Common use of Indemnification Limits Clause in Contracts

Indemnification Limits. Notwithstanding anything to the contrary contained in this Agreement: (a) no amounts shall be payable to any Indemnified Party as a result of any claim in respect of a Loss arising under clause (i) of section 8.A or under any unintentional breach, unintentional non-fulfillment or unintentional failure to perform under clause (ii) of section 8.A unless and until the aggregate amount of such Losses incurred by the Indemnified Parties is in excess of US$5,000,000, and then only to the extent of any such excess; and (b) the maximum aggregate liability of the Shareholder and KS for Losses arising under clause (i) of section 8.A and under any unintentional breach, unintentional non-fulfillment or unintentional failure to perform under clause (ii) of section 8.A shall be equal to US$70,000,000. (c) The foregoing limitations shall not apply to any Losses relating to or arising from (i) any intentional breach of this Agreement or fraudulent misrepresentation or action by the Shareholder or KS or (ii) any Affiliate Arrangement. For purposes of determining whether the amounts referred to in subsections (a) and (b) have been met or exceeded, any amounts paid by KS pursuant to section 5.H(a) in respect of any indemnification payments or advancement of expenses made to KS or Mrs. KS by the Corporation or one of its Subsidiaries shall be included in the calculation as if they constituted Losses indemnified under this section 8; provided that to the extent that the Acquiror is required to repay such amounts pursuant to the last sentence of section 5.H(a), any such amounts repaid shall no longer constitute a Loss under this section 8.

Indemnification Limits. Notwithstanding anything contained herein to the contrary contained in this Agreement: contrary: (a) In no amounts event shall the aggregate indemnification obligations of Sellers pursuant to Section 6.2(a) exceed Five Million Eight Hundred Thousand Dollars ($5,800,000.00) (the “Cap”); except that the indemnification obligations of Sellers for claims based on fraud, intentional misrepresentation or for the breach of any Fundamental Representation shall not be subject to the Cap. In no event shall the aggregate indemnification obligations of Purchaser pursuant to Section 6.3(a) exceed the Cap; except that the indemnification obligations of Purchaser for claims based on fraud, intentional misrepresentation or for the breach of any Fundamental Representation shall not be subject to the Cap. (b) No amount of indemnity shall be payable to by Sellers in the case of claims by any Purchaser Indemnified Party as a result of any claim in respect of a Loss arising under clause (iSection 6.2(a) of section 8.A or under any unintentional breach, unintentional non-fulfillment or unintentional failure to perform under clause (ii) of section 8.A unless and until the aggregate amount of such Losses incurred by the Purchaser Indemnified Parties is have suffered or incurred Losses, on a cumulative basis, in excess of US$5,000,000Thirty Thousand Dollars ($30,000.00) (the “Indemnification Deductible”), and then only to whereupon the extent of any such excess; and (b) the maximum aggregate liability of the Shareholder and KS for Losses arising under clause (i) of section 8.A and under any unintentional breach, unintentional non-fulfillment or unintentional failure to perform under clause (ii) of section 8.A Purchaser Indemnified Parties shall be equal entitled to US$70,000,000. (c) The foregoing limitations shall not apply to any Losses relating to or arising from (i) any intentional breach of this Agreement or fraudulent misrepresentation or action by indemnification for all such Losses, including the Shareholder or KS or (ii) any Affiliate Arrangement. For purposes of determining whether the amounts referred to in subsections (a) and (b) have been met or exceeded, any amounts paid by KS pursuant to section 5.H(a) in respect of any indemnification payments or advancement of expenses made to KS or Mrs. KS by the Corporation or one of its Subsidiaries shall be included in the calculation as if they constituted Losses indemnified under this section 8Indemnification Deductible; provided that the indemnification obligations of Sellers for claims based on fraud, intentional misrepresentation or for the breach of any Fundamental Representation shall not be subject to the extent that Indemnification Deductible. No amount of indemnity shall be payable by Purchaser in the Acquiror is required to repay such amounts pursuant to the last sentence case of section 5.H(a), claims by any such amounts repaid shall no longer constitute a Loss under this section 8.Seller Indemnified Party

Indemnification Limits. Notwithstanding anything No Indemnified Party shall be entitled to recover any Losses for breach of the contrary representations and warranties of any party contained in this Agreement: herein, (a) no amounts unless, and only to the extent that, such Indemnified Party's cumulative aggregate claims therefor exceed $400,000, or (b) for a cumulative aggregate amount in excess of twenty percent (20%) of the Closing Purchase Price; provided, that claims for breach of any of the Specified Representations shall not be payable subject to the foregoing limits and shall not be included in the determination of whether the limit in clause (b) has been reached. For all purposes of this Article 10, when determining whether a representation or warranty of any party has been breached or is inaccurate and the amount of the Losses, any Company Material Adverse Effect or other materiality qualifier contained in any such representation or warranty will be disregarded, except