemnified Party in collecting such amount and any increase in insurance premiums (but only to the extent such increase is attributable to the applicable indemnity claim). (f) Except with respect to Transaction Payroll Taxes included in the definition of “Third Party Expenses” (as finally determined under Section 1.3), Seller shall have no liability or indemnity for, and Losses shall not include, any Taxes of or with respect to the Company hereunder without causing with respect to any taxable period or portion thereof beginning after the Closing Date. (g) Except as provided in Section 5.5(d) with respect to Transfer Taxes, Seller shall have no liability or indemnity or requirement to pay, under any provision of this Agreement (including Section 1.3 and Article VI) or otherwise, for Taxes or Losses arising out of or related to state or local sales and/or use Taxes of the Company (inclusive of costs incurred by Parent or Guarantor related to fail to meet the requirements preparation of Sections 856(c)(2related filings) and (3) in excess of the Codean aggregate amount of $100,000, (y) improve the Company’s chances of securing a favorable ruling described which $100,000 has been included in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3Pre-Closing Taxes.

Limitations on Indemnification. 4.5.1 In the event that a selling holder of Registrable Securities (the “Indemnifying Holder”) is obligated to pay an amount Notwithstanding anything to the Company pursuant to Section 4.2 (the “Indemnification Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow contrary in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the followingAgreement: (a) a letter from Any claim under Section 9.2, Section 9.3 or Section 10.3 required to be made on or prior to the Company’s independent certified public accountants indicating expiration of the maximum amount that can applicable survival period set forth in Section 9.1 and not made on or prior to such expiration in accordance with Section 9.1 shall be paid irrevocably and unconditionally released and waived by the escrow agent party seeking indemnification with respect thereto. The parties further acknowledge that the time periods set forth in Section 9.1 for the assertion of claims under this Agreement are the result of arm’s-length negotiation among the parties and that they intend for the time periods to be enforced as agreed by the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount or, in the case of a revised or updated letter, such additional amount to the Company, orparties. (b) a letter from The maximum amount of all indemnifiable Losses in the Company’s counsel indicating that aggregate for which the Company received a ruling from Seller may be liable pursuant to Section 9.2 (but not including indemnifiable Losses under Section 10.3) shall be the Internal Revenue Service holding that Base Purchase Price less the receipt aggregate amount actually recovered pursuant to the R&W Insurance Policy. (c) The maximum amount of all indemnifiable Losses in the aggregate for which the Seller may be liable pursuant to Section 9.2 in respect of the Significant Representations (excluding, for the avoidance of doubt, any recovery against the R&W Insurance Policy) shall be Seven Million Five Hundred Thousand Dollars ($7,500,000). The maximum amount of all indemnifiable Losses in the aggregate for which the Seller may be liable pursuant to Section 9.2 in respect of the Specified Interim Covenants (excluding, for the avoidance of doubt, any recovery against the R&W Insurance Policy) shall be Eight Million Seven Hundred Fifty Thousand Dollars ($8,750,000). (d) The Seller shall not be required to indemnify or hold harmless any Purchaser Indemnified Party against any Losses to the extent the related liabilities were reflected in, reserved for or taken into account in the determination of Net Working Capital as of immediately prior to the Closing and reduced the Purchase Price accordingly. (e) The amount of any Losses for which indemnification is provided under this Section 9 and Section 10.3 shall be net of any amounts recovered by the Company of Indemnified Party under insurance policies, including by any Purchaser Indemnified Party under the Indemnification Amount would either constitute Qualifying Income R&W Insurance Policy, indemnity or would be excluded from gross income within the meaning of Sections 856(c)(2) and contribution agreements, Contracts or otherwise with respect to such Losses (3) of the Code in each case, with a third party), as applicable (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect it being agreed that the receipt if any such amounts are recovered by the Company Indemnified Party in respect of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent such Losses subsequent to the Indemnifying HolderParty’s making of an indemnification payment in satisfaction of its applicable indemnification obligation, such amounts shall be promptly remitted to the Indemnifying Party to the extent of the indemnification payment made), and the Indemnified Parties shall use, and cause their Affiliates to use, Reasonable Best Efforts to seek recovery under all provisions covering such Losses to the same extent as it would if such Losses were not subject to indemnification hereunder. The amount of any indemnification or Losses otherwise recoverable under this Agreement shall be further reduced by any Tax Benefit actually realized by any Indemnified Party or any of its Affiliates on account of such Losses, but only to the extent such Tax Benefit is actually realized with respect to the year such Losses occur or the immediately succeeding year. Claims for Taxes shall be made solely pursuant to Section 10.3, and no claims therefor shall be made under this Section 9. In the event of any conflict between this Section 9 and Section 10.3, the provisions of Section 10.3 shall govern. 4.5.4 The (f) Except to the extent of Losses payable by an Indemnified Party to a third party in respect thereof, no Indemnifying Holder agrees Party shall, in any event, be liable hereunder to amend any Indemnified Party for any consequential, incidental, indirect, special or punitive damages, loss of revenue, income or profits, diminution of value or loss of business reputation or opportunity. Except to the extent payable by an Indemnified Party to a third party in respect thereof, no “multiple of profits” or “multiple of cash flow” or similar valuation methodology shall be used in calculating the amount of any Losses payable by an Indemnifying Party hereunder. (g) For purposes of determining whether a breach occurred and the amount of Losses subject to indemnification pursuant to this Section 4.5 at 9 for a breach of representation or warranty, any limitations or qualifications as to materiality (including the reasonable request word “material” but excluding, for the avoidance of doubt the words “material”, “materials” and “Materials” where such words are used as nouns, e.g. the definition of Hazardous Materials), Material Adverse Effect or other similar limitation or qualification contained in or otherwise applicable to such representation or warranty shall be disregarded, except, however, the foregoing shall not apply for purposes of determining whether a breach occurred or the amount of Losses subject to indemnification from any such breach of the Company representations or warranties set forth in order to (x) maximize the portion first sentence of Section 3.1(a), the first sentence of Section 3.1(b), the determination of the Indemnification Amount that may inclusion of a Contract as a “material Contract” or “Material Contract” under Section 3.12 and the definition of “Material Contracts”. (h) No Indemnified Party shall be distributed entitled to any indemnification hereunder to the Company hereunder without causing extent that such indemnification would constitute a duplicative payment for the Company same Loss. (i) Nothing set forth in this Section 9 shall be construed to fail contractually eliminate any duty that an Indemnified Party may have under the common Law or the R&W Insurance Policy to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Companymitigate such Indemnified Party’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3Losses.

Limitations on Indemnification. 4.5.1 In the event that a selling holder of Registrable Securities (the “Indemnifying Holder”i) is obligated to pay an amount Notwithstanding anything to the Company contrary herein, from and after the Closing, the liability of any Buyer Indemnifying Party that commits fraud in connection with the Acquisition will not be limited in any manner with respect to such fraud committed by such Buyer Indemnifying Party. (ii) Except in the case of fraud, the Seller Indemnified Parties, as a group, may not recover any Damages pursuant to a Buyer Indemnification Claim under Section 4.2 (9.3(a)(i) or 9.3(a)(iii) unless and until the “Indemnification Amount”)Seller Indemnified Parties, during a year that the Company qualifies as a “real estate investment trust” under group, shall have paid, incurred, suffered or sustained at least the Basket Amount in Damages in the aggregate, in which case the Seller Indemnified Parties shall be entitled to recover all Damages paid, incurred, suffered or sustained by the Seller Indemnified Parties as a group (from the first dollar, but subject to the other limitations in this Section 9.3(b)(ii). (iii) Subject to Sections 856 through 860 of the Code (a “REIT”9.3(b)(i), the liability of each Buyer Indemnifying Holder Party for all Buyer Indemnification Claims under Sections 9.3(a)(i) and 9.3(a)(iii) shall be limited to an amount equal to 10% of the sum of the Acquisition Consideration. (iv) Except in the case of fraud in connection with this Agreement or its affiliatesany agreement, document, certificate or other instrument required to be delivered by such Buyer Indemnifying Party under or pursuant to this Agreement, the indemnification obligations provided in Article 9 of this Agreement will be the sole and exclusive remedy of the Seller Indemnified Parties in connection with this Agreement and any agreement, document, certificate or other instrument required to be delivered by such Buyer Indemnifying Party under or pursuant to this Agreement, except that the foregoing shall not limit the right to seek specific performance, a restraining order or injunctive relief with respect to any provision of this Agreement and any agreement, document, certificate or other instrument required to be delivered by such Buyer Indemnifying Party under or pursuant to this Agreement. The Seller Indemnified Parties hereby irrevocably waive, as applicableof Closing, any right to seek any other remedy of any kind or nature, in law or in equity, on any basis, other than indemnification under Article 9 of this Agreement and specific performance, a restraining order or injunctive relief. (v) Damages shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, be offset by an amount equal to the lesser amount of any net insurance or other indemnification proceeds (Itaking into account any deductible and increase in premiums attributable to such Damages) that are actually received by or are due to such Seller Indemnified Party in connection with such Damages. (vi) No Seller Indemnified Party shall be indemnified more than once for the Indemnification Amount and (II) the sum same Damage suffered, regardless of (x) the maximum amount that can whether such Damage may be paid attributed to the Company without causing the Company to fail to meet the requirements more than one indemnity, breach of Sections 856(c)(2) and (3) several paragraphs of the Code determined representations and warranties or the breach of or default in connection with several covenants or obligations herein, and regardless whether or not such breaches of covenants or misrepresentations are made with fraud. (vii) No Buyer Indemnifying Party shall have any liability for Damages (and such Damages shall be disregarded for all purposes hereunder) which are punitive, consequential, indirect or special damages, including loss of profit (excluding, for such purpose, loss of profits resulting from inability to sell shares of Parent Common Stock as if the payment a result of such amount did not constitute income described in Sections 856(c)(2a breach of a covenant or representation indemnifiable under this Section 9.3) or 856(c)(3) loss of opportunity, regardless of the Code form of action through which such Damages are sought. (“Qualifying Income”viii) No Buyer Indemnifying Party shall have any liability in respect of any Seller Indemnification Claim relating to a Third Party Claim (as defined below) which is not, and does not become within twelve (12) months of a Third Party Claim Notice (as defined below), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) aboveactual Action. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount or, in the case of a revised or updated letter, such additional amount to the Company, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 In (a) Parent Indemnitees shall not be entitled to recover under Section 8.2(a) unless and until the event that aggregate amount of their Losses exceeds on a selling holder of Registrable Securities cumulative basis $225,000 (the “Indemnifying HolderDeductible”) is obligated ), in which event the Parent Indemnitees shall be entitled to pay an amount recover all such Losses in excess of the Deductible in accordance with this Article VIII; provided, however, that the Deductible shall not be applicable to any indemnification claim arising from or relating to any breach of a Company Fundamental Representation or based on Fraud. In addition to the foregoing limitation, and except for any Losses based upon, resulting from or related to a breach of a Company Fundamental Representation or based on Fraud, any individual Loss otherwise subject to the indemnification obligations of Section 8.2(a) shall be disregarded if the individual Loss is determined to be less than Twenty Five Thousand Dollars ($25,000.00); provided, however, that an individual Loss shall be deemed to include all Losses that arise from a common nucleus of operative fact or otherwise result from a set of related acts or omissions. (b) The Parent Indemnitees’ sole and exclusive recourse with respect to an indemnification claim under Section 8.2(a) shall be the Indemnity Escrow Amount, the R&W Insurance Policy and, solely with respect to Company Fundamental Representations and the Specified Claims, the Offset; provided, however, that the foregoing limitation shall not apply to any claim based on Fraud. (c) Notwithstanding anything to the contrary contained in this Article VIII: (i) The Parent Indemnitees shall use commercially reasonable efforts to pursue recovery for Losses under the R&W Insurance Policy as set forth in this Article VIII. (ii) Any indemnification of any Parent Indemnitees under Section 8.2(a) (other than with respect to any claim for breach of any Company Fundamental Representation or Specified Claims or based on Fraud) shall be satisfied, after the Deductible has been exhausted, solely and exclusively by recovery (1) first, from the Indemnity Escrow Amount (to the extent available) until the Indemnity Escrow Amount has been exhausted (subject to the limitations set forth in Section 8.5(d)), and (2) second, under the R&W Insurance Policy (to the extent available), and no further recourse shall be available against the Sellers. (iii) Any indemnification of any Parent Indemnitees under Section 8.2(a) with respect to Company Fundamental Representations or the Specified Claims shall be satisfied solely and exclusively by recovery (1) first, from the Indemnity Escrow Amount (to the extent available) until the Indemnity Escrow Amount has been exhausted (subject to the limitations set forth in Section 8.5(d)), (2) second, under the R&W Insurance Policy (to the extent available), and (3) third, from the Sellers pursuant to the Offset (subject to the limitations set forth in Section 8.5(d)). (iv) Any indemnification of any Parent Indemnitees under Section 8.2 (other than under Section 8.2(a)) shall be satisfied solely and exclusively by recovery (1) first, from the Indemnity Escrow Amount (to the extent available) until the Indemnity Escrow Amount has been exhausted, and (2) second, from the Sellers pursuant to the Offset. (v) With respect to any claim based on Fraud, any Indemnitee may pursue any available rights or remedies such Indemnitee may have under applicable Law against the Person who committed such Fraud (in addition to any rights or remedies available to such Indemnitee under this Article VIII). (d) Other than with respect to any claim based on Fraud, the maximum amount that the Parent Indemnitees may recover under Section 8.2 by Offset pursuant to Section 4.2 8.10 is (i) in the “Indemnification Amount”)case of any breaches of a Company Fundamental Representation, during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 aggregate of the Code Earn-Out Payments that otherwise would be payable to the Sellers, (a “REIT”)ii) in the case of the Specified Claims, $71,000,000 in the Indemnifying Holder aggregate and (iii) with respect to each Seller, such Seller’s Pro Rata Percentage of any Claim. (e) No Loss may be claimed under Section 8.2 or its affiliatesSection 8.3 by any Parent Indemnitee or Seller Indemnitee, as applicable, shall pay to the Companyextent such Losses are included in the calculation of the Final Adjustment Amount pursuant to Section 2.11. For the avoidance of doubt, if, and solely to the extent, the amount of a Loss is recovered by a Parent Indemnitee or Seller Indemnitee through the actual payment of a Claim to such Indemnitee, the same amount of such Loss may not be recovered again by such Indemnitee by reason of such Loss being subject to indemnification under more than one provision of this Agreement. (f) Notwithstanding any term herein to the contrary, in the event that any Losses of a Parent Indemnitee relate solely to a particular Seller’s breach of his, her or its representations, warranties, covenants or agreements contained in such Seller’s Securityholder Acknowledgment Agreement or any Ancillary Agreement to which such Seller is a party, the amount of any such Losses shall be deducted (including pursuant to the Offset) solely from any amounts that otherwise would be payable to such Seller rather than from all of the Indemnification Amount deposited into escrow Sellers in accordance with their Pro Rata Percentages. For the avoidance of doubt, this Section 4.5.2, an amount equal 8.5(f) shall not limit the Parent Indemnitees’ rights to indemnification (including pursuant to the lesser Offset) for any Losses based upon, resulting from or related to a breach of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) any representations, warranties covenants or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount or, in the case of a revised or updated letter, such additional amount to the Company, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request agreements of the Company contained in order to (x) maximize the portion this Agreement or any Ancillary Agreement regardless of the Indemnification Amount that whether any such breach may be distributed attributable in whole or in part to a particular Seller. (g) For purposes of calculating the amount of Loss incurred by an Indemnitor for purposes of this Agreement, such amount shall be reduced by (A) the amount of any insurance proceeds actually paid to such Indemnitee in respect of such Loss, net of any deductible amounts (other than the Deductible), any increase in premiums related thereto and any costs associated with obtaining such insurance proceeds, and (B) the amount of any indemnification, contribution, and other similar payment proceeds actually recovered by such Indemnitee in respect of such Loss, net of any costs associated with obtaining such proceeds. The Indemnitee agrees to use its commercially reasonable efforts to mitigate all Losses to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3extent required by applicable law.

Limitations on Indemnification. 4.5.1 In No claim may be made against the event that a selling holder Escrow Deposit unless and until the Parent Indemnified Parties have sustained aggregate Losses for which the Parent Indemnified Parties are entitled to indemnification pursuant to this Agreement in excess of Registrable Securities Three Hundred Fifty Thousand Dollars ($350,000) in the aggregate (the “Indemnifying HolderDeductible Amount”) is obligated and then only to pay the extent such aggregate amount exceeds the One Hundred Seventy-Five Thousand Dollars ($175,000). Notwithstanding any other provision in this Agreement to the contrary, the maximum aggregate recovery of all Parent Indemnified Parties shall be limited to, and shall not exceed an amount equal to, the Escrow Deposit held pursuant to the Escrow Agreement except for Losses determined by final, nonappealable judgment of a court of competent jurisdiction to have been caused by (i) any breach of Section 3.10(h), (ii) any breach of Section 3.12 (“Government Contract Claims”) or (iii) actual fraud or intentional misrepresentation by the Company pursuant to (“Fraud Claims,” and together with the claims described in clauses (i) and (ii) of this Section 4.2 (the 9.05, “Indemnification AmountExcluded Claims”), during . Excluded Claims finally determined by nonappealable judgment of a year that the Company qualifies as court of competent jurisdiction in favor of a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, Parent Indemnified Party shall pay to the Companybe paid first, from the Indemnification Amount deposited into escrow Escrow Deposit, and second, upon depletion of the Escrow Deposit in accordance with Section 4.5.2full, severally (but not jointly) by the Common Stockholders pursuant to the Limited Guaranty; provided that, (x) in no event shall the aggregate liability of the Common Stockholders in respect of Government Contract Claims exceed an amount equal to the lesser difference of (IA) the Indemnification Amount and Escrow Deposit minus (IIB) the sum of all amounts paid (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”)whether from escrow, as determined directly by the Company independent certified public accountantsCommon Stockholders, plus or otherwise) in respect of all claims other than Government Contract Claims and (y) in no event shall the event aggregate liability of any Common Stockholder for all claims arising from this Agreement and the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, Transactions exceed an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount Merger Consideration received by such Common Stockholder in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment respect of such amount did not constitute Qualifying Income or a subsequent letter from the CompanyCommon Stockholder’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount or, in the case of a revised or updated letter, such additional amount to the Company, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holdershares. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 In (a) Notwithstanding other provisions of this Article VII, except in the event that case of Fraud, the Buyer Indemnified Parties, as a selling holder of Registrable Securities group, may not recover any Losses pursuant to an indemnification claim under Section 7.2(a)(i) unless and until the Buyer Indemnified Parties, as a group, shall have paid, incurred, suffered or sustained at least $55,000 in Losses in the aggregate (the “Indemnifying Holder”) is obligated to pay an amount to the Company pursuant to Section 4.2 (the “Indemnification Deductible Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent Buyer Indemnified Parties shall release such amount orbe entitled to recover only those Losses in excess of the Deductible Amount. (b) Subject to Section 7.3(c), and except in the case of a revised or updated letterFraud, such additional the Sellers’ liability for indemnification claims under Section 7.2(a)(i) shall be limited to an aggregate amount equal to the Company, orIndemnity Escrow Amount. (bc) a letter Subject to the other provisions and limitations in this Article VII, any Losses with respect to the following indemnification claims of the Buyer Indemnified Parties shall be satisfied as follows: (i) With respect to Losses for claims under Section 7.2(a)(i), (A) first, by recovery from the Company’s counsel indicating Indemnity Escrow Amount; (B) second, to the extent coverage is available, by the use of commercially reasonable efforts to seek recovery from the RWI Policy; and (C) third, to the extent that recovery from the RWI Policy is not available due to lack of availability or depletion of coverage solely as a result of payments made for Losses pursuant to Section 7.2(a)(ii)(B), Section 7.2(a)(iv), or Section 7.2(a)(vi), by recovery directly against Holdco or the Holders (jointly and severally as between Holdco and the Holders, and severally (but not jointly) as between the Holders in accordance with their respective Pro Rata Portion). (ii) With respect to Losses for claims under Section 7.2(a)(ii), Section 7.2(a)(iv), Section 7.2(a)(vi), Section 7.2(b)(i) and Section 7.2(b)(iii), (A) first, by recovery from the Indemnity Escrow Amount; (B) second, to the extent coverage is available, by the use of commercially reasonable efforts to seek recovery from the RWI Policy; and (C) third, (1) with respect to claims under Section 7.2(a)(ii), Section 7.2(a)(iv) and Section 7.2(a)(vi) by recovery directly against Holdco or the Holders (jointly and severally as between Holdco and the Holders, and severally (but not jointly) as between the Holders in accordance with their respective Pro Rata Portion; and for the avoidance of doubt, there shall not be any requirement that the Company received a ruling Buyer Indemnified Parties first seek indemnification from Holdco prior to proceeding with an indemnification claim against the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2Holders) and (32) with respect to claims under Section 7.2(b)(i) and Section 7.2(b)(iii) directly against the applicable Holder; provided, however, that in no event shall the liability of (A) Holdco for any such Losses exceed the Code amount of Total Consideration received by Holdco (or alternativelyincluding from the Escrow Amounts and any Post-Closing Consideration in each case, the Company’s outside counsel has rendered a legal opinion prior to the effect withholding of Taxes) or (B) any Holder for any such Losses exceed the amount of Total Consideration received by such Holder (including any funds from the Escrow Amounts and any Post-Closing Consideration, in each case, prior to the withholding of Taxes), which such Total Consideration amounts shall not be double counted; provided, if such Losses are in respect of Fraud, there shall be no limitation on the liability hereunder of any Holder who committed such Fraud. (iii) With respect to Losses for claims under Section 7.2(a)(iii) or Section 7.2(a)(v), directly against Holdco or the Holders (jointly and severally as between Holdco and the Holders, and severally (but not jointly) as between the Holders in accordance with their respective Pro Rata Portion; and for the avoidance of doubt, there shall not be any requirement that the receipt Buyer Indemnified Parties first seek indemnification from Holdco prior to proceeding with an indemnification claim against the Holders); provided, however, that in no event shall the liability of (A) Holdco for any such Losses exceed the amount of Total Consideration received by ▇▇▇▇▇▇ (including from the Company Escrow Amounts and any Post-Closing Consideration in each case, prior to the withholding of Taxes) or (B) any Holder for any such Losses exceed the Indemnification Amount would either constitute Qualifying Income amount of Total Consideration received by such Holder (including any funds from the Escrow Amounts and any Post-Closing Consideration, in each case, prior to the withholding of Taxes). (iv) With respect to Losses for claims under Section 7.2(a)(vii), directly against Holdco or would the Holders (jointly and severally as between Holdco and the Holders, and severally (but not jointly) as between the Holders in accordance with their respective Pro Rata Portion, provided that there shall be excluded no limitation on liability hereunder of Holdco or any Holder with respect to such Losses; and for the avoidance of doubt, there shall not be any requirement that the Buyer Indemnified Parties first seek indemnification from gross income within Holdco prior to proceeding with an indemnification claim against the meaning of Sections 856(c)(2Holders). (v) and (3) of With respect to Losses for claims under Section 7.2(b)(ii), directly against the Code)applicable Holder, in which case the escrow agent liability of Holder shall release be limited to the remainder amount of Total Consideration received by such Holder (including from the Escrow Amounts and any Post-Closing Consideration in each case, prior to the withholding of Taxes), which such Total Consideration amounts shall not be double counted. (d) Each Seller acknowledges and agrees that with respect to any Losses determined to be payable pursuant to this Article VII that Buyer has the right to recover directly from Holdco pursuant to the foregoing provisions, Buyer may elect to recover such Losses by offsetting such Losses against any Earnout Payment that becomes payable to Holdco pursuant to Section 1.4 rather than recovering directly from Holdco, subject to the limitations set forth in this Article VII. (e) For the avoidance of doubt, nothing in this Article VII will in any way inhibit the Buyer Indemnified Parties from obtaining any remedies such Buyer Indemnified Parties may have under the RWI Policy. (f) For the avoidance of doubt, the obligation to attempt to seek recovery under the RWI Policy is not a precondition to the submission of an Indemnification Claim Notice. (g) Notwithstanding anything to the contrary elsewhere in this Agreement, no party shall, in any event, be liable to any other Person for any punitive damages, except to the extent recovered by, paid or payable to a third party in connection with a Third Party Claim. Nothing in this Agreement shall in any way restrict or limit the general obligation at Law (including under Delaware common law) of a Buyer Indemnified Party or a Holdco Indemnified Party to mitigate any Loss it may suffer or incur by reason of a breach of any representation, warranty or covenant set forth in this Agreement. Any liability for indemnification under this Article VII shall be determined without duplication of recovery. Payments by an Indemnified Party in respect of any Loss shall be reduced by any amounts actually received from any insurance policy or third parties (net of all reasonable costs and expenses of recovery) by an Indemnified Party in respect of such claim. (h) Buyer acknowledges and agrees that the sole and exclusive remedy for the Buyer Indemnified Parties with respect to any and all claims for any breach of any representation, warranty, covenant, agreement or obligation set forth herein, for any of the Indemnification Amount other matters set forth in Section 7.2 or otherwise resulting from or arising out of this Agreement or the Transactions will be pursuant to the Companyindemnification provisions set forth in this Article VII and the Support Agreement; provided, that the foregoing clause of this sentence shall not be deemed a waiver by any party of (i) any right to specific performance or injunctive relief, (ii) any right or remedy of a party under any Related Agreement to which it is party, (iii) recovery under the RWI Policy, or (iv) Buyer’s right to recover any Losses determined to be due and owing by Holders or Holdco pursuant to this Article VII from any Earnout Payment that becomes payable pursuant to Section 1.4. The escrow agreement shall also provide that any portion Subject to the other limitations contained herein, the obligations of the Indemnification Amount held in escrow for five (5) years Sellers under this Article VII shall not be released reduced, offset, eliminated or subject to contribution by reason of any action or inaction by the escrow agent Company prior to the Indemnifying HolderClosing that contributed to any inaccuracy or breach giving rise to such obligation, it being understood that the Sellers, not the Company, shall have the sole obligation for the indemnification obligations under this Article VII. 4.5.4 The Indemnifying Holder agrees to amend (i) No Buyer Indemnified Party shall make any claim for indemnification under this Section 4.5 at Article VII in respect of any Loss that is specifically taken into account in the reasonable request calculation of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3Closing Cash Consideration.

