Common use of Indemnity by Sellers Clause in Contracts

Indemnity by Sellers. The Sellers hereby agree to jointly and severally indemnify, defend and hold harmless Buyer, the Guarantor and their respective directors, officers and Affiliates against and in respect of all Liabilities, obligations, judgments, Liens, injunctions, charges, orders, decrees, rulings, damages, dues, assessments, Taxes, losses, fines, penalties, expenses, fees, costs, amounts paid in settlement (including reasonable attorneys' and expert witness fees and disbursements in connection with investigating, defending or settling any action or threatened action), arising out of any claim, damages, complaint, demand, cause of action, audit, investigation, hearing, action, suit or other proceeding asserted or initiated or otherwise existing in respect of any matter (collectively, the "Losses") that results from: (a) the inaccuracy of any representation or warranty made by Sellers herein or resulting from any misrepresentation or breach of warranty (as if all materiality provisions were not contained therein), or nonfulfillment of any agreement or covenant of Sellers contained herein or in any agreement or instrument required to be entered into in connection herewith, or from any misrepresentation in or omission from any schedule, document, certificate or other instrument required to be furnished by Sellers hereunder; provided, however, that the Sellers shall be liable under this Section 9.2(a) in respect of Losses only if the aggregate of such Losses exceeds $172,500, in which case the Sellers shall be liable for the total amount of such Losses in excess of $172,500, up to an aggregate amount equal to $2 million. (i) any Liability of the Business (including any Liability of the Sellers that becomes a Liability of the Buyer under any bulk transfer law of any jurisdiction, under any common law doctrine of de facto merger or successor liability, or otherwise by operation of law) which is not an Assumed Liability or (ii) any Liability of the Business assumed by the Buyer pursuant to Section 2.3(d). In the event that Sellers may be obliged to indemnify Buyer under both subsection (a) and subsection (b) of this Section 9.2, their obligations under subsection (b) shall be controlling and the limitations provided in Sections 9.1 and 9.2(a) hereof relating to their obligations in respect of Losses resulting from the inaccuracy of any representation and warranty, or any misrepresentation, breach of warranty or non-fulfillment of an agreement or covenant as described in Section 9.2(a), shall not apply. Buyer shall provide Sellers written notice for any claim made in respect of the indemnification provided in this Section 9.2, whether or not arising out of a claim by a third party.

Indemnity by Sellers. The Subject to Sections 8.2 through 8.6, from and after the Closing, the Sellers hereby agree to jointly and severally indemnify, defend shall indemnify and hold the Purchaser harmless Buyerfrom and against, and will pay to the Guarantor and their respective directorsPurchaser upon demand, officers and Affiliates against and in respect 85.65% of all Liabilitiesany loss, obligationsdemand, judgmentsclaim, Liensdamage, injunctionsliability, charges, orders, decrees, rulings, damages, dues, assessments, Taxes, losses, fines, penalties, expenses, fees, costs, amounts paid in settlement cost or expense (including reasonable attorneys' and expert witness fees and disbursements in connection with investigating, defending or settling any action or threatened actionfees), arising out which is sustained or suffered by the Purchaser due to, or resulting from, or the existence of which would constitute, a breach or default in the performance of any claimagreement or covenant, damages, complaint, demand, cause of action, audit, investigation, hearing, action, suit or other proceeding asserted a breach or initiated or otherwise existing in respect of any matter (collectively, the "Losses") that results from: (a) the inaccuracy of any representation or warranty made or given in this Agreement by Sellers herein or resulting from any misrepresentation or breach of warranty (as if all materiality provisions were not contained therein), or nonfulfillment of any agreement or covenant of Sellers contained herein or in any agreement or instrument required to be entered into in connection herewith, or from any misrepresentation in or omission from any schedule, document, certificate or other instrument required to be furnished by Sellers hereunderthe Sellers; provided, however, that the Sellers Seller shall be liable have