for the materiality qualifiers in Section 3.7(b), the reference to Company Material Adverse Effect in Section 3.8(b), the materiality qualifiers in Section 3.9, and the materiality qualifier in the penultimate sentence of Section 3.18. In calculating the Losses of any Indemnified Party as a result hereunder, it is the intent of the parties that no recovery shall be made twice for the same Loss by virtue of the operation of any claim in adjustment to the Closing Purchase Price pursuant to Section 1.4 and this Article 10. For the avoidance of doubt, if, for example, there is any difference between the amounts or information set forth on the Estimated Closing Purchase Price Certificate and the amounts or information set forth on the Closing Purchase Price Certificate, and an adjustment is made with respect of a Loss arising under clause (i) of section 8.A or under thereto pursuant to Section 1.4, any unintentional breach, unintentional non-fulfillment or unintentional failure to perform under clause (ii) of section 8.A unless and until the aggregate amount of such Losses incurred by the Indemnified Parties is in excess of US$5,000,000, and then only Purchaser with respect to the extent of any specific facts giving rise to such excess; and (b) the maximum aggregate liability of the Shareholder and KS for Losses arising under clause (i) of section 8.A and under any unintentional breach, unintentional non-fulfillment or unintentional failure to perform under clause (ii) of section 8.A shall be equal to US$70,000,000. (c) The foregoing limitations adjustment shall not apply to any Losses relating to or arising from (i) any intentional breach be recovered twice by operation of Section 1.4 and this Agreement or fraudulent misrepresentation or action by the Shareholder or KS or (ii) any Affiliate Arrangement. For purposes of determining whether the amounts referred to in subsections (a) and (b) have been met or exceeded, any amounts paid by KS pursuant to section 5.H(a) in respect of any indemnification payments or advancement of expenses made to KS or Mrs. KS by the Corporation or one of its Subsidiaries shall be included in the calculation as if they constituted Losses indemnified under this section 8; provided that to the extent that the Acquiror is required to repay such amounts pursuant to the last sentence of section 5.H(a), any such amounts repaid shall no longer constitute a Loss under this section 8Article 10.

Indemnification Limits. Notwithstanding anything The Investor Indemnified Parties shall not be entitled to the contrary contained in this Agreement: (arecover any Losses pursuant to Section 4.12(b) no amounts shall be payable to any Indemnified Party as a result of any claim in respect of a Loss arising under clause (i) of section 8.A or under any unintentional breach, unintentional non-fulfillment or unintentional failure to perform under clause (ii) of section 8.A unless and until the Investor Indemnified Parties’ aggregate amount of such Losses incurred by claims therefor exceed $500,000, at which time the Investor Indemnified Parties is in excess of US$5,000,000, and then only to the extent of any such excess; and (b) the maximum aggregate liability of the Shareholder and KS for Losses arising under clause (i) of section 8.A and under any unintentional breach, unintentional non-fulfillment or unintentional failure to perform under clause (ii) of section 8.A shall be equal entitled to US$70,000,000. (c) The foregoing limitations shall not apply to any recover Losses relating to or arising from (i) any intentional breach of this Agreement or fraudulent misrepresentation or action by the Shareholder or KS or (ii) any Affiliate Arrangement. For purposes of determining whether the amounts referred to in subsections (a) and (b) have been met or exceeded, any amounts paid by KS pursuant to section 5.H(a) in respect of any indemnification payments or advancement of expenses made to KS or Mrs. KS by the Corporation or one of its Subsidiaries shall be included in the calculation as if they constituted Losses indemnified under this section 8; provided that only to the extent that the Acquiror is required to repay aggregate amount of Investor Indemnified Parties’ indemnifiable Losses exceeds such amounts pursuant to amount (the last sentence “Deductible”); provided, however, that no event, claim or item of section 5.H(a), any such amounts repaid shall no longer Loss will constitute a Loss under this section 8and indemnification will not be available with respect to such event, claim or item of Loss (nor will any such event, claim or item of Loss be counted towards the Deductible) unless such event, claim or item of Loss, together with all related events, claims or items of Loss, results in a Loss of $50,000 or more, in which case the Investor Indemnified Parties will be entitled to indemnification for the full amount of Losses related to such event, claim or item of Loss subject to the Deductible and the other limitations set forth herein (and such Losses will be counted towards the Deductible); or (ii) for an aggregate amount in excess of $50,000,000; provided, however that claims for breach of any of the Specified Representations shall not be subject to the foregoing limitations and shall not be included in the determination of whether a limitation has been reached. In addition, the Losses incurred by any Investor shall be determined on the basis of the number of Purchased Securities purchased by such Investor (or such Investor’s Affiliate, as applicable) hereunder and not on the basis of any other shares of Common Stock beneficially owned by such Investor, whether acquired prior to or after the consummation of the Transactions.