Limitations on Indemnification. 4.5.1 In Neither the Buyer Indemnified Parties and the Company Indemnified Parties, on the one hand, nor the Sony Indemnified Parties, on the other hand, shall be entitled to be indemnified pursuant to clause (i) of Section 7.1 hereof, or pursuant to clause (i) of Section 7.2 hereof (as the case may be) unless, until and to the extent that the aggregate of all losses, damages, liabilities, costs and expenses of any kind (other than those referred to in the proviso to this sentence) incurred by the Buyer Indemnified Parties and the Company Indemnified Parties, or the Sony Indemnified Parties, as the case may be ("AGGREGATE LOSSES"), exceeds $250,000; provided that, notwithstanding the foregoing, the Sony Indemnified Parties shall be entitled to be indemnified on a dollar-for-dollar basis from and against all losses, damages, liabilities, costs and expenses arising out of or in connection with the breach by the Buyer of Section 4.6, and the Buyer Indemnified Parties shall be entitled to be indemnified on a dollar-for-dollar basis from and against all losses, damages, liabilities, costs and expenses arising out of or in connection with the breach by SMEI or the Stockholder of Section 3.6 hereof and in no event that shall the liability of SMEI and the Stockholder, on the one hand, or the Buyer, on the other hand, for all Aggregate Losses hereunder exceed the Purchase Price. Claims made for indemnification hereunder for a selling holder breach of Registrable Securities (a representation or a warranty must be made prior to the “Indemnifying Holder”) is obligated first anniversary of the Closing Date. SMEI and the Stockholder shall have the right to pay an amount any of their indemnification obligations hereunder (other than for direct, out-of-pocket third-party costs and expenses incurred in connection with third-party claims, and amounts actually paid to third parties in settlements entered into in accordance herewith or pursuant to a final judgment not subject to appeal) by delivering Buyer Shares to the Company pursuant to Buyer, which Buyer Shares shall be valued, for purposes of this Section 4.2 (the “Indemnification Amount”)7.3, during at a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount price per share equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) aboveOffering Price. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount or, in the case of a revised or updated letter, such additional amount to the Company, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 In No Indemnitor shall be liable for an indemnification claim made under clause (a) of Section 6.2 or 6.3, as the event that case may be: (x) for which a selling holder of Registrable Securities claim for indemnification is not asserted hereunder on or before the applicable Survival Date; (the “Indemnifying Holder”y) is obligated to pay an amount to the Company pursuant to extent Losses incurred by the Buyer Indemnified Parties in the aggregate under clause (a) of Section 4.2 6.2 or by the Seller Indemnified Parties in the aggregate under clause (the “Indemnification Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 a) of the Code (a “REIT”), the Indemnifying Holder or its affiliatesSection 6.3, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, exceed an amount equal to the lesser of ten percent (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (310%) of the Code determined as if Purchase Consideration (the payment "Indemnification Cap"); provided, that with respect to any claims for breaches of such amount did not constitute income described in Sections 856(c)(2any Special Reps, the Indemnification Cap shall be equal to the Purchase Consideration; and (z) or 856(c)(3) unless and until the Losses of the Code (“Qualifying Income”)Buyer Indemnified Parties, collectively, or the Seller Indemnified Parties, collectively, as determined by the Company independent certified public accountantsapplicable, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) exceed an opinion from the Company’s outside counsel as described in Section 4.5.3, an aggregate amount equal to $5,000 (the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise"Basket"), in which case the escrow agent applicable Indemnitor(s) shall release such amount or, in the case of a revised or updated letter, such additional amount be obligated to the CompanyIndemnitee(s) for the amount of all Losses of the Indemnitee(s) (including the first dollar of Losses of the Buyer Indemnified Parties or the Seller Indemnified Parties, or (b) a letter from as applicable, required to reach the Company’s counsel indicating Basket); provided, however, that the Company received a ruling from Basket and the Internal Revenue Service holding that Indemnification Cap shall not apply to (i) indemnification claims to the receipt extent amounts are actually paid under insurance maintained by the Company Indemnitor (or any of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2its Affiliates) and (3ii) indemnification claims based in whole or in part upon fraud, willful misconduct or intentional misrepresentation. The Basket and the Indemnification Cap shall apply only to indemnification claims made under clause (a) of the Code (Section 6.2 or alternatively6.3 and shall not affect or apply to any other indemnification claim made pursuant to this Agreement, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company including those asserted under any other clause of the Indemnification Amount would either constitute Qualifying Income Section 6.2 or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder6.3. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 In (a) The Equityholders will have no liability pursuant to Section 8.1(a)(i) or Section 8.1(b)(i) unless and until Buyer Indemnitees have suffered aggregate Adverse Consequences for which the event that a selling holder Buyer Indemnitees are entitled to be indemnified pursuant to Section 8.1(a)(i) or Section 8.1(b)(i), in excess of Registrable Securities $150,000 (the “Indemnifying HolderThreshold”) is ), after which point the Equityholders will be obligated to pay an indemnify Buyer Indemnitees from and against only such Adverse Consequences in excess of the Threshold; provided, that the foregoing limitations shall not apply in respect of any Adverse Consequences relating to (i) breaches of the Excluded Representations or the Fundamental Representations or (ii) any intentional fraud or intentionally fraudulent breach of a representation or warranty. Notwithstanding the foregoing, with respect to calculating whether the Threshold has been satisfied, the amount of any adjustment to the Company Cash Payment which was reduced pursuant to Section 4.2 1.10(c)(ii) shall be included in the calculation. (b) With respect to claims for indemnification pursuant to Section 8.1(a)(i) or Section 8.1(b)(i) the aggregate maximum liability of all Equityholders shall not exceed the Escrow Amount (the “Indemnification AmountCap”); provided, during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 foregoing limitations shall not apply in respect of any Adverse Consequences relating to (i) breaches of the Code Excluded Representations, (ii) the Fundamental Representations, or (iii) any intentional fraud or intentionally fraudulent breach of a “REIT”)representation or warranty. (c) With respect to any Adverse Consequences for which Buyer Indemnitees may be entitled to indemnification under this Article 8, Buyer Indemnitees will recover such Adverse Consequences first from the Indemnifying Holder Escrow Fund. (d) Any liability of the Equityholders under this Article 8 which has not been paid from the Escrow Fund shall be satisfied from the Equityholders or its affiliatesthe individual Equityholder, as applicable, shall pay in cash. Subject to Section 8.4(e), in no event will an Equityholder’s liability under this Agreement exceed the portion of the Aggregate Merger Consideration actually received by such Equityholder. (e) Notwithstanding any other provision of this Agreement, nothing in this Agreement limits the liability of a party to another party for its own intentional fraud or any rights under any other document or agreement other than this Agreement; provided that in the event of intentional fraud by the Company, an Equityholder’s liability under this Agreement shall be limited to the portion of the Aggregate Merger Consideration actually received by such Equityholder. Nothing in this Section 8.4 shall limit the liability of a party to another party in the event the Closing does not occur. (f) Each Indemnified Party will take commercially reasonable efforts to mitigate all Adverse Consequences upon and after becoming aware of any event that would reasonably be expected to give rise to such Adverse Consequences, including pursuing and attempting to recover all insurance proceeds and all other recoveries under each applicable insurance policy or contractual right to indemnification. Notwithstanding the foregoing: (i) no Indemnified Party shall (A) be required to take any action to mitigate any Losses incurred or suffered to the extent based upon, arising out of, with respect to or by reason of intentional fraud or intentionally fraudulent breach of a representation or warranty of any Equityholder, or, prior to the Closing, the Company, or (B) have any obligation to take any actions that unreasonably interfere with or impact the business of such Indemnified Party and (ii) the failure of an Indemnified Party to use such efforts to mitigate shall not constitute a defense to the Indemnifying Party’s obligations to indemnify the Indemnified Party pursuant to this Agreement. (g) The amount of any Adverse Consequences that any Indemnified Party may be entitled to recover shall be reduced by (i) the amount of any third party insurance proceeds recovered by such Indemnified Party from any third party insurance carrier, net of any increase in insurance premiums or other costs, including deductibles, incurred in connection with recovery of such insurance proceeds; and (ii) the amount of any indemnity or contribution recovered by any Indemnified Party from any third party, net of any costs incurred in connection with recovering any such amounts. If an Indemnified Party receives any amounts under applicable insurance policies or third party indemnification or contribution payment subsequent to its receipt of an indemnification payment by the Indemnifying Party (including from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2Escrow Fund), an amount equal then such Indemnified Party will, without duplication, promptly reimburse the Indemnifying Party (net of costs and expenses of such recovery and resulting premium increases) for any payment made by such Indemnifying Party (including from the Escrow Fund) up to the lesser amount received by such Indemnified Party. (h) The Indemnified Parties shall not be entitled to recover any Adverse Consequences relating to any matter arising under one provision of (I) this Agreement or any Ancillary Agreement to the Indemnification Amount and (II) extent that the sum Indemnified Party has already recovered such Adverse Consequences with respect to such matter pursuant to another provision of this Agreement or any Ancillary Agreement. Without limiting the foregoing, no Indemnified Person shall be entitled to recover Adverse Consequences with respect to any matter that was specifically taken into account in the calculation of the Aggregate Merger Consideration. If a state of facts exists that would allow a Buyer Indemnitee recovery under any of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2Section 8.1(a)(i) or 856(c)(3Section 8.1(a)(ii), on the one hand, or (y) of Section 8.1(a)(iii) with respect to covenants and agreements set forth in Section 4.3, on the Code (“Qualifying Income”other hand, then such Buyer Indemnitee may only seek to recover for Adverse Consequences under Section 8.1(a)(i) or Section 8.1(a)(ii), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) aboveapplicable. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount or, in the case of a revised or updated letter, such additional amount to the Company, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 In (a) Except in the event that case of fraud, intentional misrepresentation or intentional breach, the Indemnified Parties, as a selling holder group, may not recover any Losses pursuant to an indemnification claim under Section 9.2(a)(i) or Section 9.2(a)(ii) unless and until (i) with respect to any given claim for Losses, such claim is individually in excess of Registrable Securities $25,000 (the “Indemnifying HolderIndividual Basket Amount”) is obligated to pay an (it being understood that the Indemnified Parties may recover for the full amount to of such Losses once the Company pursuant to Section 4.2 claim exceeds such Individual Basket Amount), and (ii) the Indemnified Parties, as a group, shall have actually paid, incurred, suffered or sustained at least $1,000,000 in Losses in the aggregate (the “Indemnification Basket Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent Indemnified Parties shall release such amount orbe entitled to recover all Losses, including the Basket Amount, paid, incurred, suffered or sustained by the Indemnified Parties as a group. For the avoidance of doubt, the limitations set forth in this Section 9.3(a) shall not apply to indemnification claims under clauses (iii) – (x) of Section 9.2(a), inclusive. (b) Except in the case of fraud, intentional misrepresentation or intentional breach, the Indemnified Parties sole and exclusive source of recovery for indemnification claims under Section 9.2(a) shall be recourse against the cash held in the Escrow Fund, and the liability of each Indemnifying Party for indemnification claims under Section 7.2(a) shall be limited, in the aggregate, to a revised dollar amount equal to such Indemnifying Party’s Pro Rata Portion of the Escrow Amount. (c) In the event of fraud, intentional misrepresentation or updated letterintentional breach, the Indemnified Parties shall be entitled to bring indemnification claims directly against the Indemnifying Parties; provided, however, that (i) the Indemnified Parties shall only be permitted to recover Losses from the Indemnifying parties in respect of such additional fraud, intentional misrepresentation or intentional breach if and the extent that the Escrow Fund is no longer available, and (ii) in no event shall the liability of any Indemnifying Party for any fraud, intentional breach or intentional misrepresentation exceed the Merger Consideration otherwise receivable by such Indemnifying Party hereunder (but for such fraud, intentional breach or intentional misrepresentation), unless any such Indemnifying Party either committed or had actual knowledge of such fraud, intentional misrepresentation or intentional breach (in which event there shall be no limitation on the liability of such Indemnifying Party hereunder or under applicable Law except to the extent imposed under applicable Law). (d) Nothing in this Agreement shall limit the liability of an Indemnifying Party in connection with a claim based on fraud, intentional misrepresentation or intentional breach committed by such Indemnifying Party or with the actual knowledge of such Indemnifying Party at the time of its commission. (e) Notwithstanding any provision of this Agreement to the contrary, no Indemnifying Party shall have any indemnification obligations to any Indemnified Party with respect to Losses incurred by reason of or arising out of any reduction in the amount of any U.S. federal, state, local and non-U.S. net operating loss carryover, Tax credit carryover or similar Tax attribute of the Company or any Subsidiary arising in any Pre-Closing Tax Period below the amount set forth on the applicable Tax Return with respect to such period (each, a “Tax Attribute”), whether such reduction occurs by reason of the carryback or other utilization of such Tax Attribute by the Company, or (b) a letter from any Subsidiary or the Company’s counsel indicating that Surviving Corporation, the filing of any amended Tax Return for the Company received a ruling from or any Subsidiary, the Internal Revenue Service holding that the receipt by the Company redetermination of the Indemnification Amount would either constitute Qualifying Income amount of such Tax Attribute by any Governmental Entity or would be excluded from gross income within the meaning of Sections 856(c)(2otherwise; provided, however, that nothing in this Section 9.3(e) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to affect the Indemnifying HolderParties’ indemnification obligations for Pre-Closing Taxes pursuant to Article IX. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 (a) The amount of any Losses for which indemnification is provided under this Section 9 shall be net of any amounts (i) recovered by an Indemnified Party or its Affiliates under or pursuant to any insurance policy, and (ii) recovered by any such Person from any third party with respect to such Losses. In the event that a selling holder of Registrable Securities (the “Indemnifying Holder”) any such recovery is obligated to pay made by an amount to the Company pursuant to Section 4.2 (the “Indemnification Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder Indemnified Party or its affiliatesAffiliates with respect to any Losses, as applicable, shall pay for which any such Indemnified Party has been indemnified hereunder and has received funds in the amount of such Losses, then a refund equal to the Companyaggregate amount of the recovery shall be made promptly to the Indemnifying Party. (b) Notwithstanding anything herein to the contrary, (i) the Company shall not be liable to the Investors Indemnified Parties for any Loss pursuant to Section 9.2(a)(i) or Section 9.2(a)(iii) (any such Loss, an “Investors Applicable Loss”) if the sum total of (X) such Investors Applicable Loss and (Y) all other Losses that arise from the Indemnification Amount deposited same or from one or more similar or related events, occurrences or circumstances as such Investors Applicable Loss, does not, in the aggregate, exceed an amount equal to US$100,000 (the “De Minimis Exclusion”), and no claim for an Investors Applicable Loss that does not exceed the De Minimis Exclusion shall be considered in determining the amount of Losses under Section 9.2(a)(i) or Section 9.2(a)(iii) unless the sum total of (A) such Investors Applicable Loss and (B) any other Losses arising from the same or from one or more similar or related events, occurrences or circumstances as such Investors Applicable Loss, shall exceed, in the aggregate, the De Minimis Exclusion; (ii) the Company shall not be liable to the Investors Indemnified Parties for any Losses pursuant to Section 9.2(a)(i) or Section 9.2(a)(iii), other than in respect of Fraud or breach of any Company Fundamental Representation, until the aggregate amount of such Losses (excluding, for the avoidance of doubt, any Losses pursuant to Section 9.2(a)(i) or Section 9.2(a)(iii) which do not exceed the De Minimis Exclusion) exceeds an amount equal to US$1,000,000, at which time the Company shall be liable for the entire amount of all such Losses, subject to the other limitations herein; (iii) the Company shall not be liable to the Investors Indemnified Parties for any Losses pursuant to Section 9.2(a)(i), other than in respect of Fraud or breach of any Company Fundamental Representation, in excess of US$4,000,000, subject to the other limitations herein; (iv) the Company shall not be liable to the Investors Indemnified Parties for any Losses pursuant to Section 9.2(a)(iii), other than in respect of Fraud, in excess of US$12,000,000, subject to the other limitations herein; and (v) the Company shall not be liable to the Investors Indemnified Parties for any Losses arising under or in connection with this Agreement, other than in respect of Fraud, in excess of US$38,548,333.33, subject to the other limitations herein. (c) Notwithstanding anything herein to the contrary, (i) no Investor shall be liable to the Company Indemnified Parties for any Loss pursuant to Section 9.2(b)(i) or Section 9.2(b)(iii) (any such Loss, a “Company Applicable Loss”) if the sum total of (X) such Company Applicable Loss and (Y) all other Losses that arise from the same or from one or more similar or related events, occurrences or circumstances as such Company Applicable Loss, does not, in the aggregate, exceed the De Minimis Exclusion and no claim for a Company Applicable Loss that does not exceed the De Minimis Exclusion shall be considered in determining the amount of Losses under Section 9.2(b)(i) or Section 9.2(b)(iii) unless the sum total of (A) such Company Applicable Loss and (B) any other Losses arising from the same or from one or more similar or related events, occurrences or circumstances as such Company Applicable Loss, shall exceed, in the aggregate, the De Minimis Exclusion; (ii) no Investor shall be liable to the Company Indemnified Parties for any Losses pursuant to Section 9.2(b)(i) or Section 9.2(b)(iii), other than in respect of Fraud or breach of any Investor Fundamental Representation, until the aggregate amount of such Losses (excluding, for the avoidance of doubt, any Losses pursuant to Section 9.2(b)(i) or Section 9.2(b)(iii) which do not exceed the De Minimis Exclusion) exceeds an amount equal to US$1,000,000, at which time an Investor shall be severally but not jointly liable for the entire amount of all such Losses, subject to the other limitations herein; (iii) no Investor shall be liable to the Company Indemnified Parties for any Losses pursuant to Section 9.2(b)(i) or Section 9.2(b)(iii), other than in respect of Fraud or breach of any Investor Fundamental Representation, in excess of US$4,000,000, subject to the other limitations herein; and (iv) no Investor shall be liable to the Company Indemnified Parties for any Losses arising under or in connection with this Agreement, other than in respect of Fraud, in excess of the Subscription Amount, subject to the other limitations herein. For the avoidance of doubt, any liability of an Investor under this Section 9 shall be several and not joint (in accordance with such Investor’s 50% percentage interest). (d) Notwithstanding anything herein to the contrary, (i) no Indemnifying Party will have any obligation to indemnify for any Losses until a final, non-appealable Judgment is rendered with respect to such Claim Notice or a written agreement is entered into escrow by the parties; and (ii) where substantially the same events or circumstances qualify under one or more single or multiple claims or under one or more provisions of this Agreement, the Indemnified Party shall not be entitled to double or duplicative recovery of Losses arising out of such events or circumstances, or to calculate its Losses by duplicating or double counting its Losses arising out of such events or circumstances. (e) In the event that the Company has an obligation to indemnify any Investors Indemnified Party for any Losses under this Section 9, the Company shall, within ten (10) Business Days (or any other date agreed in writing by the Company and such Investors Indemnified Party) after such Losses have been finally determined and are owed by the Company in accordance with Section 4.5.29.4(d), at its option, pay the amount of such Losses either by (i) wire transfer of immediately available funds to an amount equal account designated in writing by such Investors Indemnified Party, or (ii) issuing a warrant exercisable into Ordinary Shares to such Investors Indemnified Party in the lesser form attached hereto as Exhibit K (the “Indemnity Warrant”), that will entitle such Investors Indemnified Party to a number of (I) Ordinary Shares resulting from the Indemnification Amount and (II) the sum quotient of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”)Losses, as determined by the Company independent certified public accountants, plus and (y) the fair market value of an Ordinary Share at the time of the payment obligation, which, to the extent the Ordinary Shares of the Company are traded over-the-counter (OTC) or in any stock exchange, shall be equivalent to the Company’s Ordinary Shares VWAP for the period of thirty (30) consecutive trading days ending on the trading day immediately prior to the date of payment. The Exercise Price (as defined in the Indemnity Warrant) under such Indemnity Warrant shall be US$0.01. (f) In the event that any Investor has an obligation to indemnify a Company Indemnified Party for any Losses under this Section 9, such Investor shall pay the amount of such Losses within ten (10) Business Days (or any other date agreed in writing by such Investor and such Company Indemnified Party) after such Losses have been finally determined and are owed by such Investor in accordance with Section 9.4(d) by wire transfer of immediately available funds to an account designated in writing by such Company Indemnified Party. (g) Each Indemnified Party agrees that in the event the Company receives either (1) a ruling from the Internal Revenue Service described in of any breach giving rise to an indemnification obligation under this Section 4.5.3 9 such Indemnified Party shall take and shall cause its Affiliates to take, or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure cooperate with the Indemnifying Holder’s obligation to pay these amountsParty, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected if so requested by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the CompanyParty, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount or, in the case of a revised or updated letter, such additional amount to the Company, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize take, all reasonable measures to mitigate the portion consequences of the Indemnification Amount that may be distributed related breach (including taking steps to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion prevent any contingent liability from its outside counsel as described in Section 4.5.3becoming an actual liability).