no liability under -------- ------- this Section 9.2(a) 8.1 for or in respect of Losses only if breaches or inaccuracies of or in the representations and warranties of the Sellers contained in this Agreement unless and until the aggregate amount of all such losses, demands, claims, damages, liabilities, costs and/or expenses resulting from or in respect of such Losses breaches or inaccuracies exceeds $172,50015,000, and, in which case such event, subject to Sections 8.2 through 8.6 and the last sentence of this Section 8.1, the Sellers shall be liable for 85.65% of the total excess. In addition, the Sellers shall indemnify the Purchaser from and against all costs and expenses, including reasonable attorneys' fees, incurred by the Purchaser in enforcing the indemnities provided for in this Section 8.1. Notwithstanding the foregoing, the aggregate amount of such Losses in excess of $172,500, up to an aggregate indemnity or indemnities under this Section 8.1 shall not exceed the amount equal to $2 million. (i) any Liability of the Business (including any Liability of Stock Purchase Price, as the Sellers that becomes a Liability of the Buyer under any bulk transfer law of any jurisdiction, under any common law doctrine of de facto merger or successor liability, or otherwise by operation of law) which is not an Assumed Liability or (ii) any Liability of the Business assumed by the Buyer same may be reduced pursuant to Section 2.3(d). In the event that Sellers may be obliged to indemnify Buyer under both subsection (a) and subsection (b) of this Section 9.2, their obligations under subsection (b) shall be controlling and the limitations provided in Sections 9.1 and 9.2(a) hereof relating to their obligations in respect of Losses resulting from the inaccuracy of any representation and warranty, or any misrepresentation, breach of warranty or non-fulfillment of an agreement or covenant as described in Section 9.2(a), shall not apply. Buyer shall provide Sellers written notice for any claim made in respect of the indemnification provided in this Section 9.2, whether or not arising out of a claim by a third party1.3.

Indemnity by Sellers. The Sellers Subject to the last paragraph of this Section 9.3, each Seller, on and after such Seller's respective Closing Date, hereby agree severally agrees to jointly and severally indemnify, defend and hold harmless the Buyer, the Guarantor its Affiliates and any of their respective directorsofficers, officers directors and Affiliates employees, agents and representatives ("Buyer Indemnified Parties") against and in respect of all Liabilities, obligations, judgments, Liens, injunctions, charges, orders, decrees, rulings, damages, dues, assessments, Taxes, losses, fines, penalties, expenses, fees, costs, amounts paid in settlement (including reasonable attorneys' and expert witness fees and disbursements in connection with investigating, defending their respective Losses; provided that such Losses result or settling any action or threatened action), arising out of any claim, damages, complaint, demand, cause of action, audit, investigation, hearing, action, suit or other proceeding asserted or initiated or otherwise existing in respect of any matter (collectively, the "Losses") that results arise from: (a) except as provided below in clauses (f) and (g), the untruth, inaccuracy or incompleteness of any representation or warranty made by Sellers herein of such Seller and/or of NAESCO contained in this Agreement or resulting from any misrepresentation or breach of warranty (as if all materiality provisions were not contained therein), or nonfulfillment of any agreement or covenant of Sellers contained herein the Schedules hereto or in any document, writing, certificate or data delivered by such Seller under this Agreement; provided, and only to the extent, that Buyer's Loss therefrom exceeds $1,000,000; (b) Liabilities of such Seller (whether known or unknown) other than Assumed Liabilities, including, but not limited to, Excluded Liabilities; (c) any Third Party Claim against the Buyer Indemnified Parties based on or relating to such Seller's ownership, operation or use of the Acquired Assets prior to the Initial Closing Date or any Subsequent Closing Date, as the case may be, that is not an Assumed Liability; (d) the Excluded Assets; (e) any breach by such Seller of any covenant, agreement or instrument obligation of the Sellers contained in this Agreement or any certificate required to be entered into delivered by such Seller pursuant to this Agreement; (f) any intentional misrepresentation or fraudulent breach of any representation