Indemnification Limits. Notwithstanding anything If the Closing occurs, the Purchaser Indemnified Parties (as hereinafter defined) shall not be entitled to recover any Losses (as hereinafter defined) for breach of the contrary representations and warranties of the Seller and/or the Company contained in this Agreement: herein (a) no amounts shall be payable to any Indemnified Party as a result of any claim in respect of a Loss arising under clause (i) of section 8.A or under any unintentional breach, unintentional non-fulfillment or unintentional failure to perform under clause (ii) of section 8.A unless and until the Purchaser Indemnified Parties’ aggregate amount of such Losses incurred by claims therefor exceed $50,000, at which time the Purchaser Indemnified Parties is shall be entitled to recover Losses for all claims in excess of US$5,000,000such amount, and then only to the extent of any such excess; and or (b) the maximum for an aggregate liability amount in excess of $1,000,000 plus 20% of all Royalty Payments; provided, that claims for breach of any of the Shareholder Specified Representations and/or claims arising from fraud shall not be subject to the foregoing limits and KS for Losses arising under shall not be included in the determination of whether the limit in clause (ib) has been reached. If the Closing occurs, the Seller shall not be liable in the aggregate for breaches of section 8.A representations and under warranties in excess of the Total Purchase Price. For all purposes of this ARTICLE 8, when determining the amount of the Losses from any unintentional breachbreached or inaccurate representation or warranty of the Seller or the Company, unintentional non-fulfillment any material adverse effect (or unintentional failure to perform under clause (iiMaterial Adverse Effect) or other materiality qualifier contained in any such representation or warranty will be disregarded. For the avoidance of section 8.A shall be equal to US$70,000,000. (c) The foregoing limitations doubt, the limits contained in this Section 8.2 shall not apply to any Losses relating to or arising from (i) any intentional breach of this Agreement or fraudulent misrepresentation or action by the Shareholder or KS or (ii) any Affiliate Arrangement. For purposes of determining whether the amounts referred to in subsections (aSeller’s obligations under Sections 1.4(e) and (b) have been met or exceeded, any amounts paid by KS pursuant to section 5.H(a) in respect of any indemnification payments or advancement of expenses made to KS or Mrs. KS by the Corporation or one of its Subsidiaries shall be included in the calculation as if they constituted Losses indemnified under this section 8; provided that to the extent that the Acquiror is required to repay such amounts pursuant to the last sentence of section 5.H(a1.4(f), any such amounts repaid shall no longer constitute a Loss under this section 8.

