Common use of Survival of Representations and Warranties; Indemnification Obligations Clause in Contracts

Survival of Representations and Warranties; Indemnification Obligations. (a) Subject to the limitations and other provisions of this Agreement, the representations and warranties of the Parties contained herein, as the case may be, shall survive the Closing and shall remain in full force and effect until the date that is eighteen (18) months following the Closing Date, except that: the representations and warranties (collectively, the “Fundamental Representations”) set forth in Section 3.1 (Existence; Good Standing), Section 3.2 (Capitalization; Subsidiaries), Section 3.3 (No Conflict), Section 3.8 (Taxes), Section 3.9 (Employee Benefit Plans), Section 3.12 (Intellectual Property) Section 3.13 (Environmental Matters), Section 3.16 (Anti-Corruption and Anti-Bribery), Section 3.27 (FFCRA Compliance), Section 3.28 (PPP Loans), Section 4.1 (Authority; Enforceability), Section 4.2 (Title to Shares) and Section 4.3 (Brokers), Section 4.5 (Taxes) and Section 4.6 (S Shareholder Status) shall survive the Closing until sixty (60) days after the expiration of the applicable statute of limitations for the matters described in such representations and warranties plus any extensions or waivers thereof. All covenants and agreements of the parties contained herein shall survive the Closing indefinitely or for the period explicitly specified therein. Notwithstanding the foregoing, any claims asserted in writing by notice from the Indemnified Party seeking indemnification under this Agreement to an Indemnifying Party prior to the expiration date of the applicable survival period shall not thereafter be barred by the expiration of the relevant representation or warranty and such claims and any other claim(s) reasonably related thereto shall survive until finally resolved. (b) Subject to the other provisions of this Article VIII, the Sellers shall jointly and severally indemnify and hold harmless the Buyer and each of its Affiliates (which, following the Closing, shall include each of the Companies) and its and their respective directors, officers, employees, stockholders, partners, members, managers, agents and representatives (each, a “Buyer Indemnified Party”) from and against, and pay to the Buyer Indemnified Parties, any and all Losses, whether or not involving a Third Party Claim, incurred or sustained, directly or indirectly, based upon, relating to, arising out of, with respect to or by reason of: (i) any breach of, or inaccuracy in, or any allegation of any third party that, if true, would be a breach or inaccuracy of, any representation or warranty made by the Sellers in this Agreement; (ii) any breach of, or failure of any Seller to perform, any covenant agreement or obligation of any Seller in this Agreement; (iii) any Transfer Taxes; (iv) any Taxes of any Company or any Seller with respect to any Pre-Closing Period, the Final Pre-Closing Period or the pre-Closing portion of any Straddle Period. For the avoidance of doubt, the indemnification rights under this Section 8.1(b) shall be in addition to the indemnification rights relating to the Sellers’ representations and warranties set forth in Section 3.8 (Taxes); (v) any amounts owed to or recoverable by the Buyer under Section 2.2(d). (vi) any Transaction Fees to the extent not reflected in the Flow of Funds Memorandum; (vii) any Funded Indebtedness (other than Assumed Indebtedness) to the extent not reflected in the Flow of Funds Memorandum; (viii) COVID-19 Liabilities; (ix) the Company PPP Loans, including, without limitation, any non-compliance with any Company PPP Loan or with the CARES Act, any litigation arising in respect thereof or in relation thereto, any audit, review or investigation pertaining to any Company PPP Loan, and any retroactive determination of ineligibility with respect to any Company PPP Loan or reversal of forgiveness granted in respect thereof; (x) any Shareholder Claim; (xi) the Wxxxxx Phantom Share Agreement; (xii) any Environmental and Occupational Safety and Health Liability; and (xiii) the matters set forth on Schedule 8.1(b)(xiii). (c) In the absence of fraud or intentional misrepresentation, the Sellers shall not be required to indemnify any Buyer Indemnified Party with respect to a claim for indemnification pursuant to Section 8.1(b)(i) unless and until the cumulative aggregate amount of all indemnifiable Losses which may be recovered by the Buyer Indemnified Parties pursuant to Section 8.1(b)(i) exceeds $50,000, in which event the Sellers will be liable for all such indemnifiable Losses from the first dollar; provided, however, that the limitations set forth in this Section 8.1(c) shall not apply to indemnification obligations with respect to any Fundamental Representations. (d) In the absence of fraud or intentional misrepresentation, no Seller shall be required to indemnify any Buyer Indemnified Party with respect to a claim for indemnification pursuant to Section 8.1(b)(i), for any amount of indemnifiable Losses in excess of $2,500,000 (the “Cap”); provided, however, that the Cap shall not apply to Losses related to Fundamental Representations. In the absence of fraud or intentional misrepresentation, the Sellers shall not be required