Common use of Limitation on Indemnities Clause in Contracts

Limitation on Indemnities. Notwithstanding any other provision hereof, the rights of any party to be indemnified shall be subject to the following limitations: (a) With respect to the indemnification obligations of Seller pursuant Section 11.2(a), Seller shall not be obligated to indemnify Buyer or its Insiders (or any one of them) under Section 11.2(a), unless the claim is submitted within the period of survival set forth in Section 11.1 hereof, and (x) unless the aggregate of all Losses for which Seller would, but for this clause (x), be liable under Section 11.2(a) exceeds on a cumulative basis $100,000, at which point the Buyer or its Insiders (or any one of them) shall be entitled to all indemnification amounts from Seller under Section 11.2(a) including the first full $100,000 of Losses or (y) for any Losses for which Seller would, but for this clause (y), be obligated to indemnify the Buyer Indemnified Parties under Section 11.2(a) in excess of an amount equal to Deposit Premium; provided, however, that the limitations in this Section 11.4(a) shall not apply to any indemnification obligations arising from the representations and warranties set forth in Section 3.1 (Organization), Section 3.2 (Authorization), Section 3.4 (Compliance with Laws), Section 3.8 (Title to Assets), Section 3.10 (Environmental Matters), Section 3.14 (Taxes) and Section 3.20(e)(xii) (Loans). (b) With respect to the indemnification obligations of Buyer pursuant to Section 11.3(a), Buyer shall not be obligated to indemnify Seller or its Insiders (or any one of them) under Section 11.3(a), unless the claim is submitted within the period of survival set forth in Section 11.1 hereof, and (x) unless the aggregate of all Losses for which Buyer would, but for this clause (x), be liable under Section 11.3(a) exceeds on a cumulative basis $100,000, at which point Seller shall be entitled to all indemnification amounts under Section 11.3(a) including the first full $100,000 of Losses, or (y) for any Losses for which Buyer would, but for this clause (y), be obligated to indemnify Seller under Section 11.3(a) in excess of the Deposit Premium; provided, however, that the limitations in this Section 11.4(b) shall not apply to any indemnification obligations arising from the representations and warranties set forth in Section 4.2 (Authorization). (c) Notwithstanding anything to the contrary contained in this Agreement, Buyer and Seller agree that in the event that there shall arise or exist one or more Pre-Closing Environmental Liabilities for which Buyer is otherwise entitled to be indemnified pursuant to Section 11.2(c) hereof, Buyer agrees to share with Seller, and remain liable for and not seek from Seller indemnification for, fifty percent (50%) of the first Two Hundred Fifty Thousand Dollars ($250,000) of Losses arising out of all such Pre-Closing Environmental Liabilities; provided, however, if any such claims made pursuant to Section 11.2(c) and with respect to any Pre-Closing Environmental Liability and (i) such Pre-Closing Environmental Liability is attributable or related to a breach or violation of the representations and warranties made by Seller pursuant to Article III hereof, (ii) such Pre-Closing Environmental Liability was disclosed on Schedule 3.10 or in the documents (or attachments to the documents) referred to on Schedule 3.10 or (iii) such Pre-Closing Environmental Liability was revealed during or in connection with any Phase I Assessment or Phase II Assessment conducted by Buyer pursuant to Section 5.9(b) hereof, then, in any such case, Seller shall indemnify Buyer for one hundred percent (100%) of any such Losses arising out of any such Pre-Closing Environmental Liability.

Limitation on Indemnities. Notwithstanding any other provision hereof, the rights of any party to be indemnified shall be subject to the following limitations: (a) With respect Any provision of this Agreement to the indemnification obligations of Seller pursuant Section 11.2(a)contrary notwithstanding, Seller shall not be obligated to indemnify Buyer or its Insiders (or any one of them) under Section 11.2(a), unless the claim is submitted within the period of survival set forth in Section 11.1 hereof, and (x) unless the aggregate of all Losses for which Seller would, but for this clause (x), be liable under Section 11.2(a) exceeds on a cumulative basis $100,000, at which point the Buyer or its Insiders (or any one of them) no party shall be entitled to all indemnification amounts from Seller under Section 11.2(a) including make a claim against any other Party unless and until the first full $100,000 aggregate amount of Losses incurred by such Party in respect of any individual event or (y) for any occurrence giving rise to such Losses for exceeds $5,000, in which Seller wouldevent, but for this clause (y), be obligated subject to indemnify the Buyer Indemnified Parties under Section 11.2(a) in excess of an amount equal to Deposit Premium; provided, however, that the limitations in this Section 11.4(a) shall not apply to any indemnification obligations arising from the representations and warranties Basket set forth below, such Party may assert its right to indemnification hereunder to the full extent of its indemnifiable Losses in Section 3.1 (Organization), Section 3.2 (Authorization), Section 3.4 (Compliance with Laws), Section 3.8 (Title to Assets), Section 3.10 (Environmental Matters), Section 3.14 (Taxes) and Section 3.20(e)(xii) (Loans)respect thereof. (b) With respect Any provisions of this Agreement to the contrary notwithstanding, no claim for indemnification obligations of Buyer pursuant to Section 11.3(a), Buyer by any Party against another Party shall not be obligated to indemnify Seller or its Insiders (or any one of them) under Section 11.3(a), unless the claim is submitted within the period of survival set forth in Section 11.1 hereof, valid and (x) assertible unless the aggregate amount of all Losses for which Buyer would, but for this clause (x), be liable under Section 11.3(a) exceeds on a cumulative basis $100,000, at which point Seller shall be entitled to all indemnification amounts under Section 11.3(a) including the first full $100,000 sum of Losses, or (y) for any Losses for which Buyer would, but for this clause (y), be obligated to indemnify Seller under Section 11.3(a) in excess of the Deposit Premium; provided, however, that the limitations in this Section 11.4(b) shall not apply to any indemnification obligations arising from the representations and warranties set forth in Section 4.2 (Authorization). (c) Notwithstanding anything to the contrary contained in this Agreement, Buyer and Seller agree that in the event that there shall arise or exist one or more Pre-Closing Environmental Liabilities for which Buyer is otherwise entitled to be indemnified pursuant to Section 11.2(c) hereof, Buyer agrees to share with Seller, and remain liable for and not seek from Seller indemnification for, fifty percent (50%) of the first Two Hundred Fifty Thousand Dollars ($250,000) plus fifty percent (50%) of Losses arising out the difference determined from the sum of all the HPG Net Worth plus the Tadim Net Book Value as of the Closing Date as reflected on the Closing Date Balance Sheet minus the sum of the HPG Net Worth as set forth on the Most Recent Balance Sheet of HPG plus the Tadim Net Book Value as of the date of the Most Recent Balance Sheet of Tadim (the "Basket Amount"), but then such Pre-Closing Environmental LiabilitiesParty may seek indemnification for the full amount of such claims; provided, however, if that any such claims made pursuant to Section 11.2(c) and with respect to any Pre-Closing Environmental Liability and (i) such Pre-Closing Environmental Liability is attributable or related to a breach or violation provision of the representations and warranties made by Seller pursuant to Article III hereof, (ii) such Pre-Closing Environmental Liability was disclosed on Schedule 3.10 or in the documents (or attachments this Agreement to the documents) referred contrary notwithstanding, the dollar limitations set forth in this Section 11.8 shall not apply to on Schedule 3.10 or (iii) such Pre-Closing Environmental Liability was revealed during or in connection with any Phase I Assessment or Phase II Assessment conducted by Buyer pursuant to Section 5.9(b) hereof, then, in any such case, Seller shall indemnify Buyer for one hundred percent (100%) of any such Losses arising out of any (i) Third Party Claim as they may relate to the matters described in Section 11.1(e), (f) or (g) above, (ii) claim relating to Tadim's non-compliance with the provisions of any bulk transfer law, (iii) claim relating to the Company's or the Selling Shareholders' obligations with respect to tax matters pursuant to Section 13.10 below, or (iv) claims relating to the Selling Shareholders' obligations to repurchase the Company's accounts receivable pursuant to Section 11.9 below but only to the extent that such Pre-claims exceed the amount of any reserves for bad debts set forth on the face of the Closing Environmental LiabilityDate Balance Sheet. (c) Notwithstanding the provisions of subsection (b) above, at such time as Purchaser receives that certain tax refund from the State of Michigan (anticipated to be in the amount of $339,000) or any other tax refund received as a result of audit adjustments of Tax Returns for the periods ended on or before the Closing Date (the "Tax Refund"), no claim for indemnification by Purchaser with respect to a breach of the representation and warranty set forth in Section 5.24 or with respect to the matters set forth in Section 13.10 (collectively, "Tax Matters Indemnities"), shall be valid and assertible unless the aggregate amount of all Losses relating to such matters exceeds the amount of the Tax Refund (the "Tax Basket"). Until such time as Purchaser receives the Tax Refund, Purchaser may apply the amount of any claims relating to Tax Matters Indemnities to the Basket pursuant to subsection (b) above. At such time as Purchaser receives the Tax Refund, all claims relating to Tax Matters Indemnities, whether made before or after Purchaser's receipt of the Tax Refund, shall apply to the Tax Basket (and, to the extent already applied to the Basket, may be deducted from the Basket). (d) To the extent Purchaser asserts that the thresholds set forth in Sections 11.8(b) or 11.8(c) have been exceeded, Purchaser will provide the Representative Shareholder access to Purchaser's books and records and with such other information as the Representative Shareholder may reasonably request in order to verify whether the threshold has been properly exceeded. After the threshold set forth in Section 11.8(b) or 11.8(c) is exceeded, the aggregate amount of Losses recoverable pursuant to the provisions of Article 11 by Purchaser shall be limited to $6,000,000 in the aggregate. (e) Except as to environmental conditions related to the Real Property, Purchaser shall not be entitled to indemnification for any Losses which arise out of facts, circumstances or conditions of which Purchaser has actual knowledge prior to the Closing Date nor to the extent of any reserve account specifically set up for the matter underlying or causing said Loss set forth on the Closing Balance Sheet.