Limitations on Indemnification. 4.5.1 In (a) Except in the event that a selling holder case of Registrable Securities fraud, intentional misrepresentation or indemnification claims for breaches of or inaccuracies in the Fundamental Representations, IP Representations or Tax Representations, the Indemnified Parties may not recover any Losses pursuant to an indemnification claim under Section 9.2(a)(i) unless and until the amount of the indemnifiable Losses thereunder exceeds $25,000 with respect to such individual claim or series of related claims, (the “Indemnifying HolderPer Claim Threshold”) is obligated to pay an amount to the Company pursuant to Section 4.2 (the “Indemnification Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent Indemnified Parties shall release such amount orbe entitled to recover all Losses, including the Per Claim Threshold, paid, incurred, suffered or sustained by the Indemnified Parties. For the avoidance of doubt, the limitations set forth in the case this Section 9.3(a) shall not apply to indemnification claims under clauses (ii) – (ix) of a revised or updated letterSection 9.2(a), such additional amount to the Company, orinclusive. (b) a letter Subject to Section 9.3(c), the Indemnifying Parties’ aggregate liability for indemnification obligations set forth in Section 9.2(a) shall not exceed the Indemnity Escrow Amount and the Indemnified Parties’ sole and exclusive source of recovery for such claims under Section 9.2(a) shall be recourse against the cash held in the Indemnity Escrow Fund; provided, however, that, for the avoidance of doubt, Buyer shall be permitted to recover any Negative Adjustment Amount from the Company’s counsel indicating Adjustment Escrow Fund pursuant to the terms of Section 1.4. (c) Nothing in this Agreement shall limit the liability of, or the Indemnified Parties’ remedies against, any Person who perpetrates, or who has actual knowledge of, fraud in relation to the transactions contemplated hereby. (d) Notwithstanding any other provision of this Agreement to the contrary, the indemnification rights set forth in this Article IX and recourse against the Indemnity Insurance Policy shall be the sole and exclusive remedy of the Indemnified Parties from and after the Effective Time for monetary damages in connection with the matters described in Section 9.2(a) (which means that the Company received a ruling from survival periods and liability limits set forth in this Article IX shall control notwithstanding any statutory or common law provisions or principles to the Internal Revenue Service holding contrary); provided, however, that nothing in this Agreement shall limit the receipt Indemnified Parties’ ability to pursue (i) specific performance or injunctive relief or other non-monetary equitable remedies (excluding the doctrine of equitable indemnification), (ii) remedies under any Related Agreements (other than the certificates and documents to be delivered by the Company pursuant to Section 2.2(b)(xiv)) against the parties thereto, and (ii) remedies against any Person who perpetrates, or who has actual knowledge of, fraud in relation to the transactions contemplated hereby. (e) The Indemnified Parties shall be entitled to recover indemnifiable Losses from the following sources and in the following order: (i) first, from the amounts then remaining in the Indemnity Escrow Fund; and (ii) second, from and under the Indemnity Insurance Policy. (f) To the extent the Indemnified Parties are entitled to recover indemnifiable Losses in respect of amounts which are indemnifiable pursuant to Section 2.5 by a particular Person who had received amounts pursuant to this Agreement, Buyer shall first use reasonable best efforts to recover such indemnifiable Losses from such Person prior to seeking recourse against the Escrow Fund pursuant to the terms of this Article IX. (g) The amount of any Losses recoverable by any Indemnified Party under Section 9.2(a) shall be calculated net of any insurance proceeds actually received by, and/or any indemnification or contribution payments actually paid by any third party to, such Indemnified Party in respect of such Losses in, each case net all costs of recovery, including without limitation reasonably anticipated increases in insurance premiums; provided, however, that in no event shall any Indemnified Party be required to seek or obtain any such insurance proceeds or third party indemnification or contribution. If an Indemnified Party receives any amounts under applicable insurance policies or third party indemnification or contribution payments subsequent to its receipt of an indemnification payment by the Indemnifying Parties (including from the Indemnity Escrow Fund), then such Indemnified Party will, without duplication, promptly reimburse the Indemnifying Parties (including via replenishing the Indemnity Escrow Fund, if applicable) for any payment made by such Indemnifying Parties up to the amount received by the Indemnified Party; provided, that the aggregate amount of reimbursement payments to the Indemnifying Parties will not in any event exceed the aggregate indemnification payment received by the Indemnified Party from the Indemnifying Parties. For clarity, nothing in this Section 9.3(g) will be deemed to prejudice the ability of any Indemnified Party to seek recourse against the Indemnity Escrow Fund and/or Indemnity Insurance Policy at any time according to the other terms and conditions of this Article IX, but rather this Section 9.3(g) is intended solely to prevent multiple recoveries by any Indemnified Party for the same Losses. (h) Notwithstanding any other provision of this Agreement, the Indemnifying Parties shall not have any liability or indemnification obligation for any Taxes of the Indemnification Amount would either constitute Qualifying Income Company or would be excluded any Subsidiary (i) resulting from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt any action taken by the Company after the Closing on the Closing Date outside of the Indemnification Amount would either constitute Qualifying Income ordinary course of business, or would (ii) the ability of Buyer, the Surviving Corporation or any of their Affiliates to utilize any Tax asset or attribute (e.g., net operating loss carryforward or Tax credit carryforward) in any Tax period or portion thereof (including any Straddle Tax Period) beginning on or after the Closing Date. (i) Any claim for indemnification under Article IX, and any offer to compromise or settle such claim, must be excluded from gross income within the meaning made on a pro rata basis to all Indemnifying Parties (based on their respective Pro Rata Portions). (j) Any liability for indemnification under this Article IX shall be determined without duplication of Sections 856(c)(2) and (3) recovery by reason of the Code)state of facts giving rise to such liability constituting a breach or other violation of more than one representation, warranty, covenant, agreement, certificate or certification. In addition, if and solely to the extent that an amount of Losses in connection with an indemnifiable matter was already taken into account in connection with calculation of the Final Total Closing Consideration, the same amount of such Losses may not be recovered under this Article IX. (k) Notwithstanding any other provision of this Agreement, in no event will any Indemnifying Party be liable for any other Indemnifying Party’s breach of such other Indemnifying Party’s representations, warranties, covenants, or agreements contained in any Holdback Agreement, Joinder Agreement, Non-Competition and Non-Solicitation Agreements or other ancillary agreement hereto to which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the such other Indemnifying HolderParty is a party. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 In the event that a selling holder of Registrable Securities (the “Indemnifying Holder”i) is obligated to pay an amount Notwithstanding anything to the contrary set forth in this Agreement, nothing set forth in this ARTICLE 8 or elsewhere in this Agreement shall limit the liability of (A) subject to Section 9.2, the Company for any breach of this Agreement if the Merger is not consummated, or (B) any Indemnifying Party for (1) any Indemnification Claim pursuant to clause (x) of Section 4.2 (the “Indemnification Amount”8.2(a), during a year (2) any claims or causes of action arising out of or relating to the Joinder Agreement entered into with such Indemnifying Party, or (3) for any other claims or causes of action arising out of or relating to fraud, intentional misrepresentation or intentional breach under applicable Law. Provided that it has complied with Section 8.2(b)(ii), any Parent Indemnified Party shall be entitled to bring claims directly against any Company Securityholder in connection with any claims or causes of action arising out of or relating to the Joinder Agreement of such Company qualifies as a “real estate investment trust” Securityholder and may recover any Damages directly or indirectly paid, sustained or incurred by such Parent Indemnified Party directly from such Company Securityholder in respect thereof. (ii) Notwithstanding anything to the contrary set forth in this Agreement, if the Merger is consummated, (A) the Escrow Fund shall be the Parent Indemnified Parties’ sole and exclusive remedy, security and source of recovery for any Indemnification Claims under Sections 856 through 860 and pursuant to clause (i) of Section 8.2(a), and (B) the Parent Indemnified Parties shall not be entitled to recover any Damages in respect of any Indemnification Claims under or pursuant to clause (i) of Section 8.2(a), in the aggregate, in excess of the Code funds held in the Escrow Fund; provided, however, that notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the preceding restrictions set forth in this Section 8.2(b)(ii) shall not in any way limit or otherwise restrict any right in respect of any Indemnification Claims under or pursuant to clauses (a “REIT”ii) through (x) of Section 8.2(a), the Indemnifying Holder inclusive, or its affiliatesany other claims or causes of action arising out of fraud, as applicable, shall pay intentional misrepresentation or intentional breach under applicable Law. (iii) Notwithstanding anything to the Companycontrary set forth in this Agreement, if the Merger is consummated, the Parent Indemnified Parties shall not be entitled to recover any Damages from any Indemnifying Party in respect of any Indemnification Claims under or pursuant to clause (ii) through (ix) of Section 8.2(a), inclusive, in the Indemnification Amount deposited into escrow aggregate, in accordance with Section 4.5.2, excess of an amount equal to the lesser Merger Consideration actually received by each Indemnifying Party; provided, however, that notwithstanding the foregoing or anything to the contrary set forth in this Agreement, the preceding restrictions set forth in this Section 8.2(b)(iii) shall not in any way limit or otherwise restrict any right in respect of any Indemnification Claims against any Indemnifying Party under or pursuant to clause (Ii) the Indemnification Amount and (II) the sum of or (x) the maximum amount that can be paid of Section 8.2(a), or any other claims or causes of action arising out of fraud, intentional misrepresentation or intentional breach under applicable Law. (iv) Notwithstanding anything contained herein to the Company without causing contrary, no Indemnified Party may receive cash from the Company Escrow Fund in respect of any claim for indemnification that is made pursuant to fail to meet the requirements of Sections 856(c)(2) and clause (3i) of Section 8.2(a) unless and until an Indemnified Party pays, suffers or accrues Indemnifiable Damages in an aggregate amount greater than One Million Dollars ($1,000,000) (the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying IncomeThreshold”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent Indemnified Party may make claims for indemnification and may receive cash from the Escrow Fund for all Indemnifiable Damages including the entire amount of the Threshold. (v) Notwithstanding anything to the contrary set forth in this Agreement, if the Merger is consummated, Parent acknowledges and agrees (on behalf of itself and all Parent Indemnified Parties) that all applicable statutes of limitations or other claims periods with respect to claims thereunder shall release be shortened to the survival and claims periods expressly set forth in Section 8.1. (vi) All amounts required to be paid to a Parent Indemnified Party pursuant to the terms of this ARTICLE 8 shall be reduced by any amount actually received by any Indemnified Party under any insurance policies (net of any correspondent premium increase or related cost of obtaining such amount orinsurance related payment); provided, however, that in no event shall a Parent Indemnified Party be required to seek recovery under any insurance policy. (vii) For the avoidance of doubt, in the case event that a particular matter entitles a Parent Indemnified Party to indemnification pursuant to more than one clause of a revised or updated letterSection 8.2(a), such additional amount Parent Indemnified Party shall be entitled to the Company, orrecover a particular dollar of Damages associated with such matter only once under this ARTICLE 8. (bviii) a letter In the event that any Parent Indemnified Party is entitled to receive indemnification under this ARTICLE 8 from all Indemnifying Parties, then after the Company’s counsel indicating that Parent Indemnified Parties have exhausted or made claims upon all assets in the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company Escrow Fund, each Indemnifying Party shall be severally and not jointly responsible and liable for its Pro Rata Share of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning amount of Sections 856(c)(2) and (3) of the Code (or alternativelysuch indemnification obligation, the Company’s outside counsel has rendered a legal opinion not to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize exceed the portion of the Merger Consideration actually received by such Company Securityholder; provided, however, that the foregoing shall not in any way limit or otherwise restrict any right in respect of any claims or causes of action arising out of or relating to fraud, intentional misrepresentation or intentional breach under applicable Law. (ix) Indemnification Amount that claims may be distributed made for Damages arising out of, resulting from or in connection with indemnification claims under or pursuant to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2clauses (i) and (3ii) of Section 8.2(a) may be made at any time prior to the Codeexpiration of the Survival Period applicable to the representation or warranty that is the basis for such claim. Indemnification claims may be made for Damages arising out of, resulting from or in connection with indemnification claims under or pursuant to clauses (yiii) improve through (ix), inclusive, of Section 8.2(a) at any time and from time to time prior to the Company’s chances expiration of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3statute of limitations under applicable Law.

Limitations on Indemnification. 4.5.1 In (a) Notwithstanding anything to the event contrary herein, the Indemnified Parties may not recover for indemnification under Section 9.2(a)(i) for breaches of or inaccuracies in the representations and warranties contained in this Agreement or the Officer’s Certificate (other than for breaches of the IP and Privacy Representations and Surviving Representations) until such time as the cumulative amount of all Losses that a selling holder of Registrable Securities may be claimed under Section 9.2(a)(i) exceeds $1,500,000 (the “Indemnifying Holder”) is obligated to pay an amount to the Company pursuant to Section 4.2 (the “Indemnification AmountBasket”), during a year that at which time the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, Indemnified Parties shall pay be entitled to the Company, from the Indemnification Amount deposited into escrow recover in accordance with Section 4.5.2this Agreement all such Losses, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount including those that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) comprised any portion of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) aboveBasket. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3b) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount or, Except in the case of a revised fraud or updated letter, such additional amount willful breach in connection with this Agreement or the transactions contemplated hereby or with respect to the CompanyIP and Privacy Representations and Surviving Representations, orthe Indemnified Parties’ sole and exclusive source of recovery for indemnification claims under Section 9.2(a)(i) or Section 9.2(a)(ii) shall be recourse against the cash and stock held by the Escrow Agent as Escrow Amount, and the liability of each Indemnifying Party for indemnification claims under Section 9.2(a)(i) or Section 9.2(a)(ii) shall be limited, in the aggregate, to a dollar amount equal to such Indemnifying Party’s Pro Rata Portion of the Escrow Amount. (bc) a letter In the event of fraud or willful breach in connection with this Agreement or the transactions contemplated hereby, claims under Section 9.2(a)(i) and Section 9.2(a)(ii) relating to IP and Privacy Representations, Surviving Representations or claims under Section 9.2(a)(iii) through (x), the Indemnified Parties shall be entitled to bring indemnification claims directly against the Indemnifying Parties; provided, however, that (i) the Indemnified Parties shall only be permitted to recover Losses from the Company’s counsel indicating Indemnifying Parties in respect of such claims if and the extent that the Company received a ruling from Escrow Amount is no longer available, and (ii) in no event shall the Internal Revenue Service holding that the receipt by the Company liability of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2any Indemnifying Party for (A) claims under Section 9.2(a)(i) and (3ii) relating to IP and Privacy Representations exceed $80,000,000 in the aggregate (inclusive of any and all amounts paid from the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2Escrow Amount) and (3B) of the Codeclaims under Section 9.2(a)(i) and (ii) relating to Surviving Representations or claims under Section 9.2(a)(iii) through (x), exceed the Total Consideration actually received (including any amounts remaining in the Escrow Fund and the Representative Expense Fund) by such Indemnifying Party hereunder, in each case except in the case of fraud or willful breach (in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years event there shall be released by no limitation on the escrow agent to liability of such Indemnifying Party in connection with a claim based on fraud or willful breach on the part of such Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at Party or on the reasonable request part of the Company in order which such Indemnifying Party participated or had knowledge of such fraud or willful breach, it being understood that the liability of any other Indemnifying Party shall be capped at the Merger Consideration actually received by such Indemnifying Party hereunder) or under applicable Law except to the extent imposed under applicable Law. (xd) maximize Notwithstanding anything to the portion of the Indemnification Amount contrary herein, nothing in this Agreement shall act to limit, expand or extend any common law duty or obligation under applicable Law to mitigate any Losses that may be distributed suffered by the Indemnified Parties. (e) Losses shall be calculated net of actual recoveries under existing insurance policies and contractual indemnification or contribution provisions (in each case, calculated net of any actual collection costs and reserves, deductibles, or premium adjustments); provided, however, that in the event that the Indemnified Parties first recover from the Escrow Amount or the Indemnifying Parties for any Losses and thereafter recover for those same Losses pursuant to any existing insurance policies and contractual indemnification or contribution provisions, then the amount so recovered shall be returned to the Company hereunder Escrow Amount or paid to the Indemnifying Parties, as applicable. In addition, Losses shall exclude exemplary or punitive damages, unless specifically awarded to a third party and paid to such third party by an Indemnified Party. For avoidance of doubt, the Indemnified Parties shall have no obligation to seek any such recovery under insurance policies or indemnity, contribution or other similar agreements for any Losses prior to seeking indemnification under this Agreement. (f) Any liability for indemnification under this Article IX shall be determined without causing the Company to fail to meet the requirements duplication of Sections 856(c)(2) and (3) recovery by reason of the Codestate of facts giving rise to such liability constituting a breach or inaccuracy of more than one representation, warranty, covenant or certificate. (yg) improve the Company’s chances For purposes of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3this Article IX, all Parent Class A Common Stock subject to recovery shall be valued at Parent Trading Price.

