Common use of Seller’s Indemnification Clause in Contracts

Seller’s Indemnification. Provided that the Closing occurs, Seller shall release, defend, indemnify and hold harmless Buyer, its partners, and their respective officers, directors, employees, agents, partners, representatives, members, shareholders, affiliates, subsidiaries, successors and assigns (collectively, the “Buyer Indemnitees”) from and against any and all Losses to the extent resulting from or arising out of (a) the Retained Obligations, (b) any breach by Seller of any of Seller’s representations and warranties contained in Article V or (c) any breach by Seller of its covenants hereunder, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF THE BUYER INDEMNITEES. Notwithstanding anything to the contrary contained herein, Seller’s indemnification obligation under Section 14.04(a) (other than with respect to the Specified Retained Obligations), Section 14.04(b) and Section 14.04(c) (other than as applicable to breaches of Seller under Sections3.05(b), 3.08, 4.04(b), Article IX, 10.02, 10.03, 10.05(a), Article XII, Article XVI and Article XVII only) (1) shall only apply if Buyer has provided Seller with written notice claiming indemnification within twelve (12) months of the Closing and (2) shall only apply after a deductible percentage of two percent (2%) of the Purchase Price, and then only to the extent of the excess of the claims above the two percent (2%) deductible of the Purchase Price and (3) shall never exceed a maximum aggregate sum of fifteen percent (15%) of the Purchase Price, inclusive of attorneys’ fees and all other expenses of litigation.

Seller’s Indemnification. Provided that the Closing occursIn addition to Sellers’ indemnification obligations under Section 8.7(g) above, each Seller shall releasehereby agrees to indemnify, defend, indemnify defend and hold harmless BuyerPurchaser and its parent, its partnersaffiliates, subsidiaries, lender(s), successors and assigns and each of their respective officers, directors, employees, agents, partners, representativesowners, members, shareholders, affiliatespartners, subsidiariesdirectors, successors officers, managers, employees and assigns agents (collectively, the “Buyer Purchaser Indemnitees”) harmless from and against any and all Losses to the extent losses, actions, suits, claims, demands, judgments, liabilities, damages, penalties, costs (including without limitation court costs and costs of appeal) and expenses (including without limitation reasonable attorneys’ fees and costs and fees and costs of expert witnesses and consultants) incident to, resulting from from, or in any way arising out of or in connection with: (a) any tort claim or breach of contract claim or other claim for money due and owing in connection with the Retained Obligations, ownership or operation of any of the Assets and/or Locations prior to or as of Closing; and/or (b) any breach or default by any Seller of any representation, warranty, covenant or agreement of Sellers contained in this Agreement or in any other Seller Documents executed in connection herewith; and/or (c) each Seller’s ownership, possession, use or occupancy of any of the Assets prior to or as of Closing not included in the Assumed Liabilities; and/or (d) any liability of the Sellers not expressly assumed by Purchaser; and/or (e) investigating, preparing or defending any litigation or proceeding (commenced or threatened) incident to the enforcement of the Sellers’ indemnification obligations hereunder. The obligations of Sellers under this Section 12.1 shall survive Closing for a period of eighteen (18) months, except with respect to obligations of Sellers under this Section 12.1 pertaining to the representations and warranties of Sellers contained in Article V Section 5.10 hereof, which obligations shall survive until six (6) months after the expiration of the applicable statute of limitations (including any waivers or (c) extensions thereof), provided that such obligation shall not terminate as to any breach by Seller of its covenants hereunder, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF THE BUYER INDEMNITEES. Notwithstanding anything indemnification obligation for which Purchaser has provided Sellers written notification prior to the contrary contained herein, Seller’s indemnification obligation under Section 14.04(a) (other than with respect to the Specified Retained Obligations), Section 14.04(b) and Section 14.04(c) (other than as applicable to breaches of Seller under Sections3.05(b), 3.08, 4.04(b), Article IX, 10.02, 10.03, 10.05(a), Article XII, Article XVI and Article XVII only) (1) shall only apply if Buyer has provided Seller with written notice claiming indemnification within twelve (12) months end of the Closing and (2) shall only apply after a deductible percentage of two percent (2%) of the Purchase Price, and then only to the extent of the excess of the claims above the two percent (2%) deductible of the Purchase Price and (3) shall never exceed a maximum aggregate sum of fifteen percent (15%) of the Purchase Price, inclusive of attorneys’ fees and all other expenses of litigationapplicable survival period.