Limitation on Indemnities. Notwithstanding any other provision hereof, the rights of any party to be indemnified shall be subject to the following limitations: (a) With respect to the indemnification obligations of Seller pursuant Section 11.2(a), Seller shall not be obligated to indemnify Buyer or its Insiders (or any one of them) under Section 11.2(a), unless the claim is submitted within the period of survival set forth in Section 11.1 hereof, and (x) unless the aggregate of all Losses for which Seller would, but for this clause (x), be liable under Section 11.2(a) exceeds on a cumulative basis $100,000, at which point the Buyer or its Insiders (or any one of them) shall be entitled to all indemnification amounts from Seller under Section 11.2(a) including the first full $100,000 of Losses or (y) for any Losses for which Seller would, but for this clause (y), be obligated to indemnify the Buyer Indemnified Parties under Section 11.2(a) in excess of an amount equal to Deposit Premium; provided, however, that the limitations in this Section 11.4(a) shall not apply to any indemnification obligations arising from the representations and warranties set forth in Section 3.1 (Organization), Section 3.2 (Authorization), Section 3.4 (Compliance with Laws), Section 3.8 (Title to Assets), Section 3.10 (Environmental Matters), Section 3.14 (Taxes) and Section 3.20(e)(xii) (Loans). (b) With respect to the indemnification obligations of Buyer pursuant to Section 11.3(a), Buyer shall not be obligated to indemnify Seller or its Insiders (or any one of them) under Section 11.3(a), unless the claim is submitted within the period of survival set forth in Section 11.1 hereof, and (x) unless the aggregate of all Losses for which Buyer would, but for this clause (x), be liable under Section 11.3(a) exceeds on a cumulative basis $100,000, at which point Seller shall be entitled to all indemnification amounts under Section 11.3(a) including the first full $100,000 of Losses, or (y) for any Losses for which Buyer would, but for this clause (y), be obligated to indemnify Seller under Section 11.3(a) in excess of the Deposit Premium; provided, however, that the limitations in this Section 11.4(b) shall not apply to any indemnification obligations arising from the representations and warranties set forth in Section 4.2 (Authorization). (c) Notwithstanding anything to the contrary contained set forth in this Agreement, Buyer and Seller agree that Agreement (but subject to the limitations set forth in the event second sentence of this SECTION 10.8(a)), the Seller pursuant to SECTION 10.4 shall not be liable hereunder to the Buyer Indemnified Parties with respect to claims for breaches of representations and warranties referred to in SECTION 10.4 above (i) if the Losses incurred by the Buyer Indemnified Parties as a result of such breach or series of related breaches do not exceed the Threshold Amount, (ii) except to the extent that there shall arise or exist one or more Pre-Closing Environmental Liabilities the aggregate Losses incurred by the Buyer Indemnified Parties as a result of such breaches (other than individual breaches for which the Losses do not exceed the Threshold Amount), shall exceed in the aggregate the Deductible Amount, and then only to the extent of the excess above the Deductible Amount, and (iii) to the extent the aggregate amount of Losses incurred by the Buyer Indemnified Parties as a result of such breaches exceeds the Cap Amount; provided that the Cap Amount shall be reduced on the fifteen month anniversary of the Closing Date to the greater of (but only if the amount so determined under this proviso is otherwise entitled to be indemnified less than the Cap Amount) (1) the sum of (A) $2,300,000 plus (B) the aggregate amount of Losses specified in any then unresolved indemnification claims made by the Buyer Indemnified Parties pursuant to Section 11.2(c) hereof, Buyer agrees to share with Sellerthis ARTICLE X, and remain liable for and not seek from Seller indemnification for, fifty percent (50%2) the sum of (A) the aggregate amount of Losses paid to the Buyer Indemnified Parties by or on behalf of the first Two Hundred Fifty Thousand Dollars Seller or the Members pursuant to this ARTICLE X in respect of indemnification claims made by the Buyer Indemnified Parties prior to such date and ($250,000B) the aggregate amount of Losses arising out of all such Pre-Closing Environmental Liabilities; provided, however, if specified in any such then unresolved indemnification claims made by the Buyer Indemnified Parties pursuant to Section 11.2(c) and this ARTICLE X. Notwithstanding any provision herein to the contrary, the foregoing limitations on indemnity recovery shall not apply in respect of any Loss with respect to any Pre-Closing Environmental Liability breach of (x) any covenant of the Seller or any Member, or (y) any Fundamental Seller Representation. In pursuing the collection of any indemnification claim under SECTION 10.4 against the Seller, the Buyer Indemnified Parties shall, except as provided under SECTION 2.2, proceed first against the Escrow Funds prior to pursuing any other monetary right or remedy available to the Buyer Indemnified Parties hereunder or otherwise. (b) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the limitations set forth in the last sentence of this SECTION 10.8(b)), the Buyer shall not be liable hereunder to the Seller Indemnified Parties with respect to claims for breaches of representations and warranties referred to in SECTION 10.5 above (i) if the Losses incurred by the Seller Indemnified Parties as a result of such Pre-Closing Environmental Liability is attributable or related to a breach or violation series of related breaches do not exceed the representations and warranties made by Seller pursuant to Article III hereofThreshold Amount, (ii) except to the extent that the aggregate Losses incurred by the Seller Indemnified Parties as a result of such Pre-Closing Environmental Liability was disclosed on Schedule 3.10 or breaches (other than individual breaches for which the Losses do not exceed the Threshold Amount), shall exceed in the documents (or attachments aggregate the Deductible Amount, and then only to the documents) referred to on Schedule 3.10 or extent of the excess above the Deductible Amount, and (iii) to the extent the aggregate amount of Losses incurred by the Seller Indemnified Parties as a result of such Pre-Closing Environmental Liability was revealed during breaches exceeds the Cap Amount. Notwithstanding any provision herein to the contrary, the foregoing limitations on indemnity recovery shall not apply in respect of any Loss with respect to any breach of (x) any covenant of the Buyer, or (y) any Fundamental Buyer Representation. (c) On or prior to the three (3) year anniversary of the Closing, the Buyer shall not undertake or allow environmental investigations, testing or any other action to identify, discover or assess adverse Hazardous Materials that may be present in soil or groundwater at any of the Real Property located in Mexico ("MEXICAN REAL PROPERTY") that would reasonably be expected to accelerate the timing of a claim arising from or in connection with any Phase I Assessment the presence of Hazardous Materials in soil or Phase II Assessment conducted groundwater at the Mexican Real Property ("ACT OF ACCELERATION") except where such investigation or testing is: (i) affirmatively required by Buyer pursuant applicable Environmental, Health and Safety Requirements, (ii) affirmatively required by an order or directive of a Governmental Authority; (iii) required by the owner of such property, (iv) reasonably necessary to Section 5.9(bdefend against a third party claim, or (v) hereofreasonably necessary to address circumstances that suggest an imminent and substantial endangerment to health or the environment. Acts of Acceleration are prohibited under this SECTION 10.8(c) that shall include, thenwithout limitation, in any such case, soliciting or contacting a Governmental Authority to obtain or request the issuance of an order or directive regarding the investigation or remediation of Hazardous Materials and/or soliciting the property owner to request or require an investigation or testing for Hazardous Materials. The Seller shall have no duty to indemnify or defend any Buyer for one hundred percent (100%) Indemnified Party to the extent a Loss results from or in connection with an Act of Acceleration or any such Losses arising out of any such Pre-Closing Environmental Liabilitycondition discovered as a result thereof.

