Common use of SHAREHOLDERS' INDEMNIFICATION Clause in Contracts

SHAREHOLDERS' INDEMNIFICATION. The Shareholders, jointly and severally (subject to the second paragraph of this Section 9.1(b)), agree to indemnify the Surviving Trust and its Subsidiaries and their respective officers, trustees, directors, employees, shareholders, agents and representatives (the “Merger Corp. Indemnitees”) and hold them harmless against any loss, liability, deficiency, diminution in value, damage or expense (including reasonable legal expenses and costs and including interest and penalties) (a “Loss”) which any Merger Corp. Indemnitee may suffer, sustain or become subject to, as a result of (i) the breach or alleged breach by the Company of any representation, warranty, covenant or agreement made by the Company contained in this Agreement or any writing delivered in connection with this Agreement or (ii) any claims of any brokers or finders claiming by, through or under the Company or any or its Subsidiaries. In addition, each Shareholder, severally and not jointly, agrees to indemnify the Merger Corp. Indemnitees and hold them harmless against any Loss which any Merger Corp. Indemnitee may suffer, sustain or become subject to, as a result of (i) the breach or alleged breach by such Shareholder of any representation, warranty, covenant or agreement made by such Shareholder contained in this Agreement or any writing delivered in connection with this Agreement or (ii) any claims of any brokers or finders claiming by, through or under such Shareholder. Anything contained in this Article 9 to the contrary notwithstanding, with respect to claims for breaches or alleged breaches of representations and warranties contained in Article 5 hereof (other than the Excluded Representations), the Shareholders will not be liable for any such Losses hereunder unless and until the aggregate amount of such Losses exceeds $150,000.00 at which time the Shareholders shall be liable for all such Losses from and including the first dollar of any such Losses, but not in excess of an amount equal to $5,000,000.00 for the Shareholders in the aggregate (but in no event in excess of $1,425,000.00 for Xxxxxx); provided, that for Losses as a result of, arising out of, relating to, allocable to, in the nature of, or caused by, breaches of the representations and warranties set forth in the Excluded Representations, the Shareholders will be liable for all such Losses. Claims for indemnification under this Article 9 shall be net of the amount of any recoveries under any insurance policy in connection with the circumstances that give rise to the actual or alleged breach of the Company’s representations and warranties under this Agreement held by the Surviving Trust or any of its Affiliates, after taking into account any detriment including the reasonable cost and expenses of pursuing such recovery and the deductible or any increased premiums associated therewith. Indemnification payments under this Section 9.1 shall be made without reduction for any Tax benefits available to the Merger Corp. Indemnitee. However, to the extent that the Merger Corp. Indemnitee recognizes Tax benefits as a result of any amounts paid to the Merger Corp. Indemnitee by the Indemnitor pursuant to this Section 9.1, the Merger Corp. Indemnitee shall pay the amount of such Tax benefits (but not in excess of the indemnification payment or payments resulting in such Tax benefits) to the Indemnitor as such Tax benefits are actually recognized by the Merger Corp. Indemnitee. During regular business hours, the Surviving Trust shall make its books and records relating such claims reasonably available to the Representative and make the Company’s employees reasonably available for interviews and similar matters to assist the Representative with respect to such claims; provided, that the no such interviews or similar matters shall unreasonably interfere with the operation of the business of the Surviving Trust or any of its Subsidiaries. With respect to any claim or claims for breaches or alleged breaches of representations and warranties contained in Article 5 or Article 6 hereof (except for all of the Excluded Representations other than the representations contained in Section 5.22 and the second sentence of Section 5.9(c)), no Shareholder will be liable with respect to any breach or alleged breach of such Article 5 or Article 6 representations and warranties unless written notice of a possible claim for indemnification with respect to such breach or alleged breach is given by the Company to the Representative on or before the twenty-one month anniversary of the Closing Date (the “Survival Date”), it being understood that so long as such written notice is given on or prior to the Survival Date, such representations and warranties shall continue to survive until such matter is resolved. Notwithstanding the foregoing, any breaches of the Excluded Representations (other than the representations contained in Section 5.22 and the second sentence of Section 5.9(c)), and any breaches of the covenants or agreements contained in this Agreement will not be subject to any time limitations and shall survive indefinitely, except for breaches of Sections 5.16 and 5.20 which shall survive until 30 days after the end of the applicable statute of limitation (after giving effect to any extensions). For all purposes of this Section 9.1, “breach or alleged breach” means any breach or any third-party allegation that, if true, would constitute a breach