Limitations on Indemnification. 4.5.1 In the event that a selling holder Notwithstanding any provisions of Registrable Securities (the “Indemnifying Holder”) is obligated to pay an amount this ARTICLE 7 to the Company pursuant to Section 4.2 (the “Indemnification Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the followingcontrary: (a) except for Losses arising out of fraud, intentional misrepresentation or a letter breach of a Fundamental Representation (each an “Exempt Claim”), no party subject to indemnification obligations hereunder (the “Indemnifying Party”) shall have any liability for any Losses arising out of Section 7.2(a)(i) or Section 7.3(a) until all such qualifying Losses exceed an aggregate of $100,000 (the “Deductible”), at which time such Person shall indemnify and hold the Person with the right to indemnification hereunder (the “Indemnified Party”) harmless from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment against all such qualifying Losses in excess of such amount did amount; provided, that the Indemnifying Party shall not constitute Qualifying Income be liable for any individual or a subsequent letter from series of related Losses which do not exceed $5,000 (which Losses shall not be counted toward the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwiseDeductible), in which case the escrow agent shall release such amount or, in the case of a revised or updated letter, such additional amount to the Company, or; (b) a letter from except for Losses arising out of an Exempt Claim, no Indemnifying Party shall have any liability for any Losses arising out of Sections 7.2(a)(i) or 7.3(a) in excess of $1,500,000; (c) the Company’s counsel indicating that aggregate liability of Seller for Losses arising out of this Agreement shall not exceed the Company received a ruling from the Internal Revenue Service holding that the receipt Purchase Price; (d) any amount payable to any Indemnified Party in accordance with this ARTICLE 7 shall be reduced by the Company amount of any insurance proceeds actually received by such Indemnified Party with respect to such Indemnification Claim; and (e) with respect to any Losses recoverable by Purchaser Indemnified Parties pursuant to Section 7.2, such Losses shall be first applied against the Holdback Amount before recovery is sought from any Indemnifying Party, and after exhaustion of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternativelyHoldback Amount, the Company’s outside counsel has rendered a legal opinion Purchaser Indemnified Parties shall have the right to seek recovery from Guarantors and any other Indemnifying Party, subject to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), limitations set forth in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying HolderARTICLE 9. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 In (i) No action or claim for Damages arising out of or resulting from a breach of representations and warranties shall be brought or made after the event expiration of the period set forth in Section 6.8; provided, however, that the foregoing time limitations shall not apply to any such claims which have been the subject of a selling holder written notice from Buyer or Parent to Seller or from Seller to Buyer or Parent, as the case may be, prior to such period, which notice specifies in reasonable detail the nature of Registrable Securities (the “Indemnifying Holder”) is obligated to pay an amount such claim. Subject to the Company provisions of this Section 6.7(c), (A) Seller, on the one hand, and Buyer and Parent, on the other hand, shall not be required to indemnify Buyer Indemnified Parties or Seller Indemnified Parties, as the case may be, in respect of breaches of, or inaccuracies in, representations and warranties, under Section 6.7(a)(i)(A) or Section 6.7(a)(ii)(A) (including any representation or warranty of Seller set forth in the second sentence of Section 4.2(b)), as the case may be, and (B) Seller shall not be required to indemnify Buyer Indemnified Parties in respect of Designated Environmental Liabilities under Section 6.7(a)(i)(D), except, in either case, (I) if the aggregate amount of Damages with respect to any claim or series of related claims for which Buyer Indemnified Parties or Seller Indemnified Parties, as the case may be, are (but for this clause (I)) entitled to indemnification from Indemnifying Parties pursuant to Section 4.2 (the “Indemnification Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(26.7(a)(i)(A) or 856(c)(3Section 6.7(a)(ii)(A) (including any representation or warranty of Seller set forth in the Code (“Qualifying Income”second sentence of Section 4.2(b)), as determined by the Company independent certified public accountantscase may be, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount orand/or, in the case of a revised Buyer Indemnified Parties, in respect of Designated Environmental Liabilities pursuant to Section 6.7(a)(i)(D), exceeds $30,000 in the aggregate (the "Minimum Claim Amount") (it being understood and agreed that an Indemnifying Party shall not be liable for any Damages with respect to any claim or updated letterseries of related claims under Section 6.7(a)(i)(A) or Section 6.7(a)(ii)(A) (including any representation or warranty of Seller set forth in the second sentence of Section 4.2(b)), such additional as the case may be, or under Section 6.7(a)(i)(D) in respect of Designated Environmental Liabilities, in the event that the aggregate amount to the Company, or (b) a letter of all Damages due from the Company’s counsel indicating that Indemnifying Party in respect of such claim or series of related claims is less than the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2Minimum Claim Amount) and (3II) to the extent that the aggregate amount of all Damages for which Buyer Indemnified Parties or Seller Indemnified Parties, as the case may be, are (but for this clause (II)) entitled to indemnification in respect of (A) Designated Environmental Liabilities and (B) breaches of, or inaccuracies in, representations and warranties pursuant to Section 6.7(a)(i)(A) or Section 6.7(a)(ii)(A) (including any representation or warranty of Seller set forth in the second sentence of Section 4.2(b)), as the case may be, exceeds $300,000 in the aggregate (the "Deductible Amount"), whereupon such Indemnified Parties shall be entitled to indemnification in respect of such matters only for Damages in excess of the Code Deductible Amount (it being understood and agreed that (aa) any claim or series of related claims for Damages in respect of such matters of less than the Minimum Claim Amount shall be disregarded for purposes of calculating the Deductible Amount, and (ab) the Deductible Amount is intended as a deductible, and no Indemnifying Party shall be liable for any Damages where the aggregate amount of all Damages in respect of such matters for which the Indemnified Parties would be entitled to indemnification in the absence of the preceding clause (II) is less than the Deductible Amount); provided further, however, that, the liability of the Indemnifying Parties for Damages in respect of (A) Designated Environmental Liabilities and (B) breaches of, or inaccuracies in, representations and warranties pursuant to Section 6.7(a)(i)(A) or Section 6.7(a)(ii)(A) (including any representation or warranty of Seller set forth in the second sentence of Section 4.2(b)), as the case may be, shall not exceed $5,000,000 in the aggregate (the "Maximum Amount"). For purposes of determining any breach of, and calculating the amount of Damages incurred by the Indemnified Party arising out of or resulting from, any breach of a representation or warranty by Seller, Buyer or Parent, the references to a "Material Adverse Effect" or materiality (or alternativelyother correlative terms), including as expressed in accounting concepts such as GAAP, shall be disregarded. The parties acknowledge that any limitation or condition of liability contained in this Section 6.7(c)(i) or otherwise herein is not applicable to breaches of covenants or agreements in this Agreement, the Company’s outside counsel has rendered a legal opinion Retained Liabilities (other than the Designated Environmental Liabilities) or the Acquired Liabilities. (ii) Notwithstanding anything to the effect contrary in this Section 6.7, (A) no limitation or condition of liability provided in Section 6.7(c)(i) shall apply to the breach of any of the representations and warranties contained herein if such representation or warranty was made with actual knowledge that it contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements or facts contained therein not misleading and (B) Buyer Indemnified Parties or Seller Indemnified Parties, as the case may be, shall be entitled to indemnification for Damages in respect of a breach of Sections 2.1, 2.2, 2.5, 2.12, 2.21 and 2.22 and 3.1, 3.2 and 3.4 irrespective of the Minimum Claim Amount, the Deductible Amount or the Maximum Amount. (iii) No right to indemnification under this Section 6.7 shall be limited by reason of any investigation or audit conducted before or after the Closing of any party hereto or the knowledge of such party of any breach of any representation, warranty, agreement or covenant by the other party at any time, or the decision by such party to complete the Closing. Notwithstanding anything to the contrary herein, Buyer, Parent and Seller shall have the right, irrespective of any knowledge or investigation of such party, to rely fully on the representations, warranties and covenants of Seller, in the case of Buyer and Parent, or Buyer and Parent, in the case of Seller, contained herein. (iv) The amount of any Damages for which indemnification is provided for under this Section 6.7 shall be offset by (A) any amounts recovered by such Indemnified Party as a result of any indemnification by any third party, (B) any insurance proceeds or other amounts received by such Indemnified Party from third parties with respect to such Damages and (C) any tax benefits actually realized by such Indemnified Party or its affiliates from the incurrence or payment of such Damages, in each case net of any costs of pursuing such recovery, proceeds or benefits. In computing the amount of any such tax benefits, such Indemnified Party and its affiliates shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any items arising from the receipt or accrual of any indemnity payment hereunder or the incurrence or payment of any indemnified Damage for which indemnification is provided under this Section 6.7. For purposes of this Agreement, such Indemnified Party and any of its affiliates shall be deemed to have "actually realized" a net tax benefit to the extent that, and at such time as, the amount of taxes payable by such Indemnified Party or such affiliate is reduced below the amount of taxes that such Indemnified Party or such affiliate would have been required to pay but for the receipt or accrual of the indemnity payment or the incurrence or payment of such Damages for which indemnification is provided under this Section 6.7. The Indemnified Parties agree to use commercially reasonable efforts to make any claims for insurance, tax benefits and/or indemnification available from a third party(ies) with respect to Damages for which they will seek indemnification hereunder and to diligently pursue such claims in good faith. If any such insurance proceeds and/or other amounts are received by such Indemnified Party after payment by any Indemnifying Party of any amount otherwise required to be paid to Indemnified Party pursuant to this Section 6.7, such Indemnified Party shall repay to such Indemnifying Party, promptly after receipt of such insurance proceeds and/or other amounts, the amount that such Indemnifying Party would not have had to pay pursuant to this Section 6.7 had such insurance proceeds and/or other amounts been received by the Company Indemnified Party prior to such Indemnifying Party's payment under this Section 6.7. (v) Notwithstanding any provision herein to the contrary, Buyer Indemnified Parties shall seek payments for any amounts due with respect to claims for indemnification under Section 6.7 solely as follows: (A) first, out of the Indemnification Escrow Amount would either constitute Qualifying Income or would be excluded from gross income within in accordance with the meaning terms and conditions of Sections 856(c)(2) the Escrow Agreement and (3B) second, to the extent the amounts due with respect to indemnification pursuant to Section 6.7 exceed the amount then in the Escrow Account, from Seller, subject to the limitations set forth in this Agreement. (vi) Except as otherwise provided by law, the rights and remedies of the Code)parties set forth in this Section 6.7 are in lieu of any and all other rights and remedies which any party may have under this Agreement or otherwise for monetary relief with respect to (A) any breach or failure to perform any representation, warranty, covenant or agreement set forth in which case this Agreement, and (B) Environmental Liabilities, health and safety matters. Notwithstanding the escrow agent shall release the remainder foregoing, no party hereto waives (A) any rights that may arise out of the Indemnification Amount to the Company. The escrow agreement shall also provide that fraudulent acts or statements of any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Codeother party, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (zB) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3any rights to obtain injunctive or other appropriate equitable remedies for breach or threatened breach of this Agreement.

Limitations on Indemnification. 4.5.1 In the event that a selling holder of Registrable Securities (the “Indemnifying Holder”a) is obligated to pay an amount Subject to the following sentence, each of the Parent Indemnified Persons and the Company pursuant to Section 4.2 Indemnified Persons may not recover Losses from the Escrow Fund or Parent, respectively, in respect of any claim for indemnification under ‎Section 7.2(a)(i), 7.2(a)(iv), 7.2(a)(vii) or 7.2(c)(i), respectively, (A) unless and until Losses have been incurred, paid or properly accrued in an aggregate amount greater than $3,200,000 (the “Indemnification AmountThreshold”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 ) and (B) unless each such claim (when aggregated with all claims arising out of the Code same facts and circumstances) is in excess of $35,000 (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, and no claims below such amount shall pay to the Company, from be included when determining whether the Indemnification Amount deposited into escrow in accordance with Section 4.5.2Threshold has been met). Notwithstanding the foregoing sentence, an amount equal to the lesser of (Ii) the Parent Indemnified Persons will be entitled to recover for, and the Indemnification Amount Threshold and (II) the sum of per-claim threshold will not apply to, any claim for indemnification (x) the maximum amount that can be paid under ‎Section 7.2(a)(i) or 7.2(a)(iv) for any Losses with respect to any failure of any representation or warranty made by the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2in ‎Section 2.1(a)-(g) (Organization, Standing and Power), 2.2(a) (Capital Structure), 2.3(a) and (3b) (Authority), 2.9 (Taxes), 2.24 (Board Approval), or 2.25 (Stockholder Vote) or by the Spin-Off Subsidiary in Section 3.1 (Organization, Standing and Power) and Section 3.3 (Validity and Enforceability) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) Drop Down Agreement to be true, or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event under Section 7.2(a)(iii), and (ii) the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3Indemnified Persons will be entitled to recover for, an amount equal to and the Indemnification AmountThreshold and per-claim threshold will not apply to, less any claim for indemnification under ‎Section 7.2(c)(i) for any Losses with respect to failure of any representation or warranty made by the amount payable under clause Parent in ‎Sections 3.1 (xOrganization, Standing and Power), 3.3(a) above. 4.5.2 To secure (Authority) and 3.5 (Board Approval) to be true. Once the Indemnifying Holder’s obligation to pay these amountsapplicable Indemnification Threshold has been exceeded, the Indemnifying Holder shall deposit into escrow an amount in cash equal Indemnified Persons will be entitled to recover for all such Losses exceeding the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (Threshold, subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5‎Article 7. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount or, in the case of a revised or updated letter, such additional amount to the Company, or (b) a letter from Subject to Section 7.2(d) and as provided in the Company’s counsel indicating that Drop Down Agreement, the Company received a ruling from the Internal Revenue Service holding that the receipt sole source of recovery by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2Parent Indemnified Parties for Losses under Section 7.2(a) and (3b) shall be the Escrow Fund. The aggregate liability of Parent for Losses under Section 7.2(c) shall not exceed $80,000,000. (c) Hold Co shall not have any right of contribution, right of indemnity or other right or remedy against the Surviving Company, the Project Companies or any of the Code Project Employees in connection with any indemnification obligation or any other Liability to which Hold Co may become subject under or in connection with this Agreement. (d) No Indemnified Person’s rights under this ‎Article 7 shall be adversely affected by any investigation conducted, or alternativelyany knowledge acquired or capable of being acquired, by such Indemnified Person at any time, whether before or after the Company’s outside counsel has rendered a legal opinion execution or delivery of this Agreement or the Closing, or by the waiver of any condition to Closing. (e) The Indemnified Persons shall mitigate, to the effect extent expressly required by applicable Law, any Losses for which such Indemnified Persons seek indemnification under this ‎Article 7 and shall use commercially reasonable efforts to seek any amounts available under insurance coverage or from any other person alleged to be responsible for any Losses payable under this Article 7; it being understood that the receipt by the Company of the Indemnification Amount would either making a written request for payment from any such insurer or other party shall constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2compliance with this Section 7.3(e) and (3) of the Code)that no further efforts, in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years including, without limitation, litigation against such insurer or other party, shall be released by the escrow agent to the Indemnifying Holdernecessary. 4.5.4 (f) The Indemnifying Holder agrees to amend amount of any Losses payable under this Section 4.5 at the reasonable request ‎Article 7 shall be net of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3any amounts actually recovered under applicable insurance policies.

Limitations on Indemnification. 4.5.1 In the event that a selling holder Notwithstanding any provisions of Registrable Securities (the “Indemnifying Holder”) is obligated to pay an amount this Article 8 to the Company pursuant to Section 4.2 (the “Indemnification Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the followingcontrary: (a) except for Losses arising out of fraud, intentional misrepresentations or a letter from breach of a Fundamental Representation (each, an “Exempt Claim”), no party subject to indemnification obligations hereunder (the Company’s independent certified public accountants indicating “Indemnifying Party”) shall have any liability for any Losses arising out of Section 8.2(a)(i) or Section 8.3(a) (i) for any single Loss (or series of related or similar Losses) of less than $25,000 (the maximum amount that can be paid by “Minimum Loss Amount”), but, if over such amount, the escrow agent Indemnified Parties shall, subject to the Company without causing the Company other limitations set forth in this Section 8.4, be entitled to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment recover Losses in excess of such amount did not constitute Qualifying Income or a subsequent letter from and (ii) until all such qualifying Losses exceed an aggregate of One Hundred Fifty Thousand Dollars ($150,000) (the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise“Basket Amount”), at which time such Person shall indemnify and hold the Person with the right to indemnification hereunder (the “Indemnified Party”) harmless from and against qualifying Losses in which case the escrow agent shall release excess of such amount or, in the case of a revised or updated letter, such additional amount to the Company, oramount; (b) a letter from except for Losses arising out of an Exempt Claim, no Indemnifying Party shall have any liability for any Losses arising out of Sections 8.2(a)(i) or 8.3(a) in excess of Seven Million Dollars ($7,800,000) (the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company “Non-Exempt Claim Cap”); (c) except for Losses arising out of fraud or intentional misrepresentations, no Indemnifying Party shall have any liability for any Losses arising out Sections 8.2(a)(i) or 8.3(a) in excess of the Indemnification Purchase Price (“Overall Cap”); (d) the Minimum Loss Amount would either constitute Qualifying Income or would be excluded from gross income within and the meaning Basket Amount shall not apply to Losses arising out of Sections 856(c)(2an Exempt Claim; (e) and (3) of the Code (or alternativelyMinimum Loss Amount, the Company’s outside counsel has rendered a legal opinion Basket Amount, the Non-Exempt Claim Cap and the Overall Cap shall not apply to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount Losses that may be distributed recovered from Seller by the Purchaser Indemnified Parties (A) (1) arising out of fraud or intentional misrepresentations with respect to Section 8.2(a)(i) or (2) pursuant to Section 8.2(a)(ii)-(vii) or (B) from the Company hereunder without causing Purchaser by the Company Seller Indemnified Parties (1) arising out of fraud or intentional misrepresentations with respect to fail Section 8.3(a) or (2) pursuant to meet Section 8.3(b)-(d); (f) any amount payable to any Indemnified Party in accordance with this Article 8 shall be reduced by the requirements amount of Sections 856(c)(2any insurance proceeds actually received by such Indemnified Party with respect to such Indemnification Claim; and (g) for purposes of this Article 8 (Survival and (3) Indemnification), the representations and warranties of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 parties hereto shall not be deemed qualified by any references to “material,” “Material Adverse Effect” or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3similar qualifiers set forth therein.

