Common use of Obligation to Indemnify Clause in Contracts

Obligation to Indemnify. (a) Subject to the limitations set forth in this Article VIII, Parent and each Seller, jointly and severally, agrees to indemnify and hold harmless Buyer and its Affiliates, including, after the Closing, the Acquired Companies and the Acquired Company Subsidiaries (the “Buyer Indemnified Parties”), from and against all losses and out-of-pocket expenses (including reasonable attorneys’ fees and expenses of outside counsel) but not including punitive, exemplary, consequential and all other kinds of special damages (including, without limitation, lost profits and opportunity costs) (“Losses”) to the extent actually incurred as a result of (i) any breach of the representations and warranties of Sellers contained in Section 3.1, (ii) any breach of any of the covenants and agreements of Sellers contained in this Agreement or (iii) the Excluded Liabilities; provided, however, that neither Parent nor any Seller shall have any indemnification liability under this Agreement unless a claim is timely asserted during the survival period specified in Section 7.1; and provided, further, that neither Parent nor any Seller shall have any indemnification liability under this Agreement unless the aggregate of all Losses for which Parent and Sellers would, but for this proviso, be liable, pursuant to this Section 8.1(a) exceeds $15,000,000 on a cumulative basis (the “Deductible”), and then only to the extent of any such excess; and provided, further, that neither Parent nor any Seller shall have any liability under Section 8.1(a)(i) or Section 8.1(a)(ii) for any individual item of Loss that is less than $25,000 (for this purpose any individual item shall include any series of related actions) and such items shall not be aggregated for purposes of the second proviso to this Section 8.1(a). In any event, the maximum amount for which Parent and Sellers shall be liable in the aggregate under this Section 8.1(a) shall not exceed 20% of the Purchase Price, as adjusted pursuant to Section 2.3 (the “Indemnification Cap”); and provided, further that the Deductible and the Indemnification Cap shall not apply to or limit Losses arising out of (w) any breach of the representations and warranties of Sellers contained in Section 3.1(a), Section 3.1(b) and Section 3.1(o), (x) a claim for indemnity pursuant to Section 9.1(a), (y) any breach of any of the covenants and agreements of Sellers contained in this Agreement or (z) the Excluded Liabilities. Solely for purposes of determining whether Parent or Sellers are obligated to provide indemnification and the amount of any Losses for which Parent or Sellers shall be liable to the Buyer Indemnified Parties under this Section 8.1(a), each representation and warranty of Sellers contained in this Agreement shall be read without regard and without giving effect to the terms “material,” “in all material respects” or “Company Material Adverse Effect.”

Obligation to Indemnify. (a) Subject to the expiration of the representations and warranties of the parties as provided in and the limitations set forth in this Article VIII10, Parent and each Seller, jointly and severally, Seller agrees to indemnify indemnify, defend and hold harmless Buyer and its Affiliates, Affiliates (including, after the Closing, the Acquired Companies Insurance Companies), and the Acquired Company Subsidiaries their respective directors, officers, employees, agents, representatives, successors and assigns, without duplication (the “Buyer Indemnified Parties,” and individually a “Buyer Indemnified Party”), from and against all losses and out-of-pocket expenses (including reasonable attorneys’ fees and expenses of outside counsel) but not including punitive, exemplary, consequential and all other kinds of special damages (liabilities including, without limitation, lost profits all costs, expenses, fines, orders, penalties and opportunity costs) reasonable outside attorneys’ fees and disbursements (collectively, “Buyer Losses,” and individually a “Buyer Loss”) to incurred or suffered by any of the extent actually incurred as a result Buyer Indemnified Parties, directly or indirectly, by reason of or arising out of or in connection with (i) any breach of any of the representations and warranties of Sellers Seller contained in Section 3.1this Agreement or in any certificate or other document delivered pursuant hereto (without regard to any Knowledge, materiality or Material Adverse Effect qualifications contained therein), (ii) any breach of any of the covenants and agreements of Sellers Seller contained in this Agreement or Agreement, and (iii) the Excluded Liabilitiesany Actions set forth on Schedule 10.2; provided, however, that neither Parent nor any the Buyer Indemnified Parties shall be entitled to indemnification under Section 10.2(a)(i) for breach of representations and warranties made by Seller shall have any indemnification liability under this Agreement unless a claim is timely asserted during in Article 3 only when the survival period specified in Section 7.1; and provided, further, that neither Parent nor any Seller shall have any indemnification liability under this Agreement unless the aggregate amount of all Buyer Losses for which Parent and Sellers wouldarising therefrom exceeds, but for this provisoin the aggregate, be liable, pursuant to this Section 8.1(a) exceeds $15,000,000 on a cumulative basis 500,000 (the “DeductibleDeductible Amount”), and then only in which case the Buyer Indemnified Parties shall be entitled to indemnification for all Buyer Losses, subject to the extent other provisions of any such excess; and providedthis Agreement, further, that neither Parent nor any Seller shall have any liability under Section 8.1(a)(i) or Section 8.1(a)(ii) for any individual item of Loss that is less than $25,000 (for this purpose any individual item shall include any series of related actions) and such items shall not be aggregated for purposes in excess of the second proviso Deductible Amount. Notwithstanding anything else contained herein to this Section 8.1(a). In any eventthe contrary, the maximum amount for which Parent and Sellers Seller shall be liable in the aggregate for Buyer Losses under this Section 8.1(a10.2(a)(i) shall not exceed 20exceed, in the aggregate, an amount equal to 30% of the Purchase Price, as adjusted pursuant to Section 2.3 Price (the “Indemnification Cap”); and provided, further that however, the Deductible Amount and the Indemnification Cap shall not apply to limit any Buyer Losses resulting from or limit Losses arising out of (wthe Actions listed on Schedule 10.2. For the purpose of clarity, subject to the immediately preceding sentence, nothing in this Section 10.2(a) any breach shall be interpreted to impose liability on Seller for breaches of the representations and warranties of Sellers contained Seller under Article 3 in Section 3.1(a), Section 3.1(b) and Section 3.1(o), (x) a claim for indemnity pursuant to Section 9.1(a), (y) any breach of any of an aggregate amount greater than the covenants and agreements of Sellers contained in this Agreement or (z) the Excluded Liabilities. Solely for purposes of determining whether Parent or Sellers are obligated to provide indemnification and the amount of any Losses for which Parent or Sellers shall be liable to the Buyer Indemnified Parties under this Section 8.1(a), each representation and warranty of Sellers contained in this Agreement shall be read without regard and without giving effect to the terms “material,” “in all material respects” or “Company Material Adverse EffectCap.”