SHAREHOLDERS' INDEMNIFICATION. The Subject to Section 10.6 of this Agreement, each Company prior to the Closing and the Shareholders, jointly and severally severally, will indemnify and save harmless Buyer and each Company after the Closing from any and all costs, expenses, losses, fines, penalties, interest, damages and liabilities incurred or suffered, directly or indirectly, by any of them (subject to the second paragraph of this Section 9.1(b))including, agree to indemnify the Surviving Trust without limitation, reasonable legal fees and its Subsidiaries and their respective officersexpenses) (collectively, trustees, directors, employees, shareholders, agents and representatives (the “Merger Corp. IndemniteesIndemnified Costs”) and hold them harmless against any loss, liability, deficiency, diminution in value, damage resulting from or expense (including reasonable legal expenses and costs and including interest and penalties) (a “Loss”) which any Merger Corp. Indemnitee may suffer, sustain or become subject to, as a result of attributable to (i) the breach or alleged breach by the Company of any representationone or more of the representations or warranties of Shareholders or the Companies set forth in this Agreement (whether or not contained in Article III) or in any Schedule, warrantyExhibit or certificate executed or delivered pursuant to this Agreement, covenant (ii) the failure of any one or agreement made by more of the Company representations or warranties of Shareholders of the Companies set forth in this Agreement (whether or not contained in Article III) or in any Schedule, Exhibit or certificate executed or delivered pursuant to this Agreement to be true and correct in all respects as of the date of this Agreement and as of the date of Closing, (iii) the breach of any covenants of Shareholders set forth in this Agreement or in any writing Exhibit delivered pursuant to this Agreement; (iv) liabilities of each Company not discharged in connection with this Agreement or the Closing as required pursuant to Section 6.10, (iiv) any claims Taxes of any brokers or finders claiming by, through or Person imposed upon either Company under the Company Treasury Regulation Section 1.1502-6 or any comparable state, foreign or its Subsidiaries. In additionlocal law, each Shareholderor as a transferee, severally and not jointlysuccessor, agrees by contract, operation of law or otherwise which Taxes relate to indemnify an event or transaction occurring before the Merger Corp. Indemnitees and hold them harmless against any Loss which any Merger Corp. Indemnitee may sufferClosing Date, sustain (vi) Taxes (or become subject the non-payment thereof) of either Company for, or with respect to, as a result of (i) taxable periods ending on or before the breach or alleged breach by such Shareholder of any representation, warranty, covenant or agreement made by such Shareholder contained in this Agreement or any writing delivered in connection with this Agreement or (ii) any claims of any brokers or finders claiming by, through or under such Shareholder. Anything contained in this Article 9 to the contrary notwithstandingClosing Date and, with respect to claims for breaches or alleged breaches taxable periods beginning before and ending after the Closing Date, Taxes of representations and warranties contained in Article 5 hereof (other than the Excluded Representations), the Shareholders will not be liable for any such Losses hereunder unless and until the aggregate amount of such Losses exceeds $150,000.00 at which time the Shareholders shall be liable for all such Losses from and including the first dollar of any such Losses, but not in excess of an amount equal to $5,000,000.00 for the Shareholders in the aggregate (but in no event in excess of $1,425,000.00 for Xxxxxx); provided, that for Losses as a result of, arising out of, relating to, allocable to, in the nature of, or caused by, breaches of the representations and warranties set forth in the Excluded Representations, the Shareholders will be liable for all such Losses. Claims for indemnification under this Article 9 shall be net of the amount of any recoveries under any insurance policy in connection with the circumstances that give rise to the actual or alleged breach of the Company’s representations and warranties under this Agreement held by the Surviving Trust or any of its Affiliates, after taking into account any detriment including the reasonable cost and expenses of pursuing such recovery and the deductible or any increased premiums associated therewith. Indemnification payments under this Section 9.1 shall be made without reduction for any Tax benefits available to the Merger Corp. Indemnitee. However, either Company to the extent that the Merger Corp. Indemnitee