Limitations on Indemnification. 4.5.1 In (a) The Indemnified Persons may not recover Losses from the event that a selling holder Indemnification Escrow Fund or the Indemnitors in respect of Registrable Securities any claim for indemnification pursuant to Section 7.3(a)(i) unless and until Losses have been incurred, paid or properly accrued in an aggregate amount greater than $500,000 (the “Indemnifying HolderDeductible”) is obligated ); provided, that the Indemnified Persons will be entitled to pay an amount recover all, and the Deductible will not apply to any, Losses with respect to any failure of any Fundamental Representation to be accurate. Once the Company Deductible has been exceeded, the Indemnified Persons will be entitled to recover only those Losses in respect of all claims for indemnification pursuant to Section 4.2 7.3(a)(i) (as a result of a breach or inaccuracy of any representation or warranty of the Company other than the Fundamental Representations) that, in the aggregate, exceed the Deductible. (b) Except in the case of Fraud, recovery by Indemnified Persons of their Losses in aggregate will be subject to the following limitations: (i) With respect to Losses claimed pursuant to Section 7.3(a)(i) as a result of any breach or inaccuracy of any representation or warranty of the Company, other than the Fundamental Representations, an Indemnified Person may recover its Losses only from the then-remaining amount available in the Indemnification Escrow Fund. (ii) With respect to Losses claimed pursuant to Section 7.3(a)(i) as a result of any breach or inaccuracy of any Fundamental Representation or pursuant to Section 7.3(a)(ii), Section 7.3(a)(iii), Section 7.3(a)(iv), Section 7.3(a)(v), Section 7.3(a)(vi), Section 7.3(a)(vii), or Section 7.3(a)(ix), an Indemnified Person may recover its Losses as follows: (A) first, from the then-remaining amount available in the Indemnification Escrow Fund, and (B) second, to the extent such Losses exceed the then-remaining amount available in the Indemnification Escrow Fund in all unresolved or unsatisfied Liability Claims, directly from each Indemnitor according to his, her or its Direct Indemnification Percentage of such Losses, up to an amount that equals the aggregate consideration received by such Indemnitor hereunder (the “Liability Cap”). (iii) With respect to Losses claimed pursuant to Section 7.3(a)(viii), an Indemnified Person may recover such Losses at its sole discretion (i) from the Indemnification AmountEscrow Fund, or (ii) directly from each Indemnitor according to his, her or its Direct Indemnification Percentage of such Losses up to such Indemnitor’s Liability Cap, except that the Indemnified Person may recover without regard to such Liability Cap (and without any other limitations) from any Indemnitor who is the subject of the claim as the Person that committed the Fraud. Notwithstanding anything to the contrary contained in this Agreement, nothing in this Agreement shall prevent any of the Indemnified Persons from bringing an Action for Fraud, and pursuing all available remedies, against an Indemnitor (or any other Person) who committed Fraud. (iv) Notwithstanding anything in this Agreement to the contrary, (A) there shall be no indemnification provided for, and the Company makes no representations or warranties regarding, (x) the amount, value or condition of, or any limitations on, or the ability of Parent or any of its Affiliates (including the Surviving Entity, the Second Surviving Entity and the Third Surviving Entity) to utilize any Tax Attributes of the Company, in each case, in a Tax period (or portion thereof) beginning after the Closing Date, (y) Taxes of the Company for any taxable period (or portion thereof) beginning after the Closing Date, except with respect to the Taxes addressed in Section 2.10(g) and (z) Taxes of the Company that are incurred as a result of any transaction undertaken or caused to be undertaken by any Parent Party outside the ordinary course of business on the Closing Date but after the Closing unless explicitly contemplated by this Agreement or any Related Agreement, or with the written consent of the Representative (which consent shall not be unreasonably withheld, conditioned or delayed), and (B) for the avoidance of doubt, Parent will not, except as result of a breach of Section 3.7, be responsible for any Losses of any holder of Company Capital Stock stemming from the failure of the Transactions to qualify for the Intended Tax Treatment. (c) Any Losses pursuant to this Article 7 will be determined without duplication of recovery due to the facts giving rise to such Losses constituting a breach of more than one representation, warranty, covenant or agreement, or being indemnifiable pursuant to more than one clause of Section 7.3(a); provided, however, that if a Liability Claim may be characterized in more than one way under this Article 7 and as a result, such Liability Claim may be subject to different limitations pursuant to this Section 7.4 depending on such characterization, then an Indemnified Person will have the right to characterize the Liability Claim in a manner, and under such provisions of this Article 7, that maximizes such Indemnified Person’s recovery. (d) Except as otherwise required by Law, the Parties will treat any indemnification payments made hereunder as an adjustment to the Merger Consideration for applicable accounting and Tax purposes. (e) No Indemnitor will have any right of contribution or right of indemnity against Parent, the Surviving Entity, the Second Surviving Entity or the Third Surviving Entity in connection with any indemnification obligation or any other liability to which such Indemnitor may become subject pursuant to or in connection with this Agreement. (f) No Indemnified Person’s rights pursuant to this Article 7 will be adversely affected, or deemed to be amended, adjusted or supplemented in any way, by any investigation conducted, or any knowledge acquired or capable of being acquired, by an Indemnified Person at any time, whether before or after the execution or delivery of this Agreement or the Closing. (g) The right of Parent or any other Indemnified Persons to pursue Action for any remedies or relief under any Related Agreement against the counterparties thereto will not be limited by the rights of the Indemnified Persons under this Article 7. (h) The Indemnified Persons shall use commercially reasonable efforts to mitigate or otherwise reduce its Losses. (i) The amount of any indemnification obligation to any Indemnified Person for an indemnifiable matter pursuant to this Article 7 shall be reduced by the amount of any proceeds under an insurance policy, net of any costs of collection, deductibles, increased premium amounts, reimbursement obligation or other costs related to the insurance claim in respect of such indemnifiable matter (“Net Insurance Proceeds”), during a year actually received by such Indemnified Person for the same facts that give rise to such indemnifiable matter; provided, however, that nothing in this Article 7 shall constitute or imply an obligation of any Indemnified Person to seek recovery of Losses, or any part thereof, under any insurance policy. If an Indemnified Person actually receives any payments from the Company qualifies as a “real estate investment trust” under Sections 856 through 860 Indemnitors for an indemnifiable matter pursuant to this Article 7 and thereafter, such Indemnified Person receives Net Insurance Proceeds for the same facts that give rise to such indemnifiable matter, such Indemnified Person shall promptly notify the Representative thereof, and promptly, but in any event no later than ten Business Days after the actual receipt of the Code (a “REIT”)such proceeds, the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, Escrow Agent an amount equal to the lesser of (Ii) such Net Insurance Proceeds and (ii) the Indemnification Amount and (II) amount of payments previously received by such Indemnified Person from the sum of (x) the maximum Indemnitors for such indemnifiable matter pursuant to this Article 7, which amount that can shall be paid to the Company without causing Indemnitors by the Company to fail to meet the requirements of Sections 856(c)(2Escrow Agent as follows: (A) and (3) in respect of the Code determined as if the payment Indemnitors that are holders of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount orCapital Stock, in the case form of a revised or updated lettercash by wire transfer of immediately available funds to an account designated by such Indemnitors in writing, such additional amount to the Company, or and (bB) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company in respect of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning Indemnitors that are holders of Sections 856(c)(2) and (3) of the Code In-the-Money Options, cash through Parent’s (or alternatively, the Company’s outside counsel has rendered a legal opinion its applicable Affiliate’s) payroll processing system subject to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) employment and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holderother applicable Tax withholding. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 In the event that a selling holder Notwithstanding any provision of Registrable Securities (the “Indemnifying Holder”) is obligated to pay an amount this Agreement to the Company pursuant to Section 4.2 (the “Indemnification Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”)contrary, the Indemnifying Holder or its affiliates, as applicable, indemnification provided for in Section 11.1 and Section 11.2 shall pay be subject to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the followingfollowing limitations: (a) a letter from ▇▇▇▇▇▇ shall not be liable to the FFI Indemnitees for indemnification under Section 11.2(a) until the aggregate amount of all Losses sustained by the FFI Indemnitees under Section 11.2(a) exceeds an amount equal to one percent (1.0%) of the Total Purchase Price then paid by FFI (the “Deductible”); provided, however, that the Deductible shall not apply to Losses that are due to or arise out of (i) Fraud or willful and intentional misconduct by ▇▇▇▇▇▇, PHH Parent, or the Company’s independent certified public accountants indicating , or (ii) a breach of Fundamental Representations of ▇▇▇▇▇▇ or PHH Parent (collectively, the maximum “Nikola Excluded Matters”). The aggregate amount that can of all Losses for which ▇▇▇▇▇▇ shall be liable pursuant to Section 11.2(a) shall not exceed [*] percent ([*]%) of the Total Purchase Price then paid by FFI (the escrow agent “Cap”); provided, however, that the Cap shall not apply to Losses that are due to or arise out of the Nikola Excluded Matters. (b) FFI shall not be liable to the Company without causing Indemnitees for indemnification under Section 11.1(a) until the aggregate amount of all Losses sustained by the Company Indemnitees under Section 11.1(a) exceeds the Deductible; provided, however, that the Deductible shall not apply to fail Losses that are due to meet or arise out of (i) FFI’s Fraud or willful and intentional misconduct, or (ii) a breach of Fundamental Representations of FFI (collectively, the requirements “FFI Excluded Matters”). The aggregate amount of Sections 856(c)(2all Losses for which FFI shall be liable pursuant to Section 11.1(a) and (3) shall not exceed the Cap; provided, however, that the Cap shall not apply to Losses that are due to or arise out of the Code determined as if FFI Excluded Matters. (c) Nothing herein shall be deemed to affect an Indemnified Person’s obligation to use commercially reasonable efforts to mitigate any indemnifiable Loss to the payment extent required by applicable Law. (d) The amount of any Losses which are indemnifiable or payable under this Article XI by an Indemnifying Person shall be net of any amounts actually recovered by the Indemnified Person in respect of such Losses under applicable insurance policies or from any other third party alleged to be responsible therefor; provided, that no Indemnified Person shall be required to pursue available insurance or other claims in respect of any Losses for which indemnification or payment is sought under this Article XI. If the Indemnified Person actually recovers any amounts under applicable insurance policies, or from any other third party alleged to be responsible for any Losses, subsequent to an indemnification payment by the Indemnifying Person, then the Indemnified Person receiving such payment shall promptly reimburse the Indemnifying Person for any portion of such indemnification payment which would not have been payable pursuant to the operation of the immediately preceding sentence had such payment been made after the Indemnified Person had recovered such other amount, net of any expenses reasonably incurred by such Indemnified Person in collecting such amount did not constitute Qualifying Income (including any deductible amounts, attorney’s fees, and any increased insurance premiums). If the Indemnified Person receives payment from an Indemnifying Person in respect of any Losses that fully compensates for such Loss and the Indemnified Person would reasonably have been expected to have been able to recover all or a subsequent letter part of such Losses from a third party based on the Company’s accountants revising underlying claim asserted against the Indemnifying Person, the Indemnified Person shall assign such of its rights to proceed against such third party as are necessary to permit the Indemnifying Person to recover from such third party the amount of such indemnification payment. (e) No Indemnifying Person shall be liable under this Article XI for Losses that are for special or updating that amount (whether to correct an error consequential damages, lost profits, lost opportunity, or to reflect the passage of time lost revenue, or otherwise)damages based on a multiple, or for Losses which are exemplary, except, in which case each case, (i) to the escrow agent shall release extent any such amount orLosses are for the reasonably foreseeable result of the applicable breach of this Agreement, (ii) in the case of a revised Fraud or updated letterwillful and intentional misconduct, such additional amount or (iii) to the Companyextent an Indemnified Person pays to a Third Party any such Losses that are awarded to such Third Party, orin each of which case such Losses shall be recoverable by such Indemnified Person pursuant to the applicable indemnity set forth in this Article XI. (bf) a letter from the Company’s counsel indicating An Indemnified Person shall be entitled to seek recovery under such provisions of this Agreement that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or maximize its recovery (e.g., if Losses would be excluded from gross income within the meaning time barred under Section 11.6(a) if a Claim were made under one provision but would not be time barred if made under another provision or if Losses would not be recoverable under Section 11.2(a) as a result of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or dollar limitation but would be excluded from gross income within recoverable under the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described indemnification included in Section 4.5.3 11.2(d) without such dollar limitation, then the Indemnified Person may seek recovery under the provision that is not time barred or (znot subject to limitation) assist the Company but in obtaining a favorable legal opinion from its outside counsel as described no event will an Indemnified Person be entitled to double recovery in Section 4.5.3respect of any particular Losses.

Limitations on Indemnification. 4.5.1 In (a) Except in the event that case of Fraud, the Indemnified Parties, as a selling holder of Registrable Securities group, may not recover any Losses pursuant to an indemnification claim under Section 8.2(a)(i) (i) unless and until the Indemnified Parties, as a group, shall have paid, incurred, suffered or sustained at least $900,000 in Losses in the aggregate (the “Indemnifying Holder”) is obligated to pay an amount to the Company pursuant to Section 4.2 (the “Indemnification Threshold Amount”), during a year that at which time the Indemnified Parties shall be indemnified dollar-for-dollar for the full amount of all indemnifiable Losses paid, incurred, suffered or sustained by the Indemnified Parties in excess of the Threshold Amount or (ii) for any individual item (or series of related items arising from the same or substantially similar facts or circumstances) where the Loss relating to such claim (or series of claims arising from the same or substantially similar facts or circumstances) is less than $10,000 and such individual items (or series of related items) will not count toward determining whether or not the Threshold Amount has been reached. (b) Subject to Section 8.3(d), except in the case of Fraud, the Company qualifies as a “real estate investment trust” Indemnitors’ indemnity obligations for Losses under Sections 856 through 860 of 8.2(a) will be limited, in the Code (a “REIT”)aggregate, the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser Indemnity Escrow Amount, less any amounts previously paid out of the Indemnity Escrow Amount to satisfy the Losses claimed under Sections 8.2(a) (Ithe “Cap”). (c) Subject to Section 8.3(d) and except in the Indemnification Amount case of Fraud, the Indemnified Parties’ sole and exclusive sources of recovery for indemnification claims under Section 8.2 shall be recourse against the Indemnity Escrow Amount. (d) Subject to the limitations set forth in Section 8.3, the Indemnified Parties shall (i) be entitled to bring indemnification claims directly against the Company Stockholders in their roles as Company Indemnitors and (IIii) be permitted to recover Losses directly from the sum of (xCompany Stockholders for indemnification claims pursuant to Sections 8.2(a) the maximum amount that can be paid only with respect to claims for Fraud, if and only to the Company extent that the Indemnity Escrow Amount is no longer available, it being agreed that the Indemnified Parties shall look first to the Indemnity Escrow Amount. (e) Any amount of Losses will be calculated: (i) without causing regard to any punitive, exemplary, special, incidental, or consequential damages unless any such punitive, exemplary, special, incidental, or consequential damages are actually awarded to a third party (provided that all such anticipated Losses may be preliminarily included by an Indemnified Party in an Indemnification Claim Notice); (ii) such that reasonable and documented costs and expenses incurred in investigating, defending or resolving any applicable claim under this Article VIII shall constitute Losses if and solely to the extent that such underlying claim is indemnifiable hereunder; and (iii) with respect to Losses incurred in respect of any representation in Section 3.15, only to the extent in excess of the amount of such Taxes that were included in the Estimated Closing Statement, and excluding such Taxes to the extent such Taxes were included in the Post-Closing Statement and actually reduced the Total Merger Consideration. (f) With respect to each claim for indemnification hereunder, Parent shall use commercially reasonable efforts to assert all claims under all applicable insurance policies, and the amount of any Losses that are subject to indemnification under this Article VIII shall be calculated net of the amount of any insurance proceeds, indemnification payments or reimbursements actually received by the Indemnified Parties from third parties (other than the Company to fail to meet the requirements Indemnitors) in respect of Sections 856(c)(2such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery) and net of any Tax benefits actually realized or that may be realized by the Parent or any of its Affiliates in connection with the Loss (3net of any costs or expenses incurred in obtaining such Tax benefit) in the taxable year in which the Loss is incurred or within the immediately following taxable year. In the event that an insurance recovery is received by any Indemnified Party with respect to any Losses for which any such Person has been indemnified and which Losses such Person had received from the Company Indemnitors hereunder, then a refund equal to the aggregate amount of the recovery (net of costs and expenses incurred in recovering such amounts, and net of any resulting insurance premiums with respect to insurance policies) payable in respect of Company Capital Stock and Company Warrants shall be made to the Payment Agent for distribution to the applicable Company Indemnitors, in each case, in accordance with each such Company Indemnitor’s respective Pro Rata Portion. (g) Any Losses for indemnification under this Agreement shall be determined without duplication of recovery due to the facts giving rise to such Losses constituting a breach of more than one representation, warranty, covenant or agreement, or being indemnifiable pursuant to more than one clause of Section 8.2(a). (h) Notwithstanding any other provision of this Agreement, the Company Indemnitors shall not have any Liability or indemnification obligation for any Taxes of the Company or its Subsidiaries (i) resulting from any election made under Section 338 or 336(e) of the Code determined as if with respect to the payment of such amount did not constitute income described in Sections 856(c)(2Merger, (ii) or 856(c)(3) of the Code (“Qualifying Income”), as determined resulting from any action taken by the Company independent certified public accountants, plus (y) in at the event direction of Parent on the Company receives either (1) a ruling from Closing Date after the Internal Revenue Service described in Section 4.5.3 Closing outside of the ordinary course of business or (2iii) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amountsability of Parent, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow Surviving Corporation or any portion thereof shall not be released of their Affiliates to the Company unless the escrow agent receives utilize any one net operating losses, Tax credits, Tax basis, or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount or, in the case of a revised or updated letter, such additional amount to the Company, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request other Tax attribute of the Company or its Subsidiaries in order to any Tax period or portion thereof (xincluding any Straddle Tax Period) maximize beginning on or after the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3Closing Date.

Limitations on Indemnification. 4.5.1 In the event that a selling holder of Registrable Securities (the “Indemnifying Holder”) is obligated to pay an amount to the Company pursuant to Section 4.2 (the “Indemnification Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from Except as provided in Section 8.04(b), none of Seller, ▇▇. ▇▇▇▇▇▇, the Company’s independent certified public accountants indicating the maximum amount that can Shareholder, ▇▇▇▇ or Purchaser shall be paid by the escrow agent required to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) indemnify any of the Code determined Persons specified in Section 8.02 or 8.03, as if the payment case may be, until the amount of such amount did not constitute Qualifying Income Loss, when aggregated with all other Losses indemnified under such Section 8.02 or a subsequent letter from 8.03, respectively, shall exceed $50,000 (the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise"Minimum Aggregate Liability Amount"), at which time Losses may be asserted for the Minimum Aggregate Liability Amount and all amounts in which case excess thereof; provided, however, that the escrow agent foregoing Minimum Aggregate Liability Amount shall release such amount or, in the case not apply to any Loss that results from or arises out of (i) a breach of a revised covenant or updated letteragreement, such additional amount to (ii) fraud, intentional misrepresentation or an intentional breach of warranty on the Companypart of any of Seller, or▇▇. ▇▇▇▇▇▇, the Shareholder, ▇▇▇▇ or Purchaser in this Agreement or the Other Agreements, (iii) any Employee Benefit Plan Claim, (iv) any Tax Claims or (v) any Third Party Liability Claims that arise out of Section 8.02(g). (b) a letter from No Person otherwise entitled to indemnification under this Agreement shall be indemnified pursuant to this Agreement to the Company’s counsel indicating extent that the Company received a ruling from the Internal Revenue Service holding that the receipt such Person's Losses are increased or extended by the Company willful misconduct, violation of Law or bad faith of such Person. (c) The Shareholder and ▇▇. ▇▇▇▇▇▇, in the aggregate, shall not be liable for indemnification under Section 8.02 in an amount greater than Nine Million Six Hundred Fifty-Two Thousand Six Hundred Dollars ($9,652,600). Notwithstanding the foregoing sentence, the Shareholder and ▇▇. ▇▇▇▇▇▇, in the aggregate, shall not be liable in an amount greater than $1,250,000 for indemnification with respect to an Environmental Claim for diminution in the value of the Indemnification Amount would either constitute Qualifying Income ▇▇▇▇▇▇ Real Property or would be excluded from gross income within the meaning Goshen Real Property that is the sole and direct result of Sections 856(c)(2) and (3) a Phase II environmental review of the Code (▇▇▇▇▇▇ Real Property or alternatively, the Company’s outside counsel has rendered Goshen Real Property that was not required by a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying HolderGovernmental Authority. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 In (i) No Buyer Indemnified Party or Seller Indemnified Party (as applicable) shall be entitled to indemnification for any individual item of Loss under Section 7.2(a)(i)(x) or Section 7.2(b)(i)(x) (as applicable), unless the event that a selling holder amount of Registrable Securities such individual Loss in respect of indemnification under Section 7.2(a)(i)(x) or Section 7.2(b)(i)(x) (as applicable) exceeds $10,000 (the “Indemnifying Holder”) is obligated to pay an amount to the Company pursuant to Section 4.2 (the “Indemnification De Minimis Amount”), during a year that whereupon the Company qualifies as a “real estate investment trust” under Sections 856 through 860 entire amount of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, such Loss shall pay to the Company, from the Indemnification Amount deposited into escrow be recoverable in accordance with the terms hereof. Except in the case of Fraud, (x) the aggregate amount of such Losses for which the Seller Indemnified Parties shall be entitled to indemnification under Section 4.5.2, 7.2(b)(i)(x) shall not exceed an amount equal to the lesser of (I) the Indemnification Amount RWI Policy Limit, and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) the aggregate amount of such Losses for which the Buyer Indemnified Parties shall be entitled to indemnification in respect of the General Representations under Section 7.2(a)(i)(x) shall not exceed the applicable Seller Retention Amount. (ii) The limitations set forth in the event the Company receives either (1foregoing Section 7.2(c)(i) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal shall not apply to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives of Losses that are based upon, arising out of, with respect to, or by reason of: (i) any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise)Fundamental Representation Claim, in which case the escrow agent aggregate amount of such Losses for which the applicable Indemnified Parties may be indemnified shall release such amount or, in not exceed the case Purchase Price (the “Purchase Price Cap”); (ii) any Fraud or criminal conduct on the part of a revised Seller or updated letter, such additional amount to the Company, or Buyer (bas applicable); or (iii) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code)any Sufficiency Representation Claim, in which case the escrow agent aggregate amount of such Losses for which the applicable Indemnified Parties may be indemnified shall release not exceed the remainder then-current Retention Amount to be satisfied. (iii) Notwithstanding anything to the contrary herein, for the purpose of determining (a) whether there is a breach or inaccuracy, misstatement, misrepresentation or breach of any of Seller’s representations or warranties for purposes of this Article VII and (b) the amount of Losses that result from, arise out of, relate to, or are caused by any such breach or inaccuracy, misstatement or misrepresentation, of any of the Indemnification Amount representations and warranties of Seller in this Agreement and any other Transaction Document shall be deemed not to be qualified by any references to “materiality”, “in all material respects”, “Material Adverse Effect”, “materially”, “materially adversely”, “material and adverse”, “material adverse effect”, or any similar qualifications, terms, provisions, limitations or exceptions (including any surrounding related words (e.g., “reasonably expected to” and similar restrictions and qualifiers)). All such terms shall be entirely ignored, deleted and not given any effect for purposes of determining, assessing and computing the indemnification provisions hereof, including with respect to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held matters described in escrow for five sub-clauses (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2a) and (3b) immediately above. (iv) Notwithstanding any provision of this Agreement to the Codecontrary (including this Article VII), nothing in this Agreement or any other Transaction Document shall, nor is it the Parties’ intention to, (ya) improve limit, restrict, frustrate, undermine or impede the Company’s chances rights of securing Buyer or any other Buyer Indemnified Party under the RWI Policy nor (b) affect the rights and remedies of any Person with respect to claims made on the basis of, or otherwise arising from, Fraud. (v) Notwithstanding any provisions of this Agreement to the contrary, no Buyer Indemnified Party shall be entitled to monetary indemnification in respect of any breach by the Seller of a favorable ruling described covenant to be performed at the Closing, and the Buyer Indemnified Parties’ sole recourse in connection with such a breach shall be specific performance as contemplated in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.38.8.

Limitations on Indemnification. 4.5.1 In the event that a selling holder of Registrable Securities (the “Indemnifying Holder”) is obligated to pay an amount Notwithstanding anything to the Company pursuant to Section 4.2 (the “Indemnification Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow contrary in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the followingAgreement: (a) Any claim under Section 8.2 or Section 8.3 or Article IX required to be made on or prior to the expiration of the applicable survival period set forth in Section 8.1 and not made on or prior to such expiration in accordance with Section 8.1 shall be irrevocably and unconditionally released and waived by the party seeking indemnification with respect thereto. It is the express intent of the Parties that, if the applicable period for an item as contemplated by Section 8.1 and this Section 8.5 is shorter than the statute of limitations that would otherwise have been applicable to such item, then, by contract, the applicable statute of limitations with respect to such item shall be reduced to the shortened survival period contemplated hereby. The Parties further acknowledge that the time periods set forth in Section 8.1 for the assertion of claims under this Agreement are the result of arm’s-length negotiation among the Parties and that they intend for the time periods to be enforced as agreed by the Parties. (i) The Seller Indemnitees shall not be entitled to recover from any Seller for any claim pursuant to Section 8.2(a), Section 8.2(b) or Article IX unless such claim individually or a letter series of related claims involves Losses in excess of $25,000 (the “De Minimis Threshold”), it being understood that if such Losses do not exceed the De Minimis Threshold, such Losses shall not be applied to or considered for purposes of calculating the aggregate amount of Seller Indemnitee’s indemnifiable Losses under Section 8.2(a), Section 8.2(b) or Article IX; (ii) the Seller Indemnitees shall not be entitled to recover from any Seller for any claims pursuant to Section 8.2(a)(ii) or Section 8.2(b)(ii) until the Company’s independent certified public accountants indicating aggregate amount of the Seller Indemnitees indemnifiable Losses under Section 8.2(a)(ii) and Section 8.2(b)(ii) exceeds $4,500,000 (the “Deductible”), it being understood that if such Losses exceed the Deductible, the Seller Indemnitees shall only be entitled to indemnification for Losses under Section 8.2(a)(ii) or Section 8.2(b)(ii) in excess of the amount of the Deductible; (iii) the maximum amount that can of indemnifiable Losses for which a Seller may be paid by the escrow agent liable pursuant to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2Section 8.2(a)(ii) and Section 8.2(b)(ii) shall be an amount equal to such Seller’s proportion (3determined in accordance with the Seller Proportions) of $34,000,000; and (iv) the maximum amount of indemnifiable Losses for which a Seller may be liable pursuant to Section 8.2 and Article IX shall be an amount equal to such Seller’s proportion (determined in accordance with the Seller Proportions) of the Code determined Total Seller Payment. (c) Sellers shall not be required to indemnify or hold harmless any Seller Indemnitees against any Losses or Taxes to the extent the related liabilities were reflected in, reserved for or taken into account in the determination of Working Capital as if of immediately prior to the payment Closing and reduced the Aggregate Common Equity Price accordingly, or Closing Date Indebtedness. (d) The amount of any Losses or Taxes for which indemnification is provided under this Article VIII or Article IX shall be net of any amounts recovered by the Indemnified Party under insurance policies, indemnity or contribution agreements, Contracts or otherwise with respect to such amount did not constitute Qualifying Income or Losses (in each case, with a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwisethird party), in which case the escrow agent shall release as applicable (it being agreed that if any such amount or, in the case of a revised or updated letter, such additional amount to the Company, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt amounts are recovered by the Company Indemnified Party in respect of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent such Losses subsequent to the Indemnifying Holder. 4.5.4 The Party’s making of an indemnification payment in satisfaction of its applicable indemnification obligation, such amounts shall be promptly remitted to the Indemnifying Holder agrees Party to amend the extent of the indemnification payment made), and the Indemnified Parties shall use, and cause their Affiliates to use, commercially reasonable efforts to seek recovery under all provisions covering such Losses to the same extent as it would if such Losses were not subject to indemnification hereunder. Any amount of Losses or Taxes for which reimbursement or indemnification is provided under this Agreement shall be determined net of any Tax Benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Loss or Tax. Claims for Taxes shall be made solely pursuant to Article IX, and no claims therefor shall be made under this Article VIII, in each case subject to the provisions of this Section 4.5 at 8.5. In the reasonable request event of any conflict between this Article VIII and Article IX, the Company provisions of Article IX shall govern, in order to (x) maximize the portion of the Indemnification Amount that may be distributed each case subject to the Company hereunder without causing the Company to fail to meet the requirements provisions of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in this Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.38.5.