Limitation on Indemnities. Notwithstanding any other provision hereof, the rights of any party to be indemnified shall be subject to the following limitations: (a) With respect Notwithstanding anything to the indemnification obligations of Seller pursuant Section 11.2(a)contrary set forth in this Agreement, Seller the Company Stockholders shall not be obligated liable hereunder to indemnify Buyer the Parent Indemnified Parties pursuant to SECTIONS 11.3(A) OR (B) as a result of any breach of any of the representations or its Insiders (or any one warranties of them) under Section 11.2(a), unless the claim is submitted within the period of survival Company as set forth in Section 11.1 hereof, and (x) unless the aggregate of all Losses for which Seller would, but for this clause (x), be liable under Section 11.2(a) exceeds on a cumulative basis $100,000, at which point the Buyer or its Insiders (ARTICLE IV or any one covenants of them) shall be entitled to all indemnification amounts from Seller under Section 11.2(a) including the first full $100,000 of Losses or (y) for any Losses for which Seller would, but for this clause (y), be obligated to indemnify the Buyer Indemnified Parties under Section 11.2(a) in excess of an amount equal to Deposit Premium; provided, however, that the limitations in this Section 11.4(a) shall not apply to any indemnification obligations arising from the representations and warranties Company as set forth in Section 3.1 (Organizationthis Agreement or in any certificate delivered by the Company pursuant to SECTION 8.2(A), Section 3.2 if, with respect to any individual item of Loss, such item is less than Twenty-five Thousand Dollars (Authorization), Section 3.4 (Compliance with Laws), Section 3.8 (Title to Assets), Section 3.10 (Environmental Matters), Section 3.14 (Taxes) and Section 3.20(e)(xii$25,000) (Loansa "MINOR CLAIM"). (b) With respect Notwithstanding anything to the indemnification obligations of Buyer pursuant to Section 11.3(acontrary set forth in this Agreement except as provided for in SECTION 11.7(C), Buyer the Company Stockholders shall not be obligated liable hereunder to indemnify Seller the Parent Indemnified Parties pursuant to SECTIONS 11.3(A) OR (B) as a result of any breach of any of the representations or its Insiders (or any one warranties of them) under Section 11.3(a), unless the claim is submitted within the period of survival Company as set forth in Section 11.1 hereof, and (x) unless the aggregate of all Losses for which Buyer would, but for this clause (x), be liable under Section 11.3(a) exceeds on a cumulative basis $100,000, at which point Seller shall be entitled to all indemnification amounts under Section 11.3(a) including the first full $100,000 of Losses, ARTICLE IV or (y) for any Losses for which Buyer would, but for this clause (y), be obligated to indemnify Seller under Section 11.3(a) in excess covenants of the Deposit Premium; provided, however, that the limitations in this Section 11.4(b) shall not apply to any indemnification obligations arising from the representations and warranties Company as set forth in Section 4.2 this Agreement or in any certificate delivered by the Company pursuant to SECTION 8.2(A), except to the extent that the Losses incurred by the Parent Indemnified Parties as a result of such breaches shall exceed in the aggregate One Million, Two Hundred and Fifty Thousand Dollars (Authorization$1,250,000), and then only to the extent of such excess; PROVIDED, HOWEVER, in no case will such Losses include any Minor Claim. (c) Notwithstanding anything to the contrary contained in this Agreement, Buyer and Seller agree that in the event that there shall arise or exist one or more Pre-Closing Environmental Liabilities for which Buyer is otherwise entitled The aggregate amount required to be indemnified paid by the Company Stockholders pursuant to Section 11.2(c) hereof, Buyer agrees to share with Seller, and remain liable for and not seek from Seller indemnification for, fifty percent (50%) SECTION 11.3 as a result of the first Two Hundred Fifty Thousand Dollars ($250,000) any breach of Losses arising out of all such Pre-Closing Environmental Liabilities; provided, however, if any such claims made pursuant to Section 11.2(c) and with respect to any Pre-Closing Environmental Liability and (i) such Pre-Closing Environmental Liability is attributable or related to a breach or violation of the representations and warranties made of the Company as set forth in ARTICLE IV, other than the representations and warranties in SECTION 4.10(F), or any of the covenants of the Company as set forth in this Agreement, or in any certificate delivered by Seller the Company pursuant to Article III hereofSECTION 8.2(A) or pursuant to SECTION 11.10, (ii) such Pre-Closing Environmental Liability was disclosed on Schedule 3.10 or shall not exceed in the documents aggregate Fifty Million Dollars ($50,000,000) until the first anniversary of the Closing and thereafter Twenty-Five Million Dollars ($25,000,000) (the "CAP AMOUNT"). The aggregate amount required to be paid by the Company Stockholders pursuant to SECTION 11.3 as a result of any breach of any of the representations and warranties in SECTION 4.10(F) or attachments under SECTION 11.3(C) that result in Income Taxes for periods beginning on or after the Closing Date, shall not exceed in the aggregate One Hundred Million Dollars ($100,000,000) MINUS any amounts paid or payable pursuant to the documents) referred first sentence of this SECTION 11.7(C). Notwithstanding the foregoing or anything to on Schedule 3.10 the contrary herein, in no event shall the combined aggregate amount paid or (iii) such Pre-Closing Environmental Liability was revealed during or in connection with any Phase I Assessment or Phase II Assessment conducted payable by Buyer the Company Stockholders pursuant to Section 5.9(bthe first and second sentences of this SECTION 11.7(C) hereof, then, in any such case, Seller shall indemnify Buyer for one hundred percent exceed One Hundred Million Dollars (100%) $100,000,000). The aggregate amount required to be paid by the Company Stockholders pursuant to SECTION 11.3 as a result of any such Losses arising out breach of representations and warranties in SECTION 4.10(F) that result in Income Taxes payable for periods ending on or prior the Closing Date shall not exceed in the aggregate the Merger Consideration and shall not be subject to any such Pre-Closing Environmental Liabilityof the other limitations set forth in this SECTION 11.7(C).