to indemnify any Buyer Indemnified Party with respect to a claim for indemnification pursuant to Section 8.1(b)(i) for any amount of indemnifiable Losses in excess of the Purchase Price. (e) Subject to the other provisions of this Article VIII, the Buyer shall indemnify and hold harmless each Seller (the “Seller Indemnified Party”) from and against, and pay to the Seller Indemnified Parties, any and all Losses, whether or not involving a Third Party Claim, actually incurred (and as incurred) by such Seller Indemnified Party, incurred or sustained, directly or indirectly, based upon, relating to, arising out of, with respect to or by reason of (i) any breach of, or inaccuracy in, any representation or warranty concerning the Buyer contained in Article V; or (ii) any breach of, or failure of the Buyer to perform, any covenant agreement or obligation of the Buyer in this Agreement. (f) Notwithstanding anything to the contrary contained in this Agreement, for purposes of determining the amount of any Losses that are the subject matter of a claim for indemnification hereunder, each representation and warranty in this Agreement and each certificate or document delivered pursuant hereto shall be read without regard and without giving effect to the term(s) “material” or “material adverse effect” or similar qualifiers as if such words and surrounding related words (e.g., “reasonably be expected to,” “could have” and similar restrictions and qualifiers) were deleted from such representation and warranty.

Survival of Representations and Warranties; Indemnification Obligations. (a) Subject Notwithstanding any right of Buyer to investigate fully the limitations affairs of the Company and other provisions the Subsidiaries and notwithstanding any knowledge of facts determined or determinable by Buyer pursuant to such investigation or right of investigation, Buyer has the right to rely fully upon the representations, warranties, covenants and agreements of Sellers contained in this Agreement or in any documents delivered pursuant to this Agreement. All representations and warranties contained in this Agreement shall survive the execution and delivery of this Agreement, Agreement and the Closing (except that the representations and warranties contained in Sections 4.9, 4.10, 4.11 and 4.12 shall not survive the Closing). The representations and warranties of Sellers contained in this Agreement shall terminate and expire (i) with respect to any Claim (as defined below) based on the Parties representations and warranties contained hereinin Section 3.14 (a "Tax Representation Claim") on the date which is 30 days after the date upon which the liability to which any such Tax Representation Claim may relate is barred by all applicable statutes of limitations (including all periods of extension, as whether automatic or permissive); (ii) with respect to any Claim based on the case representations and warranties contained in Section 3.19, three years after the Closing Date; (iii) with respect to any Claim based on the representations and warranties contained in Section 3.13, on the date upon which the liability to which any such Claim may berelate is barred by all applicable statutes of limitations (including all periods of extension, whether automatic or permissive); and (iv) with respect to any Claim based on any other representation and warranty (except for those representations and warranties in Sections 3.1, 3.2, 3.4, 3.5, 3.16 and 3.24 (the "Fundamental Representations"), all of which Fundamental Representations shall survive without limitation), on the date which is 18 months after the Closing Date. Unless a specified period is set forth in this Agreement (in which event such specified period will control), the covenants and agreements of this Agreement will survive the Closing and shall remain in full force and effect until the date that is eighteen (18) months following the Closing Date, except that: the representations and warranties (collectively, the “Fundamental Representations”) set forth in Section 3.1 (Existence; Good Standing), Section 3.2 (Capitalization; Subsidiaries), Section 3.3 (No Conflict), Section 3.8 (Taxes), Section 3.9 (Employee Benefit Plans), Section 3.12 (Intellectual Property) Section 3.13 (Environmental Matters), Section 3.16 (Anti-Corruption and Anti-Bribery), Section 3.27 (FFCRA Compliance), Section 3.28 (PPP Loans), Section 4.1 (Authority; Enforceability), Section 4.2 (Title to Shares) and Section 4.3 (Brokers), Section 4.5 (Taxes) and Section 4.6 (S Shareholder Status) shall survive the Closing until sixty (60) days after the expiration of the applicable statute of limitations for the matters described in such representations and warranties plus any extensions or waivers thereof. All covenants and agreements of the parties contained herein shall survive the Closing indefinitely or for the period explicitly specified therein. Notwithstanding the foregoing, any claims asserted in writing by notice from the Indemnified Party seeking indemnification under this Agreement to an Indemnifying Party prior to the expiration date of the applicable survival period shall not thereafter be barred by the expiration of the relevant representation or warranty and such claims and any other claim(s) reasonably related thereto