Obligation to Indemnify. (a) Subject to the limitations set forth in this Article VIIIX, Parent and each Seller, jointly and severally, Seller agrees to indemnify and hold harmless Buyer Purchaser and its Affiliatesdirectors, includingofficers, after the Closingemployees, the Acquired Companies agents, representatives, successors, permitted assigns and the Acquired Company Subsidiaries (the “Buyer Indemnified Parties”), Affiliates from and against all losses and out-of-pocket losses, liabilities, claims, expenses (including reasonable attorneys’ ' fees and expenses of outside counselexpenses) but not including punitive, exemplary, consequential and all other kinds of special damages (including, without limitation, lost profits and opportunity costs) (“"Losses”") to the extent actually incurred as a result of arising from or related to (i) any breach of the representations and warranties of Sellers Seller contained in Section 3.1this Agreement, (ii) any breach of any of the covenants and agreements of Sellers Seller contained in this Agreement or any Ancillary Agreement which survive the Closing or (iii) the Excluded Liabilities; providedLiabilities and all other liabilities, howeverobligations or indemnities incurred, that neither Parent nor assumed or retained by Seller under the terms of this Agreement or any Ancillary Agreement (other than the Administrative Services Agreement). Seller shall have not be required to make any indemnification liability under this Agreement unless a claim is timely asserted during the survival period specified in Section 7.1; and provided, further, that neither Parent nor any Seller shall have any indemnification liability under this Agreement unless the aggregate of all Losses for which Parent and Sellers would, but for this proviso, be liable, payments pursuant to this Section 8.1(a10.01(a)(i) exceeds unless and until the aggregate amount of all claims pursuant to Section 10.01(a)(i) shall exceed $15,000,000 on a cumulative basis 250,000 (the “Deductible”"Threshold Amount"), and then only after which Seller shall be responsible for the entire amount of such claims going back to the extent of any such excess; and providedfirst dollar, furtherwithout regard to the Threshold Amount. Notwithstanding anything contained herein to the contrary, that neither Parent nor any Seller shall have any liability under Section 8.1(a)(i) or Section 8.1(a)(ii) for any individual item of Loss that is less than $25,000 (for this purpose any individual item shall include any series of related actions) and such items the Threshold Amount shall not be aggregated applicable to (i) claims for purposes of the second proviso to this Section 8.1(a). In any event, the maximum amount for which Parent and Sellers shall be liable in the aggregate under this Section 8.1(a) shall not exceed 20% of the Purchase Price, as adjusted pursuant to Section 2.3 (the “Indemnification Cap”); and provided, further that the Deductible and the Indemnification Cap shall not apply to or limit Losses arising out of (w) any breach of the representations and warranties of Sellers contained in Section 3.1(a)3.01, Section 3.1(b3.02 and 3.15 and (ii) and Section 3.1(o)claims for indemnification attributable to any active, (x) a claim willful or reckless fraudulent misrepresentation, bad faith or willful misconduct by Seller. Except as set forth above, the Threshold Amount shall not be applicable to indemnification for indemnity the failure to fulfill any covenant or agreement contained herein or in any agreement or other document delivered pursuant to Section 9.1(a), (y) any breach of any of the covenants and agreements of Sellers contained in this Agreement or (z) the Excluded Liabilities. Solely for purposes of determining whether Parent or Sellers are obligated to provide indemnification and the amount of any Losses for which Parent or Sellers shall be liable to the Buyer Indemnified Parties under this Section 8.1(a), each representation and warranty of Sellers contained in this Agreement shall be read without regard and without giving effect to the terms “material,” “in all material respects” or “Company Material Adverse Effecthereof.”

Obligation to Indemnify. (a) Subject to the limitations set forth in this Article VIII, Parent CGNU and each Seller, Sellers jointly and severally, agrees severally agree to indemnify and hold harmless Buyer Buyer, Holdco and its Affiliates, including, after the Closing, the Acquired Companies and the Acquired Company Subsidiaries Newco (the “Buyer Indemnified Parties”), without duplication of recovery) from and against all losses and out-of-pocket losses, liabilities, claims, expenses (including reasonable attorneys’ ' fees and expenses of outside counsel) but not including punitive, exemplary, consequential and all other kinds of special damages (including, without limitation, lost profits and opportunity costs) (“"Losses”") to the extent actually incurred as a result of arising from or related to (i) any breach of the representations and warranties of CGNU and Sellers contained in this Agreement or in the closing certificates delivered pursuant to Sections 6.2(a) and (b) (except that CGNU and Sellers shall not have any liability for a breach of the representations and warranties in Section 3.13.1(k)), (ii) any breach of any of the covenants and agreements of CGNU and Sellers contained in this Agreement or (iii) the Excluded Liabilitiestransactions described in Sections 4.7, 4.8 and 4.9 of this Agreement; providedPROVIDED, howeverHOWEVER, that neither Parent nor any Seller CGNU and Sellers shall not have any indemnification liability under this Agreement unless clause (i) above (other than with respect to fraud or a claim is timely asserted during breach of Sections 3.1(b), 3.1(c), 3.1(d), clause (ii) of Section 3.1(i), the survival period specified in last sentence of Section 7.1; and provided, further, that neither Parent nor any Seller shall have any indemnification liability under this Agreement 3.1(f) or the second sentence of Section 3.1(g)) unless the aggregate of all Losses for which Parent CGNU and Sellers would, but for this proviso, be liable, pursuant to this Section 8.1(a) liable exceeds $15,000,000 on a cumulative basis an amount equal to 2% of the Purchase Price (the “Deductible”"Indemnification Basket"), and then only to the extent of any such excess; and providedPROVIDED, furtherFURTHER, HOWEVER, that neither Parent nor any Seller CGNU and Sellers shall not have any liability under Section 8.1(a)(iclause (i) or Section 8.1(a)(ii) above for any individual item of items where the Loss that relating thereto is less than $25,000 (for this purpose any individual item shall include any series of related actions) 200,000 and such items shall not be aggregated for purposes of the second first proviso to this Section 8.1(a) (other than items arising out of the same breach or the same series of related transactions where the Loss for such items in the aggregate exceeds $200,000). In any event, the maximum amount for which Parent CGNU and Sellers shall be liable in the aggregate under this Section 8.1(a8.1(a)(i) shall not exceed 20% of the Purchase Price, as adjusted pursuant (other than with respect to Section 2.3 (the “Indemnification Cap”); and provided, further that the Deductible and the Indemnification Cap shall not apply to fraud or limit Losses arising out of (w) any a breach of the representations and warranties of Sellers contained in Section 3.1(aSections 3.1(b), Section 3.1(b) and Section 3.1(o3.1(c), (x3.1(d) a claim for indemnity pursuant to Section 9.1(a), (y) any breach of any of the covenants and agreements of Sellers contained in this Agreement or (z) the Excluded Liabilities. Solely for purposes of determining whether Parent or Sellers are obligated to provide indemnification and the amount of any Losses for which Parent or Sellers shall be liable to the Buyer Indemnified Parties under this Section 8.1(a), each representation and warranty of Sellers contained in this Agreement shall be read without regard and without giving effect to the terms “material,” “in all material respects” or “Company Material Adverse Effect.”clause