recognizes Tax benefits as a result of any amounts paid such Taxes are attributable to the Merger Corp. Indemnitee by the Indemnitor pursuant to this Section 9.1, the Merger Corp. Indemnitee shall pay the amount of such Tax benefits (but not in excess portion of the indemnification payment or payments resulting in such Tax benefits) to the Indemnitor as such Tax benefits are actually recognized by the Merger Corp. Indemnitee. During regular business hours, the Surviving Trust shall make its books and records relating such claims reasonably available to the Representative and make the Company’s employees reasonably available for interviews and similar matters to assist the Representative with respect to such claims; provided, that the no such interviews or similar matters shall unreasonably interfere with the operation of the business of the Surviving Trust or any of its Subsidiaries. With respect to any claim or claims for breaches or alleged breaches of representations and warranties contained in Article 5 or Article 6 hereof (except for all of the Excluded Representations other than the representations contained in Section 5.22 and the second sentence of Section 5.9(c)), no Shareholder will be liable with respect to any breach or alleged breach of such Article 5 or Article 6 representations and warranties unless written notice of a possible claim for indemnification with respect to such breach or alleged breach is given by the Company to the Representative taxable period ending on or before the twenty-one month anniversary of the Closing Date (the “Survival Date”), it being understood that so long as such written notice is given on or prior determined pursuant to the Survival Date, such representations and warranties shall continue to survive until such matter is resolved. Notwithstanding the foregoing, any breaches of the Excluded Representations (other than the representations contained in Section 5.22 and the second sentence of Section 5.9(c)11.2), and any breaches (vii) Taxes of either Company or Shareholders attributable to the covenants or agreements contained in transactions contemplated by this Agreement will not be subject to any time limitations and shall survive indefinitely, except for breaches of Sections 5.16 and 5.20 which shall survive until 30 days after the end of the applicable statute of limitation (after giving effect to any extensions). For all purposes of this Section 9.1, “breach or alleged breach” means any breach or any third-party allegation that, if true, would constitute a breachAgreement.

SHAREHOLDERS' INDEMNIFICATION. The ShareholdersExcept as set forth in Section ----------------------------- 11.7.5 below, from and after the Closing, the Majority Shareholders shall jointly and severally indemnify and hold 4MC or the Company and each Subsidiary harmless from any and all Taxes which are imposed on the Company and each Subsidiary with respect to their income, business, property or operations or for which the Company and each Subsidiary may otherwise be liable (subject a) for any Pre- Closing Period whether or not such Taxes are imposed before or after the Closing Date, (b) resulting by reason of the several liability of the Company and each Subsidiary pursuant to Treas. Reg. Section 1.1502-6 or any analogous state, local or foreign law or regulation or by reason of the Company and each Subsidiary having been a member of any consolidated, combined or unitary group on or prior to the second paragraph Closing, (c) with respect to any Post-Closing Period, attributable to any change in accounting method employed by the Company or each Subsidiary during any of the four previous taxable years other than any such change required by the transactions contemplated by this Section 9.1(b))Agreement, agree (d) attributable to any discharge of indebtedness that may result from any capital contributions by the Shareholders to the Company or any Subsidiary of any intercompany indebtedness owed by the Company or any Subsidiary to any of the Shareholders, or (e) arising from the consummation of the transactions contemplated by this Agreement whether or not such Taxes are imposed after the Closing Date; provided, however, that the Majority Shareholders shall not -------- ------- indemnify 4MC, the Surviving Trust Company and its Subsidiaries and their respective officers, trustees, directors, employees, shareholders, agents and representatives (the “Merger Corp. Indemnitees”) and hold them harmless against any loss, liability, deficiency, diminution in value, damage or expense (including reasonable legal expenses and costs and including interest and penalties) (a “Loss”) which any Merger Corp. Indemnitee may suffer, sustain or become subject to, as a result of each Subsidiary for (i) any Tax attributable to the breach or alleged breach by the Company of any representationSection 338(h)(10) Election, warranty, covenant or agreement made by the Company contained in this Agreement or any writing delivered in connection with this Agreement or (ii) any claims of any brokers or finders claiming by, through or under the Company or any or its Subsidiaries. In addition, each Shareholder, severally