Seller’s Indemnification. Provided that the Closing occurs, Seller shall release, defend, indemnify and hold harmless Buyer, its partners, and their respective officers, directors, employees, agents, partners, representatives, members, shareholders, affiliates, subsidiaries, successors and assigns (collectively, the “Buyer Indemnitees”) from and against any and all Losses to the extent resulting from or arising out of (a) the Retained Obligations, (b) any breach by Seller of any of Seller’s representations and warranties contained in Article V or (c) any breach by Seller of its covenants hereunder, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF THE BUYER INDEMNITEES. Notwithstanding anything to the contrary contained herein, Seller’s indemnification obligation under Section 14.04(a) (other than with respect to the Specified Retained Obligations), Section 14.04(b) and Section 14.04(c) (other than as applicable to breaches of Seller under Sections3.05(bSections 3.05(b), 3.08, 4.04(b), Article IX, 10.02, 10.03, 10.05(a), 12.02, Article XII, Article XVI XVI, and Article XVII only) (1) shall only apply if Buyer has provided Seller with written notice claiming indemnification within twelve (12) months of the Closing and (2) shall only apply after a deductible percentage of two percent (2%) of the Purchase Price, and then only to the extent of the excess of the claims above the two percent (2%) deductible of the Purchase Price and (3) shall never exceed a maximum aggregate sum of fifteen percent (15%) of the Purchase Price, inclusive of attorneys’ fees and all other expenses of litigation.

Seller’s Indemnification. Provided that the Closing occurs, Seller shall release, defend, indemnify and hold harmless Buyer, its partners, and their respective officers, directors, employees, agents, partners, representatives, members, shareholders, affiliates, subsidiaries, successors and assigns (collectively, the “Buyer Indemnitees”) from and against any and all Losses to the extent resulting from or arising out of of (a) the Retained Obligations, (b) any breach by Seller of any of Seller’s representations and warranties contained in Article V or (c) any breach by Seller of its covenants hereunder, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF THE BUYER INDEMNITEES. Notwithstanding anything to the contrary contained herein, Seller’s indemnification obligation under Section 14.04(a) (other than with respect to the Specified Retained Obligations), Section 14.04(b) and Section 14.04(c) (other than as applicable to breaches of Seller under Sections3.05(b), 3.08, 4.04(b), Article IX, 10.02, 10.03, 10.05(a), Article XII, Article XVI and Article XVII only) (1) shall only apply if Buyer has provided Seller with written notice claiming indemnification within twelve (12) months of the Closing and (2) shall only apply after a deductible percentage of two percent (2%) of the Purchase Price, and then only to the extent of the excess of the claims above the two percent (2%) deductible of the Purchase Price and (3) shall never exceed a maximum aggregate sum of fifteen percent (15%) of the Purchase Price, inclusive of attorneys’ fees and all other expenses of litigation.