or warranty of such Seller or NAESCO contained in connection herewiththis Agreement or the Schedules hereto; provided that the indemnity obligations resulting or arising from this clause (f) shall not be subject to the following limitations: (i) the $1,000,000 threshold in clause (a), (ii) the cap on Liability set forth in Section 9.5 or from (iii) the survival period set forth in Section 9.1; or -77- (g) the untruth, inaccuracy or incompleteness of any misrepresentation representation or warranty contained in Sections 3.7(a) and (b) and 3.13(e); provided that the indemnity obligations in this clause (g) shall not be subject to the following limitations: (i) the $1,000,000 threshold in clause (a) to the extent such threshold would otherwise applied to the representations in Sections 3.7(a), 3.7(b) or omission from 3.13(e), (ii) the cap on Liability set forth in Section 9.5 or (iii) the survival period set forth in Section 9.1. The indemnification obligations of the Sellers arising out of this Section 9.3 shall be several and not joint or joint and several and shall be limited to each Seller's Proportionate Ownership of any scheduleLoss, document, certificate or other instrument required and no Seller shall have any obligation under this Section 9.3 until such Seller has transferred its Ownership Share to be furnished by Sellers hereunderthe Buyer; provided, however, that subject to the Sellers proviso set forth in Sections 9.3(a) and to Section 9.5, each Seller alone shall be liable to the Buyer Indemnified Party for the full amount of any Loss arising from any matter involving such Seller only and no Seller shall under this Section 9.2(a) in respect of Losses only if the aggregate of such Losses exceeds $172,500, in which case the Sellers shall any circumstances be liable for the total amount of such Losses in excess of $172,500, up to an aggregate amount equal to $2 million. (i) any Liability of the Business (including any Liability of the Sellers that becomes a Liability of the Buyer under any bulk transfer law of any jurisdiction, under any common law doctrine of de facto merger or successor liability, or otherwise by operation of law) which is not an Assumed Liability or (ii) any Liability of the Business assumed by the Buyer pursuant to Section 2.3(d). In the event that Sellers may be obliged to indemnify Buyer under both subsection (a) and subsection (b) of this Section 9.2, their obligations under subsection (b) shall be controlling and the limitations provided in Sections 9.1 and 9.2(a) hereof relating to their obligations in respect of Losses resulting from the inaccuracy of any representation and warranty, or any misrepresentation, breach of warranty or non-fulfillment of an agreement or covenant as described in Section 9.2(a), shall not apply. Buyer shall provide Sellers written notice for any claim made in respect of the indemnification provided in this Section 9.2matter involving one or more, whether or not arising out of a claim by a third partybut less than all, Sellers other than such Seller.

Indemnity by Sellers. The Sellers Each Seller hereby agree to agrees severally (and not jointly, or jointly and severally severally) to indemnify, defend and hold harmless Buyer, Acquisition and the Guarantor Company and each of their respective directors, officers and Affiliates (individually a "Buyer Indemnitee" and collectively the "Buyer Indemnitees") against and in respect of all Liabilities, obligations, judgments, Liens, injunctions, charges, orders, decrees, rulings, damages, dues, assessments, Taxes, losses, fines, penalties, expenses, fees, costs, amounts paid in settlement (including reasonable attorneys' and expert witness fees and disbursements in connection with investigating, defending or settling any action or threatened action), arising out of any claim, damages, complaint, demand, cause of action, audit, investigation, hearing, action, suit or other proceeding asserted or initiated or otherwise existing in respect of any matter (each a "Loss" and collectively, the "Losses") that results from: from (a) the inaccuracy or breach of any representation or warranty made by Sellers such Seller herein or resulting from any misrepresentation or breach of warranty (as if all materiality provisions were not contained therein), or nonfulfillment of any agreement or covenant of Sellers contained herein or in any agreement or instrument required to be entered into in connection herewith, or from any misrepresentation in or omission from any schedule, document, certificate or other instrument required to be furnished by Sellers hereunder, provided