and not jointly, agrees to indemnify the Merger Corp. Indemnitees and hold them harmless against any Loss which any Merger Corp. Indemnitee may suffer, sustain or become subject to, as a result of (i) the breach or alleged breach by such Shareholder of any representation, warranty, covenant or agreement made by such Shareholder contained in this Agreement or any writing delivered in connection with this Agreement or (ii) any claims of any brokers or finders claiming by, through or under such Shareholder. Anything contained in this Article 9 Tax attributable to the contrary notwithstanding, with respect to claims for breaches or alleged breaches of representations and warranties contained change in Article 5 hereof (other than the Excluded Representations), the Shareholders will not be liable for any such Losses hereunder unless and until the aggregate amount of such Losses exceeds $150,000.00 at which time the Shareholders shall be liable for all such Losses from and including the first dollar of any such Losses, but not in excess of an amount equal to $5,000,000.00 for the Shareholders in the aggregate (but in no event in excess of $1,425,000.00 for Xxxxxx); provided, that for Losses as a result of, arising out of, relating to, allocable to, in the nature of, or caused by, breaches of the representations and warranties set forth in the Excluded Representations, the Shareholders will be liable for all such Losses. Claims for indemnification under this Article 9 shall be net of the amount of any recoveries under any insurance policy in connection with the circumstances that give accounting method giving rise to the actual or alleged breach of the Company’s representations and warranties under this Agreement held by the Surviving Trust or any of its Affiliates, after taking into account any detriment including the reasonable cost and expenses of pursuing such recovery and the deductible or any increased premiums associated therewith. Indemnification payments under this Section 9.1 shall be made without reduction for any Tax benefits available to the Merger Corp. Indemnitee. However, 481 Adjustment to the extent that the Merger Corp. Indemnitee recognizes Tax benefits liability resulting from the adjustment exceeds the amount set forth on line 9 of Schedule 2.2.3 as finally determined pursuant to Section 2.2.4 (net of the Tax benefit of any correlative adjustments), (iii) any Tax incurred in the ordinary course of business (which for this purpose would not include Taxes described in clause (e) above) and that has been included as a result of any amounts paid to the Merger Corp. Indemnitee by the Indemnitor pursuant to this Section 9.1, the Merger Corp. Indemnitee shall pay the amount of such Tax benefits (but not in excess of the indemnification payment or payments resulting in such Tax benefits) to the Indemnitor as such Tax benefits are actually recognized by the Merger Corp. Indemnitee. During regular business hours, the Surviving Trust shall make its books and records relating such claims reasonably available to the Representative and make liability on the Company’s employees reasonably available 's consolidated balance sheet (excluding the Virtual Office) at Closing as determined in accordance with GAAP, (iv) any Medicare Tax, and (v) any city business license tax based on gross receipts for interviews and similar matters to assist the Representative with respect to such claims; providedperiod January 1, that the no such interviews or similar matters shall unreasonably interfere with the operation of the business of the Surviving Trust or any of its Subsidiaries. With respect to any claim or claims for breaches or alleged breaches of representations and warranties contained in Article 5 or Article 6 hereof (except for all of the Excluded Representations other than the representations contained in Section 5.22 and the second sentence of Section 5.9(c)), no Shareholder will be liable with respect to any breach or alleged breach of such Article 5 or Article 6 representations and warranties unless written notice of a possible claim for indemnification with respect to such breach or alleged breach is given by the Company to the Representative on or before the twenty-one month anniversary of 1998 through the Closing Date (the “Survival Date”), it being understood that so long as such written notice is given on or prior to the Survival Date, such representations and warranties shall continue to survive until such matter is resolved. Notwithstanding the foregoing, any breaches of the Excluded Representations (other than the representations contained in Section 5.22 and the second sentence of Section 5.9(c)), and any breaches of the covenants or agreements contained in this Agreement will not be subject to any time limitations and shall survive indefinitely, except for breaches of Sections 5.16 and 5.20 which shall survive until 30 days after the end of the applicable statute of limitation (after giving effect to any extensions). For all purposes of this Section 9.1, “breach or alleged breach” means any breach or any third-party allegation that, if true, would constitute a breach.