Obligation to Indemnify. (a) Subject Pursuant to the limitations set forth in Escrow Agreement, certain shareholders (the "ESCROWING SHAREHOLDERS") will escrow a total of 250,000 shares of Parent Common Stock ("ESCROWED SHARES") to be used to satisfy the Company's obligation to indemnify under this Article VIII, Parent and each Seller, jointly and severally, 8. The Company agrees to indemnify and hold harmless Buyer Parent and its Affiliatesrespective officers, includingdirectors, after the Closingemployees, the Acquired Companies accountants, counsel, consultants, advisers and the Acquired Company Subsidiaries agents (the “Buyer Indemnified Parties”), "REPRESENTATIVES") against and agrees to hold each of them harmless from and against all losses and out-of-pocket expenses (including reasonable attorneys’ fees and expenses of outside counsel) but not including punitive, exemplary, consequential any and all other kinds of special damages damage, loss, liability and expense (including, without limitation, lost profits reasonable expenses of investigation and opportunity costs) (“Losses”) reasonable attorney's fees and expenses related to the extent actually matter at issue) including interest ("LOSSES"), incurred as a result of (i) or suffered by them arising out of, based on or in connection with any misrepresentation or breach of warranty, covenant or agreement made or to be performed by the representations and warranties of Sellers contained in Section 3.1, (ii) any breach of any of the covenants and agreements of Sellers contained in this Agreement or (iii) the Excluded LiabilitiesCompany; provided, however, --------- -------- that neither Parent nor any Seller the Company shall not have any indemnification liability for Losses under this Agreement unless a claim is timely asserted during the survival period specified in Section 7.1; and provided, further, that neither Parent nor any Seller shall have any indemnification liability under this Agreement 8.2 unless the aggregate of all Losses for which Parent and Sellers wouldthe Company would be liable, but for this provisoprovision, be liable, pursuant to this Section 8.1(a) exceeds $15,000,000 on a cumulative basis an amount equal to $50,000 (the “Deductible”"INDEMNIFICATION BASKET"), and then only to the extent of any such excess; and provided, further, that neither Parent nor any Seller the Indemnification Basket shall have any liability under Section 8.1(a)(i) or Section 8.1(a)(ii) for not apply to the entire ----- -------- amount of any individual item of Loss that is less greater than $25,000 (for this purpose any individual 25,000, or such other items of Loss that would, when aggregated with each other item shall include any series of related actions) and such items shall not be aggregated for purposes of Loss arising from the second proviso to this Section 8.1(a). In any eventsame underlying facts, events or circumstances, equal or exceed $25,000; and, provided, further, that the maximum amount for which Parent and Sellers the Company --------- -------- shall be liable in the aggregate under this Section 8.1(a) 8.2 shall not exceed 20% the value of the Purchase Price, as adjusted pursuant to Section 2.3 Escrowed Shares (the “Indemnification Cap”"INDEMNIFICATION CAP"); and provided, further that the Deductible and the Indemnification Cap shall not apply to or limit Losses arising out of (w) any breach of the representations and warranties of Sellers contained in Section 3.1(a), Section 3.1(b) and Section 3.1(o), (x) a claim for indemnity pursuant to Section 9.1(a), (y) any breach of any of the covenants and agreements of Sellers contained in this Agreement or (z) the Excluded Liabilities. Solely for purposes of determining whether Parent or Sellers are obligated to provide indemnification and the amount of any Losses for which Parent or Sellers shall be liable to the Buyer Indemnified Parties under this Section 8.1(a), each representation and warranty of Sellers contained in this Agreement shall be read without regard and without giving effect to the terms “material,” “in all material respects” or “Company Material Adverse Effect.”

Obligation to Indemnify. (a) Subject to the expiration of the representations and warranties of the Sellers as provided in Article IX and the limitations set forth in this Article VIIIX, Parent and each Seller, jointly and severally*** with any other Seller, agrees to indemnify and hold harmless Buyer and each of Buyer, its Affiliates, Affiliates (including, after the Closing, the Acquired Companies Transferred Companies), and the Acquired Company Subsidiaries their respective officers, directors, employees, agents and Representatives (collectively, the “Buyer Indemnified PartiesIndemnitees”), ) from and against (i) all losses and out-of-pocket expenses (including reasonable attorneys’ fees and expenses of outside counsel) but not including punitive, exemplary, consequential and all other kinds of special damages (including, without limitation, lost profits and opportunity costs) (“Losses”) Losses to the extent actually incurred as a result of arising from or related to (ix) any breach of the representations and warranties of Sellers such Seller contained in Section 3.1, (ii) any breach Article III of any of the covenants and agreements of Sellers contained in this Agreement or (iii) the Excluded Liabilities; provideddetermined, however, that neither Parent nor any Seller shall have any indemnification liability under this Agreement unless a claim is timely asserted during the survival period specified in Section 7.1; and provided, further, that neither Parent nor any Seller shall have any indemnification liability under this Agreement unless the aggregate of all Losses for which Parent and Sellers would, but for this proviso, be liable, pursuant to this Section 8.1(a) exceeds $15,000,000 on a cumulative basis (the “Deductible”), and then only to the extent of any such excess; and provided, further, that neither Parent nor any Seller shall have any liability under Section 8.1(a)(i) or Section 8.1(a)(ii) for any individual item of Loss that is less than $25,000 (for this purpose any individual item shall include any series of related actions) and such items shall not be aggregated for purposes of the second proviso to this Section 8.1(a10.1(a). In , without regard to any event, the maximum amount for which Parent and Sellers shall be liable qualifications or references to “Seller Material Adverse Effect,” “material,” or any other materiality qualifications or references contained in the aggregate under this Section 8.1(a) shall not exceed 20% of the Purchase Price, as adjusted pursuant to Section 2.3 (the “Indemnification Cap”any specific representation or warranty); and provided, further that the Deductible and the Indemnification Cap shall not apply to or limit Losses arising out of (w) any breach of the representations and warranties of Sellers contained in Section 3.1(a), Section 3.1(b) and Section 3.1(o), (x) a claim for indemnity pursuant to Section 9.1(a), (y) any breach of any of the covenants and agreements of Sellers such Seller contained in this Agreement or that survive the Closing, and (zii) *** any Losses to the Excluded Liabilities. Solely extent arising from any breach of the representations and warranties of the Company contained in Article IV of this Agreement (determined, for purposes of determining whether Parent or Sellers are obligated to provide indemnification and the amount of any Losses for which Parent or Sellers shall be liable to the Buyer Indemnified Parties under this Section 8.1(a10.1(a), each representation and warranty of Sellers contained in this Agreement shall be read without regard and without giving effect to the terms “material,” “in all material respects” any qualifications or references to “Company Material Adverse Effect,” “material,” or any other materiality qualifications or references contained in any specific representation or warranty, other than the reference to “Company Material Adverse Effect” in Section 4.6); provided, however, that no Seller shall have any Liability under Section 10.1(a)(ii) unless the aggregate of all Losses for which such Seller would, but for this proviso, be liable, exceeds on a cumulative basis an amount equal to *** percent (***%) of *** the Final Purchase Price, and then ***; provided, further, that no Seller shall have any Liability under Section 10.1(a)(i)(x) or Section 10.1(a)(ii) above for (x) *** or (y) any breach of Section ***, Section *** or Section ***, which shall be governed by Article XI. In any event, subject to the last sentence of this paragraph, the maximum amount for which any Seller shall be Liable in the aggregate under Section 10.1(a)(ii) shall not exceed *** percent (***%) of such Seller's Escrow Percentage of the Final Purchase Price (the “Cap”) and the maximum amount for which any Seller shall be Liable in the aggregate under Section 10.1(a)(i)(x) shall not exceed *** percent (***%) of *** the Final Purchase Price. For the avoidance of doubt, any Losses which are subject to the ***% indemnity deductible or *** described in this Section 10.1(a) shall not be counted toward the Cap. The Liabilities of any Seller under Section 10.1(a)(ii) that arise as a result of any breach of the representations and warranties contained in Section 4.17 shall not count towards the Cap, except to the extent such Liabilities exceed *** percent (***%) of *** the Final Purchase Price.”