that for purposes of this clause (a) breaches of all representations and warranties shall be determined as follows (i) with respect to any individual item of Loss or related items of Loss, if such item or items exceed $25,000 (the "Individual Threshold"), then all Losses (without regard to time) that result from, arise out of or relate to the circumstances, events, facts or occurrences surrounding such individual item or related items of Loss or Losses of a similar nature in excess of $10,000 (the "Individual Deductible") shall count toward the Aggregate Deductible and the Aggregate Threshold, (ii) if the aggregate dollar amount of Losses which would otherwise be indemnifiable pursuant to this clause (a) exceeds $300,000 (the "Aggregate Threshold"), in which case the Sellers will be liable for all Losses under this clause (a) in excess of $200,000 (the "Aggregate Deductible"), and (iii) the foregoing limitations shall not apply to any Losses resulting from representations set forth in ss. 3 which were fraudulently made or any breach or inaccuracy of the representations and warranties contained in xx.xx. 3.1 (first sentence only), 3.2, 3.3, 3.5, 3.7 (except for the first and third sentences thereof), or 3.33 and (b) nonfulfillment of any agreement or covenant of such Seller contained herein or in any agreement or instrument required to be entered into in connection herewith; provided, however, that the Sellers shall be liable Sellers' liability under this Section 9.2(a) in respect of Losses only if the aggregate of such Losses exceeds $172,500, in which case the Sellers shall be liable for the total amount of such Losses in excess of $172,500, up to an aggregate amount equal to $2 million. (i) any Liability of the Business (including any Liability of the Sellers that becomes a Liability of the Buyer under any bulk transfer law of any jurisdiction, under any common law doctrine of de facto merger or successor liability, or otherwise by operation of law) which is not an Assumed Liability or (ii) any Liability of the Business assumed by the Buyer pursuant to Section 2.3(d). In the event that Sellers may be obliged to indemnify Buyer under both subsection (a) and subsection clause (b) of this Section 9.2, their obligations under subsection (b) shall be controlling and the limitations provided in Sections 9.1 and 9.2(a) hereof relating to their obligations in respect of Losses resulting from the inaccuracy of any representation and warranty, or any misrepresentation, breach of warranty or non-fulfillment of an the agreement or and covenant as described contained in Section 9.2(a)ss. 5.4(e) shall be subject to the Individual Threshold, Individual Deductible, Aggregate Threshold and Aggregate Deductible set forth above; provided, further, that Sellers shall not applybe liable for a breach of the covenant in the last sentence of ss. 5.3 and any Losses thereunder arising from any action taken by any Seller with respect to the B/E Shares to which the Buyer shall provide Sellers written notice for any claim made specifically consents in writing. Sellers' liability under clause (a) of the immediately preceding sentence in respect of Losses shall not exceed in the indemnification aggregate $1,500,000, provided in this Section 9.2, whether or not arising out of a claim by a third party.that the foregoing

Indemnity by Sellers. The Sellers hereby Without limitation of any other provision of this Agreement or any other rights and remedies available to Purchaser at law or in equity, Sellers, jointly and severally, covenant and agree to jointly and severally indemnify, defend and hold harmless BuyerPurchaser and its Affiliates, the Guarantor and their respective stockholders, officers, directors, officers employees, representatives, successors and Affiliates against and in respect of assigns (the "Purchaser Indemnified Parties") from all Liabilitiesliabilities, obligationslosses, claims, demands, damages, judgments, Liensinterest, injunctions, charges, orders, decrees, rulings, damages, dues, assessments, Taxes, lossespenalties, fines, penalties, costs and expenses, fees, costs, amounts paid in settlement (including reasonable attorneys' and expert witness fees and disbursements in connection with investigating, defending or settling any action or threatened action), arising out of any claim, damages, complaint, demand, cause of action, audit, investigation, hearing, action, suit or other proceeding asserted or initiated or otherwise existing in respect of any matter (collectively, the "Losses") that results from: (a) the inaccuracy of any representation or warranty