SHAREHOLDERS' INDEMNIFICATION. The Shareholders(a) Each Key Shareholder shall, jointly and severally (subject to the second paragraph of this Section 9.1(b))severally, agree to indemnify the Surviving Trust and hold harmless Acquirer and its Subsidiaries and their respective officers, trusteesshareholders, directors, employeesagents, shareholders, agents affiliates and representatives employees (the “Merger Corp. Indemnitees”"Acquirer Indemnified Parties"), against and in respect of all actions, damages, claims, losses, liabilities and expenses (including, without limitation, reasonable attorneys' fees and disbursements) and hold them harmless against any loss, liability, deficiency, diminution in value, damage incurred by an Acquirer Indemnified Party (all such amounts being hereinafter sometimes referred to as "Damages") arising out of or expense (including reasonable legal expenses and costs and including interest and penalties) (a “Loss”) which any Merger Corp. Indemnitee may suffer, sustain or become subject to, as a result of related to (i) any misrepresentation or breach of any warranty made by any Shareholder pursuant to Section 2 or Section 3 of this Agreement, (ii) the nonperformance or breach of any covenant, agreement or alleged breach by obligation of the Company of any representation, warranty, covenant or agreement made by the Company Shareholders contained in this Agreement or any writing delivered in connection with this Agreement Agreement, or (iiiii) any claims failure of any brokers or finders claiming byShareholders to have good, through or under valid and marketable title to the Company or any or its Subsidiaries. In additionissued and outstanding shares of the Company's Common Stock, each Shareholderfree and clear of all liens, severally claims, pledges, options, adverse claims, assessments and not jointly, agrees to indemnify the Merger Corp. Indemnitees and hold them harmless against any Loss which any Merger Corp. Indemnitee may suffer, sustain or become subject to, as a result of (i) the breach or alleged breach by such Shareholder charges of any representationnature whatsoever, warrantyor to have the full right, covenant or agreement made by such Shareholder contained in capacity and authority to vote said shares of the Company's Common Stock. There shall be no liability for indemnification under this Agreement or any writing delivered in connection with this Agreement or (ii) any claims of any brokers or finders claiming bySection 12.2, through or under such Shareholder. Anything contained in this Article 9 to the contrary notwithstanding, with respect to claims for breaches or alleged breaches of representations and warranties contained in Article 5 hereof (other than the Excluded Representations), the Shareholders will not be liable for any such Losses hereunder unless and until the aggregate amount of Damages hereunder (excluding legal fees) exceeds Ten Thousand Dollars ($10,000), and then only to the extent such Losses aggregate amount of Damages exceeds $150,000.00 at which time the 10,000. The liability of Key Shareholders for Damages hereunder shall be liable satisfied first from the Escrow Shares, and such liability is subject to the right of setoff for all such Losses from and including any Damages owed by the first dollar Acquirer Indemnified Party . The value of any such Losses, but not the Acquirer Shares for purposes of this Article 12 shall be the Fair Market Value (as defined in excess of an amount equal to $5,000,000.00 for the Shareholders in the aggregate (but in Section 12.5). In no event in excess of $1,425,000.00 for Xxxxxx); provided, that for Losses as a result of, arising out of, relating to, allocable to, in the nature of, or caused by, breaches of the representations and warranties set forth in the Excluded Representations, the Shareholders will be liable for all such Losses. Claims for shall Key Shareholders' indemnification under this Article 9 shall be net of the amount of any recoveries under any insurance policy in connection with the circumstances that give rise to the actual or alleged breach of the Company’s representations and warranties under this Agreement held by the Surviving Trust or any of its Affiliates, after taking into account any detriment including the reasonable cost and expenses of pursuing such recovery and the deductible or any increased premiums associated therewith. Indemnification payments obligations under this Section 9.1 shall be made without reduction for any Tax benefits available to 12 exceed the Merger Corp. Indemnitee. However, to the extent that the Merger Corp. Indemnitee recognizes Tax benefits as a result of any amounts paid to the Merger Corp. Indemnitee by the Indemnitor pursuant to this Section 9.1, the Merger Corp. Indemnitee shall