Seller’s Indemnification. Provided that (a) Sellers, severally but not jointly, subject to the Closing occurslimitations set forth in this Section 9, Seller shall release, defend, will indemnify Buyer against and hold harmless Buyer, its partners, and their respective officers, directors, employees, agents, partners, representatives, members, shareholders, affiliates, subsidiaries, successors and assigns (collectively, the “Buyer Indemnitees”) from and against in respect of any and all Losses, other than Losses to the extent resulting from recoverable by Buyer or the Company under any applicable insurance policy and net of the present value of any tax benefit to Buyer or the Company as a result of such Losses, which are incurred by Buyer by reason of (i) the breach of any representation or warranty made by Sellers in Section 3 of this Agreement or (ii) of any breach of a covenant made by Sellers in this Agreement. (b) Notwithstanding anything to the contrary in this Agreement (but subject to the last sentence of this Section 9.2(b)), (i) the aggregate liability of Sellers pursuant to Section 9.2(a) will not exceed ten percent of the Sellers Redemption Price; (ii) Sellers will have no liability or obligation to Buyer pursuant to this Section 9.2 or otherwise for any Losses arising out of (a) the Retained Obligations, (b) any breach by Seller of any representation or warranty made in this Agreement if (x) disclosed in this Agreement or the Disclosure Schedule hereto or (y) Buyer had knowledge of Seller’s such breach as a result of the disclosures made in this Agreement or in the Disclosure Schedule hereto and (iii) Buyer will not be entitled to recover consequential damages pursuant to this Section 9.2. Notwithstanding the above, the limitations of this Section 9.2(b) shall not apply to a breach of Sellers' representations and warranties contained in Article V or the last sentence of Section 3.3, clause (c) any breach by Seller of its covenants hereunder, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF THE BUYER INDEMNITEES. Notwithstanding anything to the contrary contained herein, Seller’s indemnification obligation under Section 14.04(a) (other than with respect to the Specified Retained Obligations), Section 14.04(b) and Section 14.04(c) (other than as applicable to breaches of Seller under Sections3.05(b), 3.08, 4.04(b), Article IX, 10.02, 10.03, 10.05(a), Article XII, Article XVI and Article XVII only) (1) shall only apply if Buyer has provided Seller with written notice claiming indemnification within twelve (12) months of the Closing and (2) shall only apply after a deductible percentage of two percent (2%vi) of Section 3.6 or in Section 3.17, in which event, the Purchase aggregate liability of Sellers under this Section 9.2 shall in no event exceed the Sellers Redemption Price, and then only to the extent of the excess of the claims above the two percent (2%) deductible of the Purchase Price and (3) shall never exceed a maximum aggregate sum of fifteen percent (15%) of the Purchase Price, inclusive of attorneys’ fees and all other expenses of litigation.

Seller’s Indemnification. Provided that From and after the Closing occursClosing, Seller shall release, defend, agrees to indemnify and hold harmless BuyerPurchaser, its partnerssubsidiaries and Affiliates, its successors and permitted assigns, and their respective officers, directors, employeesemployees and agents from, agentsagainst and in respect of any and all losses, partnersclaims, representativesdemands, membersliabilities, shareholdersassessments, affiliatesdamages, subsidiariesdeficiencies, successors costs, expenses, actions or causes of action in respect thereof (including reasonable attorneys' fees and assigns related costs) (collectively, the “Buyer Indemnitees”"Losses") from and against any and all Losses relating to the extent resulting from or arising directly or indirectly out of or in connection with: (a) the Retained Obligations, (bi) any breach by Seller of any of Seller’s its representations and or warranties contained in Article V this Agreement, including the Schedules hereto or any certificate delivered in connection therewith; (cii) any breach by Seller of any of its covenants hereunderor agreements contained in this Agreement; (iii) any products manufactured for or sold to the customers of the Custom Division prior to the Closing Date; or (iv) the Excluded Liabilities (together with (i), REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE(ii) and (iii), JOINTthe "Seller Breaches"); provided, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF THE BUYER INDEMNITEEShowever, that, except with respect to Losses arising out of a breach of the representations and warranties set forth in Sections 2.1, 2.2, 2.3, 2.4, 2.12, 2.13, 2.15, 2.16, 2.19 or 2.21 hereof, Seller shall not have any liability pursuant to subclause (i) of this Section 7.2(a) unless the aggregate amount of all Losses for which Seller would, but for this proviso, be liable, exceeds on a cumulative basis, Fifty Thousand Dollars ($50,000), in which case Seller shall be liable for the aggregate of all such Losses. Notwithstanding anything in this Agreement to the contrary contained hereincontrary, Seller’s indemnification obligation the aggregate liability of Seller under this Section 14.04(a7.2(a) shall in no event exceed the greater of (other than A) the Initial Cash Amount, and (B) the amounts due and becoming due Seller pursuant to Section 1.2 hereof. This Section 7.2(a) shall provide the sole and exclusive remedy for Purchaser with respect to the Specified Retained Obligations), Section 14.04(b) and Section 14.04(c) (other than as applicable to breaches of Seller under Sections3.05(b), 3.08, 4.04(b), Article IX, 10.02, 10.03, 10.05(a), Article XII, Article XVI and Article XVII only) (1) shall only apply if Buyer has provided Seller with written notice claiming indemnification within twelve (12) months all Losses arising out of the Closing and (2) shall only apply after a deductible percentage of two percent (2%) of the Purchase Price, and then only to the extent of the excess of the claims above the two percent (2%) deductible of the Purchase Price and (3) shall never exceed a maximum aggregate sum of fifteen percent (15%) of the Purchase Price, inclusive of attorneys’ fees and all other expenses of litigationSeller Breaches.