Limitation on Indemnities. Notwithstanding any other provision hereofExcept with respect to: (i) claims relating to or arising from the Fundamental Representations, (ii) claims related to or arising from the rights of any party Excluded Assets, (iii) claims based on fraud, (iv) claims for indemnification under Section 12.2(a), and (v) claims related to be indemnified shall be subject or arising from Seller’s obligations pursuant to the following limitationsSection 8.11 above: (a) With no claim for indemnification will be made by Purchaser, by Seller or by a Property Seller under Sections 10.2(a) (other than clause (v) thereof), Section 10.2(b) (other than clause (iii) thereof), or Section 10.3 (other than a third-party claim arising out of Purchaser’s ownership or operation of the Business or use of the Purchased Assets on or after the Closing Date or a third-party claim arising out of Seller’s or Property Sellers’ ownership or operation of the Business or use of the Purchased Assets prior to the Closing Date) hereof, as the case may be, with respect to any individual item of liability or damage unless and to the indemnification obligations of Seller pursuant Section 11.2(a), Seller shall not be obligated to indemnify Buyer or its Insiders (or any one of them) under Section 11.2(a), unless the claim is submitted within the period of survival set forth in Section 11.1 hereof, and (x) unless extent that the aggregate of all Losses for which such claims by Purchaser under this Agreement, Circle K under the Circle K Purchase Agreement and Circle K under the Terminal Purchase Agreement, on the one hand, or by Seller wouldand Property Sellers under this Agreement, but for this clause (x)Seller and Property Sellers under the Circle K Purchase Agreement and Terminal Seller under the Terminal Purchase Agreement, be liable under Section 11.2(a) exceeds on a cumulative basis $100,000the other hand, at which point the Buyer or its Insiders (or any one of them) shall be entitled to all indemnification amounts from Seller under Section 11.2(a) including the first full $100,000 of Losses or (y) for any Losses for which Seller would, but for this clause (y), be obligated to indemnify the Buyer Indemnified Parties under Section 11.2(a) in excess of an amount equal to Deposit Premium; provided, however, that One Million and No/100 Dollars ($1,000,000.00) (the limitations in this Section 11.4(a) shall not apply to any indemnification obligations arising from the representations and warranties set forth in Section 3.1 (Organization“Deductible”), Section 3.2 (Authorization)whereupon Purchaser, Section 3.4 (Compliance with Laws)on the one hand, Section 3.8 (Title to Assets)or Seller and the Property Sellers, Section 3.10 (Environmental Matters)on the other hand, Section 3.14 (Taxes) as the case may be, only shall be liable for such claims, damages and Section 3.20(e)(xii) (Loans).liabilities in excess of the Deductible; and (b) With respect to the indemnification obligations maximum aggregate liability of Buyer pursuant to Section 11.3(aSeller and Property Sellers under this Agreement, Seller and Property Sellers under the Circle K Purchase Agreement and Terminal Seller under the Terminal Purchase Agreement for claims, damages and liabilities shall be Six Million Five Hundred Thousand and No/100 Dollars ($6,500,000.00) (the “Seller Indemnification Cap”), Buyer shall not be obligated to indemnify Seller or its Insiders (or any one and the maximum aggregate liability of them) Purchaser under Section 11.3(a)this Agreement, unless Circle K under the claim is submitted within Circle K Purchase Agreement and Circle K under the period of survival set forth in Section 11.1 hereofTerminal Purchase Agreement for such claims, damages and (x) unless the aggregate of all Losses for which Buyer would, but for this clause (x), be liable under Section 11.3(a) exceeds on a cumulative basis $100,000, at which point Seller liabilities shall be entitled to all indemnification amounts under Section 11.3(a) including the first full Six Million Five Hundred Thousand and No/100 Dollars ($100,000 of Losses, or (y) for any Losses for which Buyer would, but for this clause (y), be obligated to indemnify Seller under Section 11.3(a6,500,000.00) in excess of the Deposit Premium; providedcommercial general liability insurance Purchaser is required to carry under Section 10.2(b) of this Agreement, howeverCircle K is required to carry under Section 10.2(b) of the Circle K Purchase Agreement and Circle K is required to carry under Section 10.2(b) of the Terminal Purchase Agreement. For the avoidance of doubt, that any amounts paid for the limitations in this cost of any Remedial Measures pursuant to Section 11.4(b8.11(a) shall not apply to be included as any indemnification obligations arising from part or all of the representations and warranties set forth in Section 4.2 (Authorization)Seller Indemnification Cap. (c) Payments by an indemnifying Party pursuant to Section 10.3 shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment actually recovered by the indemnified Party from any third party with respect thereto. Notwithstanding anything to the contrary contained in this Agreement, Buyer and Seller agree that no claim by any Party hereto may be asserted, nor may any action be commenced against any Party hereto, for breach of any representation, warranty, covenant or agreement unless notice thereof is received in writing describing in reasonable detail the event that there shall arise facts or exist one or more Pre-Closing Environmental Liabilities for which Buyer is otherwise entitled to be indemnified pursuant to Section 11.2(c) hereof, Buyer agrees to share with Seller, and remain liable for and not seek from Seller indemnification for, fifty percent (50%) of the first Two Hundred Fifty Thousand Dollars ($250,000) of Losses arising out of all such Pre-Closing Environmental Liabilities; provided, however, if any such claims made pursuant to Section 11.2(c) and circumstances with respect to any Pre-Closing Environmental Liability and (i) the subject matter of such Pre-Closing Environmental Liability claim on or before the date on which the representation, warranty, covenant or agreement on which such claim or action is attributable based ceases to survive as set forth in Section 10.1, irrespective of whether the subject matter of such claim or related to a breach action shall have occurred before, on or violation of the representations and warranties made by Seller pursuant to Article III hereof, (ii) after such Pre-Closing Environmental Liability was disclosed on Schedule 3.10 or in the documents (or attachments to the documents) referred to on Schedule 3.10 or (iii) such Pre-Closing Environmental Liability was revealed during or in connection with any Phase I Assessment or Phase II Assessment conducted by Buyer pursuant to Section 5.9(b) hereof, then, in any such case, Seller shall indemnify Buyer for one hundred percent (100%) of any such Losses arising out of any such Pre-Closing Environmental Liabilitydate.

Limitation on Indemnities. Notwithstanding any other provision hereof, the rights of any party to be indemnified shall be subject to the following limitations: (a) With respect Notwithstanding anything to the indemnification obligations of Seller pursuant Section 11.2(a)contrary set forth in this ARTICLE XI, Seller the Sellers shall not be obligated liable hereunder to indemnify Buyer or its Insiders (or any one of them) under Section 11.2(a), unless the claim is submitted within the period of survival set forth in Section 11.1 hereof, and (x) unless the aggregate of all Losses for which Seller would, but for this clause (x), be liable under Section 11.2(a) exceeds on a cumulative basis $100,000, at which point the Buyer or its Insiders (or any one of them) shall be entitled to all indemnification amounts from Seller under Section 11.2(a) including the first full $100,000 of Losses or (y) for any Losses for which Seller would, but for this clause (y), be obligated to indemnify the Buyer Indemnified Parties under Section 11.2(a) in excess pursuant to SECTION 11.4 or SECTION 11.5 as a result of an amount equal to Deposit Premium; provided, however, that the limitations in this Section 11.4(a) shall not apply to any indemnification obligations arising from breach of any of the representations and or warranties of ATT or the Sellers as set forth in Section 3.1 ARTICLE III or ARTICLE IV (Organization)other than the Title Representations, Section 3.2 (Authorization)the Rollover Representations and the Enforceability Representation) or in any certificate delivered by ATT or the Sellers pursuant to this Agreement, Section 3.4 (Compliance with Laws), Section 3.8 (Title except to Assets), Section 3.10 (Environmental Matters), Section 3.14 (Taxes) the extent that the Losses incurred by the Buyer Indemnified Parties as a result of such breaches shall exceed in the aggregate $2,000,000 and Section 3.20(e)(xii) (Loans)then only to the extent such Losses exceed $500,000. (b) With respect The aggregate amount required to be paid by the indemnification obligations of Buyer Sellers pursuant to Section 11.3(a), Buyer shall not be obligated to indemnify Seller or its Insiders (or SECTION 11.4 and SECTION 11.5 as a result of any one breach of them) under Section 11.3(a), unless the claim is submitted within the period any of survival set forth in Section 11.1 hereof, and (x) unless the aggregate of all Losses for which Buyer would, but for this clause (x), be liable under Section 11.3(a) exceeds on a cumulative basis $100,000, at which point Seller shall be entitled to all indemnification amounts under Section 11.3(a) including the first full $100,000 of Losses, or (y) for any Losses for which Buyer would, but for this clause (y), be obligated to indemnify Seller under Section 11.3(a) in excess of the Deposit Premium; provided, however, that the limitations in this Section 11.4(b) shall not apply to any indemnification obligations arising from the representations and warranties of ATT or the Sellers as set forth in Section 4.2 ARTICLE III or ARTICLE IV (Authorizationother than the Title Representations and the Rollover Representations) or any covenants or agreements of ATT, the Sellers' Representative or the Sellers as set forth in this Agreement or in any certificate delivered by ATT, the Sellers' Representative or Sellers pursuant to this Agreement (other than, for the avoidance of doubt, the agreements and covenants in SECTION 11.4 (III), (IV), (V) AND (VI), SECTION 11.5(D) and other than the covenants and agreements in SECTIONS 1.1, 2.1, 2.3, 6.2, 6.4, 6.5, 6.7, 6.10, 6.11, 10.2, 13.6 and any breach of any covenant or agreement of ATT, the Sellers' Representative or the Sellers that would cause the Closing not to occur) shall not exceed $30,000,000 (the "CAP AMOUNT"). (c) Notwithstanding anything to the contrary set forth in this ARTICLE XI, the Buyer shall not be liable hereunder to the Seller Indemnified Parties