Obligation to Indemnify. (a) Subject From and after the Closing, and subject to the limitations set forth in this Article VIIIXI, Parent and each Seller, jointly FGWLA and severallyCLAC (it being understood that FGWLA and CLAC shall each only be liable under this Section 11.01(a) for matters relating specifically to it, agrees but that Seller shall be liable for all indemnification provided for by this Section 11.01(a)), agree to indemnify and hold harmless Buyer Purchaser and its Affiliatesdirectors, includingofficers, after the Closingemployees, the Acquired Companies agents, representatives, and the Acquired Company Subsidiaries (the “Buyer Indemnified Parties”), Affiliates from and against all losses and out-of-pocket losses, liabilities, claims, expenses (including reasonable attorneys’ fees and expenses of outside counselexpenses) and damages but not including excluding lost profits or any punitive, exemplary, consequential and all other kinds of special or similar damages (including, without limitation, other than lost profits or any punitive, exemplary, consequential or similar damages actually paid to a third party in a Third Party Claim and opportunity costslost profits not paid to a third party in a Third Party Claim to the extent set forth in Section 11.01(c)) (“Losses”) (to the extent actually incurred as a result exceeding reserves, if any, with respect to such particular Losses reflected in the Final Statement of Assets and Liabilities and Final Net Worth Statement) to the extent arising from or related to (i) any breach of the representations and warranties of Sellers Seller, FGWLA and CLAC contained in Section 3.1this Agreement (determined without regard to any qualifications as to materiality (including Sellers Material Adverse Effect) therein), (ii) any breach of any of the covenants and agreements of Sellers Seller, FGWLA or CLAC contained in this Agreement or which covenants and agreements survive the Closing, (iii) the Excluded Liabilities, (iv) the Subsidiary Indemnified Liabilities or (v) Continued Practices; provided, however, that neither Parent nor any Seller none of Seller, FGWLA or CLAC shall have any indemnification liability under clause (i) or clause (v) of this Agreement unless a claim is timely asserted during the survival period specified in Section 7.1; and provided, further, that neither Parent nor any Seller shall have any indemnification liability under this Agreement 11.01(a) or Section 12.01(a)(v) unless the aggregate of all Losses under clause (i) or clause (v) of this Section 11.01(a) or Section 12.01(a)(v) for which Parent and Sellers Seller, FGWLA or CLAC (taken together) would, but for this proviso, be liable, pursuant liable exceeds an amount equal to this Section 8.1(a) exceeds $15,000,000 on a cumulative basis (.75% of the “Deductible”)Purchase Price, and then only to the extent of any such excess; and provided, further, that neither Parent nor any Seller shall have any liability under Section 8.1(a)(i) or Section 8.1(a)(ii) for any individual item of Loss that is less than $25,000 (for this purpose any individual item shall include any series of related actions) and such items shall not be aggregated for purposes of the second proviso to this Section 8.1(a). In any event, notwithstanding anything in this Agreement to the contrary, the maximum amount for which Parent Seller, FGWLA and Sellers CLAC shall be liable with respect to breaches described in the aggregate clause (i) or clause (v) above under this Section 8.1(a11.01(a) or Section 12.01(a)(v) shall not exceed 20in the aggregate, an amount equal to 50% of the Purchase Price. The obligations of Seller, as adjusted pursuant to Section 2.3 (the “Indemnification Cap”); FGWLA and provided, further that the Deductible and the Indemnification Cap shall not apply to or limit Losses arising out of (w) any breach of the representations and warranties of Sellers contained in Section 3.1(a), Section 3.1(b) and Section 3.1(o), (x) a claim for indemnity pursuant to Section 9.1(a), (y) any breach of any of the covenants and agreements of Sellers contained in this Agreement or (z) the Excluded Liabilities. Solely for purposes of determining whether Parent or Sellers are obligated to provide indemnification and the amount of any Losses for which Parent or Sellers shall be liable to the Buyer Indemnified Parties CLAC under this Section 8.1(a)11.01 are in addition to their obligations under the Ancillary Agreements, each representation except as provided therein. The obligation of Seller, FGWLA and warranty CLAC under clause (i) of Sellers contained in this Agreement Section 11.01(a) with respect to any violation of Law after the Closing by Purchaser or any of its Affiliates (including the Seller Subsidiaries) that is a continuation of any policy or regular practice of Seller, FGWLA, CLAC or a Seller Subsidiary that existed prior to the Closing and is carried out by or under the supervision of Business Employees, Corporate Employees or Subsidiary Employees on behalf of Purchaser or its Affiliates shall be read without regard and without giving effect limited to the terms “material,” “in all material respects” or “Company Material Adverse Effecttheir liability under clause (v) of this Section 11.01(a).”