Seller’s Indemnification. Provided that (i) Subject to the Closing occursother limitations in this Article 8 and, in the case of Gryphon Partners III, L.P., to the Gryphon Indemnity Guarantee (as defined below) contained in this Section 8.1(a)(i), from and after the Closing, each of the Sellers (collectively, the “Seller shall releaseIndemnitors”), defendseverally and not jointly, indemnify in proportion to the applicable percentage set forth on the attached “Sellers Holdings Schedule” (the “Applicable Percentage”), agree to indemnify, defend and hold harmless Buyer, Purchaser and its partners, Affiliates (including the members of the Company Group) and their respective officers, directors, employees, agentsstockholders, partnerspartners (general and limited), representatives, members, shareholders, affiliates, subsidiaries, successors agents and assigns representatives (collectively, the “Buyer Purchaser Indemnitees”) from in respect of any loss, Liability, fine, penalty, deficiency, damage or expense (including reasonable legal expenses and against costs) but excluding consequential, special, punitive, indirect, or exemplary damages and excluding any damages measured by a multiple of earnings (except, in each case, to the extent such damages are awarded to an unaffiliated third party) (a “Loss”) which such Purchaser Indemnitee suffers as a result of: (A) the breach by the Company of any representation or warranty contained in Article 5 (disregarding all qualifications as to “materiality” and “Material Adverse Effect” set forth therein other than those set forth in Sections 5.5(a), 5.6(a), 5.10(a) (first sentence), 5.11 (first and second sentences), 5.16(d), and 5.19(c)) as of the date hereof and as of the Closing Date; (B) the breach by the Company of any covenant or agreement contained in this Agreement required to be performed by the Company prior to Closing; (C) all Taxes of the Company Group for all Taxable periods ending on or before the Closing Date and the portion through the end of the Closing Date for any Taxable period that includes (but does not end on) the Closing Date (each such Taxable period, a “Pre-Closing Tax Period”); (D) any and all Liability (as a result of Treasury Regulation Section 1.1502-6 or otherwise) for Taxes of any Person (other than a member of the Company Group) which is or has ever been affiliated with a member of the Company Group or with whom Company Group member otherwise joins or has ever joined (or is or has ever been required to join) in filing any consolidated, combined, unitary or aggregate Tax Return, prior to the Closing Date; (E) the exercise of appraisal or dissenters rights by any Company Stockholder (it being agreed that only Losses in excess of the amount such Person would have received in respect of such Person’s shares of Company Stock if such Person had received such Person’s portion of the Final Merger Consideration in respect thereof and not exercised such appraisal or dissenters rights shall constitute a Loss); and (F) the matters described in Section (a) of the “Special Indemnity Schedule”; provided, however, that in the case of clauses (C) and (D) above, the Seller Indemnitors shall be liable only to the extent resulting from such Taxes are in excess of the amount, if any, of such Taxes included in the calculation of Final Working Capital, Final Indebtedness, or arising out of (a) the Retained Obligations, (b) Final Transaction Expenses. Any amount payable to any breach Purchaser Indemnitee by any Seller of any of Seller’s representations and warranties contained in Article V or (c) any breach by Seller of its covenants hereunder, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF THE BUYER INDEMNITEES. Notwithstanding anything to the contrary contained herein, Seller’s Indemnitor for indemnification obligation under Section 14.04(a) this Agreement (other than with respect to the Specified Retained Obligations)matters set forth in Section (a)(1) of the Special Indemnity Schedule) shall be satisfied (i) first, from the Indemnification Escrow Fund and then (ii) second, directly from such Seller Indemnitor. Any amount payable to any Purchaser Indemnitee by any Seller Indemnitor for indemnification with respect to the matters set forth in Section 