Common use of Limitations; Payments Clause in Contracts

Limitations; Payments. (a) Notwithstanding anything contained in this Agreement to the contrary, Parent shall not be (i) liable for any amounts for which the Purchaser Indemnified Parties are otherwise entitled to indemnification pursuant to Section 10.2(a), unless (x) a claim is timely asserted during the survival period specified in Section 10.1(a), (y) the amount of Losses, after taking into account Section 10.6, with respect to the particular act, circumstance, development, event, fact, occurrence or omission exceeds one hundred thousand dollars ($100,000) (aggregating all such Losses arising from substantially identical facts) and (z) the aggregate amount of all Losses for which the Purchaser Indemnified Parties are entitled to indemnification pursuant to Section 10.2(a) exceeds, on a cumulative basis, seventy-five million dollars ($75,000,000) (the "Threshold"), and then only to the extent of such excess, and (ii) required to make indemnification payments pursuant to Section 10.2(a) to the extent indemnification payments thereunder would exceed in the aggregate two billion dollars ($2,000,000,000) (the "Maximum Indemnification Amount"); provided that the limitations in clauses (i) and (ii) shall not apply to any Losses resulting from, arising out of or relating to, the representations and warranties set forth in Sections 4.2, 4.3 and 4.9 and any such Losses or indemnification payments shall not be counted in determining whether the Threshold or Maximum Indemnification Amount have been exceeded. (b) Notwithstanding anything contained in this Agreement to the contrary, Purchaser shall not be (i) liable for any amounts for which the Sellers Indemnified Parties are otherwise entitled to indemnification pursuant to Section 10.3(b), unless (x) a claim is timely asserted during the survival period specified in Section 10.1(a), (y) the amount of Losses, after taking into account Section 10.6, with respect to the particular act, circumstance, development, event, fact, occurrence or omission exceeds one hundred thousand dollars ($100,000) (aggregating all such Losses arising from substantially identical facts) and (z) the aggregate amount of all Losses for which the Sellers Indemnified Parties are entitled to indemnification pursuant to Section 10.3(b) exceeds, on a cumulative basis, the Threshold, and then only to the extent of such excess, and (ii) required to make indemnification payments pursuant to Section 10.3(b) to the extent indemnification payments thereunder would exceed in the aggregate the Maximum Indemnification Amount; provided that the limitations in clauses (i) and (ii) shall not apply to any Losses resulting from, arising out of or relating to, the representations and warranties set forth in Sections 5.2 and 5.3 and any such Losses or indemnification payments shall not be counted in determining whether the Threshold or Maximum Indemnification Amount have been exceeded.

Limitations; Payments. (a) Notwithstanding anything contained set forth in this Agreement to the contrary, Parent : (i) CBNA shall not be (i) liable for any amounts for which the Purchaser Buyer Indemnified Parties are otherwise entitled to indemnification pursuant to Section 10.2(a2.2(a) or, solely with respect to a breach of Section 6.7(a) of the Merger Agreement, Section 2.2(b), unless (x) a claim is timely asserted during the survival period specified in Section 10.1(a2.1(a), and (y) the amount of Losses, after taking into account Section 10.6, with respect to the particular act, circumstance, development, event, fact, occurrence or omission exceeds one hundred thousand dollars ($100,000) (aggregating all such Losses arising from substantially identical facts) and (z) the aggregate amount of all Losses for which the Purchaser Buyer Indemnified Parties are entitled to indemnification pursuant to Section 10.2(a2.2(a) exceedsand, solely with respect to breaches of Section 6.7(a) of the Merger Agreement, Section 2.2(b), on a cumulative basis, seventy-five million dollars (exceeds $75,000,000) 4,000,000.00 (the "“Threshold"”), and then only to the extent of such excess, and ; (ii) no Losses may be claimed by a Buyer Indemnified Party under Section 2.2(a), or, solely with respect to a breach of Section 6.7(a) of the Merger Agreement, Section 2.2(b), and no Losses shall be included in calculating the aggregate Losses set forth in clause (i)(y) above, other than Losses in excess of $50,000.00 resulting from any single claim or series of aggregated claims arising out of the same or related facts, events or circumstances; and (iii) CBNA shall not be required to make indemnification payments pursuant to Section 10.2(a2.2(a) or, solely with respect to a breach of Section 6.7(a) of the Merger Agreement, Section 2.2(b), to the extent indemnification payments thereunder would exceed in the aggregate two billion dollars ($2,000,000,000) 100,000,000.00 (the "“Maximum Indemnification Amount"”); provided provided, that the limitations in clauses (i) and (ii) foregoing restrictions shall not apply to any Losses resulting from, arising out from (A) fraud or (B) a breach of or relating to, the representations and warranties set forth in Sections 4.2, 4.3 and 4.9 and any such Losses or indemnification payments shall not be counted in determining whether the Threshold or Maximum Indemnification Amount have been exceededCompany Fundamental Representations. (b) Notwithstanding anything contained set forth in this Agreement to the contrary, Purchaser : (i) Buyer shall not be (i) liable for any amounts for which the Sellers CBNA Indemnified Parties are otherwise entitled to indemnification pursuant to Section 10.3(b2.3(b), unless (x) a claim is timely asserted during the survival period specified in Section 10.1(a2.1(a), and (y) the amount of Losses, after taking into account Section 10.6, with respect to the particular act, circumstance, development, event, fact, occurrence or omission exceeds one hundred thousand dollars ($100,000) (aggregating all such Losses arising from substantially identical facts) and (z) the aggregate amount of all Losses for which the Sellers CBNA Indemnified Parties are entitled to indemnification pursuant to Section 10.3(b2.3(b) exceeds, on a cumulative basis, the Threshold, and then only to the extent of such excess, and ; (ii) no Losses may be claimed by a CBNA Indemnified Party under Section 2.3(b), and no Losses shall be included in calculating the aggregate Losses set forth in clause (i)(y) above, other than Losses in excess of $50,000.00 resulting from any single claim or series of aggregated claims arising out of the same or related facts, events or circumstances; and (iii) Buyer shall not be required to make indemnification payments pursuant to Section 10.3(b2.3(b) to the extent indemnification payments thereunder would exceed in the aggregate the Maximum Indemnification Amount; provided provided, that the limitations in clauses (i) and (ii) foregoing restrictions shall not apply to any Losses resulting fromfrom (A) fraud or (B) a breach of the Buyer Fundamental Representations. (c) Notwithstanding the foregoing, arising out no claim for indemnification by a Buyer Indemnified Party pursuant to Section 2.2(b)-(n) or by a CBNA Indemnified Party pursuant to Section 2.3(a) or Section 2.3(c)-(e) shall be subject to any threshold amount, deductible amount or maximum amount of or relating to, the representations liability. The Parties acknowledge and warranties set forth in Sections 5.2 and 5.3 agree that indemnification with respect to certain matters may be addressed under more than one section of this Agreement and any such Losses or limitations on indemnification payments under one section of this Agreement shall not be counted in determining whether interpreted to limit the Threshold availability of indemnification under another section of this Agreement. If a Buyer Indemnified Party or Maximum Indemnification Amount have been exceededa CBNA Indemnified Party, as the case may be, is entitled to indemnification under more than one provision of this Agreement with respect to any matter such Buyer Indemnified Party or CBNA Indemnified Party, as the case may be, shall be entitled to select which provision of this Agreement they use to pursue indemnification rights hereunder.