Obligation to Indemnify. (a) Subject to the expiration of the representations and warranties of the parties as provided in Article X and the limitations set forth in this Article VIIIXI, Parent and each Seller, jointly and severally, Seller agrees to indemnify indemnify, defend and hold harmless Buyer and its Affiliates, Affiliates (including, after the Closing, the Acquired Companies Company and the Acquired Company Subsidiaries Dxxxx), and their respective directors, officers, employees, agents, representatives, successors and assigns, without duplication (the “Buyer Indemnified Parties,” and individually a “Buyer Indemnified Party”), from and against all losses and out-of-pocket expenses (including reasonable attorneys’ fees and expenses of outside counsel) but not including punitive, exemplary, consequential and all other kinds of special damages (Liabilities including, without limitation, lost profits all costs, expenses, fines, orders, penalties and opportunity costs) reasonable outside attorneys’ fees and disbursements (collectively, “Buyer Losses,” and individually a “Buyer Loss”) to the extent actually incurred as a result or suffered by any of them, directly or indirectly, by reason of or arising out of or in connection with (i) any breach of any of the representations and warranties of Seller contained in this Agreement (including without limitation any breach of the representations and warranties of Seller contained in Section 3.15 or Section 3.22) or in any certificate or other document delivered pursuant hereto, (ii) any breach of the representations and warranties of Sellers Seller contained in Section 3.13.15 or Section 3.22, without regard to any knowledge qualifications contained therein, (iiiii) any breach of any of the covenants and agreements of Sellers Seller contained in this Agreement or and (iiiiv) those Actions set forth on Schedule 3.05, to the Excluded Liabilitiesextent such Buyer Losses exceed, in the aggregate, the litigation reserves reflected in the calculation of the Final Cash Consideration; provided, however, that neither Parent nor any the Buyer Indemnified Parties shall be entitled to indemnification under Section 11.01(a)(i) and Section 11.01(a)(ii) for breach of representations and warranties made by Seller shall have any indemnification liability under this Agreement unless a claim is timely asserted during the survival period specified in Section 7.1; and provided, further, that neither Parent nor any Seller shall have any indemnification liability under this Agreement unless Article III only when the aggregate amount of all Buyer Losses for which Parent arising therefrom and Sellers wouldAllocated Tax Losses exceed, but for this provisoin the aggregate, be liable, pursuant to this Section 8.1(a) exceeds $15,000,000 on a cumulative basis 500,000 (the “DeductibleBasket Amount”), in which case the Buyer Indemnified Parties shall be entitled to indemnification for such Buyer Losses equal to fifty percent (50%) of such Buyer Losses and then only Allocated Tax Losses below the Basket Amount (i.e. $250,000) and, subject to the extent other provisions of any such excess; and providedthis Agreement, further, that neither Parent nor any Seller shall have any liability under Section 8.1(a)(i) or Section 8.1(a)(ii) for any individual item of Loss that is less than $25,000 (for this purpose any individual item shall include any series of related actions) and such items shall not be aggregated for purposes all Buyer Losses in excess of the second proviso Basket Amount. Notwithstanding anything else contained herein to this Section 8.1(a). In any eventthe contrary, the maximum amount for which Parent and Sellers Seller shall be liable under Section 11.01(a)(i) and Section 11.01(a)(ii) and for Allocated Tax Losses shall not exceed in the aggregate under this Section 8.1(aan amount equal to the Purchase Price (the “Cap”); provided, that the maximum amount for which Seller shall be liable with respect to breaches of the representations and warranties made by it herein (other than breaches of the representations and warranties contained in Sections 3.02 (Authorization), 3.04 (Stock Ownership; Subsidiaries), 3.05 (Actions Pending), 3.12 (Taxes), 3.13 (Employee Benefit Matters) and 3.22 (Market Conduct)) shall not exceed 20% be in the aggregate an amount equal to fifty percent (50%) of the Purchase Price. For the purpose of clarity, as adjusted pursuant nothing in this Section 11.01(a) shall be interpreted to Section 2.3 (the “Indemnification Cap”); and provided, further that the Deductible and the Indemnification Cap shall not apply to or limit Losses arising out of (w) any breach impose liability on Seller for breaches of the representations and warranties of Sellers Seller under Article III and Allocated Tax Losses in an aggregate amount greater than the Purchase Price. The indemnification obligations of Seller contained in under Section 3.1(a), Section 3.1(b11.01(a)(ii) and Section 3.1(o), (x) shall expire on a date 18 months after the Closing Date unless a claim for indemnity pursuant thereunder shall have been given by Buyer to Section 9.1(a)Seller prior to the expiration of said 18 month period, (y) any breach of any in which event such indemnification obligation shall survive to the extent of the covenants and agreements of Sellers contained in this Agreement or (z) the Excluded Liabilities. Solely for purposes of determining whether Parent or Sellers are obligated to provide indemnification and the amount of any Losses for which Parent or Sellers shall be liable to the Buyer Indemnified Parties under this Section 8.1(a), each representation and warranty of Sellers contained in this Agreement shall be read without regard and without giving effect to the terms “material,” “in all material respects” or “Company Material Adverse Effectclaim until such claim has been resolved.”

Obligation to Indemnify. (a) Subject to the limitations set forth in this Article VIIIterms and conditions hereof, Parent and each SellerSellers agree to indemnify, jointly and severally, agrees to indemnify defend and hold harmless Buyer and its directors, officers, employees, Affiliates, including, after the Closing, the Acquired Companies stockholders and the Acquired Company Subsidiaries permitted assigns (the “Buyer Buyer’s Indemnified Parties”)) for, from and against all losses and out-will pay to Buyer Indemnified Parties the amount of-pocket , any loss, liability, claim, damages, reasonable expenses (including reasonable attorneys’ fees and expenses of outside counsel) but not including punitivecollectively, exemplary, consequential and all other kinds of special damages (including, without limitation, lost profits and opportunity costs) (“LossesDamages”) to the extent actually incurred as a result resulting from or arising out of (i) any breach Breach of any representation or warranty made by the representations and warranties Company in Article 3 of Sellers contained in Section 3.1, this Agreement; (ii) any breach Breach of any covenant or agreement of the covenants and agreements of Sellers any Seller contained in this Agreement or Agreement; (iii) any and all amounts of federal, state, and or local income taxes that may be assessed against Buyer and/or the Excluded LiabilitiesCompany with respect to any Pre-Closing Taxable Period(s) for which adequate provisions therefore have not been made through the Closing Date, as reflected on the Company’s books of account and in the Closing Balance Sheet and the amount(s) of any interest and/or penalties that may be assessed with respect to said tax assessments; providedand (iv) to the extent occurring prior to Closing, howeverany violation of applicable Environmental Laws and any licenses or permits related thereto by the Company or, that neither Parent nor any Seller the Release or Threatened Release in, at, under, from, or on the Facilities of toxic or hazardous substances during the ownership or occupancy thereof by the Company which resulted in an Environmental Liability. Notwithstanding the foregoing, (i) Sellers shall not have any indemnification liability under this Agreement unless a claim is timely asserted during the survival period specified in Section 7.1; 5.1(a)(i), (a)(ii) and provided, further, that neither Parent nor any Seller shall have any indemnification liability under this Agreement 5.1(b) unless the aggregate of all Losses for which Parent and Sellers wouldDamages relating thereto exceeds, but for this proviso, be liable, pursuant to this Section 8.1(a) exceeds $15,000,000 on a cumulative basis basis, Two Hundred Fifty Thousand Dollars ($250,000) (the “DeductibleBasket”), and then only to the extent of any such excess; , and provided(ii) Sellers’ aggregate liability under Section 5.1(a)(i) and (a)(ii) shall in no event exceed Three Million Dollars ($3,000,000) (the “Ceiling”). Provided, however, that a breach of warranties set forth in Sections 3.27 and the covenant in Section 6.1 shall not be subject to the Basket or to the Ceiling but rather, for purposes of clarification, Sellers shall be liable to Buyers for the first dollar thereof and the Buyer shall not be limited to $3,000,000 of damages. Provided, further, however, that neither Parent nor any liability of the Sellers under Section 5.1(a)(i) shall be several in nature only, so that each Seller’s proportionate share of such liability for such Damages shall not exceed the amount determined by multiplying such aggregate Damages indemnifiable under Section 5.1(a)(i) (in excess of the Basket and up to a maximum of the Ceiling, less any amounts theretofore paid under Section 5.1(a)(i) or (ii)) in respect of such claim by such Seller’s Securities Ownership Percentage. In addition, no Seller shall have any liability under Section 8.1(a)(i5.1(a)(ii) or Section 8.1(a)(ii) above except for any individual item of Loss that the Seller who is less than $25,000 (for this purpose any individual item shall include any series of related actions) and such items shall not be aggregated for purposes of the second proviso to this Section 8.1(a). In any event, the maximum amount for which Parent and Sellers shall be liable in the aggregate under this Section 8.1(a) shall not exceed 20% of the Purchase Price, as adjusted pursuant to Section 2.3 (the “Indemnification Cap”); and provided, further that the Deductible and the Indemnification Cap shall not apply to or limit Losses arising out of (w) any breach of the representations and warranties of Sellers contained covenant or covenants referred to in Section 3.1(a5.1(a)(ii), Section 3.1(b) and Section 3.1(o), (x) a claim for indemnity pursuant to Section 9.1(a), (y) any breach of any of the covenants and agreements of Sellers contained in this Agreement or (z) the Excluded Liabilities. Solely for purposes of determining whether Parent or Sellers are obligated to provide indemnification and the amount of any Losses for which Parent or Sellers shall be liable to the Buyer Indemnified Parties under this Section 8.1(a), each representation and warranty of Sellers contained in this Agreement shall be read without regard and without giving effect to the terms “material,” “in all material respects” or “Company Material Adverse Effect.”