14.04(b(a)(1) of the Special Indemnity Schedule shall be satisfied (i) first, from the Special Escrow Fund, (ii) second, from the Indemnification Escrow Fund and then (iii) third, directly from such Seller Indemnitor. Notwithstanding that each Seller shall only be liable for its Applicable Percentage of any Loss suffered by a Purchaser Indemnitee, Gryphon Partners III, L.P. (the “Guarantor”) hereby irrevocably and unconditionally guarantees (the “Gryphon Indemnity Guarantee”) to Purchaser and each Purchaser Indemnitee the due and punctual observance, performance, and discharge of the indemnification obligations of each of the Management Sellers under this Section 14.04(c8.1(a)(i) (the “Guaranteed Obligations”). The Gryphon Indemnity Guarantee is a guaranty of payment and not of collection. Guarantor hereby waives to the maximum extent permitted by applicable law, for the benefit of each Purchaser Indemnitee, and covenants and agrees not to assert or attempt to enforce: (a) any right to require Purchaser or Merger Sub, as a condition of payment or performance by Guarantor, to (i) proceed first against the Company or any other Person or (ii) pursue any other remedy in the power of any Purchaser Indemnitee whatsoever; (b) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of the Guarantor, including any defense based on or arising out of the lack of validity or the unenforceability of the Guaranteed Obligations or any agreement or instrument relating thereto or by reason of the cessation of the liability of the Company from any cause other than as applicable to breaches payment in full of Seller under Sections3.05(b), 3.08, 4.04(b), Article IX, 10.02, 10.03, 10.05(a), Article XII, Article XVI and Article XVII onlythe Guaranteed Obligations; (c) (1i) shall only apply if Buyer has provided any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (ii) any defense or benefit that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms hereof; (d) (i) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms hereof and any legal or equitable discharge of Guarantor’s obligations hereunder, (ii) the benefit of any statute of limitations affecting Guarantor’s liability hereunder or the enforcement hereof, (iii) any rights to set offs, recoupments and counterclaims and (iv) promptness, diligence and any requirement that any Purchaser Indemnitee protect, secure, perfect or insure any security interest or Lien or any property subject thereto; (e) notices, demands, presentments, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance hereof, notices of default hereunder or under this Agreement notices of any renewal, extension or modification of the Guaranteed Obligations or any agreement related thereto, and any right to consent to any thereof; (f) notice of any default under this Agreement or (g) any right or defense arising by reason of any claim or defense base upon an election of remedies by any Purchaser Indemnitee, including any defense based upon an impairment or elimination of Guarantor’s rights of subrogation, reimbursement, contribution or indemnity. (ii) Any claims by any Purchaser Indemnitee pursuant to this Article 8 must be made in writing to the Sellers’ Representative on or before the Seller with Survival Date, it being understood that so long as such written notice claiming indemnification within is given on or prior to the Seller Survival Date, such representations and warranties and covenants that are the subject of such claim shall continue to survive until such matter is resolved. For purposes of this Agreement, the term “Seller Survival Date” shall mean the date that is twelve (12) months following the Closing Date; provided that the Seller Survival Date with respect to the representations and warranties set forth in Sections 5.1(a), 5.2, 5.3, 5.4(a), or 5.20, (collectively, the “Fundamental Representations”) shall mean the fourth (4th) anniversary of the Closing Date; provided further that the Seller Survival Date with respect to (i) the representations and warranties set forth in Section 5.17 and Losses pursuant to Sections 8.1(a)(i)(C), (D) and (2E) shall only apply be 30 days after a deductible percentage the expiration of two percent the statute of limitations applicable to such matters, (2%ii) Losses