Limitations; Payments. (a) Notwithstanding anything contained in this Agreement to the contrary, Parent Citigroup shall not be (i) liable for any amounts for which the Purchaser Legg Mason Indemnified Parties are otherwise entitled to indemnification pursuant to Section 10.2(a), ) unless (xA) a claim is timely asserted during the survival period specified in Section 10.1(a), (yB) the amount of Losses, after taking into account Section 10.6, Losses with respect to the particular act, circumstance, development, event, fact, occurrence or omission giving rise to such Losses exceeds one hundred thousand dollars ($100,000) 50,000 (aggregating all such Losses arising from substantially identical facts) and (zC) the aggregate amount of all Losses for which the Purchaser Legg Mason Indemnified Parties are entitled to indemnification pursuant to Section 10.2(a) exceeds, on a cumulative basis, seventy-five million dollars ($75,000,000) 40,000,000 (the "“Citigroup Threshold"”), and then only to the extent of such excess, and (ii) required to make indemnification payments pursuant to Section 10.2(a) to the extent indemnification payments thereunder would exceed in the aggregate two billion dollars ($2,000,000,000) 1,100,000,000 (the "Maximum “Citigroup Indemnification Amount"Cap”); provided that . Notwithstanding anything contained in this Agreement to the limitations contrary, in clauses (ino event shall a Legg Mason Indemnified Party be entitled to indemnification under Section 10.2(a) in respect of the Losses subject to Section 10.2(c), and (iiany amounts for which the Legg Mason Indemnified Parties are otherwise entitled to indemnification pursuant to Section 10.2(c), 10.2(d), 10.2(e) or 10.2(f) shall not apply to any Losses resulting from, arising out of or relating to, count towards the representations and warranties set forth in Sections 4.2, 4.3 and 4.9 and any such Losses or indemnification payments shall not be counted in determining whether the Citigroup Threshold or Maximum the Citigroup Indemnification Amount have been exceededCap. (b) Notwithstanding anything contained in this Agreement to the contrary, Purchaser Legg Mason shall not be (i) liable for any amounts for which the Sellers Citigroup Indemnified Parties are otherwise entitled to indemnification pursuant to Section 10.3(b10.3(a), unless (xA) a claim is timely asserted during the survival period specified in Section 10.1(a), (yB) the amount of Losses, after taking into account Section 10.6, Losses with respect to the particular act, circumstance, development, event, fact, occurrence or omission giving rise to such Losses exceeds one hundred thousand dollars ($100,000) 25,000 (aggregating all such Losses arising from substantially identical facts) and (zC) the aggregate amount of all Losses for which the Sellers Citigroup Indemnified Parties are entitled to indemnification pursuant to Section 10.3(b10.3(a) exceeds, on a cumulative basis, $20,000,000 (the “Legg Mason Threshold”), and then only to the extent of such excess, and (ii) required to make indemnification payments pursuant to Section 10.3(b10.3(a) to the extent indemnification payments thereunder would exceed in the aggregate the Maximum Indemnification Amount; provided that the limitations in clauses $550,000,000 (i) and (ii) shall not apply to any Losses resulting from, arising out of or relating to, the representations and warranties set forth in Sections 5.2 and 5.3 and any such Losses or indemnification payments shall not be counted in determining whether the Threshold or Maximum Indemnification Amount have been exceeded.the

Limitations; Payments. (a) Notwithstanding anything contained in this Agreement to the contrary, the Parent Indemnitees shall not be entitled to indemnification under this Agreement (i) liable in the case of indemnification for any amounts for which the Purchaser Indemnified Parties are otherwise entitled to indemnification pursuant to Losses under Section 10.2(a8.2(a)(i) (other than in respect of a breach of Section 3.2), unless (x) a claim is timely asserted during the survival period specified in Section 10.1(a), (y) the amount of Losses, after taking into account Section 10.6, with respect only to the particular act, circumstance, development, event, fact, occurrence or omission exceeds one hundred thousand dollars ($100,000) (aggregating all such Losses arising from substantially identical facts) and (z) extent that the aggregate amount of all such Losses for which the Purchaser Indemnified Parties are entitled to indemnification pursuant to Section 10.2(a) exceeds, on a cumulative basis, seventy-five million dollars ($75,000,000) (1% of the "Threshold")Purchase Price, and then only to the extent of such excess, and (ii) required to make indemnification payments pursuant to Section 10.2(a) only to the extent indemnification payments thereunder would that the aggregate amounts required to be paid to the Parent Indemnitees in respect of all Losses and under Article VII shall not exceed in the aggregate two billion dollars 10% of the Purchase Price, plus all Earnings ($2,000,000,000as defined