Indemnification Limits. Notwithstanding anything The Investor Indemnified Parties shall not be entitled to the contrary contained in this Agreement: (arecover any Losses pursuant to Section 4.3(b) no amounts shall be payable to any Indemnified Party as a result of any claim in respect of a Loss arising under clause (i) of section 8.A or under any unintentional breach, unintentional non-fulfillment or unintentional failure to perform under clause (ii) of section 8.A unless and until the Investor Indemnified Parties’ aggregate amount of such Losses incurred by claims therefor exceed $750,000, at which time the Investor Indemnified Parties is in excess of US$5,000,000, and then only to the extent of any such excess; and (b) the maximum aggregate liability of the Shareholder and KS for Losses arising under clause (i) of section 8.A and under any unintentional breach, unintentional non-fulfillment or unintentional failure to perform under clause (ii) of section 8.A shall be equal entitled to US$70,000,000. (c) The foregoing limitations shall not apply to any recover Losses relating to or arising from (i) any intentional breach of this Agreement or fraudulent misrepresentation or action by the Shareholder or KS or (ii) any Affiliate Arrangement. For purposes of determining whether the amounts referred to in subsections (a) and (b) have been met or exceeded, any amounts paid by KS pursuant to section 5.H(a) in respect of any indemnification payments or advancement of expenses made to KS or Mrs. KS by the Corporation or one of its Subsidiaries shall be included in the calculation as if they constituted Losses indemnified under this section 8; provided that only to the extent that the Acquiror is required to repay aggregate amount of Investor Indemnified Parties’ indemnifiable Losses exceeds such amounts pursuant to amount (the last sentence of section 5.H(a“Deductible”), any such amounts repaid shall provided, however, that no longer event, claim or item of Loss will constitute a Loss under this section 8and indemnification will not be available with respect to such event, claim or item of Loss (nor will any such event, claim or item of Loss be counted towards the Deductible) unless such event, claim or item of Loss, together with all related events, claims or items of Loss, results in a Loss of $25,000 or more, in which case the Investor Indemnified Parties will be entitled to indemnification for the full amount of Losses related to such event, claim or item of Loss subject to the Deductible and the other limitations set forth herein (and such Losses will be counted towards the Deductible); or (ii) for an aggregate amount in excess of $60,000,000; provided, however that claims for breach of any of the Specified Representations shall not be subject to the foregoing limitations and shall not be included in the determination of whether a limitation has been reached. In addition, the Losses incurred by any Investor shall be determined on the basis of the number of Purchased Securities purchased by such Investor (or such Investor’s Affiliate, as applicable) hereunder and not on the basis of any other shares of Common Stock beneficially owned by such Investor, whether acquired prior to or after the consummation of the Transactions.

Indemnification Limits. Notwithstanding anything to the contrary contained in this Agreement: (a) no amounts No indemnification under Section 8.2(a) shall be payable made by Seller, Stockholder or Founder, nor shall Seller, Stockholder or Founder have any liability under Section 8.2(a), with respect to any claim or claims for indemnification made by Indemnified Persons, unless the aggregate amount of Losses subject to indemnification pursuant to Section 8.2 in respect of such claim or claims shall exceed $50,000 (the "Indemnification Threshold"), whereupon the full amount of such Losses in respect of such claims shall be recoverable in accordance with the terms hereof; (b) The aggregate amount required to be paid by Seller, Stockholder and Founder in respect of all claims for indemnification made by Indemnified Persons pursuant to Section 8.2 shall in no event exceed $24,000,000 (the "Indemnification Cap") and none of Seller, Stockholder or Founder shall have any liability to any Indemnified Party as a result for, and such Indemnified Parties shall have no right to recover from Seller, Stockholder or Founder, any amount of any claim Losses which exceeds (and from and after the time such Losses exceed) such amount; provided, however, that no limitation pursuant to this Section 8.5 shall apply in respect of a Loss arising under clause (i) of section 8.A or under any unintentional breach, unintentional non-fulfillment or unintentional failure claims for indemnification made by Indemnified Persons pursuant to perform under clause (ii) of section 8.A unless and until the aggregate amount of such Losses incurred by the Indemnified Parties is in excess of US$5,000,000, and then only to the extent of any such excess; and (b) the maximum aggregate liability of the Shareholder and KS Section 8.2 for Losses arising under clause (i) of section 8.A and under out of, relating to, or resulting from, or in whole or in part sustained in connection with any unintentional breach, unintentional non-fulfillment or unintentional failure to perform under clause (ii) of section 8.A shall be equal to US$70,000,000Excluded Liabilities. (c) The foregoing limitations shall not apply to amount of any Losses relating to for which a claim or arising from (i) any intentional breach of this Agreement or fraudulent misrepresentation or action by the Shareholder or KS or (ii) any Affiliate Arrangement. For purposes of determining whether the amounts referred to in subsections (a) and (b) have been met or exceeded, any amounts paid by KS claims for indemnification pursuant to section 5.H(a) in respect of any indemnification payments or advancement of expenses Section 8.2 are made to KS or Mrs. KS by the Corporation or one of its Subsidiaries an Indemnified Party shall be included in the calculation as if they constituted Losses indemnified under this section 8; provided that deemed to be reduced to the extent that insurance proceeds are actually received by the Acquiror is required Indemnified Parties to repay cover such amounts pursuant Losses (net of any increase in premiums or other expenses incurred to the last sentence of section 5.H(aobtain such proceeds), any such amounts repaid shall no longer constitute a Loss under this section 8.