pursuant to Section 8.1(a)(i)(F) with respect to Section (a)(1) of the Purchase PriceSpecial Indemnity Schedule shall mean the first anniversary of the Closing Date, and then only (iii) Losses pursuant to Section 8.1(a)(i)(F) with respect to in Section (a)(2) of the Special Indemnity Schedule shall mean the third anniversary of the Closing Date. (iii) The indemnification provided for in Section 8.1(a)(i)(A) and Section 8.1(a)(i)(F) above is subject to each of the following limitations: (A) Except in the case of a breach of a Fundamental Representation or the representations and warranties contained in Section 5.17 or fraud, the aggregate amount of all payments made by the Seller Indemnitors (including from the Indemnification Escrow Fund) in satisfaction of claims for indemnification pursuant to (a) Section 8.1(a)(i)(A) and Section 8.1(a)(i)(F) with regard to Section (a)(2) of the Special Indemnity Schedule shall not exceed an amount equal to $8,820,000 less the aggregate amount of all payments made to the Purchaser Indemnitees pursuant to Section 8.1(a)(i)(F) with regard to Section (a)(1) of the Special Indemnity Schedule other than payments satisfied from the Special Escrow Fund (but including the Indemnification Escrow Fund) and (b) Section 8.1(a)(i)(F) with regard to Section (a)(1) of the Special Indemnity Schedule shall not exceed the difference between $10,820,000 and the aggregate amount of all payments made to the Purchaser Indemnitees pursuant to Section 8.1(a)(i)(A) and Section 8.1(a)(i)(F) with regard to Section (a)(2) of the Special Indemnity Schedule (including from the Indemnification Escrow Fund or Special Escrow Fund). (B) None of the Seller Indemnitors shall be liable to indemnify the Purchaser Indemnitees pursuant to Section 8.1(a)(i)(A) (other than for the breach of a Fundamental Representation or the representations and warranties contained in Section 5.17 or fraud) unless and until such Purchaser Indemnitee has collectively suffered Losses as a result of breaches in excess of $735,000 in the aggregate (the “Indemnification Basket”) (the Seller Indemnitors being obligated to indemnify the Purchaser Indemnitees solely to the extent exceeding the Indemnification Basket); provided that, the Seller Indemnitors shall not be liable to indemnify the Purchaser Indemnitees pursuant to Section 8.1(a)(i)(A) (other than for a breach of a Fundamental Representation or the representations and warranties contained in Section 5.17 or fraud), unless and until such Purchaser Indemnitee has suffered aggregate Losses arising out of a claim or a related group of claims arising out of the same facts, events or circumstances in excess of $50,000 (provided that any claim not exceeding such amount shall not be aggregated to count towards the Indemnification Basket). (C) Except with respect to Losses attributable to a breach of the representation set forth in Section 5.17(b)(vii) (excluding any Losses attributable to any corporate restructuring taken by the Purchaser or any of its Affiliates (including the Company Group) on or after the Closing Date), any Losses claimed by the Purchaser Indemnitees for a breach of representation or warranty set forth in Section 5.17 or otherwise with respect to Taxes shall be limited to Losses incurred with respect to taxable periods ending on or before the Closing Date and the portion through the end of the Closing Date for any taxable period that includes (but does not end on) the Closing Date. (iv) Notwithstanding anything to the contrary contained here, in no event will any Seller Indemnitor be liable for any Losses of the Purchaser Indemnitees under or in respect of this Agreement or the transactions contemplated hereby in an amount in excess of the claims above the two percent (2%) deductible proceeds actually received by such Seller Indemnitor on account of the Purchase Price and sale by such Person of its shares of Company Stock hereunder (3) shall never exceed including for this purpose in the case of a maximum Seller that was a holder of Phantom Rights immediately prior to Closing, the aggregate sum payments received by such Person in respect of fifteen percent (15%) of the Purchase Price, inclusive of attorneys’ fees and all other expenses of litigationsuch Phantom Rights).