in the Escrow Agreement) to which they are entitled under the terms of the Escrow Agreement and (iii) only to the "Maximum Indemnification Amount")extent of funds available in the Escrow Funds, it being understood that such Escrow Funds shall be the sole and exclusive source of recovery and remedy of any Parent Indemnitee with respect to any claim for indemnification under Sections 7.1 and 8.2(a) and, as such, the indemnification obligations set forth herein are non-recourse to the Company, the Company Subsidiaries or the Holders in all respects; provided provided, that the limitation in this clause (iii) shall not apply with respect to claims of Parent Indemnitees for indemnification under Section 7.1 and Section 8.2(a)(iii) that are validly brought pursuant to the terms of this Agreement during the Extended Survival Period, it being understood that the Parent Indemnitees shall have the right to seek indemnification from the Primary Shareholders pursuant to the terms and limitations set forth in the Stockholder Agreements; provided, further, that the limitations in clauses (i) through (iii) shall not apply to any Losses resulting from, arising out of or relating to any intentional misrepresentation or any fraud. (b) Notwithstanding anything contained in this Agreement to the contrary, the Company Indemnitees shall be entitled to indemnification under this Agreement: (i) in the case of indemnification for Losses under Section 8.2(b)(i) only to the extent that the aggregate amount thereof exceeds, on a cumulative basis, 1% of the Purchase Price, and then only to the extent of such excess; and (ii) only to the extent that the aggregate amount required to be paid to the Company Indemnitees does not exceed in the aggregate 10% of the Purchase Price; provided, that the limitations in clauses (i) and (ii) shall not apply to any Losses resulting from, arising out of or relating to, the representations and warranties set forth in Sections 4.2, 4.3 and 4.9 and to any such Losses intentional misrepresentation or indemnification payments shall not be counted in determining whether the Threshold or Maximum Indemnification Amount have been exceededany fraud. (bc) Notwithstanding anything contained in this Agreement The amount of any Losses that the Indemnifying Party is obligated to pay to the contrary, Purchaser shall not be (i) liable for any amounts for which the Sellers Indemnified Parties are otherwise entitled to indemnification Party pursuant to Section 10.3(b), unless (x) a claim is timely asserted during the survival period specified in Section 10.1(a), (y) the amount of Losses, after taking into account Section 10.6this Article VIII or, with respect to clause (ii) of this sentence only, all amounts that the particular actIndemnifying Party is obligated to pay to the Indemnified Party pursuant to Article VII, circumstance, development, event, fact, occurrence or omission exceeds one hundred thousand dollars shall be net of ($100,000i) (aggregating all any amounts collected in connection with such Losses arising from substantially identical factsany applicable insurance policies or other prior or subsequent recoveries from any other Person alleged to be responsible for such Losses, in each case subject to the limits in the last sentence of this Section 8.4(c) and (z) the aggregate amount of all Losses for which the Sellers Indemnified Parties are entitled to indemnification pursuant to in Section 10.3(b) exceeds, on a cumulative basis, the Threshold, and then only to the extent of such excess, 8.7 and (ii) required any Tax Benefit (net of any associated Tax Cost) actually realized by an Indemnified Party arising from the incurrence or payment of any such Losses and the receipt of indemnity payments hereunder. Any Indemnified Party shall use reasonable efforts to make indemnification payments pursuant to Section 10.3(b) to the extent indemnification payments thereunder would exceed in the aggregate the Maximum Indemnification Amount; provided that the limitations in clauses (i) collect any amounts available under such insurance policies or from such other Person alleged to be responsible and (ii) shall not apply realize any Tax Benefit with respect to any indemnified Losses. If an Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any indemnified Losses, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount; provided, that such reimbursement shall only be required to the extent the Indemnified Party would otherwise retain an amount greater than the full amount of the Losses resulting from, arising out incurred by the Indemnified Party as a result of the underlying claim. (d) The Indemnified Parties shall be deemed not to have suffered or relating to, incurred a Loss in respect of any item to the representations extent (and warranties set forth only to the extent) an amount in Sections 5.2 and 5.3 and any respect of such Losses item has reduced Adjusted Working Capital or indemnification payments shall not be counted in determining whether the Threshold or Maximum Indemnification Amount have been exceededincreased Pension Underfunding.

