CLOSING OTHER THAN THE
APPROVED LIABILITIES ("UNAPPROVED LIABILITIES") UNTIL THE APPLICABLE STATUTES OF
LIMITATIONS EXPIRE IN REGARD TO SUCH LIABILITIES IF SUCH AGGREGATE UNAPPROVED
LIABILITIES EXCEED FIFTY THOUSAND DOLLARS ($50,000).
IF THE SHAREHOLDER INCURS
ANY LIABILITY TO ANY THK INDEMNIFIED PARTY PURSUANT TO THIS SECTION 9.2, THEN
THK SHALL BE PERMITTED TO APPLY AND OFFSET, DOLLAR-FOR-DOLLAR, THE AMOUNT OF
SUCH LIABILITY AGAINST THE EARNOUT PAYMENTS.
(B)
SUBJECT TO (C) BELOW, THK AGREES TO INDEMNIFY AND
HOLD HARMLESS THE SHAREHOLDER AND HIS RESPECTIVE SUCCESSORS AND ASSIGNS, FROM
AND AGAINST ANY AND ALL LOSSES WHICH ARE CAUSED BY OR ARISE OUT OF (1) ANY
DEFAULT IN THE PERFORMANCE BY THK OR RESO MERGER SUB OF ANY OBLIGATION OF THK OR
RESO MERGER SUB CONTAINED IN, OR CONTEMPLATED BY, THIS AGREEMENT, OR (2) ANY
MATERIAL BREACH OF A REPRESENTATION AND WARRANTY MADE BY THK OR RESO MERGER SUB,
INCLUDING ANY SCHEDULE DELIVERED BY OR ON BEHALF OF THK OR RESO MERGER SUB
PURSUANT HERETO OR IN ANY CERTIFICATE OR OTHER INSTRUMENT DELIVERED BY OR ON
BEHALF OF THK OR RESO MERGER SUB PURSUANT HERETO; PROVIDED, HOWEVER, THAT THE
LIMITATION IN (C) BELOW SHALL NOT DIMINISH THK'S OBLIGATION TO DELIVER THE
MERGER CONSIDERATION OR ANY OTHER CONSIDERATION OTHERWISE PAYABLE TO THE
SHAREHOLDER BY THK OR RESO SURVIVING CORPORATION.
(C)
NO AMOUNT OF LOSS OR LOSSES SHALL BE PAYABLE BY ANY
INDEMNIFYING PARTY PURSUANT TO SECTION 9.2(A), IN THE CASE OF RESO OR THE
SHAREHOLDER, OR SECTION 9.2(B), IN THE CASE OF THK, UNLESS THE AGGREGATE AMOUNT
OF THE LOSS OR LOSSES THAT ARE INDEMNIFIABLE EXCEEDS $50,000.
EXCEPT AS
OTHERWISE PROVIDED IN SECTION 10.1(C), IN NO EVENT SHALL THE AGGREGATE LIABILITY
OF RESO OR THE SHAREHOLDER UNDER SECTION 9.2(A) EXCEED $4,000,000.
(D)
IF AN INDEMNIFIED PARTY RECOVERS A LOSS OR LOSSES
FROM AN INDEMNIFYING PARTY HEREUNDER, THE INDEMNIFYING PARTY SHALL BE
SUBROGATED, TO THE EXTENT OF THE RECOVERY, TO THE INDEMNIFIED PARTY'S RIGHTS
AGAINST ANY THIRD PARTY, OTHER THAN A THIRD PARTY WITH WHOM THE INDEMNIFIED
PARTY HAS A MATERIAL BUSINESS AGREEMENT OR ARRANGEMENT,
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WITH RESPECT TO THE LOSS OR LOSSES SUBJECT TO THE SUBROGATION RIGHTS OF ANY
INSURER PROVIDING INSURANCE COVERAGE UNDER ONE OF THE INDEMNIFIED PARTY'S
POLICIES AND EXCEPT TO THE EXTENT THAT THE GRANT OF SUBROGATION RIGHTS TO THE
INDEMNIFYING PARTY IS PROHIBITED BY THE TERMS OF THE APPLICABLE INSURANCE
POLICY.
(E)
THE AMOUNT OF ANY LOSS OR LOSSES OWED TO ANY
INDEMNIFIED PARTY HEREUNDER SHALL BE NET OF ANY INSURANCE, INDEMNITY,
CONTRIBUTION OR OTHER PAYMENTS OR RECOVERIES OF A LIKE NATURE WITH RESPECT
THERETO ACTUALLY RECOVERED (IT BEING AGREED THAT, PROMPTLY AFTER THE REALIZATION
OF ANY SUCH REDUCTIONS IN THE LOSS OR LOSSES PURSUANT HERETO, SUCH PARTY SHALL
REIMBURSE THE INDEMNIFYING PARTY FOR THE REDUCTION FOR WHICH THE PARTY WAS
INDEMNIFIED PRIOR TO THE REALIZATION OF THE REDUCTION).
(F)
EACH PARTY HEREBY ACKNOWLEDGES AND AGREES THAT,
FROM AND AFTER THE CLOSING AND EXCEPT FOR CLAIMS SEEKING EQUITABLE RELIEF, ITS
SOLE REMEDY RELATING TO THE MERGER, OR THE OTHER TRANSACTIONS