shall survive until finally resolvedindefinitely. (b) Subject PFG, with respect to the other provisions of all matters contemplated by this Article VIIIAgreement, the Sellers shall jointly and severally indemnify with PLAC, SFC and PCFS; PLAC, with respect only to matters relating to itself and the PennLife Companies, severally and not jointly with any other Seller (except PFG); SFC, with respect only to matters relating to itself and the ConLife Companies, severally and not jointly with any other Seller (except PFG); and PCFS, with respect only to matters relating to itself, severally and not jointly with any other Seller (except PFG), will indemnify, defend and hold harmless the Buyer and each of its Affiliates (whichand, following the Closing, shall include each of the Companies) and its and Companies (together with their respective directors, officers, employees, stockholdersaffiliates, partnerssuccessors and assigns, members, managers, agents and representatives (each, a “the "Buyer Indemnified Party”Indemnitees") from and againstagainst all actions, causes of action, suits, claims, complaints, demands, litigations, or legal, administrative or arbitral proceedings or investigations ("Claim"), losses, liabili ties, damages (excluding any indirect, consequential or special damages), deficiencies, judgments, assessments, fines, settlements, costs or expenses (including interest, penalties and pay to fees, reasonable expenses and disbursements of outside attorneys, experts and consultants) incurred by the Buyer Indemnified Partiesindemnified party in any action or proceeding between the indemnifying party and the indemnified party or between the indemnified party and any third party, any and all or otherwise ("Losses, whether or not involving a Third Party Claim, incurred or sustained, directly or indirectly, ") based upon, relating to, arising out of, with of or otherwise in respect to or by reason of: (i) any breach of, or inaccuracy in, in or any allegation breach of any third party thatrepresentation, if truewarranty, would be a breach covenant or inaccuracy of, any representation or warranty made by the agreement of Sellers in this Agreement; (ii) any breach of, or failure of any Seller to perform, any covenant agreement or obligation of any Seller in this Agreement; (iii) any Transfer Taxes; (iv) any Taxes of any Company or any Seller with respect to any Pre-Closing Period, the Final Pre-Closing Period or the pre-Closing portion of any Straddle Period. For the avoidance of doubt, the indemnification rights under this Section 8.1(b) shall be in addition to the indemnification rights relating to the Sellers’ representations and warranties set forth in Section 3.8 (Taxes); (v) any amounts owed to or recoverable by the Buyer under Section 2.2(d). (vi) any Transaction Fees to the extent not reflected in the Flow of Funds Memorandum; (vii) any Funded Indebtedness (other than Assumed Indebtedness) to the extent not reflected in the Flow of Funds Memorandum; (viii) COVID-19 Liabilities; (ix) the Company PPP Loans, including, without limitation, any non-compliance with any Company PPP Loan or with the CARES Act, any litigation arising in respect thereof or in relation thereto, any audit, review or investigation pertaining to any Company PPP Loan, and any retroactive determination of ineligibility with respect to any Company PPP Loan or reversal of forgiveness granted in respect thereof; (x) any Shareholder Claim; (xi) the Wxxxxx Phantom Share Agreement; (xii) any Environmental and Occupational Safety and Health Liability; and (xiii) the matters set forth on Schedule 8.1(b)(xiii). (c) In the absence of fraud or intentional misrepresentation, the Sellers shall not be required to indemnify any Buyer Indemnified Party with respect to a claim for indemnification pursuant to Section 8.1(b)(i) unless and until the cumulative aggregate amount of all indemnifiable Losses which may be recovered by the Buyer Indemnified Parties pursuant to Section 8.1(b)(i) exceeds $50,000, in which event the Sellers will be liable for all such indemnifiable Losses from the first dollar; provided, however, that the limitations set forth in this Section 8.1(c) shall not apply to indemnification obligations with respect to any Fundamental Representations. (d) In the absence of fraud or intentional misrepresentation, no Seller shall be required to indemnify any Buyer Indemnified Party with respect to a claim for indemnification pursuant to Section 8.1(b)(i), for any amount of indemnifiable Losses in excess of $2,500,000 (the “Cap”); provided, however, that the Cap shall not apply to Losses related to Fundamental Representations. In the absence of fraud or intentional misrepresentation, the Sellers shall not be required to indemnify any Buyer Indemnified Party with respect to a claim for indemnification pursuant to Section 8.1(b)(i) for any amount of indemnifiable Losses in excess of the Purchase Price. (e) Subject to the other provisions of this Article VIII, the Buyer shall indemnify and hold harmless each Seller (the “Seller Indemnified Party”) from and against, and pay to the Seller Indemnified Parties, any and all Losses, whether or not involving a Third Party Claim, actually incurred (and as incurred) by such Seller Indemnified Party, incurred or