made by Sellers herein or resulting from any misrepresentation or breach of warranty (as if all materiality provisions were not contained therein), or nonfulfillment of any agreement or covenant of Sellers contained herein or in any agreement or instrument required to be entered into in connection herewith, or from any misrepresentation in or omission from any schedule, document, certificate or other instrument required to be furnished by Sellers hereunder; provided, however, that the Sellers shall be liable under this Section 9.2(a) in respect of Losses only if the aggregate of such Losses exceeds $172,500, in which case the Sellers shall be liable for the total amount of such Losses in excess of $172,500, up to an aggregate amount equal to $2 million. (i) any Liability of the Business (including any Liability of the Sellers that becomes a Liability of the Buyer under any bulk transfer law of any jurisdiction, under any common law doctrine of de facto merger or successor liability, or otherwise by operation of law) which is not an Assumed Liability or (ii) any Liability of the Business assumed by the Buyer pursuant to Section 2.3(d). In the event that Sellers may be obliged to indemnify Buyer under both subsection (a) and subsection (b) of this Section 9.2, their obligations under subsection (b) shall be controlling and the limitations provided in Sections 9.1 and 9.2(a) hereof relating to their obligations in respect of Losses resulting from the inaccuracy of any representation and warranty, or any misrepresentation, breach of warranty or non-fulfillment of an agreement or covenant as described in Section 9.2(a), shall not apply. Buyer shall provide Sellers written notice for any claim made in respect of the indemnification provided in this Section 9.2, whether or not arising out of a claim third-party claims (including without limitation, diminution in value and consequential damages, reasonable attorneys' and accountants' fees and expenses) (collectively, "Losses") actually or allegedly arising out of, in connection with or relating to (i) any breach of any covenant or agreement of Sellers or any inaccuracy in any of the representations and warranties of Sellers in this Agreement or in any certificate delivered by a third partySellers pursuant to this Agreement: (ii) claims, lawsuits, actions and proceedings by Sellers' employees, former employees or applicants to Sellers, or any beneficiary or executor of the estate of any of the foregoing, relating to employment, except to the extent such claims and liabilities are an Assumed Liability; (iii) claims, lawsuits, and other liabilities arising out of Sellers' conduct of the Business of the Division on or before the Closing Date, to the extent that such losses described in clauses (i), (ii) and (iii) hereof are not an Assumed Liability and together with amounts paid under Section 2.1 (f) and (g) exceed $300,000 in the aggregate; (iv) all uninsured amounts paid or incurred by the Purchaser Indemnified Patties pursuant to Section 2.1 (g), or any amounts paid to customers by the Purchaser Indemnified Parties pursuant to Section 2.1(f), for product warranty losses not paid by the applicable manufacturer but only to the extent that such Losses, together with all Losses under clauses (i), (ii), and (iii) exceed $300,000 in the aggregate and relate to products sold by the Division prior to the Closing Date; or (v) the Excluded Assets or Retained Liabilities. Purchaser, on behalf of itself and the Purchaser Indemnified Parties, agrees to use reasonable commercial efforts to pursue any warranty and/or insurance for claims under Sections 2.1 (f) and (g), but shall not be obligated prior to seeking any indemnity from Sellers under the provision of this Article 8 to file suit to enforce such warranty or insurance claims. It is understood and agreed that Sellers' obligations in the aggregate under clauses (i), (ii), (iii), (iv) and (v) of this Section 8.1 shall be limited to the amount of the Purchase Price. In addition, with respect to Section 4.8 hereof, Sellers shall not be deemed to be in breach of Section 4.8 and shall not indemnify Purchaser under the provisions of this Article 8 for Sellers failure to possess or transfer to Purchaser certificates of conformance with respect to any inventory item included within the Purchased Assets on the Closing Date, unless Purchaser has attempted to and failed to obtain such certificates of conformance using reasonable commercial efforts following one hundred twenty (120) days after Purchaser's written request for certification from the manufacturer of such inventory item.