pursuant to SECTION 11.6 as a result of any breach of any of the representations or warranties of Buyer as set forth in ARTICLE V or in any certificate delivered by Buyer pursuant to this Agreement, except to the extent that the Losses incurred by the Seller Indemnified Parties as a result of such breaches shall exceed in the aggregate $2,000,000 and then only to the extent such Losses exceed $500,000. (d) The aggregate amount required to be paid by the Buyer pursuant to SECTION 11.6 as a result of any breach of any of the representations and warranties of Buyer as set forth in ARTICLE V or any covenants or agreements of Buyer as set forth in this Agreement (other than covenants and agreements in SECTION 2.1, 7.1, 7.2, 7.5, 10.2, 13.6 and any breach of any covenant or agreement of the Buyer that would cause the Closing not to occur) or in any certificate delivered by Buyer pursuant to SECTION 8.3 shall not exceed the Cap Amount. (e) Notwithstanding anything to the contrary contained in this Agreement, neither the Buyer and Seller agree that in the event that there shall arise or exist one or more Pre-Closing Environmental Liabilities for which Buyer is otherwise entitled to be indemnified pursuant to Section 11.2(c) hereof, Buyer agrees to share with Seller, and remain liable for and not seek from Seller indemnification for, fifty percent (50%) nor any of the first Two Hundred Fifty Thousand Dollars Sellers shall be obligated to satisfy any claims for Losses under this ARTICLE XI for $20,000 or less ($250,000) of with Losses arising out of all such Pre-Closing Environmental Liabilities; provided, however, if any the same or related set of circumstances being aggregated for the purpose of determining whether the $20,000 threshold has been met but such claims made pursuant shall not be aggregated for the purposes of SECTIONS 11.9(A),(B),(C) or (D)). (f) The several liability (for indemnification or otherwise) of each individual Seller with respect to Section 11.2(cthe matters governed by SECTION 11.4 shall be his, her or its proportionate share of the Cap Amount, based on such Seller's Pro Rata Percentage Interest under the Allocation Schedule, and the Buyer shall not be entitled to claim against any particular Seller an amount which is greater than such Seller's proportionate share of the Cap Amount based on such Seller's Pro Rata Percentage Interest set forth in the Allocation Schedule hereto. For the avoidance of doubt, the several liability (for indemnification or otherwise) and of each individual Seller with respect to any Pre-Closing Environmental Liability and (i) such Pre-Closing Environmental Liability is attributable single claim governed by SECTION 11.4 shall be his, her or related to a breach or violation its Pro Rata Percentage Interest of the representations amount of such claim and warranties made by Seller pursuant to Article III hereof, (ii) such Pre-Closing Environmental Liability was disclosed on Schedule 3.10 or the "Escrow Amount Pro Rata Percentage" as defined in the documents Escrow Agreement shall be such Seller's Pro Rata Percentage Interest. (g) In no event shall the several liability (for indemnification or attachments to the documents) referred to on Schedule 3.10 or (iii) such Pre-Closing Environmental Liability was revealed during or in connection with any Phase I Assessment or Phase II Assessment conducted by Buyer pursuant to Section 5.9(b) hereof, then, in any such case, Seller shall indemnify Buyer for one hundred percent (100%otherwise) of any Seller with respect to the matters governed by Section 11.4 and 11.5 exceed the aggregate proceeds (including the Rollover Shares issued to Rollover Sellers, based on the value attributed to such Losses arising out Rollover Shares at the time of Closing, as determined in accordance with SECTION 2.1(A)) received by such Seller (after giving effect to all adjustments to the proceeds as provided in this Agreement) under this Agreement for such Seller's Shares. (h) All liabilities of an individual Seller under SECTION 11.5 shall be the sole responsibility of such Seller and the Buyer shall not be entitled to claim against any other Seller with respect to such Pre-Closing Environmental Liabilityclaim.

Limitation on Indemnities. Notwithstanding any other provision hereof, the rights of any party to be indemnified shall be subject to the following limitations: (a) With respect to the indemnification obligations of Seller pursuant Section 11.2(a), Seller shall not be obligated to indemnify Buyer or its Insiders (or any one of them) under Section 11.2(a), unless the claim is submitted within the period of survival set forth in Section 11.1 hereof, and (x) unless the aggregate of all Losses for which Seller would, but for this clause (x), be liable under Section 11.2(a) exceeds on a cumulative basis $100,000, at which point the Buyer or its Insiders (or any one of them) shall be entitled to all indemnification amounts from Seller under Section 11.2(a) including the first full $100,000 of Losses or (y) for any Losses for which Seller would, but for this clause (y), be obligated to indemnify the Buyer Indemnified Parties under Section 11.2(a) in excess of an amount equal to Deposit Premium; provided, however, that the limitations in this Section 11.4(a) shall not apply to any indemnification obligations arising from the representations and warranties set forth in Section 3.1 (Organization), Section 3.2 (Authorization), Section 3.4 (Compliance with Laws), Section 3.8 (Title to Assets), Section 3.10 (Environmental Matters), Section 3.14 (Taxes) and Section 3.20(e)(xii) (Loans). (b) With respect to the indemnification obligations of Buyer pursuant to Section 11.3(a), Buyer shall not be obligated to indemnify Seller or its Insiders (or any one of them) under Section 11.3(a), unless the claim is submitted within the period of survival set forth in Section 11.1 hereof, and (x) unless the aggregate of all Losses for which Buyer would, but for this clause (x), be liable under Section 11.3(a) exceeds on a cumulative basis $100,000, at which point Seller shall be entitled to all indemnification amounts under Section 11.3(a) including the first full $100,000 of Losses, or (y) for any Losses for which Buyer would, but for this clause (y), be obligated to indemnify Seller under Section 11.3(a) in excess of the Deposit Premium; provided, however, that the limitations in this Section 11.4(b) shall not apply to any indemnification obligations arising from the representations and warranties set forth in Section 4.2 (Authorization). (c) Notwithstanding anything to the contrary contained herein, (i) the Parent Indemnified Parties will not be entitled to indemnification for Losses pursuant to a claim under Sections 11.3(a) or 11.3(c) unless and until it has been finally determined that the Parent Indemnified Parties have incurred Losses otherwise recoverable pursuant to Sections 11.3(a) or 11.3(c) (after giving effect to the limitations contained in this Agreement) in excess of Eight Hundred Seventy Five Thousand U.S. Dollars ($875,000) in the aggregate (the “Deductible Threshold”), after which, subject to the other limitations contained in this Agreement, Buyer and Seller agree that in the event that there Parent Indemnified Parties shall arise or exist one or more Pre-Closing Environmental Liabilities for which Buyer is otherwise be entitled to recover only Losses in excess of the Deductible Threshold; and (ii) the Company Securityholder Indemnified Parties will not be indemnified entitled to indemnification for Losses pursuant to a claim under Section 11.4(a) unless and until it has been finally determined that the Company Securityholder Indemnified Parties have incurred Losses otherwise recoverable pursuant to Section 11.2(c11.4(a) hereof, Buyer agrees (after giving effect to share with Seller, and remain liable for and not seek from Seller indemnification for, fifty percent (50%the limitations contained in this Agreement) in excess of the first Two Hundred Fifty Thousand Dollars Deductible Threshold, after which, subject to the other limitations contained in this Agreement, the Company Securityholder Indemnified Parties shall be entitled to recover only Losses in excess of the Deductible Threshold. ($250,000b) For purposes of this Article XI, when determining the amount of Losses arising out suffered by an Indemnified Party as a result of, or whether there occurred, any breach or inaccuracy of all a representation or warranty that is qualified or limited in scope as to materiality or Material Adverse Effect or similar qualification, such Pre-Closing Environmental Liabilities; provided, however, if any representation or warranty shall be deemed to be made without such claims made pursuant qualification or limitation. (c) Subject to Section 11.2(c) and with respect the other limitations imposed by this Article XI including the Deductible Threshold (to any Pre-Closing Environmental Liability and the extent applicable): (i) all indemnification claims under Section 11.3 (other than as set forth in Section 11.8(c)(ii)): (A) shall first by paid and satisfied from the Indemnity Escrow Funds, and (B) shall then be paid and satisfied exclusively from the R&W Insurance Policy; and (ii) all indemnification claims under Sections 11.3(a) or 11.3(c) as a result of fraud or under Section 11.3(b) as a result of breach of Sections 10.7 (Protective Covenants) or 10.8 (Confidentiality): (A) shall first be paid and satisfied from the Indemnity Escrow Funds, (B) shall then be paid and satisfied from the R&W Insurance Policy, and (C) to the extent (1) such Pre-Closing Environmental Liability is attributable claims are expressly excluded from the R&W Insurance Policy, (2) such claims are otherwise not recoverable under the R&W Insurance Policy after the Parent Indemnified Party has satisfied its obligations in Section 11.7(a), or related (3) the underlying Losses of such claims exceed the amounts recoverable under the R&W Insurance Policy, shall then be paid and satisfied directly from the Company Securityholder or Rollover Member that committed such fraud or breach. For the avoidance of doubt, notwithstanding anything in this Agreement to a the contrary, in no event shall any Company Securityholder or Rollover Member be liable for any fraud of, or breach or violation of the representations and warranties made by Seller pursuant to Article III hereofany covenant or agreement by, (ii) such Pre-Closing Environmental Liability was disclosed on Schedule 3.10 any other Company Securityholder or in the documents (or attachments to the documents) referred to on Schedule 3.10 or (iii) such Pre-Closing Environmental Liability was revealed during or in connection with any Phase I Assessment or Phase II Assessment conducted by Buyer pursuant to Section 5.9(b) hereof, then, in any such case, Seller shall indemnify Buyer for one hundred percent (100%) of any such Losses arising out of any such Pre-Closing Environmental LiabilityRollover Member.