Limitations; Payments. (a) Notwithstanding anything contained in this Agreement to the contrary, Parent Newquay shall not not, other than with respect to any breach of any Newquay Designated Representation, be (i) liable for any amounts for which the Purchaser Pluto Indemnified Parties are otherwise entitled to indemnification pursuant to Section 10.2(a), 10.3(a) or Section 8.1(b)(iii) unless (xA) a claim is timely asserted during the survival period specified in Section 10.1(a)) or Section 8.9, as applicable, (yB) the amount of Losses, after taking into account Section 10.6, Losses with respect to the particular act, circumstance, development, event, fact, occurrence or omission giving rise to such Losses exceeds one hundred thousand dollars ($100,000) 3,500,000 (aggregating all such Losses arising from substantially identical facts) and (zC) the aggregate amount of all Losses for which the Purchaser Pluto Indemnified Parties are entitled to indemnification pursuant to Section 10.2(a10.3(a) or Section 8.1(b)(iii) (for the avoidance of doubt, excluding Losses that do not exceed the amount set forth in clause (B) above) exceeds, on a cumulative basis, seventy-five million dollars ($75,000,000) 35,000,000 (the "“Newquay Threshold"”), and then only to the extent of such excess, ) and (ii) required to make indemnification payments pursuant to Section 10.2(a10.3(a) or Section 8.1(b)(iii) to the extent indemnification payments thereunder would exceed in the aggregate two billion dollars ($2,000,000,000) 400,000,000 (the "Maximum “Newquay Indemnification Amount"Cap”); provided . Notwithstanding anything contained in this Agreement to the contrary, and without limiting the foregoing (including Newquay Indemnification Cap), the maximum amount of indemnifiable Losses that may be recovered from Newquay for any amounts due under Section 10.3 and Section 8.1(b)(iii) shall be $3,770,000,000 (the limitations in clauses (i) “Newquay Total Cap”). For the avoidance of doubt, the Newquay Threshold, the Newquay Indemnification Cap and (ii) the Newquay Total Cap shall not apply to any Losses resulting from, arising out of or relating to, the representations and warranties set forth remedies provided in Sections 4.2, 4.3 and 4.9 and any such Losses or indemnification payments shall not be counted Article VIII other than as provided in determining whether the Threshold or Maximum Indemnification Amount have been exceededthis Section 10.5(a). (b) Notwithstanding anything contained in this Agreement to the contrary, Purchaser shall not be (i) liable for in the event that any amounts for fact, event or circumstance which results in an adjustment to the Sellers Indemnified Parties are otherwise entitled to indemnification purchase price pursuant to Section 10.3(b)Article I or Article III would also constitute a breach or inaccuracy of any of a Party’s representations, unless (x) warranties, covenants or agreements under this Agreement or otherwise result in a claim is timely asserted during Loss to the survival period specified in Section 10.1(a)other Party, (y) the amount of Lossessuch Party shall have no obligation to indemnify any Newquay Indemnified Party or Pluto Indemnified Party, after taking into account Section 10.6as applicable, with respect to the particular act, circumstance, development, event, fact, occurrence such breach or omission exceeds one hundred thousand dollars ($100,000) (aggregating all such Losses arising from substantially identical facts) and (z) the aggregate amount of all Losses for which the Sellers Indemnified Parties are entitled to indemnification pursuant to Section 10.3(b) exceeds, on a cumulative basis, the Threshold, and then only inaccuracy to the extent that (i) recovery for any such Loss would constitute a duplicative payment of amounts recovered as a purchase price adjustment pursuant to Article I or Article III or (ii) such excessLoss was reflected as a liability on the Rover Final Closing Statement, as applicable, for which there was a purchase price adjustment pursuant to Article I or Article III. (c) Notwithstanding anything contained in this Agreement to the contrary, for purposes of (i) the determination of whether there was a breach of a representation or warranty as of any particular date and (ii) required the existence or amount of any Losses in respect of any such breach, any materiality, Rover Material Adverse Effect standard or qualification contained in or otherwise applicable to make indemnification payments pursuant to Section 10.3(b) to the extent indemnification payments thereunder would exceed in the aggregate the Maximum Indemnification Amountsuch representation or warranty shall be disregarded; provided that the limitations in clauses (i) and (iithis Section 10.5(c) shall not apply to any Losses resulting from, arising out of or relating to, the representations and warranties set forth in Sections 5.2 and 5.3 and Section 5.6(a)(ii). (d) Notwithstanding anything contained in this Agreement to the contrary, no Party shall have any such Losses liability pursuant to Section 10.2 or indemnification payments Section 10.3 for any special, indirect, consequential or punitive damages relating to a breach or alleged breach of this Agreement; provided, however, that any amounts payable to third parties pursuant to a Third-Party Claim shall not be counted in determining whether the Threshold deemed special, indirect, consequential or Maximum Indemnification Amount have been exceededpunitive damages.