Indemnification Limits. Notwithstanding anything If the Closing occurs, the rights of the Purchaser Indemnified Parties under Section 6.3 shall be subject to the contrary contained in this Agreementfollowing limitations: (a) no amounts The Seller shall not be payable liable to any the Purchaser Indemnified Party as a result of any claim in respect of a Loss arising Parties for indemnification claims under clause (iSection 6.3(a) of section 8.A or under any unintentional breach, unintentional non-fulfillment or unintentional failure to perform under clause (iiSection 6.3(b) of section 8.A unless and until the aggregate amount of such all Losses incurred by in respect of indemnification claims under Section 6.3 exceeds $440,000.00, at which time the Purchaser Indemnified Parties is in excess of US$5,000,000, and then only shall be entitled to recover for aggregate Losses pursuant to Section 6.3 from the extent of any such excess; andfirst dollar; (b) The Seller shall not be liable to the maximum Purchaser Indemnified Parties for an aggregate liability amount of the Shareholder Losses pursuant to Section 6.3(a) (excluding indemnification claims for breach of Fundamental Representations and KS claims for Losses arising under clause (ifraud or intentional misrepresentation) in excess of section 8.A and under any unintentional breach, unintentional non-fulfillment or unintentional failure to perform under clause (ii) of section 8.A shall be equal to US$70,000,000.$4,400,000.00; (c) The foregoing limitations Seller shall not apply be liable to the Purchaser Indemnified Parties for an aggregate amount of Losses pursuant to Section 6.3(a) for breach of Fundamental Representations, fraud or intentional misrepresentation in excess of the Closing Purchase Price, provided that claims for fraud or intentional misrepresentation shall not be subject to the limit in this clause (c) and shall not be included in the determination of whether the limit in this clause (c) has been reached; (d) For purposes of determining the amount of any Losses relating subject to or arising from indemnification under this ARTICLE 6, the amount of such Losses will be determined net of (i) any intentional breach of this Agreement insurance proceeds and any indemnity, contribution or fraudulent misrepresentation or action other similar payment actually received by the Shareholder or KS or (ii) any Affiliate Arrangement. For purposes of determining whether the amounts referred to in subsections (a) and (b) have been met or exceeded, any amounts paid by KS pursuant to section 5.H(a) Purchaser Indemnified Parties in respect of any indemnification payments such claim (net of any reasonable out-of-pocket expenses incurred in collecting such amounts) and (ii) the amount equal to any net Tax benefit arising from the incurrence or advancement payment of expenses made to KS or Mrs. KS any indemnifiable Losses by the Corporation or one of its Subsidiaries shall be included in the calculation as if they constituted Losses indemnified under this section 8; provided that Purchaser Indemnified Parties, to the extent such Tax benefit is realized and recognized in respect of the taxable period of such Loss or any prior taxable period. (e) Each Purchaser Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that the Acquiror is required to repay such amounts pursuant would be reasonably expected to, or does, give rise thereto, including incurring costs only to the last sentence minimum extent necessary to remedy the breach that gives rise to such Loss. For all purposes of section 5.H(a)this ARTICLE 6, when determining whether a representation or warranty of Seller has been breached or is inaccurate and the amount of the Losses, any material adverse effect or other materiality qualifier contained in any such amounts repaid shall no longer constitute a Loss under this section 8representation or warranty will be disregarded.