Obligation to Indemnify. (a) Subject to the expiration of the representations and warranties, covenants and agreements of Seller as provided in Section 8.1, and the limitations set forth in this Article VIIISection 8.2(a) and Section 8.3 below, Parent and each Seller, jointly and severally, Seller agrees to indemnify and hold harmless Buyer and its Affiliates, including, after the ClosingBuyer, the Acquired Companies Company, USIS and the Acquired Company Subsidiaries their respective Affiliates and Representatives (collectively, the “Buyer Indemnified Parties”), ) from and against all losses and out-of-pocket expenses (including reasonable attorneys’ fees and expenses of outside counsel) but not including punitive, exemplary, consequential and all other kinds of special damages (including, without limitation, lost profits and opportunity costs) (“Losses”) to the extent actually incurred as a result of Losses resulting from or arising in connection with (i) any breach of the representations and warranties of Sellers Seller contained in this Agreement (other than the representations and warranties contained in Section 3.13.11), (ii) any breach of any of the covenants and agreements of Sellers Seller contained in this Agreement or and (iii) the any Excluded LiabilitiesLiability; provided, however, that neither Parent nor any Seller shall not have any indemnification liability under this Agreement unless a claim is timely asserted during clause (i) above (other than in connection with any breach of the survival period specified in Section 7.1; and provided, further, that neither Parent nor any Seller shall have any indemnification liability under this Agreement Specified Representations) unless the aggregate of all Losses for which Parent and Sellers Seller would, but for this proviso, be liableliable under this Agreement, pursuant to this Section 8.1(a) exceeds $15,000,000 on a cumulative basis an amount equal to $500,000 (the “DeductibleIndemnification Basket”), and then only after which the Buyer Indemnified Parties shall be entitled to receive the extent entire amount of any such excessLosses, including the Indemnification Basket; provided, further, however, that Seller shall not have any liability under clause (i) above for any individual items (or series of related claims arising from substantially the same or related underlying facts, events or circumstances) where the Loss relating thereto is less than $35,000; and provided, further, however, that neither Parent nor any Seller shall have any liability under Section 8.1(a)(i) or Section 8.1(a)(ii) for any individual item of Loss that is less than $25,000 (for this purpose any individual item shall include any series of related actions) and such items shall not be aggregated for purposes of determining any breach of the second proviso representations and warranties of Seller, any qualification or references to this Section 8.1(a)“Company Material Adverse Effect,” “material,” “materially” or other materiality qualifications or references contained in such representation or warranty shall be disregarded. In any event, the maximum amount for which Parent and Sellers Seller shall be liable in the aggregate under this Section 8.1(a8.2(a)(i) (other than in connection with any breach of the Seller Specified Representations) shall not exceed 20% of the Purchase Price, as adjusted pursuant to Section 2.3 $15,000,000 (the “Indemnification Cap”); and provided, further that the Deductible and the Indemnification Cap shall not apply to or limit Losses arising out of (w) any breach of the representations and warranties of Sellers contained in Section 3.1(a), Section 3.1(b) and Section 3.1(o), (x) a claim for indemnity pursuant to Section 9.1(a), (y) any breach of any of the covenants and agreements of Sellers contained in this Agreement or (z) the Excluded Liabilities. Solely for purposes of determining whether Parent or Sellers are obligated to provide indemnification and the amount of any Losses for which Parent or Sellers shall be liable to the Buyer Indemnified Parties under this Section 8.1(a), each representation and warranty of Sellers contained in this Agreement shall be read without regard and without giving effect to the terms “material,” “in all material respects” or “Company Material Adverse Effect.”

Obligation to Indemnify. (a) a. Subject to the limitations set forth in this Article VIIIX, Parent if the Closing occurs, the LLC Seller agrees, and the Trust Sellers agree to cause each SellerTrust, jointly and severally, agrees to indemnify indemnify, defend and hold harmless Buyer the Purchaser and its directors, officers, employees, Affiliates, includingsuccessors, after the Closingpermitted assigns, agents and representatives (collectively, the Acquired Companies and the Acquired Company Subsidiaries (the “Buyer Indemnified PartiesPurchaser Indemnitees”), ) from and against all losses and out-of-pocket expenses (including reasonable attorneys’ fees and expenses of outside counsel) but not including punitive, exemplary, consequential and all other kinds of special damages (including, without limitation, lost profits and opportunity costs) (“Losses”) to the extent actually incurred as a result of Losses resulting from: (i) any breach of any of the representations and warranties of Sellers contained in Section 3.1Article IV (other than the representations and warranties in Sections 4.9(k) and 4.17; provided, however, that in determining whether and the extent to which the Purchaser Indemnitees are entitled to indemnification, all references in any representation or warranty to materiality, Material Adverse Effect, substantial compliance or dollar threshold shall be ignored and, provided, further, that Sections 4.9(k) and 4.17 are only subject to the indemnification provisions of Sections 9.4 and 9.5; 77 and (ii) any breach of any of the covenants and agreements of Sellers contained in this Agreement or (iii) the Excluded LiabilitiesAgreement; provided, however, that neither Parent nor any Seller shall have any indemnification liability under this Agreement unless a claim is timely asserted during the survival period specified in Section 7.1; and provided, further, that neither Parent nor any Seller shall have any indemnification liability under this Agreement unless the aggregate of all Losses for which Parent and Sellers would, but for this proviso, be liable, pursuant to this Section 8.1(a) exceeds $15,000,000 on a cumulative basis (the “Deductible”), and then only to the extent of any such excess; and provided, further, that neither Parent nor any Seller shall have any liability under Section 8.1(a)(i) or Section 8.1(a)(ii) for any individual item of Loss that is less than $25,000 (for this purpose any individual item shall include any series of related actions) and such items shall not be aggregated for purposes of the second proviso to this Section 8.1(a). In any event, the maximum amount for which Parent and Sellers no Shareholder shall be liable in the aggregate under this Section 8.1(a) shall not exceed 20% of the Purchase Price, as adjusted pursuant to Section 2.3 (the “Indemnification Cap”); and provided, further that the Deductible and the Indemnification Cap shall not apply to or limit for any Losses arising out of (w) any a breach of the representations representation and warranties of Sellers warranty contained in Section 3.1(a), Section 3.1(b4.1 relating to the Shares of another Shareholder. The indemnification obligations of the Shareholders for Losses pursuant to clauses (a)(i) and (a)(ii) of this Section 3.1(o), (x) a claim for indemnity 10.2 shall be payable by the Shareholders solely out of the Escrow Amount pursuant to Section 9.1(a)the Escrow Agreement, (y) which shall be the sole and exclusive source of payment for any such indemnification obligation, except for any Loss resulting from the breach of any of a representation or warranty set forth in Sections 4.1, 4.2, 4.3, 4.4 and 4.5 which, after the covenants and agreements of Sellers contained in this Agreement or (z) the Excluded Liabilities. Solely for purposes of determining whether Parent or Sellers are obligated to provide indemnification and the amount of any Losses for which Parent or Sellers shall be liable entire Escrow Amount has been disbursed pursuant to the Buyer Indemnified Parties under this Escrow Agreement, shall also entitle a Purchaser Indemnitee to indemnification from Remainco as provided in Section 8.1(a), each representation and warranty of Sellers contained in this Agreement shall be read without regard and without giving effect to the terms “material,” “in all material respects” or “Company Material Adverse Effect10.6 hereof.”