Limitations; Payments. (a) Notwithstanding anything contained in this Agreement to the contrary, Parent Seller shall not be (i) liable for any amounts for which the Purchaser Buyer Indemnified Parties are otherwise entitled to indemnification pursuant to Section 10.2(a), 8.2(a) unless (xA) a claim is timely asserted during the survival period specified in Section 10.1(a8.1(a), (yB) the amount of Losses, after taking into account Section 10.6, Losses with respect to the particular act, circumstance, development, event, fact, occurrence or omission giving rise to such Losses exceeds one hundred thousand dollars ($100,000) 50,000 (aggregating all such Losses arising from substantially identical facts) and (zC) the aggregate amount of all Losses for which the Purchaser Buyer Indemnified Parties are entitled to indemnification pursuant to Section 10.2(a8.2(a) exceeds, on a cumulative basis, seventy-five million dollars ($75,000,000) 2,000,000 (the "Seller Threshold"), and then only to the extent of such excess, and (ii) required to make indemnification payments pursuant to Section 10.2(a8.2(a) to the extent indemnification payments thereunder would exceed in the aggregate two billion dollars ($2,000,000,000) 20,000,000 (the "Maximum Seller Indemnification AmountCap"); provided that the limitations in clauses (i) and (ii) shall not apply to any Losses resulting from, arising out of or relating to, the representations and warranties set forth in Sections 4.2, 4.3 and 4.9 and any such Losses or indemnification payments shall not be counted in determining whether the Threshold or Maximum Indemnification Amount have been exceeded. (b) Notwithstanding anything contained in this Agreement to the contrary, Purchaser Buyer shall not be (i) liable for any amounts for which the Sellers Seller Indemnified Parties are otherwise entitled to indemnification pursuant to Section 10.3(b8.4(a), unless (xA) a claim is timely asserted during the survival period specified in Section 10.1(a8.1(a), (yB) the amount of Losses, after taking into account Section 10.6, Losses with respect to the particular act, circumstance, development, event, fact, occurrence or omission giving rise to such Losses exceeds one hundred thousand dollars ($100,000) 50,000 (aggregating all such Losses arising from substantially identical facts) and (zC) the aggregate amount of all Losses for which the Sellers Seller Indemnified Parties are entitled to indemnification pursuant to Section 10.3(b8.4(a) exceeds, on a cumulative basis, $2,000,000 (the "Buyer Threshold"), and then only to the extent of such excess, and (ii) required to make indemnification payments pursuant to Section 10.3(b8.4(a) to the extent indemnification payments thereunder would exceed in the aggregate $20,000,000 (the Maximum "Buyer Indemnification Amount; provided Cap"). (c) Notwithstanding anything contained in this Agreement to the contrary, in the event that any fact, event or circumstance which results in an adjustment to the limitations purchase price pursuant to Article 2 would also constitute a breach or inaccuracy of any of a Party's representations, warranties, covenants or agreements under this Agreement or otherwise result in clauses a Loss to the other Party, such Party shall have no obligation to indemnify any Buyer Indemnified Party or Seller Indemnified Party, as applicable, with respect to such breach or inaccuracy to the extent that (i) and recovery for any such Loss would constitute a duplicative payment of amounts recovered as a purchase price adjustment pursuant to Article 2, (ii) shall not apply to any Losses resulting from, arising out such Loss was reflected as a liability on the Final Closing Date Balance Sheet or (iii) such Loss was the subject of or relating to, the representations and warranties set forth in Sections 5.2 and 5.3 and any such Losses or indemnification payments shall not be counted in determining whether the Threshold or Maximum Indemnification Amount have been exceededa dispute resolved as contemplated by Section 2.5.