Limitations on Indemnification. 4.5.1 In (a) From and after the event that a selling holder Closing, the right to obtain indemnification from the Escrow Amount, the Holdback Share Consideration and Earnout Payment Amount pursuant to the indemnification provisions of Registrable Securities Section 8.3 shall be the Parent Indemnitees’ sole source for recoupment of all Losses, except with respect to indemnification for Losses incurred pursuant to Sections 8.3(a)(ii) through 8.3(a)(vii) (collectively, the “Indemnifying HolderSpecified Claims”) is obligated ), for which Parent Indemnitees shall have the right to pay an amount obtain indemnification, up to the total amount of Losses, in the following order: (i) first, at the discretion of the Parent Indemnitees, from the Escrow Amount and/or the Holdback Share Consideration; provided that, if, at the applicable time, Losses are capable of being fully satisfied from both the Escrow Amount and the Holdback Share Consideration, then not more than 40% of such Losses shall be satisfied with an offset of the Holdback Shares, (ii) second, if the Escrow Amount and/or the Holdback Share Consideration are not available at that time or otherwise insufficient to cover the Losses indicated in such notice, then from the Earnout Payment Amount (if paid or payable at that time) pursuant to the indemnification provisions of Section 8.3, and (iii) thereafter, to bring a claim directly against any Company Equityholders for its Proportionate Indemnification Share of the remaining Losses, all in accordance to Section 8.3 above and this Section 8.4. (b) The maximum liability of (A) all Company Stockholders for indemnity claims (i) pursuant to Section 4.2 (the “Indemnification Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, 8.3(a)(i) - shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) be the sum of (xX) the maximum amount that can be Escrow Amount, plus (Y) the Holdback Share Consideration, plus (Z), fifteen percent (15%) of any Earnout Payment Amount actually paid (or payable but for the application of such indemnity) pursuant to Section 1.8(c); (ii) pursuant to Section 8.3(a)(i) with respect to the Tax Representations and IP Representations - shall be fifty percent (50%) and twenty five percent (25%), respectively, of the Aggregate Merger Consideration; and (iii) pursuant to Section 8.3(a)(ii) through (vii) (but, in the case of 8.3(a)(vii), only as it relates to Sections 8.3(a)(ii) through 8.3(a)(vi)) - shall be the Aggregate Merger Consideration; and (B) each Company without causing the Company Stockholder shall not in any event exceed its Proportionate Indemnification Share of such foregoing amounts. The maximum liability for indemnity claims of Parent and Buyer pursuant to fail to meet the requirements Section 8.3(b)(i) shall not exceed $3,000,000. For purposes of Sections 856(c)(2clauses (A)(ii) and (3) of A)(iii), "Aggregate Merger Consideration" shall mean the Code determined as if Aggregate Merger Consideration actually received or actually paid (or payable but for the payment application of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”indemnity), as determined by it being understood that with respect to portions thereof paid or payable (but for the Company independent certified public accountants, plus (yapplication of such indemnity) in Parent Ordinary Shares, other than the event Earnout Payment Amount (since it is computed and valued in cash), the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount value of each Parent Ordinary Share shall be equal to the Indemnification Amount, less the amount payable under clause (x) above$9.71. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3c) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof Parent Indemnitees shall not be released entitled to the Company unless the escrow agent receives any one or combination indemnification for any indemnification obligations of the following: Indemnifying Persons pursuant to Section 8.3(a)(i) unless and until the aggregate amount of Losses indemnifiable hereunder equals or exceeds $175,000 (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise“Basket”), in which case the escrow agent Parent Indemnitees shall release such amount or, in the case of a revised or updated letter, such additional amount be entitled to the Company, or entire amount of such Losses (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company first dollar of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2Losses) and not just the amount of Losses that exceed the Basket. Stockholders Indemnitees shall not be entitled to any indemnification for any indemnification obligations of Parent and Buyer for breach of Section 4.3 (3) of the Code Consents and Approvals), Section 4.4 (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2SEC Filings) and Section 4.7 (3Tax Matters) unless and until the aggregate amount of the Code)Losses equals or exceeds $25,000, in which case the escrow agent Stockholders Indemnitees shall release the remainder of the Indemnification Amount be entitled to the Company. The escrow agreement shall also provide entire amount of such Losses and not just the amount of Losses that any portion of the Indemnification Amount held in escrow for five exceed such amount. (5d) years shall be released by the escrow agent Notwithstanding anything to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend contrary in this Section 4.5 at 8, the reasonable request limitations set forth in (i) Sections 8.2(a), and Sections 8.4(a), 8.4(b) and 8.4(c), shall not apply with respect to any claim for indemnification arising out of the Company in order or relating to commission of fraud or intentional misrepresentation, and (xii) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2Section 8.4(b) and (3c) shall not apply with respect to any claim for indemnification arising out of or relating to (A) any inaccuracy in or breach of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 Specified Representations or (zB) assist any inaccuracy in the Final Payment Spreadsheet or the Company Net Working Capital Certificate. (e) Notwithstanding anything herein to the contrary, in obtaining no event shall any indemnifying party have any liability for, and in no event shall “Losses” include, any punitive, exemplary damages or speculative damages (except that, in respect of any of the foregoing, damages awarded by a favorable legal opinion final non-appealable decision of a competent court or other authority having jurisdiction or arbitrator to a third party as part of a Third Party Claim shall be indemnifiable hereunder). (f) Notwithstanding anything herein to the contrary, all Losses indemnifiable hereunder shall be reduced by: (i) the value of any net Tax benefit actually realized by the Indemnified Parties (as defined below) after the Closing in connection with the Loss which forms the basis of the claim for indemnification hereunder by such Indemnified Parties. For purposes hereof, a Tax benefit will only exist to the extent that it results in, or with commercially reasonable steps capable of being taken (but without any obligation to do so) by the Indemnified Party, as to result in, a refund of or actual reduction in Tax with respect to the taxable period in which indemnification claim is paid, or on any Tax Return with respect thereto; (ii) any insurance proceeds (net of deductibles and increase in premiums) actually received by the Indemnified Parties in connection with the Loss which forms the basis of the claim for indemnification hereunder by the Indemnified Parties; or (iii) any contribution actually received (net of Taxes) from its outside counsel as described in Section 4.5.3a third party (less the cost of enforcement of such rights) by the Parent Indemnitee (provided that such indemnification is not subject to any contribution or participation by any Indemnified Party nor is such third party entitled to any subrogation rights against such Indemnified Party with respect to the amounts indemnified by such third party).

Limitations on Indemnification. 4.5.1 (a) The amount of any Losses for which indemnification is provided under this Section 9 shall be net of any amounts (i) recovered by an Indemnified Party or its Affiliates under or pursuant to any insurance policy, and (ii) recovered by any such Person from any third party with respect to such Losses. In the event that a selling holder of Registrable Securities (the “Indemnifying Holder”) any such recovery is obligated to pay made by an amount to the Company pursuant to Section 4.2 (the “Indemnification Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder Indemnified Party or its affiliatesAffiliates with respect to any Losses, as applicable, shall pay for which any such Indemnified Party has been indemnified hereunder and has received funds in the amount of such Losses, then a refund equal to the Companyaggregate amount of the recovery shall be made promptly to the Indemnifying Party. (b) Notwithstanding anything herein to the contrary, (i) the Company shall not be liable to an Investor Indemnified Party for any Losses pursuant to Section 9.2(a)(i) and/or Section 9.2(a)(iii), other than in respect of Fraud or breach of any Company Fundamental Representation, subject to the other limitations herein; and (ii) the Company shall not be liable to the Investor Indemnified Parties for any Losses arising under or in connection with this Agreement, other than in respect of Fraud, in excess of the Subscription Amount, subject to the other limitations herein. (c) Notwithstanding anything herein to the contrary, (i) the Investor shall not be liable to the Company Indemnified Parties for any Losses pursuant to Section 9.2(b)(i) which, individually considered, do not exceed US$10,000 (“De Minimis Exclusion”) and no individual claim for Losses that do not exceed the De Minimis Exclusion shall be considered in determining the amount of Losses under Section 9.2(b)(i) unless a series of similar events arising from the Indemnification Amount deposited same circumstances exceed the De Minimis Exclusion; (ii) the Investor shall not be liable to the Company Indemnified Parties for any Losses pursuant to Section 9.2(b)(i), other than in respect of Fraud or breach of any Investor Fundamental Representation, until the aggregate amount of such Losses (excluding, for the avoidance of doubt, any Losses pursuant to Section 9.2(b)(i) which, individually considered, do not exceed the De Minimis Exclusion) exceeds an amount equal to US$18,750, at which time the Investor shall be liable for the entire amount of all such Losses, subject to the other limitations herein; (iii) the Investor shall not be liable to the Company Indemnified Parties for any Losses pursuant to Section 9.2(b)(i), other than in respect of Fraud or breach of any Investor Fundamental Representation, in excess of US$75,000, subject to the other limitations herein; and (iv) the Investor shall not be liable to the Company Indemnified Parties for any Losses arising under or in connection with this Agreement, other than in respect of Fraud, in excess of the Subscription Amount, subject to the other limitations herein. (d) Notwithstanding anything herein to the contrary, (i) no Indemnifying Party will have any obligation to indemnify for any Losses until a final, non-appealable Judgment is rendered with respect to such Claim Notice or a written agreement is entered into escrow by the parties; and (ii) where substantially the same events or circumstances qualify under one or more single or multiple claims or under one or more provisions of this Agreement, the Indemnified Party shall not be entitled to double or duplicative recovery of Losses arising out of such events or circumstances, or to calculate its Losses by duplicating or double counting its Losses arising out of such events or circumstances. (e) In the event that the Company has an obligation to indemnify any Investor Indemnified Party for any Losses under this Section 9, the Company shall, within ten (10) Business Days (or any other date agreed in writing by the Company and such Investor Indemnified Party) after such Losses have been finally determined and are owed by the Company in accordance with Section 4.5.29.4(d), at its option, pay the amount of such Losses either by (i) wire transfer of immediately available funds to an amount equal account designated in writing by such Investor Indemnified Party, or (ii) issuing a warrant exercisable into Ordinary Shares to such Investor Indemnified Party in the lesser form attached hereto as Exhibit E (the “Indemnity Warrant”), that will entitle such Investor Indemnified Party to a number of (I) Ordinary Shares resulting from the Indemnification Amount and (II) the sum quotient of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”)Losses, as determined by the Company independent certified public accountants, plus and (y) the fair market value of an Ordinary Share at the time of the payment obligation, which, to the extent the Ordinary Shares of the Company are traded over-the-counter (OTC) or in any stock exchange, shall be equivalent to the Company’s Ordinary Shares VWAP for the period of thirty (30) consecutive trading days ending on the trading day immediately prior to the date of payment. The Exercise Price (as defined in the Indemnity Warrant) under such Indemnity Warrant shall be US$0.01. (f) In the event that the Investor has an obligation to indemnify a Company Indemnified Party for any Losses under this Section 9, the Investor shall pay the amount of such Losses within ten (10) Business Days (or any other date agreed in writing by the Investor and such Company Indemnified Party) after such Losses have been finally determined and are owed by the Investor in accordance with Section 9.4(d) by wire transfer of immediately available funds to an account designated in writing by such Company Indemnified Party. (g) Each Indemnified Party agrees that in the event the Company receives either (1) a ruling from the Internal Revenue Service described in of any breach giving rise to an indemnification obligation under this Section 4.5.3 9 such Indemnified Party shall take and shall cause its Affiliates to take, or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure cooperate with the Indemnifying Holder’s obligation to pay these amountsParty, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected if so requested by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the CompanyParty, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount or, in the case of a revised or updated letter, such additional amount to the Company, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize take, all reasonable measures to mitigate the portion consequences of the Indemnification Amount that may be distributed related breach (including taking steps to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion prevent any contingent liability from its outside counsel as described in Section 4.5.3becoming an actual liability).

Limitations on Indemnification. 4.5.1 In (a) The maximum aggregate amount of indemnifiable Losses that may be recovered by the event that a selling holder of Registrable Securities Buyer Indemnitees pursuant to Section 10.2(a) will be the Indemnity Escrow Amount (the “Indemnifying HolderCap”) is obligated to pay an amount to the Company and all indemnifiable Losses pursuant to Section 4.2 10.2(a) will be satisfied solely and exclusively from the then remaining Indemnity Escrow Fund, except with respect to indemnifiable Losses in respect of the Specified Representations and any claim under Section 10.2(a)(iii) to the extent provided in following sentences of this Section 10.3(a). With respect to any Losses in respect of Specified Representations and any claim under Section 10.2(a)(iii) that the R&W Insurer has not (i) excluded from the coverage provided under the R&W Policy and/or (ii) denied coverage under the R&W Insurance Policy for such claim, will be paid solely and exclusively as follows: (A) first, from the Indemnity Escrow Fund until the Indemnity Escrow Fund is exhausted, (B) second, from the R&W Insurance Policy, and (C) third, to the extent any such amounts are not recovered under clauses (A) and (B), the Buyer may recover the amount of such excess from the Seller and each Rollover Stockholder, on a several and not joint basis, in accordance with the Pro Rata Percentages and pursuant to the Rollover Agreements; provided, that, notwithstanding anything to the contrary in this Agreement, the maximum aggregate amount of indemnifiable Losses that may be recovered by the Buyer Indemnities pursuant to clause (C) of this Section 10.3(a) will be $7,590,000 (the “Indemnification AmountOverall Cap”); provided, during further, that if the R&W Insurer denies any part of a year claim for any reason, then solely with respect to the other parts of such claim in respect of which coverage is not denied, the Buyer will be entitled to recover the amount of such excess (subject to the Overall Cap) from the Seller and the Rollover Stockholders pursuant to clause (C) of this Section 10.3(a). For the avoidance of doubt, any Specified Representations that the Company qualifies as a “real estate investment trust” R&W Insurer (x) excludes from the coverage provided under Sections 856 through 860 of the Code R&W Policy and/or (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay y) denies (solely with respect to the Companypart of any claim that is denied) coverage under the R&W Insurance Policy for a claim will be subject to the Cap (and not the Overall Cap). (b) Notwithstanding anything in this Agreement to the contrary, from no indemnification claims for Losses will be asserted by the Indemnification Amount deposited into escrow in accordance with Buyer Indemnitees under Article X unless the aggregate amount of Losses that would otherwise be payable under Section 4.5.2, 10.2(a) exceeds an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) 0.75% of the Code determined as if Enterprise Value (the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying IncomeDeductible”), as determined by whereupon the Company independent certified public accountants, plus (y) Buyer Indemnitees will be entitled to receive only amounts for Losses in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each excess of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise)Deductible, in which case case, the escrow agent Buyer Indemnitee will be entitled to indemnification for the amount of such Losses up to the Cap or the Overall Cap, if applicable. (c) Each Indemnitee under this Article X shall release such amount oruse its commercially reasonable efforts to mitigate any Losses which form the basis of an indemnification claim hereunder. (d) No Party will be obligated to indemnify any other Person with respect to (i) any representation, warranty, covenant or condition specifically waived in writing by the other Party on or prior to the Closing, (ii) any Losses actually included dollar for dollar in the case Final Adjustment set forth in Section 2.3 (with the intent of a revised this provision to merely be to avoid “double counting” and not to limit any right to recover for Loss that arises out of or updated letter, results from any breach in excess of the amount of such additional amount Loss that adjusts the Purchase Price and is recovered pursuant to the CompanyPurchase Price adjustment set forth in Section 2.3), oror (iii) for any Losses for which a Claims Notice was not duly delivered prior to the Cut-Off Date. (be) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt Any Loss under this Agreement will be determined without duplication of net amounts actually recovered dollar for dollar by the Company reason of the Indemnification Amount would either constitute Qualifying Income state of facts giving rise to such Losses constituting a breach of more than one representation, warranty, covenant or would agreement (with the intent of this provision to merely be excluded to avoid “double counting” and not to limit any right to recover for Loss that arises out of or results from gross income within the meaning of Sections 856(c)(2) and (3) any breach in excess of the Code amount of such Loss recovered pursuant to any other representation, warranty, covenant or agreement). (or alternativelyf) The provisions of this Section 10.3 (including with respect to the Cap, the Company’s outside counsel has rendered a legal opinion Overall Cap and the Deductible) are not applicable to, and will not in any way limit, claims under the R&W Insurance Policy, except as and to the effect that extent expressly set forth in the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying HolderR&W Insurance Policy. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 In the event that a selling holder Any claims of Registrable Securities (the “Indemnifying Holder”) is obligated to pay an amount to the Company pursuant to Section 4.2 (the “Indemnification Amount”), during a year that the Company qualifies any Parent Indemnified Party made under this ARTICLE 9 will be limited as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the followingfollows: (a) a letter from Notwithstanding any other provision of this Agreement to the Company’s independent certified public accountants indicating contrary, the maximum Company Stockholders shall not be required to indemnify or hold harmless any Parent Indemnified Party against, or reimburse any Parent Indemnified Party for, any Damages pursuant to Section 9.2(a) unless and until the aggregate amount that can be paid of all such Damages suffered or incurred by the escrow agent Parent Indemnified Parties subject to indemnification pursuant to Section 9.2(a) exceeds $1,000,000 (the “Threshold”), after which the Company Stockholders shall be obligated for all of such Damages of the Parent Indemnified Parties, including the amount of Damages below the Threshold; provided, however, that the Threshold limitation shall not apply to the Company without causing Fundamental Representations or to any indemnification claim arising out of any fraudulent, intentional or willful breach of any representation of the Company to fail to meet in this Agreement. (b) The Escrow Shares shall be held as the requirements of Sections 856(c)(2) and (3) Parent Indemnified Parties’ sole security for the indemnification obligations of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount or, Company Stockholders under Section 9.2. Except in the case of a revised or updated letter, such additional amount any indemnification claim under Section 9.2(a) relating to the CompanyFundamental Representations or any claim under Section 9.2 arising out of any fraudulent, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company intentional or willful breach of the Indemnification Amount would either constitute Qualifying Income any representation, warranty, covenant or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order this Agreement (which are addressed in Section 9.6(c)), notwithstanding any other provision of this Agreement to (x) maximize the portion contrary, recovery of Escrow Shares from the Escrow Account shall be the Parent Indemnified Parties’ sole and exclusive recourse against the Company Stockholders in respect of the Indemnification Amount Company Stockholders’ indemnification obligations under Section 9.2; provided, however, that may be distributed notwithstanding the foregoing, recovery of Escrow Shares from the Escrow Account with a value (valued at the Parent Closing Price) of up to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and five percent (35%) of the CodeAggregate Share Consideration issuable in the Merger shall be the Parent Indemnified Parties’ sole and exclusive recourse against the Company Stockholders in respect of the Company Stockholders’ indemnification obligations under Section 9.2(c). (c) Notwithstanding any other provision of this Agreement to the contrary, no Company Stockholder shall be required to indemnify or hold harmless any Parent Indemnified Party against, or reimburse any Parent Indemnified Party for, any Damages in excess of such Company Stockholder’s Pro Rata Share of the Aggregate Merger Consideration Value (yas defined below) improve for any and all indemnification claims under Section 9.2(a) relating to the Company’s chances Fundamental Representations or any claim under Section 9.2 arising out of securing a favorable ruling described in Section 4.5.3 any fraudulent, intentional or (z) assist willful breach of any representation, warranty, covenant or agreement of the Company in obtaining a favorable legal opinion this Agreement, and in no event shall any Company Stockholder be liable to the Parent Indemnified Parties for any amounts in excess of each such Company Stockholder’s Pro Rata Share of the Aggregate Merger Consideration Value. In the event that the Parent Indemnified Parties (or any of them) shall be entitled to indemnification under Section 9.2(a) in respect of any of the Fundamental Representations or for any fraudulent, intentional or willful breach of any representation of the Company in this Agreement, none of the Company Stockholders shall be required to directly indemnify any Parent Indemnified Parties, other than pursuant to the release of Escrow Shares allocated to such Company Stockholder from its outside counsel as described the Escrow Account, unless and until all of the Escrow Shares held in escrow on behalf of such Company Stockholder have been either released from the Escrow Account or allocated to an Outstanding Claim. For purposes of the foregoing, the “Aggregate Merger Consideration Value” means $1,650,000,000. (d) Notwithstanding any other provision of this Agreement to the contrary, the Company Stockholders shall only be liable under the indemnification obligations set forth in Section 4.5.39.2 for 50% of any Damages that arise from the matters set forth in Section 9.6(d) of the Company Disclosure Schedule. (e) Notwithstanding any other provision of this Agreement to the contrary, the indemnification obligation set forth in Section 9.2(c) is the Company Stockholders’ sole and exclusive obligation, duty and potential source of liability, and Parent Indemnified Parties sole and exclusive right and remedy, with respect to any Copyright Action (or any claim that if filed or otherwise instituted in a Court would constitute a Copyright Action) regardless of whether such claim or matter would constitute a breach of any representation, warranty or covenant of Company or any Company Stockholders under this Agreement, including Section 3.12(b). (f) Notwithstanding anything to the contrary set forth in this Agreement, the “Damages” for which the Parent Indemnified Parties are entitled to indemnification under Section 9.2 hereof shall expressly exclude, and the Parent Indemnified Parties shall not be entitled to recover, any punitive damages, except to the extent such punitive damages are payable by any Parent Indemnified Party as a result of a third-party claim.