pay the amount of such Tax benefits (but not in excess Fair Market Value of the indemnification payment or payments resulting in such Tax benefits) to the Indemnitor as such Tax benefits are actually recognized by the Merger Corp. Indemnitee. During regular business hours, the Surviving Trust shall make its books and records relating such claims reasonably available to the Representative and make the Company’s employees reasonably available for interviews and similar matters to assist the Representative with respect to such claims; provided, that the no such interviews or similar matters shall unreasonably interfere with the operation of the business of the Surviving Trust or any of its Subsidiaries. With respect to any claim or claims for breaches or alleged breaches of representations and warranties contained in Article 5 or Article 6 hereof (except for all of the Excluded Representations other than the representations contained in Section 5.22 and the second sentence of Section 5.9(c)), no Shareholder will be liable with respect to any breach or alleged breach of such Article 5 or Article 6 representations and warranties unless written notice of a possible claim for indemnification with respect to such breach or alleged breach is given by the Company to the Representative on or before the twenty-one month anniversary of the Closing Date (the “Survival Date”), it being understood that so long as such written notice is given on or prior to the Survival Date, such representations and warranties shall continue to survive until such matter is resolved. Notwithstanding the foregoing, any breaches of the Excluded Representations (other than the representations contained in Section 5.22 and the second sentence of Section 5.9(c)), and any breaches of the covenants or agreements contained in this Agreement will not be subject to any time limitations and shall survive indefinitely, except for breaches of Sections 5.16 and 5.20 which shall survive until 30 days after the end of the applicable statute of limitation (after giving effect to any extensions). For all purposes of this Section 9.1, “breach or alleged breach” means any breach or any third-party allegation that, if true, would constitute a breachAcquirer Shares.

SHAREHOLDERS' INDEMNIFICATION. The Shareholders(a) Following the Closing, jointly and severally (subject to the second paragraph of this Section 9.1(b))fullest extent permitted by applicable law, agree to indemnify the Shareholders shall, severally, but not jointly, indemnify, defend and hold the Surviving Trust and its Subsidiaries Corporation, the Buyer, Merger Sub and their respective officers, trustees, directors, employees, shareholders, agents Representatives harmless from and representatives (the “Merger Corp. Indemnitees”) and hold them harmless against any lossclaims, liabilityactions, deficiencycauses of action, diminution in valueassessments, damage or expense losses, demands, damages, (including reasonable legal expenses incidental and consequential damages) judgments, liabilities, costs and expenses, including interest without limitation, costs of defense, reasonable out-of-pocket attorneys' fees, costs and penaltiesexpenses, interest, penalties and reasonable expenses or diminution of value (whether or not involving a third-party claim) (a “Loss”) which any "Claims" or "Claim"), asserted against, imposed upon, suffered or incurred by, the Surviving Corporation, the Buyer, Merger Corp. Indemnitee may suffer, sustain Sub and their respective Representatives arising out of or become subject to, as a result of relating to (i) the breach of any representation or alleged breach by warranty set forth in Articles 10 or 11 hereof as of the date hereof or as of the Closing Date without giving effect to any notices given pursuant to Sections 12.6 (a) or (b) hereof or the Company of any representation, warranty, covenant or agreement made by the Company contained in this Agreement or any writing delivered in connection with this Agreement or Bringdown Certificate; (ii) any claims of any brokers the default or finders claiming by, through or under failure to perform by the Company or any of the Shareholders of any of the terms or its Subsidiaries. In additioncovenants to be performed by the Company or the Shareholders in this Agreement; (iii) any claim for a commission or fee by a broker or finder acting on behalf of any of the Company or the Shareholders or any of their respective Representatives, each Shareholderor any other expenses required to be paid by the Shareholders pursuant to Section 12.7(a) hereof (including, severally and but not jointly, agrees to indemnify the Merger Corp. Indemnitees and hold them harmless against any Loss which any Merger Corp. Indemnitee may suffer, sustain or become subject limited to, as