Limitation on Indemnities. Notwithstanding any other provision hereof, the rights of any party to be indemnified shall be subject to the following limitations: (a) With respect to the indemnification obligations of Seller pursuant Section 11.2(a), Seller shall not be obligated to indemnify Buyer or its Insiders (or any one of them) under Section 11.2(a), unless the claim is submitted within the period of survival set forth in Section 11.1 hereof, and (x) unless the aggregate of all Losses for which Seller would, but for this clause (x), be liable under Section 11.2(a) exceeds on a cumulative basis $100,000, at which point the Buyer or its Insiders (or any one of them) shall be entitled to all indemnification amounts from Seller under Section 11.2(a) including the first full $100,000 of Losses or (y) for any Losses for which Seller would, but for this clause (y), be obligated to indemnify the Buyer Indemnified Parties under Section 11.2(a) in excess of an amount equal to Deposit Premium; provided, however, that the limitations in this Section 11.4(a) shall not apply to any indemnification obligations arising from the representations and warranties set forth in Section 3.1 (Organization), Section 3.2 (Authorization), Section 3.4 (Compliance with Laws), Section 3.8 (Title to Assets), Section 3.10 (Environmental Matters), Section 3.14 (Taxes) and Section 3.20(e)(xii) (Loans). (b) With respect to the indemnification obligations of Buyer pursuant to Section 11.3(a), Buyer shall not be obligated to indemnify Seller or its Insiders (or any one of them) under Section 11.3(a), unless the claim is submitted within the period of survival set forth in Section 11.1 hereof, and (x) unless the aggregate of all Losses for which Buyer would, but for this clause (x), be liable under Section 11.3(a) exceeds on a cumulative basis $100,000, at which point Seller shall be entitled to all indemnification amounts under Section 11.3(a) including the first full $100,000 of Losses, or (y) for any Losses for which Buyer would, but for this clause (y), be obligated to indemnify Seller under Section 11.3(a) in excess of the Deposit Premium; provided, however, that the limitations in this Section 11.4(b) shall not apply to any indemnification obligations arising from the representations and warranties set forth in Section 4.2 (Authorization). (c) Notwithstanding anything to the contrary contained set forth in this Agreement, Buyer and Seller agree that Agreement (but subject to the limitations set forth in the event that there shall arise or exist one or more Pre-Closing Environmental Liabilities for which Buyer is otherwise entitled to be indemnified second sentence of this Section 10.7(a)), the Seller pursuant to Section 11.2(c10.3 shall not be liable hereunder to the Buyer Indemnified Parties with respect to claims for breaches of representations and warranties referred to in Section 10.3 above (i) hereof, except to the extent that the aggregate Losses incurred by the Buyer agrees to share with SellerIndemnified Parties as a result of such breaches shall exceed in the aggregate the Basket Amount, and remain liable for and not seek from Seller indemnification for, fifty percent (50%) then only to the extent of the first Two Hundred Fifty Thousand Dollars excess above the Basket Amount, and ($250,000ii) to the extent the aggregate amount of Losses arising out incurred by the Buyer Indemnified Parties as a result of all such Pre-Closing Environmental Liabilities; providedbreaches exceeds the Cap Amount. Notwithstanding any provision herein to the contrary, however, if (x) the foregoing limitations on indemnity recovery shall not apply in respect of any such claims made pursuant to Section 11.2(c) and Loss with respect to any Pre-Closing Environmental Liability and breach (iA) such Pre-Closing Environmental Liability is attributable of any covenant of the Seller, (B) of any Fundamental Seller Representation, (C) of Section 3.13 or Section 3.29, or (D) that constitutes fraud by the Seller, (y) any Loss related to a breach or violation of the first sentence of Section 3.29 shall be limited to (I) the difference between the Threshold Net Working Capital and the actual Net Working Capital as of the Closing Date and (II) the reasonable costs incurred by the Buyer to recover payment of such difference from the Seller, and (z) any Loss related to a breach of the second sentence of Section 3.29 shall be limited to (I) the amount of any Indebtedness (other than capital lease obligations reflected in the Interim Financial Statements) of the Acquired Companies as of the Closing Date and (II) the reasonable costs incurred by the Buyer to recover payment of such amount from the Seller. Notwithstanding any provision herein to the contrary, the Seller pursuant to Section 10.3 shall not be liable to the Buyer Indemnified Parties with respect to claims for breaches of (i) Section 3.7 except to the extent that the aggregate Losses incurred by the Buyer Indemnified Parties as a result of such breaches shall exceed in the aggregate the Tax Basket Amount, but then the Seller shall be liable for the total aggregate Losses as a result of such breaches, and (ii) Section 3.20 except to the extent that the aggregate Losses incurred by the Buyer Indemnified Parties as a result of such breaches shall exceed in the aggregate the Environmental Basket Amount, but then the Seller shall be liable for the total aggregate Losses as a result of such breaches. (b) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the limitations set forth in the last sentence of this Section 10.7(b)), the Buyer shall not be liable hereunder to the Seller Indemnified Parties with respect to claims for breaches of representations and warranties made referred to in Section 10.4 above (i) except to the extent that the aggregate Losses incurred by the Seller pursuant Indemnified Parties as a result of such breaches shall exceed in the aggregate the Basket Amount, and then only to Article III hereofthe extent of the excess above the Basket Amount, and (ii) such Pre-Closing Environmental Liability was disclosed on Schedule 3.10 or in the documents (or attachments to the documents) referred extent the aggregate amount of Losses incurred by the Seller Indemnified Parties as a result of such breaches exceeds the Cap Amount. Notwithstanding any provision herein to the contrary, the foregoing limitations on Schedule 3.10 or indemnity recovery shall not apply in respect of any Loss with respect to any breach (iii) such Pre-Closing Environmental Liability was revealed during or in connection with any Phase I Assessment or Phase II Assessment conducted by Buyer pursuant to Section 5.9(b) hereof, then, in any such case, Seller shall indemnify Buyer for one hundred percent (100%x) of any such Losses arising out covenant of the Buyer, (y) of any such Pre-Closing Environmental LiabilityFundamental Buyer Representation, or (z) that constitutes fraud by the Buyer.