Limitations on Indemnification. 4.5.1 In the event that a selling holder Except for claims arising out of Registrable Securities (the “Indemnifying Holder”) is obligated to pay an amount to the Company pursuant to Section 4.2 (the “Indemnification Amount”)fraud, during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder intentional misrepresentation or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the followingwillful breach: (a) a letter from The Buyer Indemnified Parties shall not be entitled to recover any Losses under Section 12.2(a)(ii) until such time as the Company’s independent certified public accountants indicating the maximum total amount of all Losses that can be paid have been directly or indirectly suffered or incurred by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) any one or more of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error Buyer Indemnified Parties, or to reflect which any one or more of the passage of time Buyer Indemnified Parties has or otherwisehave otherwise directly or indirectly become subject, exceeds $250,000 (the “Loss Threshold”), in which case the escrow agent Buyer Indemnified Parties shall release be entitled to recovery for all such Losses (including the amount orof the Loss Threshold); provided, however, that the limitation contained in this Section 12.3(a) shall not apply to any breach of or inaccuracy in any Seller Fundamental Representation, any breach of or inaccuracy in the case representations and warranties contained in Section 4.4(b), any Excluded Liabilities, any breach of a revised covenant, or updated letterfraud, such additional amount to the Company, orintentional misrepresentation or willful misconduct. (b) a letter from the Company’s counsel indicating The maximum aggregate amount of Losses that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would Buyer Indemnified Parties shall be excluded from gross income within the meaning of Sections 856(c)(2entitled to recover under Section 12.2(a)(ii) and shall be limited to thirteen percent (313%) of the Code Final Adjusted Purchase Price. (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect c) The maximum aggregate amount of Losses that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would Buyer Indemnified Parties shall be excluded from gross income within the meaning of Sections 856(c)(2entitled to recover under Section 12.2(a)(iv) and shall be limited to twenty percent (320%) of the CodeFinal Adjusted Purchase Price. (d) Notwithstanding Section 12.3(b) and Section 12.3(c), in which case the escrow agent maximum aggregate amount of Losses that the Buyer Indemnified Parties shall release be entitled to recover under Section 12.2(a)(ii) and Section 12.2(a)(iv), collectively, shall be limited to $20,000,000. (e) The maximum aggregate amount of Losses that the remainder of the Indemnification Amount Buyer Indemnified Parties shall be entitled to recover under Section 12.2(a)(i), Section 12.2(a)(ii), Section 12.2(a)(iii), Section 12.2(a)(iv), Section 12.2(a)(vi) and Section 12.2(a)(vii), collectively, shall be limited to the Company. The escrow agreement shall also provide Final Adjusted Purchase Price. (f) Notwithstanding anything to the contrary herein, the maximum aggregate amount of Losses that any portion of the Indemnification Amount held in escrow for five (5) years Buyer Indemnified Parties shall be released by the escrow agent entitled to the Indemnifying Holderrecover under Section 12.2(a)(v) or Section 12.2(a)(viii) shall not be limited. 4.5.4 (g) The Indemnifying Holder agrees maximum aggregate amount of Losses that the Seller Indemnified Parties shall be entitled to amend this recover under Section 4.5 at the reasonable request of the Company in order 12.2(b)(ii) shall be limited to thirteen percent (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (313%) of the CodeFinal Adjusted Purchase Price. (h) The maximum aggregate amount of Losses that the Seller Indemnified Parties shall be entitled to recover under Section 12.2(b)(i), Section 12.2(b)(ii), and Section 12.2(b)(iii), collectively, shall be limited to the Final Adjusted Purchase Price. (yi) improve Notwithstanding anything to the Company’s chances contrary herein, the maximum aggregate amount of securing a favorable ruling described in Losses that the Seller Indemnified Parties shall be entitled to recover under Section 4.5.3 or (z12.2(b)(iv) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3shall not be limited.

Limitations on Indemnification. 4.5.1 In the event (a) No Buyers’ Indemnified Party or Sellers’ Indemnified Party will be entitled to recover for Losses under Section 11.2(a)(i) or 11.2(b)(i), as applicable, (i) that individually are in an amount of $10,000 or less (a selling holder “Minor Claim”), which Minor Claims will not be aggregated, or (ii) unless and until Losses (excluding Minor Claims) aggregate to an amount in excess of Registrable Securities $625,000 (the “Indemnifying Holder”) is obligated to pay an amount to the Company pursuant to Section 4.2 (the “Indemnification Threshold Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”)in which case, the Indemnifying Holder Party will only be liable for the amount of Losses sought by the Indemnified Party in excess of the Threshold Amount. (b) With respect to any Losses suffered or incurred by a Buyers’ Indemnified Party under Section 11.2(a)(i), such Buyers’ Indemnified Party shall be entitled, as its affiliatessole remedy for any such Losses, to recover any such Losses in the following order: (i) first, from the Indemnity Escrow Account until the Indemnity Escrow Account is exhausted; and (ii) second, from the R&W Policy until the maximum amount recoverable under the R&W Policy has been met. (c) With respect to any Losses suffered or incurred by a Buyers’ Indemnified Party under Section 11.2(a)(iii), such Buyers’ Indemnified Party shall be entitled, as its sole remedy for any such Losses, to recover any such Losses in the following order: (i) first, from the Identified Tax and Labor Matters Escrow Account until the Identified Tax and Labor Matters Escrow Account is exhausted; (ii) second, from the Indemnity Escrow Account until the Indemnity Escrow Account is exhausted; (iii) third, by proceeding directly against Sellers’ Parent. (d) With respect to any Losses suffered or incurred by a Buyers’ Indemnified Party under Section 11.2(a)(iv) or 11.2(a)(v) such Buyers’ Indemnified Party shall be entitled, as its sole remedy for any such Losses, to recover any such Losses in the following order: (i) first, from the Indemnity Escrow Account until the Indemnity Escrow Account is exhausted; (ii) second, from the Identified Tax and Labor Matters Escrow Account until the Identified Tax and Labor Matters Escrow Account is exhausted; and (iii) third, by proceeding directly against Sellers’ Parent. (e) In no event shall the aggregate liability of Sellers’ Parent, on behalf of all Sellers, collectively, for all claims by the Buyers’ Indemnified Parties for indemnifiable Losses under Section 11.2(a)(iii) exceed the aggregate amount of the contingent liabilities associated with the Identified Tax and Labor Matters in the revised version of Annex 8.8 as of the Identified Tax and Labor Matters Update Date agreed to by the Parties after resolution of all disputes related thereto pursuant to Section 11.5(b) (the “Identified Tax and Labor Matters Indemnity Cap”). (f) In no event shall the aggregate liability of Seller’s Parent, on behalf of all Sellers, collectively, for (i) all claims by the Buyers’ Indemnified Parties for indemnifiable Losses under subsection (A) of Section 11.2(a)(iv) exceed ten percent of the Purchase Price, as finally determined pursuant to Section 2.3, actually received by Sellers, and (ii) all claims by the Buyers’ Indemnified Parties for indemnifiable Losses under subsection (B) of Section 11.2(a)(iv) exceed 15% of the Purchase Price, as finally determined pursuant to Section 2.3 actually received by Sellers, with such percentages calculated on an aggregated basis (i.e., if Buyers’ Indemnified Parties recover an amount equal to ten percent of the Purchase Price, as finally determined pursuant to Section 2.3 actually received by Sellers, in connection with Losses associated with breaches of Brazilian Tax Representations, then Buyers’ Indemnified Parties cannot recover an amount equal to more than five percent of the Purchase Price, as finally determined pursuant to Section 2.3 actually received by Sellers, for Losses associated with breaches of the Anticorruption Representations). (g) No Buyers’ Indemnified Party will be entitled to recover for Losses arising from an Interim Breach by Sellers or the Companies of the representations and warranties set forth in Article IV and Article V unless such Losses exceed $500,000, and thereafter, Sellers will only be liable for the amount of Losses sought by such Buyers’ Indemnified Party in excess of $500,000 up to the aggregate amount of $5,000,000; provided, however, that in the event of Fraud, Buyers’ Indemnified Party shall collect from the first Dollar and the amount of $5,000,000 as maximum liability set forth above shall not be applicable. (h) No Buyers’ Indemnified Party will be entitled to recover for Losses arising from breaches or nonperformance of covenants by Sellers or the Companies pursuant to Section 11.2(a)(ii) unless such Losses exceed $500,000, and thereafter, Sellers will be liable for the amount of Losses sought by such Buyers’ Indemnified Party in excess of $500,000 up to the aggregate amount of $5,000,000; provided, however, that in the event of Fraud or a knowing or willful breach of Sellers’ or the Companies’ covenants, Buyers’ Indemnified Party shall collect from the first Dollar and the amount of $5,000,000 as maximum liability set forth above shall not be applicable. (i) In no event shall the aggregate liability of Seller’s Parent, on behalf of all Sellers, collectively, for all claims by the Buyers’ Indemnified Parties for indemnifiable Losses under Section 11.2(a) exceed the aggregate amount of the Purchase Price, as finally determined pursuant to Section 2.3, actually received by Sellers. (j) Notwithstanding anything to the contrary contained in this Agreement, solely for purposes of determining the amount of any Losses that are the subject of an indemnification claim hereunder, each representation and warranty in this Agreement shall be read without regard and without giving effect to the term or, as applicable, shall pay clause containing “material,” “Material Adverse Effect,” except as would not have a ‘Material Adverse Effect” or similar phrases or clauses contained in such representation or warranty the inclusion of which would limit or potentially limit a claim by any Buyers’ Indemnified Party (as if such word or clause, as applicable, were deleted from such representation and warranty), except with respect to Section 5.8, Section 5.9(b) and any defined terms (e.g., Material Contracts). (k) Notwithstanding anything to the Companycontrary in this Agreement, any amounts payable pursuant to the indemnification obligations under this Agreement shall be paid without duplication and in no event shall (i) any Indemnifying Party be obligated to indemnify any Indemnified Party with respect to any Losses with respect to any matter to the extent such matter was taken into account in the Adjustment Amount pursuant to Sections 2.2(b) and 2.3; or (ii) any Indemnified Party be indemnified under different provisions of this Agreement for the same Losses. (l) Amounts in respect of any Losses payable by any Indemnifying Party pursuant to the indemnification obligations under this Agreement shall be reduced by (i) any amounts actually received from third parties by or on behalf of the Indemnification Amount deposited into escrow Indemnified Party (including applicable insurance proceeds), and (ii) any insurance proceeds (net of direct collection expenses) recovered by a Buyers’ Indemnified Party (such amounts and benefits are collectively referred to herein as “Indemnity Reduction Amounts”). If any Indemnified Party receives any Indemnity Reduction Amounts in accordance with Section 4.5.2respect of a claim for which indemnification is provided under this Agreement after the full amount of such claim has been paid by an Indemnifying Party or after an Indemnifying Party has made a partial payment of such claim and such Indemnity Reduction Amounts exceed the remaining unpaid balance of such claim, then the Indemnified Party shall promptly remit to the Indemnifying Party an amount equal to the lesser of excess (Iif any) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be theretofore paid to by the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment Indemnifying Party in respect of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”)claim, as determined by the Company independent certified public accountants, plus less (y) the amount of the indemnity payment that would have been due if such Indemnity Reduction Amounts in respect thereof had been received before the indemnity payment was made. For the avoidance of doubt, it is not intended that any insurer be released from any obligation or liability that it otherwise would have had under any of the Companies Insurance Policies set forth on Schedule 5.16 as a result of the indemnification provisions of this Agreement or be entitled to any rights of subrogation in relation to any Party’s rights under this Agreement as a result of any claims paid or payable by such insurer under any of the Companies Insurance Policies set forth on Schedule 5.16. (m) Each Seller and each Buyer, as appropriate, shall, or shall cause each Indemnified Party to, use commercially reasonable efforts to mitigate Losses for which indemnification is available under this Article XI and shall act in good faith in responding to, defending against, settling or otherwise dealing with such claims. (n) In no event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 shall any Indemnifying Party be liable to any Indemnified Party for any punitive or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3exemplary damages, an amount equal except to the Indemnification Amount, less the amount payable under clause (x) aboveextent such damages are part of a Third Party Claim. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3o) as shall be mutually acceptable to each None of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to limitations on indemnification set forth in this Section 4.5, 11.4 shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard apply to this Section 4.5claims for Fraud. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount or, in the case of a revised or updated letter, such additional amount to the Company, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 In (a) The indemnification provisions set forth in Section 8.2 shall be the event sole and exclusive remedy under this Agreement for the matters set forth therein; provided, however, nothing in this Article VIII prevents an Indemnified Party from bringing an action for fraud, intentional misconduct or willful breach. (b) The Indemnification Escrow Amount shall be held as the Indemnified Parties’ security for the Indemnifying Parties’ indemnification obligations under Section 8.2. (c) The Indemnified Parties shall have a right to set off any Loss claimed by an Indemnified Party against any Milestone Payment that a selling holder may be owed pursuant to Section 2.7(a)(iii). (d) Recovery against the Indemnification Escrow Amount and set off against the Milestone Payments that may be owed pursuant to Section 2.7(a)(iii) (if any) shall be the Indemnified Parties’ sole and exclusive remedy under this Agreement for indemnification claims under Section 8.2, except in the case of Registrable Securities fraud, intentional misconduct or willful breach (with respect to which the limitations set forth in this sentence shall not apply). (e) The Indemnified Parties may not recover pursuant to the indemnity set forth in Section 8.2 unless and until the aggregate amount of all Losses related thereto for which the Indemnified Parties would, but for this proviso, be liable exceed One Hundred Thousand U.S. Dollars ($100,000) in the aggregate (the “Indemnifying Holder”) is obligated to pay an amount to the Company pursuant to Section 4.2 (the “Indemnification Threshold Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent Indemnified Party shall release such amount orbe entitled to recover pursuant to the indemnity set forth in Section 8.2 all claimed Losses. (f) The Indemnified Parties may not recover pursuant to the indemnity set forth in Section 8.2 for Losses (i) in excess of Four Million U.S. Dollars ($4,000,000) in the aggregate, except in the case of a revised fraud, intentional misconduct or updated letter, such additional amount willful breach (with respect to which the limitations set forth in this sentence shall not apply) or (ii) to the Company, orextent that any such Loss is also covered under any insurance policy maintained by the Indemnified Parties and payment therefor has been received by the Indemnified Parties. (bg) a letter from Except with respect to claims based upon or arising out of fraud, intentional misconduct or willful breach, no claim for indemnification hereunder for breach of any representation or warranty may be brought after the Company’s counsel indicating that Expiration Date or the Company received a ruling from Extended Expiration Date, as applicable, except for claims of which the Internal Revenue Service holding that Indemnifying Parties has been notified in writing prior to Expiration Date or the receipt by Extended Expiration Date, as applicable. (h) Nothing in this Agreement shall limit the Company liability of the Indemnification Amount would either constitute Qualifying Income Indemnifying Parties (and the indemnification shall not be the exclusive remedy) in respect of any Losses arising out of any fraud, intentional misconduct or would be excluded from gross income within willful breach. (i) It is understood that nothing in this Agreement shall eliminate the meaning ability of Sections 856(c)(2any party hereto to apply for equitable remedies to enforce the other parties’ obligations under this Agreement. (j) Notwithstanding anything to the contrary in this Agreement, the parties hereto agree and (3) acknowledge that any Indemnified Party may bring a claim for indemnification for any Loss under this Article VIII notwithstanding the fact that any Indemnified Party had knowledge of the Code (breach, event or alternatively, the Company’s outside counsel has rendered a legal opinion circumstance giving rise to such Loss prior to the effect that the receipt by the Company Closing (other than knowledge arising directly out of the Indemnification Amount would either constitute Qualifying Income disclosure set forth in the Primaeva Disclosure Schedule). (k) Nothing in this Agreement shall limit the liability of Primaeva, Syneron or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying HolderParties for any material and willful breach or inaccuracy of any representation, warranty or covenant contained in this Agreement if the Closing does not occur. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 (i) Except in the case of indemnification claims under Section 7.2(a)(A) for breaches of or inaccuracies in the Fundamental Representations, the Parent Indemnified Parties, as a group, may not recover any Losses pursuant to an indemnification claim under Section 7.2(a)(A) relating to breaches of or inaccuracies in the representations or warranties of the Company unless and until the Parent Indemnified Parties, as a group, shall have paid, incurred, suffered or sustained at least $250,000.00 in Losses (the “Deductible”) in the aggregate for all claims, in which event the Parent Indemnified Parties may recover only the excess of such Losses above the Deductible. For the avoidance of doubt, the limitations set forth in this Section 7.3(a)(i) shall not apply to indemnification claims under clauses (B) through (D) of Section 7.2(a). (ii) The Parent Indemnified Parties, as a group, may not recover any Losses pursuant to an indemnification claim under Section 7.2(a)(C) with respect to the Special Indemnification Matter unless and until the Parent Indemnified Parties, as a group, shall have paid, incurred, suffered or sustained at least $500,000 in Losses (the “Special Indemnification Matter Deductible”) in the aggregate for all claims, in which event the Parent Indemnified Parties may recover only the excess of such Losses above the Special Indemnification Matter Deductible. For the avoidance of doubt, the limitations set forth in this Section 7.3(a)(ii) shall not apply to indemnification claims under clauses (C) of Section 7.2(a) with respect to matters other than the Special Indemnification Matter. (iii) Except in the case of indemnification claims under Section 7.2(b)(i) for breaches of or inaccuracies in the Parent Fundamental Representations, the Equityholder Indemnified Parties, as a group, may not recover any Losses pursuant to an indemnification claim under Section 7.2(b)(i) relating to breaches of or inaccuracies in the representations or warranties of the Parent and Merger Subs unless and until the Equityholder Indemnified Parties, each as a group, shall have paid, incurred, suffered or sustained at least the Deductible in the aggregate for all claims, in which event the Equityholder Indemnified Parties may recover only the excess of such Losses above the Deductible. For the avoidance of doubt, the limitations set forth in this Section 7.3(a)(iii) shall not apply to indemnification claims under clause (ii) of Section 7.2(b). (i) Except in the case of (i) indemnification claims under Section 7.2(a)(A) for breaches of or inaccuracies in the Fundamental Representations and (ii) indemnification claims under clauses (B) through (D) of Section 7.2(a), in no event shall any Company Indemnifying Party be liable for Losses under Section 7.2(a) in excess of the Indemnity Escrow Fund. (ii) In no event shall any Company Indemnifying Party be liable for Losses under Section 7.2(a)(C) with respect to the Special Indemnification Matter in excess of the Special Indemnification Escrow Fund. (iii) Except in the case of (i) indemnification claims under Section 7.2(b)(i) for breaches of or inaccuracies in the Parent Fundamental Representations and (ii) indemnification claims under clause (ii) of Section 7.2(b), in no event shall any Parent Indemnifying Party be liable for Losses under Section 7.2(b) in excess of $5,000,000. (iv) The aggregate Liability of the Parent Indemnifying Parties, as a group, for Losses under this Article VII and under the Related Agreements shall not exceed $50,000,001 in the aggregate. The aggregate Liability of the Company Indemnifying Parties, as a group, for Losses under this Article VII and under the Related Agreements shall not exceed $50,000,001 in the aggregate; provided, further, that no Contributing Equityholder shall have liability for any Losses in excess of the actual dollar amount and number of shares of Parent Common Stock included in such Contributing Equityholder’s Pro Rata Portion of the Aggregate Merger Consideration. Parent acknowledges that the liability of the Contributing Equityholders under this Agreement is several and not joint (except with respect to amounts in the Indemnity Escrow Fund, Special Indemnification Escrow Fund and Purchase Price Adjustment Escrow Fund). (c) The amount of any Losses recoverable by any Indemnified Party against any Indemnifying Party under Section 7.2 shall be calculated net of any insurance proceeds actually received by, and/or any indemnification or contribution payments actually paid by any third party to, such Indemnified Party in respect of such Losses in, each case net of all costs directly incurred in such recovery; provided that the Parent Indemnified Party shall be required to seek to obtain such proceeds with respect to the R&W Insurance Policy (to the extent available and to the extent there is insufficient Indemnity Escrow Fund) and shall use its commercially reasonable efforts to seek or obtain any other such insurance proceeds and; provided, further that the Indemnified Parties shall have no obligations to seek any third party indemnification or contribution. In the event that an insurance recovery is received by any Indemnified Party with respect to any Losses for which any such Person has been indemnified and which Losses such Person had received from the Indemnifying Parties hereunder, then a selling holder refund equal to the aggregate amount of Registrable Securities the recovery (net of reasonable costs and expenses incurred in recovering such amounts) shall be promptly made to the “Indemnifying Holder”) is obligated to pay an amount Paying Agent for distribution to the Company Indemnifying Parties in accordance with their Escrow Pro Rata Portions or to the Parent for distribution to the Equityholder Indemnified Parties, as applicable. Each Indemnified Party shall use commercially reasonable efforts within their control (including incurring such reasonable costs or expenses) to mitigate any Loss or potential Loss upon acquiring actual knowledge of any event or occurrence that would reasonably be expected to, or that in fact does, give rise to such Loss. (d) No Indemnified Party shall be entitled to indemnification for punitive damages, unless such damages are actually paid to a third party in respect of a Third Party Claim for which such Indemnified Party is entitled to indemnification under this Article VII. (e) Notwithstanding any other provision of this Agreement, the Company Indemnifying Parties shall not have any liability or indemnification obligation for any Taxes of the Company resulting from any election made under Section 338 of the Code with respect to the Mergers. (f) Other than the limitations set forth in Section 7.3(b)(iv), nothing in this Agreement shall limit the liability of an Indemnifying Party in connection with a claim based on Fraud. (g) This Agreement shall not permit duplicative indemnifications in respect of the same Loss or any component thereof if more than one provision of this Agreement gives rise to an indemnification obligation with respect to the same Loss. (h) In no event shall any Parent Indemnified Party be entitled to recover or make a claim for any amount included in the calculation of the Net Working Capital as finally determined pursuant to Section 4.2 (the “Indemnification Amount”), during 1.9. The amount of Losses to which a year that the Company qualifies as Parent Indemnified Party is entitled in respect of a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can particular matter will be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined reduced by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from amount of any reserve established specifically for such matter which reserve is reflected on the Company’s outside counsel books and records and in the Estimated Closing Statement as described in Section 4.5.3of the Closing Date, an amount equal but only to the Indemnification Amount, less extent such reserve is actually taken into account in the amount payable under clause calculation of the Net Working Capital as finally determined pursuant to Section 1.9 (x) aboveor Closing Indebtedness). 4.5.2 To secure the Indemnifying Holder’s obligation (i) The limitations set forth above in this Article VII and Section 7.3 are cumulative such that one or more of such limitations may apply to pay these amounts, the Indemnifying Holder shall deposit into escrow a claim by an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms Indemnified Party for indemnification under this Article VII (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow fact that certain provisions in this Article VII reference the cumulative nature of such limitations and others shall not in any way limit the Indemnification Amount, pursuant to generality of this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.57.3). 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount or, in the case of a revised or updated letter, such additional amount to the Company, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 In (a) Except in the event that case of Fraud, the Indemnified Parties, as a selling holder group, may not recover any Losses pursuant to a claim under Section 8.2(a)(i) or a claim under Section 8.2(a)(ix) solely to the extent the underlying claim would have been asserted under Section 8.2(a)(i) had there actually been a breach of Registrable Securities the relevant representation or warranty in question (a “General Unproven Third Party Claim”), (i) unless and until the Indemnified Parties, as a group, shall have paid, incurred, suffered or sustained at least $850,000 in Losses in the aggregate (the “Indemnifying Holder”) is obligated to pay an amount to the Company pursuant to Section 4.2 (the “Indemnification Basket Amount”), during a year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 of the Code (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent Indemnified Parties shall release such amount orbe entitled to recover all Losses, in including the case of a revised Basket Amount, paid, incurred, suffered or updated letter, such additional amount to the Company, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt sustained by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) Indemnified Parties as a group, and (3ii) unless such claim or series of related claims exceeds $25,000 (the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code“Per Claim Threshold”), in which case the escrow agent Indemnified Parties shall release the remainder of the Indemnification Amount be entitled to recover all Losses (subject to the Companyother applicable limitations set forth herein), including the Per Claim Threshold, paid, incurred, suffered or sustained by the Indemnified Parties with respect to such claim or series of related claims. The escrow agreement For the avoidance of doubt, the limitations set forth in this Section 8.3(a) shall also provide not apply to claims under clauses (ii) through (viii) of Section 8.2(a), inclusive, or Section 8.2(a)(ix) to the extent not for a General Unproven Third Party Claim. (b) Subject to Section 8.3(j), the Indemnified Parties sole and exclusive source of recovery for claims under Section 8.2(a)(i) or Section 8.2(a)(ix) solely to the extent with respect to a General Unproven Third Party Claim shall be recourse against the cash held in the Indemnity Escrow Fund; provided, however, that (A) to the extent that an Indemnified Party recovers any amount from the Indemnity Escrow Fund in satisfaction of a claim under any of clauses (ii) through (viii) of Section 8.2(a), inclusive, such recovered amount shall not reduce the amount that the Indemnified Parties may recover with respect to claims under Section 8.2(a)(i) and the Indemnified Parties shall be permitted to recover such amount directly from the Indemnifying Parties for claims under Section 8.2(a)(i), and (B) the limitations set forth in this Section 8.3(b) shall not apply to claims under clauses (ii) through (viii) of Section 8.2(a), inclusive, or Section 8.2(a)(ix) to the extent not for a General Unproven Third Party Claim, and, and, subject to Section 8.3(c), the Indemnified Parties shall be permitted to recover directly from the Indemnifying Parties for claims under any of clauses (ii) through (viii) of Section 8.2(a), inclusive, or Section 8.2(a)(ix) to the extent not for a General Unproven Third Party Claim. (c) Subject to Section 8.3(j), the maximum liability of each Indemnifying Party for indemnification claims recoverable directly from an Indemnifying Party under Section 8.2(a) and under his, her, or its Joinder Agreement (excluding, for the avoidance of doubt, claims recovered from the Indemnity Escrow Fund) shall be limited, in the aggregate, to a dollar amount equal to the aggregate portion of the Indemnification Total Consideration paid or payable to such Indemnifying Party (or his, her, or its designee, assignee, transferee, or successor in interest) pursuant to this Agreement (inclusive of any and all amounts deducted or withheld in respect of Taxes or any Loan Repayment Amount held and the aggregate amount of such Indemnifying Party’s Per Share Expense Fund Consideration). (d) Subject to Section 8.3(j), the Indemnified Parties shall not be permitted to assert claims under Section 8.2(a)(viii) against any Indemnifying Party other than the Indemnifying Party that committed or alleged to have committed the breach in escrow question. (e) Except in the case of claims for five (5) years Fraud, no Indemnified Party shall be released required to show reliance on any representation, warranty, certificate or other agreement in order for such Indemnified Party to be entitled to indemnification, compensation or reimbursement hereunder. (f) The amount of any Loss payable under this Article VIII by an Indemnifying Party shall be net of any amounts actually recovered by the escrow agent Indemnified Party from insurance policies, net of the following: (i) costs and expenses (including Taxes) incurred by such Indemnified Party or its Affiliates and its and their respective Representatives in procuring such recovery; (ii) any increases in premiums or premium adjustments to the Indemnifying Holderextent attributable to such recovery (applicable to any past, present or future premiums); and (iii) deductibles and other amounts incurred in connection with such recovery; provided, however that, other than with respect to the Indemnity Insurance Policy, the Indemnified Parties shall have no obligation to seek recovery under any insurance policies or to maintain any insurance policies for any period of time. 4.5.4 (g) The Indemnified Parties shall, to the extent required by applicable Law, use commercially reasonable efforts to mitigate Losses indemnifiable under this Article VIII; provided, however, that, notwithstanding the foregoing or anything else herein to the contrary, other than with respect to the Indemnity Insurance Policy, in no event shall any of the Indemnified Parties be required to assert any claim or otherwise seek recourse any against -61- any insurers, insurance policies, customers, suppliers, resellers, vendors, partners, or other Representatives of any of the Indemnified Parties or their respective Affiliates. (h) If and solely to the extent that an amount of Losses in connection with an indemnifiable matter was already specifically taken into account in the calculation of the Final Net Working Capital pursuant to Section 7.11, the same amount of such Losses may not be recovered under this Article VIII. (i) No Indemnifying Holder agrees Party shall be liable for any Losses relating to amend this Section 4.5 at the reasonable request amount or availability of any net operating loss, tax credit, or other tax attribute of the Company in order to following the Closing. (xj) maximize the portion of the Indemnification Amount that may be distributed Notwithstanding anything herein to the Company hereunder without causing contrary, nothing in this Agreement shall limit (i) the Company liability of an Indemnifying Party, or the rights of any Indemnified Party against an Indemnifying Party, for Fraud committed by such Indemnifying Party or of which such Indemnifying Party had actual knowledge on or prior to fail to meet the requirements of Sections 856(c)(2) and (3) of the CodeClosing Date, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (zii) assist the Company right of Acquiror or any other Indemnified Party to pursue remedies under any Related Agreement against the parties thereto. Notwithstanding anything herein to the contrary, this Article VIII shall not be applicable, and nothing in obtaining a favorable legal opinion from its outside counsel as described this Article VIII shall limit the liability of any party hereto for any breach of any representation, warranty, covenant or agreement contained in Section 4.5.3this Agreement, any Related Agreement or any certificates or other instruments executed and delivered by any party in connection with the transactions contemplated by this Agreement, if the Merger does not close.