Indemnification Limits. Notwithstanding anything If the Closing occurs, the rights of the Purchaser Indemnified Parties under Section 6.3 shall be subject to the contrary contained in this Agreementfollowing limitations: (a) no amounts The Seller shall not be payable liable to any the Purchaser Indemnified Party as a result of any claim in respect of a Loss arising Parties for indemnification claims under clause (iSection 6.3(a) of section 8.A or under any unintentional breach, unintentional non-fulfillment or unintentional failure to perform under clause (iiSection 6.3(b) of section 8.A unless and until the aggregate amount of such all Losses incurred by in respect of indemnification claims under Section 6.3 exceeds $60,000, at which time the Purchaser Indemnified Parties is in excess of US$5,000,000, and then only shall be entitled to recover for aggregate Losses pursuant to Section 6.3 from the extent of any such excess; andfirst dollar; (b) The Seller shall not be liable to the maximum Purchaser Indemnified Parties for an aggregate liability amount of the Shareholder Losses pursuant to Section 6.3(a) (excluding indemnification claims for breach of Fundamental Representations and KS claims for Losses arising under clause (ifraud or intentional misrepresentation) in excess of section 8.A and under any unintentional breach, unintentional non-fulfillment or unintentional failure to perform under clause (ii) of section 8.A shall be equal to US$70,000,000.$600,000; (c) The foregoing limitations Seller shall not apply be liable to the Purchaser Indemnified Parties for an aggregate amount of Losses pursuant to Section 6.3(a) for breach of Fundamental Representations, fraud or intentional misrepresentation in excess of the Closing Purchase Price, provided that claims for fraud or intentional misrepresentation shall not be subject to the limit in this clause (c) and shall not be included in the determination of whether the limit in this clause (c) has been reached; (d) For purposes of determining the amount of any Losses relating subject to or arising from indemnification under this ARTICLE 6, the amount of such Losses will be determined net of (i) any intentional breach of this Agreement insurance proceeds and any indemnity, contribution or fraudulent misrepresentation or action other similar payment actually received by the Shareholder or KS or (ii) any Affiliate Arrangement. For purposes of determining whether the amounts referred to in subsections (a) and (b) have been met or exceeded, any amounts paid by KS pursuant to section 5.H(a) Purchaser Indemnified Parties in respect of any indemnification payments such claim (net of any reasonable out-of-pocket expenses incurred in collecting such amounts) and (ii) the amount equal to any net Tax benefit arising from the incurrence or advancement payment of expenses made to KS or Mrs. KS any indemnifiable Losses by the Corporation or one of its Subsidiaries shall be included in the calculation as if they constituted Losses indemnified under this section 8; provided that Purchaser Indemnified Parties, to the extent such Tax benefit is realized and recognized in respect of the taxable period of such Loss or any prior taxable period. (e) Each Purchaser Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that the Acquiror is required to repay such amounts pursuant would be reasonably expected to, or does, give rise thereto, including incurring costs only to the last sentence minimum extent necessary to remedy the breach that gives rise to such Loss. For all purposes of section 5.H(a)this ARTICLE 6, when determining whether a representation or warranty of Seller has been breached or is inaccurate and the amount of the Losses, any material adverse effect or other materiality qualifier contained in any such amounts repaid shall no longer constitute a Loss under this section 8representation or warranty will be disregarded.

Indemnification Limits. (a) The Seller or the Shareholders shall not be liable to the Purchaser Indemnified Persons in respect of any indemnification pursuant to Sections 8.1(a)(i) or Section 8.1(a)(ii) until the aggregate Losses of the Purchaser Indemnified Persons pursuant to such Sections exceeds an amount equal to $200,000 (the “Basket Amount”) and then only to the extent of the amount of Losses in excess of the Basket Amount; provided, however, that the Basket Amount shall not apply to claims for indemnification based on (i) breaches of the representations and warranties set forth in Sections 5.1, 5.2, 5.11 or 5.14, (ii) intentional fraud, (iii) Losses related to Retained Liabilities; or (iv) any claim under Section 9.8. (b) The Parties acknowledge and agree that the maximum aggregate liability of the Seller pursuant to Sections 8.1(a) (inclusive of the Escrow Amount) shall not exceed $5,500,000 plus 18.6% of any Earn Out Payment that may become due (the “Cap Amount”); provided, however, that the Cap Amount shall not apply to claims for indemnification based on intentional fraud or claims under Section 8.1(a)(vi). (c) Notwithstanding anything any provision to the contrary contained in this Agreement: (a) no amounts , the Seller shall be payable under no liability to indemnify any Purchaser Indemnified