Obligation to Indemnify. (a) Subject From and after the Closing, and subject to the limitations set forth in this Article VIIIXI, Parent and each Seller, jointly FGWLA and severallyCLAC (it being understood that FGWLA and CLAC shall each only be liable under this Section 11.01(a) for matters relating specifically to it, agrees but that Seller shall be liable for all indemnification provided for by this Section 11.01(a)), agree to indemnify and hold harmless Buyer Purchaser and its Affiliatesdirectors, includingofficers, after the Closingemployees, the Acquired Companies agents, representatives, and the Acquired Company Subsidiaries (the “Buyer Indemnified Parties”), Affiliates from and against all losses and out-of-pocket losses, liabilities, claims, expenses (including reasonable attorneys’ fees and expenses of outside counselexpenses) and damages but not including excluding lost profits or any punitive, exemplary, consequential and all other kinds of special or similar damages (including, without limitation, other than lost profits or any punitive, exemplary, consequential or similar damages actually paid to a third party in a Third Party Claim and opportunity costslost profits not paid to a third party in a Third Party Claim to the extent set forth in Section 11.01(c)) (“LossesLosses ”) (to the extent exceeding reserves, if any, with respect to such particular Losses reflected in the Final Statement of Assets and Liabilities and Final Net Worth Statement) to the extent actually incurred as a result of arising from or related to (i) any breach of the representations and warranties of Sellers Seller, FGWLA and CLAC contained in Section 3.1this Agreement (determined without regard to any qualifications as to materiality (including Sellers Material Adverse Effect) therein), (ii) any breach of any of the covenants and agreements of Sellers Seller, FGWLA or CLAC contained in this Agreement or which covenants and agreements survive the Closing, (iii) the Excluded Liabilities, (iv) the Subsidiary Indemnified Liabilities or (v) Continued Practices; providedprovided , howeverhowever , that neither Parent nor any Seller none of Seller, FGWLA or CLAC shall have any indemnification liability under clause (i) or clause (v) of this Agreement unless a claim is timely asserted during the survival period specified in Section 7.1; and provided, further, that neither Parent nor any Seller shall have any indemnification liability under this Agreement 11.01(a) or Section 12.01(a)(v) unless the aggregate of all Losses under clause (i) or clause (v) of this Section 11.01(a) or Section 12.01(a)(v) for which Parent and Sellers Seller, FGWLA or CLAC (taken together) would, but for this proviso, be liable, pursuant liable exceeds an amount equal to this Section 8.1(a) exceeds $15,000,000 on a cumulative basis (.75% of the “Deductible”)Purchase Price, and then only to the extent of any such excess; and provided, further, that neither Parent nor any Seller shall have any liability under Section 8.1(a)(i) or Section 8.1(a)(ii) for any individual item of Loss that is less than $25,000 (for this purpose any individual item shall include any series of related actions) and such items shall not be aggregated for purposes of the second proviso to this Section 8.1(a). In any event, notwithstanding anything in this Agreement to the contrary, the maximum amount for which Parent Seller, FGWLA and Sellers CLAC shall be liable with respect to breaches described in the aggregate clause (i) or clause (v) above under this Section 8.1(a11.01(a) or Section 12.01(a)(v) shall not exceed 20in the aggregate, an amount equal to 50% of the Purchase Price. The obligations of Seller, as adjusted pursuant to Section 2.3 (the “Indemnification Cap”); FGWLA and provided, further that the Deductible and the Indemnification Cap shall not apply to or limit Losses arising out of (w) any breach of the representations and warranties of Sellers contained in Section 3.1(a), Section 3.1(b) and Section 3.1(o), (x) a claim for indemnity pursuant to Section 9.1(a), (y) any breach of any of the covenants and agreements of Sellers contained in this Agreement or (z) the Excluded Liabilities. Solely for purposes of determining whether Parent or Sellers are obligated to provide indemnification and the amount of any Losses for which Parent or Sellers shall be liable to the Buyer Indemnified Parties CLAC under this Section 8.1(a)11.01 are in addition to their obligations under the Ancillary Agreements, each representation except as provided therein. The obligation of Seller, FGWLA and warranty CLAC under clause (i) of Sellers contained in this Agreement Section 11.01(a) with respect to any violation of Law after the Closing by Purchaser or any of its Affiliates (including the Seller Subsidiaries) that is a continuation of any policy or regular practice of Seller, FGWLA, CLAC or a Seller Subsidiary that existed prior to the Closing and is carried out by or under the supervision of Business Employees, Corporate Employees or Subsidiary Employees on behalf of Purchaser or its Affiliates shall be read without regard and without giving effect limited to the terms “material,” “in all material respects” or “Company Material Adverse Effecttheir liability under clause (v) of this Section 11.01(a).”