Limitation on Indemnities. Notwithstanding any other provision hereofINDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, the rights of any party to be indemnified shall be subject to the following limitations:AS AMENDED, AND RULE 24B-2 UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED. (a) With respect to the indemnification obligations of Seller pursuant Section 11.2(a), Seller shall not be obligated to indemnify Buyer or its Insiders (or any one of them) under Section 11.2(a), unless the claim is submitted within the period of survival The indemnities set forth in Section 11.1 hereof, and (x) unless the aggregate of all Losses for which Seller would, but for this clause (x), be liable under Section 11.2(a) exceeds on a cumulative basis $100,000, at which point the Buyer or its Insiders (or any one of them) shall be entitled to all indemnification amounts from Seller under Section 11.2(a) including the first full $100,000 of Losses or (y) for any Losses for which Seller would, but for this clause (y), be obligated to indemnify the Buyer Indemnified Parties under Section 11.2(a) in excess of an amount equal to Deposit Premium; provided, however, that the limitations in this Section 11.4(a) paragraph 5.1 shall not apply to the following types of Claims: (i) Shareholder, derivative, or securities laws Claims, demands or actions, or Claims by creditors acting in their capacity as such; (ii) ERISA, pension plan, employee benefit plan, or labor-related lawsuits, Claims, demands or actions; (iii) Any civil, criminal, or administrative fines or penalties, whether monetary or non-monetary, including but not limited to any indemnification obligations deferred or non-prosecution agreement, or a civil judgment or settlement to the particular extent that such judgment or settlement adjudicates or resolves a Claim or Claims for fines or penalties; provided that for the avoidance of doubt and subject to paragraphs 5.4 through 5.10, this limitation on the indemnities shall not apply to injunctive relief for restoration of, or compensatory payments for damages to, natural resources obtained in a non-consensual judgement or other non-consensual order; (iv) Any Claims for punitive, exemplary, treble, or other non-compensatory damages; (v) Any Claims for damage to the property of any Anadarko Released Party relating to or arising from out of the representations and warranties set forth Deepwater Horizon Incident; (vi) Any Claims for any Anadarko Released Party’s lost profits, lost revenues, lost business opportunities, or business interruption relating to or arising out of the Deepwater Horizon Incident; and (vii) Any Claims for royalties with respect to Anadarko’s leasehold interest in Section 3.1 (Organization), Section 3.2 (Authorization), Section 3.4 (Compliance with Laws), Section 3.8 (Title to Assets), Section 3.10 (Environmental Matters), Section 3.14 (Taxes) and Section 3.20(e)(xii) (Loans)MC252 accruing before the date of the Transfer. (b) With respect to the indemnification obligations of Buyer pursuant to Section 11.3(a), Buyer shall not be obligated to indemnify Seller or its Insiders (or any one of them) under Section 11.3(a), unless the claim is submitted within the period of survival set forth in Section 11.1 hereof, and (x) unless the aggregate of all Losses for which Buyer would, but for this clause (x), be liable under Section 11.3(a) exceeds on a cumulative basis $100,000, at which point Seller shall be entitled to all indemnification amounts under Section 11.3(a) including the first full $100,000 of Losses, or (y) for any Losses for which Buyer would, but for this clause (y), be obligated to indemnify Seller under Section 11.3(a) in excess of the Deposit Premium; provided, however, that the limitations in this Section 11.4(b) shall not apply to any indemnification obligations arising from the representations and warranties set forth in Section 4.2 (Authorization). (c) Notwithstanding anything to the contrary contained The indemnities in this Agreement, Buyer including those described in paragraphs 4.6(a), 5.1 and Seller agree that in the event that there 5.2, shall arise or exist one or more Pre-Closing Environmental Liabilities for which Buyer is otherwise entitled to be indemnified pursuant to Section 11.2(c) hereof, Buyer agrees to share with Seller, and remain liable for and not seek from Seller indemnification for, fifty percent (50%) of the first Two Hundred Fifty Thousand Dollars ($250,000) of Losses arising out of all such Pre-Closing Environmental Liabilities; provided, however, if any such claims made pursuant to Section 11.2(c) and with respect to any Pre-Closing Environmental Liability and include (i) such Pre-Closing Environmental Liability is attributable or related to a breach or violation the payment of any of the representations and warranties made by Seller pursuant to Article III hereofAnadarko Released Parties’ or BP Released Parties’ attorneys’ fees or expenses in the Litigation, as the case may be; (ii) such Pre-Closing Environmental Liability was disclosed on Schedule 3.10 the payment of any of the Anadarko Released Parties’ or BP Released Parties’ costs in the documents (or attachments Litigation, as the case may be, except to the documents) referred to on Schedule 3.10 or (iii) such Pre-Closing Environmental Liability was revealed during or extent provided in connection with any Phase I Assessment or Phase II Assessment conducted by Buyer pursuant to Section 5.9(b) hereof, then, in any such case, Seller shall indemnify Buyer for one hundred percent (100%) of any such Losses arising out of any such Pre-Closing Environmental Liabilityparagraph 5.1(b).

Limitation on Indemnities. Notwithstanding any other provision hereof, the rights of any party to be indemnified shall be subject to the following limitations: (a) With No claim for indemnification will be made by Parent, on the one hand, or by Company, on the other hand, under Section 6.2(a) or (b) hereof, respectively, with respect to any individual item of liability or damage unless and to the indemnification obligations of Seller pursuant Section 11.2(a), Seller shall not be obligated to indemnify Buyer or its Insiders (or any one of them) under Section 11.2(a), unless the claim is submitted within the period of survival set forth in Section 11.1 hereof, and (x) unless extent that the aggregate of all Losses for which Seller wouldsuch claims by Parent or by Company, but for this clause (x)as the case may be, be liable under Section 11.2(a) exceeds on a cumulative basis $100,000, at which point the Buyer or its Insiders (or any one of them) shall be entitled to all indemnification amounts from Seller under Section 11.2(a) including the first full $100,000 of Losses or (y) for any Losses for which Seller would, but for this clause (y), be obligated to indemnify the Buyer Indemnified Parties under Section 11.2(a) in excess of an amount equal to Deposit Premium; provided, however, that Thirty Thousand Dollars ($30,000) (the limitations in this Section 11.4(a) shall not apply to any indemnification obligations arising from the representations and warranties set forth in Section 3.1 (Organization), Section 3.2 (Authorization), Section 3.4 (Compliance with Laws), Section 3.8 (Title to Assets), Section 3.10 (Environmental Matters), Section 3.14 (Taxes"Basket") and Section 3.20(e)(xii) (Loans)any indemnity claim shall be for only the amounts in excess of the Basket. (b) With respect to The cumulative, aggregate liability of Parent on the indemnification obligations one hand and the Merging Parties on the other for all breaches of Buyer pursuant to Section 11.3(a), Buyer shall not be obligated to indemnify Seller or its Insiders (or any one of them) under Section 11.3(a), unless the claim is submitted within the period of survival set forth in Section 11.1 hereof, and (x) unless the aggregate of all Losses for which Buyer would, but for this clause (x), be liable under Section 11.3(a) exceeds on a cumulative basis $100,000, at which point Seller shall be entitled to all indemnification amounts under Section 11.3(a) including the first full $100,000 of Losses, or (y) for any Losses for which Buyer would, but for this clause (y), be obligated to indemnify Seller under Section 11.3(a) in excess of the Deposit Premium; provided, however, that the limitations in this Section 11.4(b) shall not apply to any indemnification obligations arising from the representations and warranties set forth under Article II and III, respectively, of this Agreement, shall be the product of 100,000 multiplied by the closing price of the Shares as quoted on the NASDAQ NMS on the Closing Date or the trading date most recently preceding the Closing Date (collectively, the "Cap"). The aggregate liability of each individual Shareholder shall equal the result of multiplying the Cap by a fraction, the numerator of which is the number of Shares received by the Shareholder as such Shareholder's portion of the Purchase Price and the denominator of which is 100,000 (as adjusted for stock dividends, splits and similar recapitalization events). Notwithstanding any other provision of this Agreement there shall be no Basket or Cap with respect to the representations and warranties in Section 4.2 (Authorization)Sections 3.5 and 3.8. (c) Payments by an indemnifying party pursuant to Section 6.2 shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment reasonably recoverable by the indemnified party from any third party with respect thereto. Notwithstanding anything to the contrary contained in this Agreement, Buyer no claim by any party hereto may be asserted, nor may any action be commenced against any party hereto, for breach of any representation, warranty, covenant or agreement unless notice thereof is received in writing describing in reasonable detail the facts or circumstances with respect to the subject matter of such claim on or before the date on which the representation, warranty, covenant or agreement on which such claim or action is based ceases to survive as set forth in Section 6.1, irrespective of whether the subject matter of such claim or action shall have occurred before, on or after such date. Any payment made by Company to Parent, as the case may be, under this Article VI shall constitute a reduction of the Purchase Price for all purposes, including Federal, state and Seller local tax as well as financial accounting purposes. (d) The Merging Parties hereby severally agree that any economic or monetary loss or damage caused to Parent arising from any misrepresentation by the Company, any breach of any representation, warranty, or covenant contained herein, or any default in or breach of any term or condition of this Agreement by the Company ("Damages"), shall give Parent the right, in addition to each and every other remedy Parent may have at law or in equity, including without limitation Parent's general indemnification rights, subject to the restrictions set forth below, to cancel the number of shares, including all shares subject to the Warrant, to the extent of the Damages incurred by the Parent with the calculation of the number of the shares to be canceled, calculated at the greater of (i) the closing price of the Shares as quoted on the NASDAQ NMS on the Closing Date or most recently preceding trading date (adjusted