Seller’s Indemnification. Provided that Subject to the Closing occurslimitations contained in this Article XIV, Seller Sellers, jointly and severally, shall releaseindemnify, defend, indemnify defend and hold harmless Buyer, its partners, Affiliates and each of their respective officers, directors, employees, agentsstockholders, partnersagents and representatives and each of the heirs, representatives, members, shareholders, affiliates, subsidiariesexecutors, successors and assigns of any of the foregoing (the "Buyer Indemnitees") from and against, and pay or reimburse the Buyer Indemnitees for, all losses, liabilities, damages, obligations, fines, expenses, claims, demands, actions, suits, proceedings, judgments or settlements, whether or not resulting from Third Party Claims, including interest and penalties recovered by a third party with respect thereto and reasonable out-of-pocket expenses and reasonable attorneys' and accountants' fees and expenses incurred in the investigation or defense of any of the same or in asserting, preserving or enforcing any rights hereunder, suffered or incurred (collectively, "Damages") by the “Buyer Indemnitees”) from and against any and all Losses , relating to the extent resulting from or arising out of from: (a) the Retained Obligations, any Seller's breach of any of its covenants or agreements (other than a breach of Section 6.1.4 hereof) contained in this Agreement; (b) any breach by Seller or inaccuracy of any representation or warranty of Seller’s representations and warranties any Seller contained in Article V this Agreement or in any certificate delivered pursuant hereto; or (c) any breach by Seller of its covenants hereunder, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF THE BUYER INDEMNITEESthe Retained Liabilities. Notwithstanding anything to the contrary contained herein, Seller’s indemnification obligation Sellers shall not have any liability under Section 14.04(a14.2(b) (other than with respect x) unless the aggregate of all Damages for which Sellers would, but for this provision, be liable under Section 14.2(b) exceed on a cumulative pre-tax basis an amount equal to $500,000 (the Specified Retained Obligations"Indemnity Basket"), Section 14.04(b) and Section 14.04(c) (other than as applicable to breaches of Seller under Sections3.05(b), 3.08, 4.04(b), Article IX, 10.02, 10.03, 10.05(a), Article XII, Article XVI and Article XVII only) (1) shall only apply if Buyer has provided Seller with written notice claiming indemnification within twelve (12) months of the Closing and (2) shall only apply after a deductible percentage of two percent (2%) of the Purchase Price, and then only to the extent of the excess of the claims above the two percent (2%) deductible of the Purchase Price any such excess, and (3y) shall never exceed a maximum aggregate sum of fifteen percent (15%) in excess of the Purchase Price, inclusive of attorneys’ fees and all other expenses of litigation.

Seller’s Indemnification. Provided that the Closing occurs, Seller shall release, will defend, indemnify and hold Purchaser harmless Buyeragainst and in respect of any and all liability, its partnersdamage, loss, cost, and their respective officers, directors, employees, agents, partners, representatives, members, shareholders, affiliates, subsidiaries, successors and assigns expenses (collectively, the “Buyer IndemniteesDamages”) from and against any and all Losses to the extent resulting from or arising out of or otherwise in respect of: (a) any misrepresentation, breach of warranty, or non-fulfillment of any agreement or covenant made by Seller in this Agreement, the Retained Obligations, OTAs or any other documents or agreements executed and delivered by Seller to Purchaser at Closing; (b) any breach by Seller the ownership and/or operation of any of Seller’s representations the Facilities prior to the Closing Date (other than the Assumed Liabilities); and warranties contained in Article V or (c) any breach and all actions, suits, proceedings, audits, judgments, costs, and legal and other expenses incident to any of the foregoing or to the enforcement of this Section 11.1. Notwithstanding the provisions of this Agreement, the OTAs or any other documents or agreements executed and delivered by Seller of its covenants hereunderto Purchaser at Closing, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF THE BUYER INDEMNITEES. Notwithstanding anything to the contrary contained herein, in no event shall (i) Seller’s indemnification obligation under Section 14.04(aindemnity obligations pursuant to this Agreement exceed Twenty Five Million and No/100 Dollars ($25,000,000) (other than with respect the “Cap”) in the aggregate; provided that the Cap shall not apply to fraud and (ii) Seller be liable for any indemnification obligations pursuant to this Section 11.1 unless and until the Specified Retained Obligationsaggregate of all indemnity losses exceeds Fifty Thousand and No/100 Dollars ($50,000.00) (the “Threshold Amount”), Section 14.04(b) and Section 14.04(c) (other than as applicable at which time the Purchaser shall be entitled to breaches of Seller under Sections3.05(b), 3.08, 4.04(b), Article IX, 10.02, 10.03, 10.05(a), Article XII, Article XVI and Article XVII only) (1) shall only apply if Buyer has provided Seller with written notice claiming indemnification within twelve (12) months of the Closing and (2) shall only apply after a deductible percentage of two percent (2%) of the Purchase Price, and then be indemnified for losses only to the extent of such loss exceeds the excess of the claims above the two percent (2%) deductible of the Purchase Price and (3) shall never exceed a maximum aggregate sum of fifteen percent (15%) of the Purchase Price, inclusive of attorneys’ fees and all other expenses of litigationThreshold Amount.