definiens: shall mean any loss, damage, deficiency, diminution in value, claim, liability, obligation, suit, proceeding, action, demand, fee, cost, fine, levy, penalty, surcharge or expense of any nature whatsoever including, withoutlimitation, reasonable out - of - pocket expenses, reasonable investigation costsand reasonable fees and disbursements of counsel ( collectively, ) suffered or incurred by a Purchaser Indemnitee ( subject to Section 10.4 ) arisingout of, based upon or resulting from ( i ) the Excluded Liabilities or Seller'sfailure to pay and discharge in full, or to cause to be paid and discharged infull, all Excluded Liabilities in a full and timely manner from and after theClosing Date ; ( ii ) any breach of any representation and warranty of Seller whichis contained in this Agreement or any Schedule hereto or ( iii ) any breach ornonfulfillment of, or any failure to perform, any of the covenants, agreementsor undertakings of Seller contained in or made pursuant to this Agreement