for stock dividends, splits and similar recapitalization events), or (ii) the closing price of Parent's common stock on the NASDAQ National Market (or if not then listed for trading on the NASDAQ National Market, the primary securities exchange on which Parent's common stock is then traded), at the time Damages are paid for by Parent (as per subsection (ii)(2), below). If and at such time as any shares are canceled pursuant to this Section, the Merging Parties shall promptly surrender to Parent the Shares, and the Parent shall issue a new share certificate reflecting the reduced number of Shares. Provided, however, that no such reduction of Exchanged Shares shall be made until the following procedures shall have been completed: (i) If there occurs an event that Parent asserts is an indemnifiable event pursuant to this Agreement, Parent shall notify Company promptly. If such event involves (x) any claim or (y) the commencement of an action or proceeding by a third person, Parent will give Company prompt written notice of such claim or the commencement of such action or proceeding. Such notice shall be a condition precedent to any liability of the Company hereunder; PROVIDED, that the failure to provide prompt notice as provided herein will limit Parent's cancellation rights hereunder only to the extent that such failure prejudices Company. (ii) The Merging Parties shall have received a certificate signed by Parent ("Certificate"): (A) stating that Parent has paid Damages, or the Damages are such that they may be reasonably ascertainable by the parties, in an aggregate stated amount, and stating that Parent believes that it is entitled to cancel the number of Shares pursuant to and in the event that there shall arise or exist one or more Pre-Closing Environmental Liabilities for which Buyer is otherwise manner contemplated by this Agreement with respect to such amount, and (B) specifying in reasonable detail the individual items of Damages included in the amount so stated and the amount and date each such item was paid (if applicable), Parent shall, subject to the Merging Parties' rights to object to such reduction of the Shares pursuant to (iii) hereafter, be entitled to cancel the number of shares by the amount of such claim for Damages. (iii) The Merging Parties shall have thirty (30) days after their receipt of a Certificate from Parent to object in writing to such claim for cancellation of the shares. After the expiration of such thirty (30) day period, if no Merging Party has made an objection in writing, Parent shall be indemnified entitled to cancel the number of shares by the amount of its claim for Damages, however, no such reduction shall be made if a Merging Party has made a timely objection to such claim pursuant to this subsection (iii). If a Merging Party disputes its being liable for such Damages, the matter will be resolved pursuant to Section 11.2(c) hereof8.4 and Parent shall be limited to monetary indemnification as a remedy unless otherwise mutually agreed by the parties in writing. If a Merging Party disputes the amount of Damages, Buyer agrees to share with Sellerbut not the liability therefore, and remain liable for and not seek from Seller indemnification for, fifty percent (50%) of the first Two Hundred Fifty Thousand Dollars ($250,000) of Losses arising out of all then if such Pre-Closing Environmental Liabilities; provided, however, if any such claims made pursuant to Section 11.2(c) and with respect to any Pre-Closing Environmental Liability and (i) such Pre-Closing Environmental Liability is attributable or related to a breach or violation of the representations and warranties made by Seller pursuant to Article III hereof, (ii) such Pre-Closing Environmental Liability was disclosed on Schedule 3.10 or Merging Party later substantially prevails in the documents determination of Damages, such Merging Party shall retain the right to satisfy such Damages in Shares at the price calculated in this subsection (or attachments d). (iv) Each Merging Party may use Shares to pay any undisputed Damages, using the documents) referred to on Schedule 3.10 or same price per share as set forth in this subsection (iii) such Pre-Closing Environmental Liability was revealed during or in connection with any Phase I Assessment or Phase II Assessment conducted by Buyer pursuant to Section 5.9(b) hereof, then, in any such case, Seller shall indemnify Buyer for one hundred percent (100%) of any such Losses arising out of any such Pre-Closing Environmental Liabilityd).

Limitation on Indemnities. Notwithstanding any other provision hereof, the rights of any party to be indemnified shall be subject to the following limitations: (a) With respect to the indemnification obligations of Seller pursuant Section 11.2(a), Seller The Equity Holders shall not be obligated to indemnify Buyer liable under this Article VIII or its Insiders (or any one of them) otherwise under Section 11.2(a), this Agreement unless the claim is submitted within the period of survival set forth in Section 11.1 hereof, and (x) unless until the aggregate of all Losses for which Seller would, but for this clause (x), be liable under Section 11.2(a) exceeds on a cumulative basis $100,000, at which point such claims against the Buyer or its Insiders (or any one of them) Equity Holders shall be entitled to all indemnification amounts from Seller under Section 11.2(a) including the first full $100,000 of Losses or (y) for any Losses for which Seller would, but for this clause (y), be obligated to indemnify the Buyer Indemnified Parties under Section 11.2(a) in excess of an amount equal to Deposit Premium; provided, however, that $100,000 (the limitations in this Section 11.4(a) shall not apply to any indemnification obligations arising from the representations and warranties set forth in Section 3.1 (Organization"Deductible Amount"), Section 3.2 (Authorization)whereupon the Equity Holders shall be liable only for those claims, Section 3.4 (Compliance with Laws), Section 3.8 (Title to Assets), Section 3.10 (Environmental Matters), Section 3.14 (Taxes) damages and Section 3.20(e)(xii) (Loans)liabilities as are in excess of the Deductible Amount. (b) With respect to the indemnification obligations of Buyer pursuant to Section 11.3(a), The Buyer shall not be obligated to indemnify Seller liable under this Article VIII or its Insiders (or any one of them) otherwise under Section 11.3(a), this Agreement unless the claim is submitted within the period of survival set forth in Section 11.1 hereof, and (x) unless until the aggregate of all Losses for which such claims against the Buyer would, but for this clause (x), be liable under Section 11.3(a) exceeds on a cumulative basis $100,000, at which point Seller shall be entitled to all indemnification amounts under Section 11.3(a) including the first full $100,000 of Losses, or (y) for any Losses for which Buyer would, but for this clause (y), be obligated to indemnify Seller under Section 11.3(a) in excess of the Deposit Premium; providedDeductible Amount, howeverwhereupon the Buyer shall be liable only for those claims, that damages and liabilities as are in excess of the limitations in this Section 11.4(b) shall not apply to any indemnification obligations arising from the representations and warranties set forth in Section 4.2 (Authorization)Deductible Amount. (c) The maximum amount for which the Equity Holders shall be liable under this Article VIII or otherwise under this Agreement shall be equal to the Indemnification Escrow Amount (the “Ceiling Amount”), which shall be paid solely from the Escrow Account and accretions thereon. (d) Payments by an indemnifying party pursuant to Section 8.02 shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds, tax benefits and any indemnity, contribution or other similar payment actually recovered by the indemnified party from any third party with respect thereto. (e) Notwithstanding anything to the contrary contained in this Agreement, Buyer and Seller agree that no claim by any party hereto may be asserted, nor may any action be commenced against any party hereto, for breach of any representation, warranty, covenant or agreement unless notice thereof is received in writing describing in reasonable detail the event that there facts or circumstances with respect to the subject matter of such claim on or before the date which is twenty-five (25) months following the Closing Date, irrespective of whether the subject matter of such claim or action shall arise have occurred before, on or exist one or more Pre-Closing Environmental Liabilities for which Buyer is otherwise entitled after such date. (f) Notwithstanding anything herein to be indemnified pursuant the contrary but subject to Section 11.2(c8.06 below, to the extent any Equity Holder shall become personally liable for any liabilities or damages under this Article VIII or otherwise under this Agreement, such Equity Holder’s cumulative obligations hereunder shall not exceed an amount equal to the product of the Ceiling Amount multiplied by such Equity Holder's Respective Pro Rata Share. (g) Notwithstanding anything to the contrary contained in this Agreement or provided for under any applicable law, no party hereto shall be liable to any other person or entity, either in contract or tort, for any consequential, incidental, indirect, special or punitive damages of such other person or entity, including, but not limited to any loss of future revenue, income or profits, or any diminution of value or multiples of earnings damages relating to the breach of alleged breach hereof, Buyer agrees whether or not the possibility of such damages has been disclosed to share with Seller, and remain the other party in advance or could reasonably have been foreseen by such other party. (h) The Equity Holders shall not be liable for and not seek from Seller indemnification for, fifty percent (50%) of the first Two Hundred Fifty Thousand Dollars ($250,000) of Losses arising out of all such Pre-Closing Environmental Liabilities; provided, however, if any such claims made pursuant to Section 11.2(c) and under this Article VIII or otherwise with respect to any Pre-liabilities reflected in the Company Financial Statements or the Closing Environmental Liability Balance Sheet or included in the calculation of Net Working Capital. The Buyer and (i) such Pre-Closing Environmental Liability is attributable Merger Sub shall have no right to indemnification under this Article VIII or related to a otherwise in respect of any inaccuracy or breach of any representation or violation warranty of the representations and warranties made by Seller pursuant to Article III hereof, (ii) such Pre-Closing Environmental Liability was disclosed on Schedule 3.10 Company or in the documents (or attachments Equity Holders to the documents) referred to on Schedule 3.10 extent that the Buyer or (iii) the Merger Sub has knowledge as of the Closing Date that such Pre-Closing Environmental Liability was revealed during representation or in connection with any Phase I Assessment or Phase II Assessment conducted by Buyer pursuant to Section 5.9(b) hereof, then, in any such case, Seller shall indemnify Buyer for one hundred percent (100%) of any such Losses arising out of any such Pre-Closing Environmental Liabilitywarranty is inaccurate.