sustained, directly or indirectly, based upon, relating to, arising out of, with respect to or by reason of (i) any breach of, or inaccuracy in, any representation or warranty concerning the Buyer contained in Article V; or (ii) any breach of, or failure of the Buyer to perform, any covenant agreement or obligation of the Buyer in this Agreement. (f) Notwithstanding anything to the contrary contained in this Agreement, for purposes Agreement or in any documents delivered by Sellers pursuant to this Agreement (including any breach of determining the amount of any Losses that are the subject matter of a claim for indemnification hereunder, each representation and warranty in this Agreement and each certificate or document delivered pursuant hereto shall be read without regard and without giving effect Section 3.15(e) relating to the term(s) “material” or “material adverse effect” or similar qualifiers as if such words and surrounding related words (e.g., “reasonably be expected to,” “could have” and similar restrictions and qualifiers) were deleted from such representation and warranty.claims for Agent Compensation not listed in

Survival of Representations and Warranties; Indemnification Obligations. (a) Subject Notwithstanding any right of Buyer to investigate fully the limitations affairs of the Company and other provisions the Subsidiaries and notwithstanding any knowledge of facts determined or determinable by Buyer pursuant to such investigation or right of investigation, Buyer has the right to rely fully upon the representations, warranties, covenants and agreements of Sellers contained in this Agreement or in any documents delivered pursuant to this Agreement. All representations and warranties contained in this Agreement shall survive the execution and delivery of this Agreement, Agreement and the Closing (except that the representations and warranties contained in Sections 4.9, 4.10, 4.11 and 4.12 shall not survive the Closing). The representations and warranties of Sellers contained in this Agreement shall terminate and expire (i) with respect to any Claim (as defined below) based on the Parties representations and warranties contained hereinin Section 3.14 (a "Tax Representation Claim") on the date which is 30 days after the date upon which the liability to which any such Tax Representation Claim may relate is barred by all applicable statutes of limitations (including all periods of extension, as whether automatic or permissive); (ii) with respect to any Claim based on the case representations and warranties contained in Section 3.19, three years after the Closing Date; (iii) with respect to any Claim based on the representations and warranties contained in Section 3.13, on the date upon which the liability to which any such Claim may berelate is barred by all applicable statutes of limitations (including all periods of extension, whether automatic or permissive); and (iv) with respect to any Claim based on any other representation and warranty (except for those representations and warranties in Sections 3.1, 3.2, 3.4, 3.5 and 3.16 (the "Fundamental Representations"), all of which Fundamental Representations shall survive without limitation), on the date which is 18 months after the Closing Date. Unless a specified period is set forth in this Agreement (in which event such specified period will control), the covenants and agreements of this Agreement will survive the Closing and shall remain in full force and effect until the date that is eighteen (18) months following the Closing Date, except that: the representations and warranties (collectively, the “Fundamental Representations”) set forth in Section 3.1 (Existence; Good Standing), Section 3.2 (Capitalization; Subsidiaries), Section 3.3 (No Conflict), Section 3.8 (Taxes), Section 3.9 (Employee Benefit Plans), Section 3.12 (Intellectual Property) Section 3.13 (Environmental Matters), Section 3.16 (Anti-Corruption and Anti-Bribery), Section 3.27 (FFCRA Compliance), Section 3.28 (PPP Loans), Section 4.1 (Authority; Enforceability), Section 4.2 (Title to Shares) and Section 4.3 (Brokers), Section 4.5 (Taxes) and Section 4.6 (S Shareholder Status) shall survive the Closing until sixty (60) days after the expiration of the applicable statute of limitations for the matters described in such representations and warranties plus any extensions or waivers thereof. All covenants and agreements of the parties contained herein shall survive the Closing indefinitely or for the period explicitly specified therein. Notwithstanding the foregoing, any claims asserted in writing by notice from the Indemnified Party seeking indemnification under this Agreement to an Indemnifying Party prior to the expiration date of the applicable survival period shall not thereafter be barred by the expiration of the relevant representation or warranty and such claims and any other claim(s) reasonably related thereto shall survive until finally resolvedindefinitely. (b) Subject PFG, with respect to the other provisions of all matters contemplated by this Article VIIIAgreement, the Sellers shall jointly and severally indemnify with PLAC, SFC and PCFS; PLAC, with respect only to matters relating to itself and the PennLife Companies, severally and not jointly with any other Seller (except