Indemnity by Sellers. The Sellers hereby agree to jointly and severally indemnify, defend and hold harmless Buyer, the Guarantor Purchasers and their respective directorsAffiliates, officers Representatives, successors and Affiliates assigns (the "Purchaser Indemnitees"), from and against and in respect of all Liabilitiesany Loss suffered by the Purchaser Indemnitees arising out of, obligations, judgments, Liens, injunctions, charges, orders, decrees, rulings, damages, dues, assessments, Taxes, losses, fines, penalties, expenses, fees, costs, amounts paid in settlement (including reasonable attorneys' and expert witness fees and disbursements in connection with investigatingwith, defending relating to, or settling any action or threatened action), arising out of any claim, damages, complaint, demand, cause of action, audit, investigation, hearing, action, suit or other proceeding asserted or initiated or otherwise existing in respect of any matter (collectively, the "Losses") that results resulting from: (a) any breach of or failure to comply with any covenant or agreement made by a Seller in this Agreement; (b) any inaccuracy in, misrepresentation, or breach of any of the representations or warranties made by a Seller in this Agreement or in any schedule, exhibit or certificate delivered or to be delivered pursuant to this Agreement (other than with respect to the breach or inaccuracy of any representation or warranty made by Sellers herein or resulting from any misrepresentation or breach of warranty the representations and warranties set forth in Section 5.12 (as if all materiality provisions were not contained thereinEnvironmental), or nonfulfillment of any agreement or covenant of Sellers contained herein or in any agreement or instrument required to be entered into in connection herewith, or from any misrepresentation in or omission from any schedule, document, certificate or other instrument required to be furnished by Sellers hereunder; provided, however, that the Sellers indemnity for which shall be liable under this governed by Section 9.2(a8.2(d) below); (c) the Excluded Assets or the Excluded Liabilities (including in respect of Losses only if the aggregate of such Losses exceeds $172,500, in which each case the Sellers shall be liable for the total amount of such Losses in excess of $172,500, Identified Matters (up to an aggregate amount equal to $2 million.the Identified Matters Cap), the Ongoing Remedial Actions, Environmental Conditions of the Excluded Real Property and the Off-Site Environmental Liabilities); (d) (i) any Liability inaccuracy in, misrepresentation, or breach of any of the Business representations and warranties set forth in Section 5.12 (including Environmental) or in any Liability of the Sellers that becomes a Liability of the Buyer under any bulk transfer law of any jurisdictionschedule, under any common law doctrine of de facto merger exhibit or successor liability, certificate delivered or otherwise by operation of law) which is not an Assumed Liability or to be delivered pursuant to this Agreement; (ii) any Liability Environmental Condition, even if not discovered until after the Closing (other than the Ongoing Remedial Actions, the Identified Matters and Environmental Conditions of the Business assumed Excluded Real Property) found to exist for which Remedial Action is required in writing by the Buyer pursuant to Section 2.3(d). In the event that Sellers may be obliged to indemnify Buyer under both subsection any Governmental Authority; or (aiii) and subsection (b) of this Section 9.2, their obligations under subsection (b) shall be controlling and the limitations provided in Sections 9.1 and 9.2(a) hereof relating to their obligations in respect of Losses resulting from the inaccuracy any violation of any representation Environmental Law prior to the Effective Time that relates to the Real Property, the Excluded Real Property or the Business. Such Losses or claims, may sometimes be referred to herein as "Seller Environmental Liabilities" and warranty, or any misrepresentation, breach of warranty or non-fulfillment of an agreement or covenant as described in Section 9.2(a), shall not apply. Buyer shall provide Sellers written notice for any claim made pursuant to this Agreement by Purchaser Indemnitees with respect to such Seller Environmental Liabilities is an "Environmental Indemnification Claim;" and (e) the employee and related liabilities set forth in respect Section 4.5(d). Anything to the contrary in this Agreement notwithstanding, the indemnity provided in paragraph (d) above shall terminate and be of no further force and effect after the third (3rd) anniversary of the indemnification provided in this Section 9.2Closing Date, whether or not arising out except that any matters with respect to which notice of a claim by a for indemnification has been provided to Sellers on or prior to the third party(3rd) anniversary of the Closing Date, Sellers' indemnification obligation hereunder shall survive until such claim is finally resolved.