Limitations on Indemnification. 4.5.1 In the event that a selling holder of Registrable Securities (the “Indemnifying Holder”a) is obligated to pay an amount to the Company pursuant Subject to Section 4.2 8.6(b), an Indemnified Party may not recover Losses from Buyer or Sellers, as applicable, in respect of any claim for indemnification under Section 8.2 or Section 8.3, as applicable, unless and until Losses have been incurred, paid or properly accrued by the applicable Indemnified Parties in an aggregate amount greater than $125,000 (the “Indemnification AmountThreshold”), during and once such Indemnification Threshold has been exceeded, the Indemnified Party will be entitled to recover for such Losses in excess of the Indemnification Threshold, provided, that, for the avoidance of doubt, the Indemnification Threshold will not apply to a year that claim by a Buyer Indemnified Party for recovery from the Company qualifies as a “real estate investment trust” R&W Insurance Policy. (b) Subject to the other terms of this Section 8.6, recovery by an Indemnified Party of its Losses in the aggregate will be subject to the following limitations: (1) With respect to Losses claimed under Sections 856 8.2(a) through 860 8.2(f), a Buyer Indemnified Party will recover all of its Losses as follows: (A) first, from the R&W Insurance Policy; (B) second, to the extent such Losses exceed the amount recovered from (including by operation of the Code retention or the limits thereunder), or are not covered, or are denied coverage under, the R&W Insurance Policy, directly from the Sellers on a several but not joint basis (a “REIT”in accordance with each Seller’s Pro Rata Share); (2) With respect to Losses claimed under Sections 8.2(a) through 8.2(f), the Buyer Indemnified Parties will not be entitled to recover against any Seller (A) in excess of the proceeds received by such Seller or (B) for any inaccuracy in, or breach of, any of the Fundamental Representations of any other Seller, or any breach of, or the failure of any other Seller to perform or comply with any of its covenants or obligations contained in this Agreement, any Related Agreement or any certificate or instrument delivered pursuant to this Agreement; (3) With respect to Losses claimed under Sections 8.3, a Seller Indemnified Party will recover all of its Losses directly from Buyer; and (4) With respect to Losses claimed under Sections 8.3, no Seller Indemnified Party will be entitled to recover against Buyer in excess of such Seller’s Pro Rata Share of the Initial Purchase Price. (c) Any entitlement of the Indemnified Parties to make a claim against the Indemnifying Holder Party under this Agreement will be determined without duplication of recovery by reason of the same state of facts giving rise to such claim constituting a breach of more than one representation, warranty, covenant or its affiliates, as applicable, shall pay agreement and/or an adjustment to the Company, from the Indemnification Amount deposited into escrow purchase price in accordance with Section 4.5.21.4. (d) Notwithstanding any other provision of this Agreement, an amount equal no party hereto or any of its Affiliates shall have liability for any indirect, exemplary or punitive damages, and Losses indemnifiable hereunder shall not include such damages, except to the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid extent, if any, such Losses are incurred due to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount or, in the case Fraud of a revised or updated letter, such additional amount to the Company, or (b) a letter from the Company’s counsel indicating that the Company received a ruling from the Internal Revenue Service holding that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying Holderparty hereto. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 In (a) The Buyer Indemnitees shall not be entitled to recover under SECTION 12.01 unless a claim has been asserted by written notice, specifying the event that a selling holder details of Registrable Securities (the “Indemnifying Holder”) is obligated to pay an amount matter giving rise to the Company pursuant indemnity claim to Section 4.2 HGHC on or prior to the two (the “Indemnification Amount”), during a 2) year that the Company qualifies as a “real estate investment trust” under Sections 856 through 860 anniversary of the Code Closing Date; provided, however that there shall be no limitation on the time for submitting a claim for or arising out of or related to (a “REIT”), the Indemnifying Holder or its affiliates, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, an amount equal to the lesser of (Ii) the Indemnification Amount and Merger Lawsuits, or (IIii) an allegation of breach of the sum representations in the first two sentences of SECTION 2.02, clause (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3a) of the Code determined as if fourth sentence in SECTION 2.02 and SECTION 2.03; provided, further, that the payment of such amount did not constitute income described in Sections 856(c)(2indemnity claim made pursuant to SECTION 2.09 must be asserted within sixty (60) or 856(c)(3) days of the Code (“Qualifying Income”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each end of the Companyapplicable statute of limitations period, the Indemnifying Holder after giving effect to any extensions thereof (and the escrow agent. The payment or deposit into escrow including any applicable statute of limitations for a taxable year of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment Surviving Corporation for which a breach of SECTION 2.09(a) could result in an increased liability for Taxes of the Indemnification Amount would otherwise be due without regard to this Section 4.5Surviving Corporation). 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent shall release such amount or, in the case of a revised or updated letter, such additional amount to the Company, or (b) a letter from The Buyer Indemnitees shall not be entitled to recover under SECTION 12.01: (i) to the Company’s counsel indicating that extent the Company received a ruling from aggregate claims for Indemnity Losses of the Internal Revenue Service holding that Buyer Indemnitees are less then $1,000,000 (the receipt "Basket") or exceed $13,950,000 (whether such amounts have been paid directly by the Company HGHC or out of the Indemnification Amount would either constitute Qualifying Income Escrow, collectively, the "Cap"), except as otherwise provided in SECTION 12.08; PROVIDED THAT if the aggregate of all claims for Indemnity Losses equals or would exceeds the Basket, then Buyers shall be excluded from gross income within entitled to recover for all such Indemnity Losses subject to the meaning limitations in this SECTION 12.06(b) or (ii) to the extent the subject matter of Sections 856(c)(2the claim is covered by insurance (including title insurance) and such insurance is collected by 50 the Buyer Indemnitees; or (3iii) to the extent that the matter in question, taken together with all similar matters, does not exceed the amount of any reserves with respect to such matters which are reflected in the Financial Statements; or (iv) to the extent the matter in question was taken into account in the computation of the Code (or alternativelyMerger Consideration pursuant to ARTICLE I. To the extent the subject matter of a claim is covered by a reserve reflected in the Financial Statements, the Company’s outside counsel has rendered value of such claim shall not be included in determining whether the aggregate Indemnity Losses equal or exceed the Basket. If HGHC pays Buyer Indemnitees for a legal opinion claim and subsequently insurance in respect of such claim is collected by the Buyer Indemnitees then Buyer Indemnitees shall remit the money back to HGHC. In addition, if HGHC pays Buyer Indemnitees for a claim and subsequently the Buyer Indemnitees or their shareholders realize a net Tax benefit as a result of any expense, payment or other item giving rise to such indemnification payment, the Buyers shall pay to HGHC the aggregate amount of such net Tax benefit as soon as practicable following the realization of such benefit. The guidelines for determining the amount and timing of the realization, and the provision for subsequent adjustments, of net Tax benefits set forth in SECTION 11.02(b) shall apply for purposes of this SECTION 12.06(b). HGHC and the Buyers agree to treat any payments in respect of Indemnity Losses as adjustments to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code), in which case the escrow agent shall release the remainder of the Indemnification Amount to the Company. The escrow agreement shall also provide that any portion of the Indemnification Amount held in escrow for five (5) years shall be released by the escrow agent to the Indemnifying HolderMerger Consideration. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that may be distributed to the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3.

Limitations on Indemnification. 4.5.1 In No Indemnitor shall be liable for an indemnification claim made under clause (a) of Section 6.2 or 6.3, as the event that case may be: (w) for which a selling holder of Registrable Securities claim for indemnification is not asserted hereunder on or before the applicable Survival Date; (the “Indemnifying Holder”x) is obligated to pay an amount to the Company pursuant extent Losses incurred by the Buyer Indemnified Parties in the aggregate under clause (a) of Section 6.2 or by the Seller Indemnified Parties in the aggregate under clause (a) of Section 6.3, as applicable, exceed a dollar amount equal to Section 4.2 One Million Dollars ($1,000,000) (the “Indemnification AmountCap”); provided, during a year that with respect to any claims for breaches of any Special Reps, the Company qualifies as a “real estate investment trust” under Sections 856 through 860 Indemnification Cap shall be an amount equal to fifty percent (50%) of the Code (a “REIT”)Stock Consideration; and unless and until the actual Losses of the Buyer Indemnified Parties, collectively, or the Indemnifying Holder or its affiliatesSeller Indemnified Parties, collectively, as applicable, shall pay to the Company, from the Indemnification Amount deposited into escrow in accordance with Section 4.5.2, exceed an aggregate amount equal to Two Hundred and Fifty Thousand Dollars ($250,000) (the lesser of (I) the Indemnification Amount and (II) the sum of (x) the maximum amount that can be paid to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying IncomeBasket”), as determined by the Company independent certified public accountants, plus (y) in the event the Company receives either (1) a ruling from the Internal Revenue Service described in Section 4.5.3 or (2) an opinion from the Company’s outside counsel as described in Section 4.5.3, an amount equal to the Indemnification Amount, less the amount payable under clause (x) above. 4.5.2 To secure the Indemnifying Holder’s obligation to pay these amounts, the Indemnifying Holder shall deposit into escrow an amount in cash equal to the Indemnification Amount with an escrow agent selected by the Indemnifying Holder and on such customary terms (subject to Section 4.5.3) as shall be mutually acceptable to each of the Company, the Indemnifying Holder and the escrow agent. The payment or deposit into escrow of the Indemnification Amount, pursuant to this Section 4.5, shall be made at the time that the payment of the Indemnification Amount would otherwise be due without regard to this Section 4.5. 4.5.3 The escrow agreement for the escrow described in Section 4.5.2 shall provide that the Indemnification Amount in escrow or any portion thereof shall not be released to the Company unless the escrow agent receives any one or combination of the following: (a) a letter from the Company’s independent certified public accountants indicating the maximum amount that can be paid by the escrow agent to the Company without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if the payment of such amount did not constitute Qualifying Income or a subsequent letter from the Company’s accountants revising or updating that amount (whether to correct an error or to reflect the passage of time or otherwise), in which case the escrow agent applicable Indemnitor(s) shall release such amount or, in the case of a revised or updated letter, such additional amount be obligated to the CompanyIndemnitee(s) for the amount of all Losses of the Indemnitee(s) (including the first dollar of Losses of the Buyer Indemnified Parties or the Seller Indemnified Parties, or as applicable, required to reach the Basket); provided, however, that the Basket and the Indemnification Cap shall not apply to (i) indemnification claims to the extent amounts are actually paid under insurance maintained by the Indemnitor (or any of its Affiliates) and (ii) indemnification claims based in whole or in part upon Fraud. The Basket and the Indemnification Cap shall apply only to indemnification claims made under clause (a) of Section 6.2 or 6.3 and shall not affect or apply to any other indemnification claim made pursuant to this Agreement, including those asserted under any other clause of Section 6.2 or 6.3 (collectively such Losses, “Exempted Losses”). For avoidance of doubt, the maximum liability of Seller for all indemnifiable matters (including the Exempted Losses) shall be limited to an amount equal to fifty percent (50%) of the Stock Consideration. In addition, with respect to any Loss for which the Buyer is being indemnified under sub-clauses (a), (b) and (c) of Section 6.2, Seller shall only bear and be liable for 56.6% of such Losses. Losses shall not include any indirect, special, exemplary, consequential, punitive damages or damages determined by a letter from multiple, except in each case to the Company’s counsel indicating that the Company received extent actually awarded to a ruling from the Internal Revenue Service holding that the receipt by the Company third-party who is not a party to this Agreement or an Affiliate of a party to this Agreement. Notwithstanding any contrary provision of this Article VI, until such time as all of the Indemnification Amount would either constitute Qualifying Income Exchange Shares have been registered for resale with the SEC or would may be excluded from gross income within resold pursuant to Rule 144, or until the meaning of Sections 856(c)(2liquidated damages paid to Seller under Section 5.9(b) and equal at least One Million Dollars (3) of the Code (or alternatively, the Company’s outside counsel has rendered a legal opinion to the effect that the receipt by the Company of the Indemnification Amount would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and (3) of the Code$1,000,000), in which case the escrow agent shall release the remainder of the Indemnification Amount Seller’s obligations under this Article VI to the Company. The escrow agreement shall also provide that indemnify any portion of the Indemnification Amount held in escrow Buyer Indemnified Parties for five (5) years any Losses shall be released by the escrow agent to the Indemnifying Holder. 4.5.4 The Indemnifying Holder agrees to amend this Section 4.5 at the reasonable request of the Company in order to (x) maximize the portion of the Indemnification Amount that suspended and no action may be distributed taken to enforce the Company hereunder without causing the Company to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (y) improve the Company’s chances of securing a favorable ruling described in Section 4.5.3 or (z) assist the Company in obtaining a favorable legal opinion from its outside counsel as described in Section 4.5.3same.