PFG); SFC, with respect only to matters relating to itself and the ConLife Companies, severally and not jointly with any other Seller (except PFG); and PCFS, with respect only to matters relating to itself, severally and not jointly with any other Seller (except PFG), will indemnify, defend and hold harmless the Buyer and each of its Affiliates (whichand, following the Closing, shall include each of the Companies) and its and Companies (together with their respective directors, officers, employees, stockholdersaffiliates, partnerssuccessors and assigns, members, managers, agents and representatives (each, a “the "Buyer Indemnified Party”Indemnitees") from and againstagainst all actions, and pay to the Buyer Indemnified Partiescauses of action, any and all Lossessuits, whether or not involving a Third Party Claimclaims, incurred or sustainedcomplaints, directly or indirectlydemands, based upon, relating to, arising out of, with respect to or by reason of: (i) any breach oflitigations, or inaccuracy inlegal, administrative or any allegation of any third party that, if true, would be a breach or inaccuracy of, any representation or warranty made by the Sellers in this Agreement; (ii) any breach of, or failure of any Seller to perform, any covenant agreement or obligation of any Seller in this Agreement; (iii) any Transfer Taxes; (iv) any Taxes of any Company or any Seller with respect to any Pre-Closing Period, the Final Pre-Closing Period or the pre-Closing portion of any Straddle Period. For the avoidance of doubt, the indemnification rights under this Section 8.1(b) shall be in addition to the indemnification rights relating to the Sellers’ representations and warranties set forth in Section 3.8 (Taxes); (v) any amounts owed to or recoverable by the Buyer under Section 2.2(d). (vi) any Transaction Fees to the extent not reflected in the Flow of Funds Memorandum; (vii) any Funded Indebtedness (other than Assumed Indebtedness) to the extent not reflected in the Flow of Funds Memorandum; (viii) COVID-19 Liabilities; (ix) the Company PPP Loans, including, without limitation, any non-compliance with any Company PPP Loan or with the CARES Act, any litigation arising in respect thereof or in relation thereto, any audit, review or investigation pertaining to any Company PPP Loan, and any retroactive determination of ineligibility with respect to any Company PPP Loan or reversal of forgiveness granted in respect thereof; (x) any Shareholder Claim; (xi) the Wxxxxx Phantom Share Agreement; (xii) any Environmental and Occupational Safety and Health Liability; and (xiii) the matters set forth on Schedule 8.1(b)(xiii). (c) In the absence of fraud or intentional misrepresentation, the Sellers shall not be required to indemnify any Buyer Indemnified Party with respect to a claim for indemnification pursuant to Section 8.1(b)(i) unless and until the cumulative aggregate amount of all indemnifiable Losses which may be recovered by the Buyer Indemnified Parties pursuant to Section 8.1(b)(i) exceeds $50,000, in which event the Sellers will be liable for all such indemnifiable Losses from the first dollar; provided, however, that the limitations set forth in this Section 8.1(c) shall not apply to indemnification obligations with respect to any Fundamental Representations. (d) In the absence of fraud or intentional misrepresentation, no Seller shall be required to indemnify any Buyer Indemnified Party with respect to a claim for indemnification pursuant to Section 8.1(b)(i), for any amount of indemnifiable Losses in excess of $2,500,000 (the “Cap”); provided, however, that the Cap shall not apply to Losses related to Fundamental Representations. In the absence of fraud or intentional misrepresentation, the Sellers shall not be required to indemnify any Buyer Indemnified Party with respect to a claim for indemnification pursuant to Section 8.1(b)(i) for any amount of indemnifiable Losses in excess of the Purchase Price. (e) Subject to the other provisions of this Article VIII, the Buyer shall indemnify and hold harmless each Seller (the “Seller Indemnified Party”) from and against, and pay to the Seller Indemnified Parties, any and all Losses, whether or not involving a Third Party Claim, actually incurred (and as incurred) by such Seller Indemnified Party, incurred or sustained, directly or indirectly, based upon, relating to, arising out of, with respect to or by reason of (i) any breach of, or inaccuracy in, any representation or warranty concerning the Buyer contained in Article V; arbitral proceedings or (ii) any breach of, or failure of the Buyer to perform, any covenant agreement or obligation of the Buyer in this Agreement. (f) Notwithstanding anything to the contrary contained in this Agreement, for purposes of determining the amount of any Losses that are the subject matter of a claim for indemnification hereunder, each representation and warranty in this Agreement and each certificate or document delivered pursuant hereto shall be read without regard and without giving effect to the term(s) “material” or “material adverse effect” or similar qualifiers as if such words and surrounding related words (e.g., “reasonably be expected to,” “could have” and similar restrictions and qualifiers) were deleted from such representation and warranty.