Indemnity by Sellers. The (a) Sellers hereby agree to shall, from and after the Closing, jointly and severally indemnifyseverally, defend indemnify Buyer and hold harmless Buyerits Affiliates, the Guarantor directors, officers, employees, controlling persons, agents and representatives and their respective directors, officers successors and Affiliates against and in respect of all Liabilities, obligations, judgments, Liens, injunctions, charges, orders, decrees, rulings, damages, dues, assessments, Taxes, losses, fines, penalties, expenses, fees, costs, amounts paid in settlement (including reasonable attorneys' and expert witness fees and disbursements in connection with investigating, defending or settling any action or threatened action), arising out of any claim, damages, complaint, demand, cause of action, audit, investigation, hearing, action, suit or other proceeding asserted or initiated or otherwise existing in respect of any matter assigns (collectively, the "LossesBuyer Indemnified Parties") that results from: against and hold each of them harmless from any and all Losses incurred or suffered by the Buyer Indemnified Parties (awhether originally asserted against or imposed on the Buyer Indemnified Parties by a third party or originally incurred or suffered directly by the Buyer Indemnified Parties) the inaccuracy arising directly out of (i) any breach of any representation or warranty warranty, covenant or agreement made or to be performed by Sellers pursuant to this Agreement, (ii) the matters described in Schedule 10.1(a) and (iii) subject to the terms set forth in Section 10.8, Indemnified Environmental Matters (such breach, a "Seller Breach"), which breach shall be determined giving effect to any and all amendments and supplements of the schedules of the Sellers and the Company pursuant to Section 12.16. (b) Sellers' obligations to indemnify the Buyer Indemnified Parties pursuant to Section 10.1 are subject to the following limitations: (A) No indemnification shall be made by Sellers herein or resulting from any misrepresentation or breach unless the amount of warranty Losses under this Agreement, the Asset Purchase Agreement, the Real Estate Purchase Agreement for the Frozen Food Facility and Parking Lot,, and the Real Estate Purchase Agreement for the Fort Lauderdale Store (as if all materiality provisions were not contained thereinsuch term is defined in the Asset Purchase Agreement) exceed in the aggregate an amount equal to $560,000, it being understood that such amount shall be a "deductible" for Sellers (the "Seller Deductible"), or nonfulfillment of any agreement or covenant of Sellers contained herein or in any agreement or instrument required to be entered into in connection herewith, or from any misrepresentation in or omission from any schedule, document, certificate or other instrument required to be furnished by Sellers hereunder; provided, however, that the Sellers Seller Deductible shall be liable under this Section 9.2(a) in respect inapplicable to any Losses incurred or suffered by the Buyer Indemnified Parties as a result of Losses only if the aggregate of such Losses exceeds $172,500, in which case the Sellers shall be liable for the total amount of such Losses in excess of $172,500, up to an aggregate amount equal to $2 million. (i) any Liability of the Business fraud by Sellers (including any Liability of the Sellers that becomes as determined by a Liability of the Buyer under any bulk transfer law of any jurisdiction, under any common law doctrine of de facto merger or successor liability, or otherwise by operation court of law) which is not an Assumed Liability or ), (ii) any Liability Sellers' breach of the Business assumed by representation set forth in Section 2.3, (iii) Sellers' failure to perform their covenants in Section 6.6, Section 6.7 and Section 6.9 and (iv) liabilities and obligations arising in connection with the matters described in Schedule 10.1(a); and (B) in no event shall Sellers' obligations to indemnify the Buyer pursuant to Section 2.3(d). In Indemnified Parties under this Agreement, the event that Sellers may be obliged to indemnify Buyer under both subsection (a) Asset Purchase Agreement, the Real Estate Purchase Agreement for the Frozen Food Facility and subsection (b) of this Section 9.2, their obligations under subsection (b) shall be controlling Parking Lot and the limitations provided Real Estate Purchase Agreement for the Fort Lauderdale Store exceed Fifty Million Dollars ($50,000,000) in Sections 9.1 and 9.2(a) hereof relating to their obligations in respect of Losses resulting from the inaccuracy of any representation and warranty, or any misrepresentation, breach of warranty or non-fulfillment of an agreement or covenant as described in Section 9.2(a), shall not apply. Buyer shall provide Sellers written notice for any claim made in respect of the indemnification provided in this Section 9.2, whether or not arising out of a claim by a third partyaggregate.