a result of claims by Libra Securities and Allen & Company Incxxxxxated); (iiv) any claim with respect to the breach or alleged breach by such Shareholder of any representation, warranty, covenant or agreement made by such Shareholder contained in this Agreement or any writing delivered in connection with this Agreement or Allen & Company Waxxxxxs; and (iiv) any claims of any brokers or finders claiming by, through or under such Shareholder. Anything contained in this Article 9 to the contrary notwithstanding, with respect to claims for breaches or alleged breaches of representations and warranties contained in Article 5 hereof the Company Indebtedness (excluding operating leases) other than as specifically identified on the Excluded Representations)Company Indebtedness Closing Schedule in the amounts specifically set forth thereon, the Shareholders will not be liable for any such Losses hereunder unless and until the aggregate amount of such Losses exceeds $150,000.00 at which time the Shareholders shall be liable for all such Losses from and including the first dollar Amadeus/Terra Loans, and paid as part of any such Losses, but not in excess of an amount equal to $5,000,000.00 for the Shareholders in the aggregate (but in no event in excess of $1,425,000.00 for Xxxxxx)Merger Expenses; provided, that for Losses as a result of, arising out of, relating to, allocable to, in the nature of, or caused by, breaches of the representations and warranties set forth in the Excluded Representations, the Shareholders will be liable for all such Losses. Claims for indemnification under this Article 9 shall be net of the amount of any recoveries under any insurance policy in connection with the circumstances that give rise to the actual or alleged breach of the Company’s representations and warranties under this Agreement held by the Surviving Trust or any of its Affiliates, after taking into account any detriment including the reasonable cost and expenses of pursuing such recovery and the deductible or any increased premiums associated therewith. Indemnification payments under this Section 9.1 shall be made without reduction for any Tax benefits available to the Merger Corp. Indemnitee. However, to the extent that the Merger Corp. Indemnitee recognizes Tax benefits as a result of any amounts paid to the Merger Corp. Indemnitee by the Indemnitor pursuant to this Section 9.1, the Merger Corp. Indemnitee shall pay the amount of such Tax benefits (but not in excess of the indemnification payment or payments resulting in such Tax benefits) to the Indemnitor as such Tax benefits are actually recognized by the Merger Corp. Indemnitee. During regular business hours, the Surviving Trust shall make its books and records relating such claims reasonably available to the Representative and make the Company’s employees reasonably available for interviews and similar matters to assist the Representative with respect to such claims; providedhowever, that the no such interviews or similar matters shall unreasonably interfere with right to present a Claim for indemnification pursuant to the operation terms of the business of the Surviving Trust or any of its Subsidiaries. With respect to any claim or claims for breaches or alleged breaches of representations and warranties contained in this Article 5 or Article 6 hereof 15 under this clause (except for all of the Excluded Representations other than the representations contained in Section 5.22 and the second sentence v) of Section 5.9(c)), no Shareholder will be liable with respect to any breach or alleged breach of such Article 5 or Article 6 representations and warranties unless written notice of a possible claim for indemnification with respect to such breach or alleged breach is given by the Company to the Representative on or before the twenty-one month anniversary of 15.1(a) shall survive the Closing Date for a period of twelve (the “Survival Date”), it being understood that so long as such written notice is given on or prior to the Survival Date, such representations and warranties shall continue to survive until such matter is resolved. Notwithstanding the foregoing, any breaches of the Excluded Representations (other than the representations contained in Section 5.22 and the second sentence of Section 5.9(c)), and any breaches of the covenants or agreements contained in this Agreement will not be subject to any time limitations and shall survive indefinitely, except for breaches of Sections 5.16 and 5.20 which shall survive until 30 days after the end of the applicable statute of limitation (after giving effect to any extensions). For all purposes of this Section 9.1, “breach or alleged breach” means any breach or any third-party allegation that, if true, would constitute a breach12) months thereafter.