Survival of Representations and Warranties; Indemnification Obligations. (a) Subject to the limitations and other provisions of this Agreement, the representations and warranties of the Parties contained herein, as the case may be, herein shall survive the Closing and shall remain in full force and effect until the date that is eighteen (18) months following the Closing Date, except that: the representations and warranties (collectively, the “Fundamental Representations”) set forth in Section 3.1 (Existence; Good Standing), Section 3.2 (Capitalization; Subsidiaries), Section 3.3 (No Conflict), Section 3.8 (Taxes), Section 3.9 (Employee Benefit Plans), Section 3.12 (Intellectual Property) Section 3.13 (Environmental Matters), Section 3.16 (Anti-Corruption and Anti-Bribery), Section 3.27 (FFCRA Compliance), Section 3.28 (PPP Loans), Section 4.1 (Authority; Enforceability), Section 4.2 (Title to Shares) and Purchased Equity), Section 4.3 (Brokers), Section 4.5 (Taxes) and Section 4.6 (S Shareholder Status) shall survive the Closing until the later of six (6) years following the Closing or sixty (60) days after the expiration of the applicable statute of limitations for the matters described in such representations and warranties plus any extensions or waivers thereof. All covenants and agreements of the parties Parties contained herein shall survive the Closing indefinitely or for the period explicitly specified therein. Notwithstanding the foregoing, any claims asserted in writing by notice from the Indemnified Party seeking indemnification under this Agreement to an Indemnifying Party prior to the expiration date of the applicable survival period shall not thereafter be barred by the expiration of the relevant representation or warranty and such claims and any other claim(s) reasonably related thereto shall survive until finally resolved. (b) Subject to the other provisions of this Article VIII, the Sellers shall jointly and severally indemnify and hold harmless the Buyer and each of its Affiliates (which, following the Closing, shall include each of the Companies) and its and their respective directors, officers, employees, stockholders, partners, members, managers, agents and representatives (each, a “Buyer Indemnified Party”) from and against, and pay to the Buyer Indemnified Parties, any and all Losses, whether or not involving a Third Party Claim, incurred or sustained, directly or indirectly, based upon, relating to, arising out of, with respect to or by reason of: (i) any breach of, or inaccuracy in, or any allegation of any third party that, if true, would be a breach or inaccuracy of, any representation or warranty made by the Sellers in this Agreement; (ii) any breach of, or failure of any Seller to perform, any covenant agreement or obligation of any Seller in this Agreement; (iii) any Transfer Taxes; (iv) any Taxes of any Company or any Seller with respect to any Pre-Closing Period, the Final Pre-Closing Period or the pre-Closing portion of any Straddle Period. For the avoidance of doubt, the indemnification rights under this Section 8.1(b) shall be in addition to the indemnification rights relating to the Sellers’ representations and warranties set forth in Section 3.8 (Taxes); (v) any amounts owed to or recoverable by the Buyer under Section 2.2(d). (vi) any Transaction Fees to the extent not reflected in the Flow of Funds Memorandum; (vii) any Funded Indebtedness (other than Assumed Indebtedness) to the extent not reflected in the Flow of Funds Memorandum; (viii) COVID-19 Liabilities; (ix) the Company PPP Loans, including, without limitation, any non-compliance with any Company PPP Loan or with the CARES Act, any litigation arising in respect thereof or in relation thereto, any audit, review or investigation pertaining to any Company PPP Loan, and any retroactive determination of ineligibility with respect to any Company PPP Loan or reversal of forgiveness granted in respect thereof; (x) any Shareholder Claim; (xi) the Wxxxxx Phantom Share Agreement; (xii) any Environmental and Occupational Safety and Health Liability; (xii) any Loss arising out of or attributable to the business, operation, or conduct of the Companies prior to the Closing; and (xiii) the matters set forth on Schedule 8.1(b)(xiii8.1(b)(xii). (c) In the absence