Obligation to Indemnify. (a) Subject to the limitations set forth in this Article VIIIIX, Parent and each Seller, jointly and severally, Seller agrees to indemnify and hold harmless Buyer and its AffiliatesAffiliates (including the Company and Company Subsidiaries), includingand their respective directors, after the Closingofficers, the Acquired Companies employees, successors and the Acquired Company Subsidiaries assigns (the “"Buyer Indemnified Parties”), ") from and against all losses and out-of-pocket expenses (including reasonable attorneys’ ' fees and expenses of outside counselcounsel and irrespective of whether or not such losses and expenses arise out of or in connection with a Third Party Claim) but not including punitive, exemplaryconsequential, consequential and all other kinds of special damages and Taxes or any amounts related to any claim for an indemnity based on or relating to Taxes (including, without limitation, lost profits and opportunity costs) (“"Losses”") to the extent actually incurred as a result of of, based upon, or in connection with (i) any breach failure of the representations and warranties of Sellers Seller contained in Section 3.1this Agreement to be true and correct as of the date hereof and as of the First Closing Date, and to the extent and only to the extent they apply to FFSB and/or the FFSB Closing, the FFSB Closing Date, (ii) any breach of any of the covenants and agreements of Sellers Seller contained in this Agreement or Agreement, (iii) liability incurred under Title IV of ERISA with respect to any pension plan maintained or contributed to by Seller or any corporation, trade or business under common control or treated as a single employer with Seller, (iv) the Excluded LiabilitiesAssets, or (v) any failure by BCC to satisfy its obligations to The Forethought Group, Inc. under the Assignment and Assumption Agreement; provided, however, that neither Parent nor any Seller shall not have any indemnification liability for Losses under this Agreement unless a claim is timely asserted during the survival period specified in Section 7.1; and provided, further, that neither Parent nor any Seller shall have any indemnification liability under this Agreement except as otherwise provided herein unless the aggregate of all Losses for which Parent and Sellers Seller would, but for this proviso, be liable, pursuant to this Section 8.1(a) liable exceeds $15,000,000 on a cumulative basis an amount equal to $5,500,000 (the “Deductible”"Indemnification Basket"), and then only to the extent of any such excessLosses exceed $1,500,000; and provided, further, that neither Parent nor any Seller shall not have any liability for indemnification under Section 8.1(a)(i) or Section 8.1(a)(ii) this Agreement for any individual item of Loss that is less than $25,000 (for this purpose any individual unless such item shall include any series of related actions) and such items shall not be Loss would, when aggregated for purposes with each other item of Loss arising from the second proviso to this Section 8.1(asame underlying facts, events or circumstances, equals or exceeds $25,000). In any event, the The maximum amount for which Parent and Sellers Seller shall be liable in the aggregate under this Section 8.1(a9.1(a) shall not exceed 20% of the Purchase Price, as adjusted pursuant to Section 2.3 $90,000,000 (the “"Indemnification Cap”"); and provided. Notwithstanding the foregoing, further that neither the Deductible and Indemnification Basket nor the Indemnification Cap shall not apply to claims for Losses as a result of, based upon, or limit Losses arising out of in connection with (wi) any breach of any of the representations and warranties of Sellers contained in Section Sections 3.1(a), Section 3.1(b), 3.1(c), 3.1(d) and Section 3.1(o3.1(bb), (x) a claim for indemnity pursuant to Section 9.1(a), (yii) any breach of any of the covenants and agreements of Sellers Seller contained in this Agreement Agreement, (iii) liability incurred under Title IV of ERISA with respect to any pension plan maintained or contributed to by Seller or any corporation, trade or business under common control or treated as a single employer with Seller, (ziv) the Excluded Liabilities. Solely for purposes of determining whether Parent or Sellers are obligated Assets and (v) any failure by BCC to provide indemnification satisfy its obligations to The Forethought Group, Inc. under the Assignment and the amount of any Losses for which Parent or Sellers shall be liable to the Buyer Indemnified Parties under this Section 8.1(a), each representation and warranty of Sellers contained in this Agreement shall be read without regard and without giving effect to the terms “material,” “in all material respects” or “Company Material Adverse EffectAssumption Agreement.”

Obligation to Indemnify. (a) Subject BUYC agrees to and do hereby indemnify, and agree to defend and hold Northeast and the limitations set forth in this Article VIIISurviving Corporation and their respective directors, Parent officers, employees, fiduciaries, agents and affiliates, and each Sellerother person, jointly if any, who controls such persons, harmless against any claims, actions, suits, proceedings, investigations, losses, expenses, damages, obligations, liabilities, judgments, fines, fees, costs and severally, agrees to indemnify and hold harmless Buyer and its Affiliates, including, after the Closing, the Acquired Companies and the Acquired Company Subsidiaries (the “Buyer Indemnified Parties”), from and against all losses and out-of-pocket expenses (including costs and reasonable attorneys’ fees ' fees) and expenses amounts paid in settlement of outside counselany pending, threatened or completed claim, action, suit, proceeding or investigation (collectively "Loss" or "Losses") but not including punitive, exemplary, consequential and all other kinds of special damages (including, without limitation, lost profits and opportunity costs) (“Losses”) which arise or result from or are related to the extent actually incurred as a result of (i) any breach or failure of the representations and warranties BUYC to perform any of Sellers contained in Section 3.1their covenants or agreements set forth herein, (ii) any breach the inaccuracy of any representation or warranty made by BUYC herein, (iii) any fixed or contingent obligation or liability of BUYC (including but not limited to liabilities arising in tort, contract, guarantees and indemnities) which existed as of the covenants Closing Date and agreements would be required by GAAP to be disclosed on BUYC's financial statements, or in the notes thereto, and is not so disclosed prior to Closing, and (iv) any liability for Taxes, other than those which are accrued as liabilities of Sellers contained BUYC, together with interest and penalties and additions to tax, if any, arising out of tax assessments. No liability shall attach under this Section 9.02, however, until Northeast has incurred a Loss or Losses in this Agreement the aggregate totaling fifty thousand dollars ($50,000) and no claim shall be asserted by Northeast after one year in the case of claims asserted on the basis of clause (i), two years in the case of a claim asserted on the basis of clauses (ii) or (iii) the Excluded Liabilities; provided, however, that neither Parent nor any Seller shall have any indemnification liability under this Agreement unless a claim is timely asserted during the survival period specified in Section 7.1; and provided, further, that neither Parent nor any Seller shall have any indemnification liability under this Agreement unless the aggregate of all Losses for which Parent and Sellers would, but for this proviso, be liable, pursuant to this Section 8.1(a) exceeds $15,000,000 on a cumulative basis (the “Deductible”), and then only to the extent of any such excess; and provided, further, that neither Parent nor any Seller shall have any liability under Section 8.1(a)(i) or Section 8.1(a)(ii) for any individual item of Loss that is less than $25,000 (for this purpose any individual item shall include any series of related actions) and such items shall not be aggregated for purposes of the second proviso to this Section 8.1(a). In any event, the maximum amount for which Parent and Sellers shall be liable no time limitation in the aggregate under this Section 8.1(a) shall not exceed 20% case of the Purchase Price, as adjusted pursuant to Section 2.3 (the “Indemnification Cap”); and provided, further that the Deductible and the Indemnification Cap shall not apply to or limit Losses arising out of (w) any breach of the representations and warranties of Sellers contained in Section 3.1(a), Section 3.1(b) and Section 3.1(o), (x) a claim for indemnity pursuant to Section 9.1(aasserted on the basis of clause (iv), (y) any breach of any of the covenants and agreements of Sellers contained in this Agreement or (z) the Excluded Liabilities. Solely for purposes of determining whether Parent or Sellers are obligated to provide indemnification and the amount of any Losses for which Parent or Sellers shall be liable to the Buyer Indemnified Parties under this Section 8.1(a), each representation and warranty of Sellers contained in this Agreement shall be read without regard and without giving effect to the terms “material,” “in all material respects” or “Company Material Adverse Effect.”