Party as a result Person under this Article VIII and no claim under Article VIII of any claim in respect of a Loss arising under clause (i) of section 8.A or under any unintentional breachthis Agreement shall be made to the extent, unintentional non-fulfillment or unintentional failure to perform under clause (ii) of section 8.A unless and until the aggregate amount of such Losses incurred by the Indemnified Parties is in excess of US$5,000,000, and then but only to the extent extent, that (x) a reserve was made for the matter giving rise to the claim in, or noted in, or taken account of any in, the NWC Statement and (y) such excess; and (b) reserve or other amount was taken into account in determining the maximum aggregate liability of the Shareholder and KS for Losses arising under clause (i) of section 8.A and under any unintentional breach, unintentional non-fulfillment or unintentional failure to perform under clause (ii) of section 8.A shall be equal to US$70,000,000Net Working Capital. (cd) The foregoing limitations For purposes of this Section 8.4, once a determination has been made that a specific breach of a representation, warranty, covenant or agreement has occurred for purposes of the indemnification obligations hereunder, the calculation of Losses with respect to such specific breach shall not apply be made without regard to any Losses relating limitation or qualification as to materiality set forth in such representation warranty, covenant or agreement. (e) Any payment made pursuant to the indemnification obligations arising from under this Agreement shall be treated as an adjustment to the Purchase Price to the extent allowable under Applicable Law. Any indemnity payment under this Agreement shall be decreased by (i) any Tax benefit to the Indemnified Persons resulting from the Loss giving rise to the indemnification obligation and (ii) any amounts actually received by the Indemnified Persons under third party insurance policies with respect to such Loss prior to the time payment by the Indemnifying Person is due and payable under this Agreement, net of any deductibles or co-payments paid by such Indemnified Person under the relevant insurance policy, any “retro-premium” obligations in connection with such Loss and any costs incurred by such Indemnified Person in procuring such payment under such policy (the “Net Insurance Proceeds”), each Party agreeing (i) to use commercially reasonable efforts to recover all available insurance proceeds and (ii) to the extent that any indemnity payment under this Agreement has been paid by the Indemnifying Person to or on behalf of the Indemnified Person prior to the receipt, directly or indirectly, by the Indemnified Person of any Net Insurance Proceeds under third party insurance policies on account of such Loss which duplicate, in whole or in part, the payment made by the Indemnifying Person to or on behalf of the Indemnified Person, the Indemnified Person shall remit to the Indemnifying Person an amount equal to the amount of the Net Insurance Proceeds actually received by the Indemnified Person on account of such Loss which duplicate, in whole or in part, the payment made by the Indemnifying Person to or on behalf of the Indemnified Person. (f) From and after the Closing, resort to indemnification pursuant to this Article VIII and the Escrow Agreement shall be the exclusive right and remedy of Purchaser Indemnified Persons for any Loss arising out of or related to any breach of, or dispute or claim relating to, this Agreement or to the transactions contemplated by this Agreement or any matter that is otherwise indemnifiable hereunder if the transactions contemplated hereby are consummated or that constitutes a claim or cause of action against Seller. Except for claims for equitable relief and claims with respect to intentional fraud solely against the Person or Persons committing or alleged to have committed such intentional fraud, recovery from the Escrow Fund and 18.6% of any Earn Out Payment that may become due to Seller shall be the sole and exclusive remedy of the Purchaser Indemnified Persons for any breach of, or dispute or claim relating to, any provision of this Agreement or fraudulent misrepresentation any matter that is otherwise indemnifiable hereunder if the transactions contemplated hereby are consummated or that constitutes a claim or cause of action by the Shareholder against Seller; it being understood that once any Escrow Funds or KS or (ii) any Affiliate Arrangement. For purposes of determining whether the amounts referred to in subsections (a) and (b) have been met or exceeded, any amounts paid by KS pursuant to section 5.H(a) in respect of any indemnification payments or advancement of expenses made to KS or Mrs. KS by the Corporation or one of its Subsidiaries shall be included in the calculation as if they constituted Losses indemnified under this section 8; provided that Earn Out Payments are distributed to the extent that Seller or the Acquiror is required to repay Shareholders such amounts pursuant to the last sentence of section 5.H(a), any such amounts repaid shall no longer constitute a Loss under this section 8be available to indemnify the Purchaser Indemnified Persons.