of fraud or intentional misrepresentation, the Sellers shall not be required to indemnify any Buyer Indemnified Party with respect to a claim for indemnification pursuant to Section 8.1(b)(i) unless and until the cumulative aggregate amount of all indemnifiable Losses which may be recovered by the Buyer Indemnified Parties pursuant to Section 8.1(b)(i) exceeds $50,000, in which event the Sellers will be liable for all such indemnifiable Losses from the first dollar; provided, however, that the limitations set forth in this Section 8.1(c) shall not apply to indemnification obligations with respect to any Fundamental Representations. (d) In the absence of fraud or intentional misrepresentation, no Seller shall be required to indemnify any Buyer Indemnified Party with respect to a claim for indemnification pursuant to Section 8.1(b)(i), for any amount of indemnifiable Losses in excess of $2,500,000 2,500,000.00 (the “Cap”); provided, however, that the Cap shall not apply to Losses related to Fundamental Representations. In For the absence avoidance of fraud or intentional misrepresentationdoubt, the Sellers Cap shall not be required apply to indemnify any Buyer Indemnified Party with respect to a claim for indemnification pursuant to Section 8.1(b)(i) for any amount of all indemnifiable Losses in excess of subject to the Purchase PriceCap on an aggregate basis and not on a per claim basis. (e) Subject to the other provisions of this Article VIII, the Buyer shall indemnify and hold harmless each Seller (the “Seller Indemnified Party”) from and against, and pay to the Seller Indemnified Parties, any and all LossesLosses actually suffered, whether sustained or not involving a Third Party Claim, actually incurred (and as incurred) by such Seller Indemnified Party, incurred or sustained, directly or indirectly, based upon, relating to, arising out of, with respect to or by reason of: (i) any breach of, or inaccuracy in, any representation or warranty concerning the Buyer contained in Article V; or; (ii) any breach of, or failure of the Buyer to perform, any covenant agreement or obligation of the Buyer in this Agreement; or (iii) Loss in respect of any Third-Party Claim made against any Seller Indemnified Party arising out of or attributable to the business, operation, or conduct of the Companies after the Closing, but specifically excluding any Loss based on, arising out of, resulting from, or with respect to (A) Section 2.5 of this Agreement, the employment relationship between the Seller Indemnified Party and Buyer or any of its Affiliates (including the Companies), (B) the Buyer Common Stock or any other equity securities of the Buyer, (C) the financial performance of the Buyer and its Affiliates (including the Companies) following the Closing, or (D) such Seller Indemnified Party’s negligence or willful misconduct. (f) Notwithstanding anything to the contrary contained in this Agreement, for purposes of determining the amount of any Losses that are the subject matter of a claim for indemnification hereunder, each representation and warranty in this Agreement and each certificate or document delivered pursuant hereto shall be read without regard and without giving effect to the term(s) “material” or “material adverse effect” or similar qualifiers as if such words and surrounding related words (e.g., “reasonably be expected to,” “could have” and similar restrictions and qualifiers) were deleted from such representation and warranty. (g) Notwithstanding any other provision set forth herein, no Indemnifying Party shall be required to indemnify any Indemnified Party for any Losses to the extent such Losses are actually recovered by the Indemnified Party (or with respect to costs and expenses, are actually paid by the insurer on behalf of the Indemnified Party) under an insurance policy. Additionally, in the event an insurer under an insurance policy reimburses the Indemnified Party for any Losses that have previously been remitted by an Indemnifying Party to such Indemnified Party as a payment for its obligations under this Article VIII, the Indemnified Party who received such sum shall promptly reimburse to the Indemnifying Party an amount equal to the amount actually received by the Indemnified Party from such insurer in respect of such Losses.