Limitations; Payments. (a) Notwithstanding anything contained in this Agreement to the contrary, the Parent Indemnitees shall not be entitled to indemnification under this Agreement (i) liable in the case of indemnification for any amounts for which the Purchaser Indemnified Parties are otherwise entitled to indemnification pursuant to Losses under Section 10.2(a9.2(a)(i) (other than in respect of a breach of Section 4.2), unless (x) a claim is timely asserted during the survival period specified in Section 10.1(a), (y) the amount of Losses, after taking into account Section 10.6, with respect only to the particular act, circumstance, development, event, fact, occurrence or omission exceeds one hundred thousand dollars ($100,000) (aggregating all such Losses arising from substantially identical facts) and (z) extent that the aggregate amount of all such Losses for which the Purchaser Indemnified Parties are entitled to indemnification pursuant to Section 10.2(a) exceeds, on a cumulative basis, seventy-five million dollars ($75,000,000) (1% of the "Threshold")Purchase Price, and then only to the extent of such excess, and (ii) required to make indemnification payments pursuant to Section 10.2(a) only to the extent indemnification payments thereunder would that the aggregate amounts required to be paid to the Parent Indemnitees in respect of all Losses or under Article VIII shall not exceed in the aggregate two billion dollars 13% of the Purchase Price, plus all Earnings ($2,000,000,000as defined in the Escrow Agreement) to which they are entitled under the terms of the Escrow Agreement and (iii) only to the "Maximum Indemnification Amount")extent of funds available in the Escrow Funds, it being understood that such Escrow Funds shall be the sole and exclusive source of recovery and remedy of any Parent Indemnitee with respect to any claim for indemnification under Sections 8.1 and 9.2(a) and, as such, the indemnifications obligations set forth herein are non-recourse to the Company, the Company Subsidiaries or the Holders in all respects; provided provided, that the limitations in clauses (i) through (iii) shall not apply to any Losses resulting from, arising out of or relating to any intentional misrepresentation or any fraud. (b) Notwithstanding anything contained in this Agreement to the contrary, the Company Indemnitees shall be entitled to indemnification under this Agreement: (i) in the case of indemnification for Losses under Section 9.2(b)(i) only to the extent that the aggregate amount thereof exceeds, on a cumulative basis, 1% of the Purchase Price, and then only to the extent of such excess; and (ii) only to the extent that the aggregate amount required to be paid to the Company Indemnitees does not exceed in the aggregate 13% of the Purchase Price; provided, that the limitations in clauses (i) and (ii) shall not apply to any Losses resulting from, arising out of or relating to, the representations and warranties set forth in Sections 4.2, 4.3 and 4.9 and to any such Losses intentional misrepresentation or indemnification payments shall not be counted in determining whether the Threshold or Maximum Indemnification Amount have been exceededany fraud. (bc) Notwithstanding anything contained in this Agreement The amount of any Losses that the Indemnifying Party is obligated to pay to the contrary, Purchaser shall not be (i) liable for any amounts for which the Sellers Indemnified Parties are otherwise entitled to indemnification Party pursuant to Section 10.3(b), unless (x) a claim is timely asserted during the survival period specified in Section 10.1(a), (y) the amount of Losses, after taking into account Section 10.6this Article IX or, with respect to clause (ii) of this sentence only, all amounts that the particular actIndemnifying Party is obligated to pay to the Indemnified Party pursuant to Article VIII, circumstance, development, event, fact, occurrence or omission exceeds one hundred thousand dollars shall be net of ($100,000i) (aggregating all any amounts collected in connection with such Losses arising from substantially identical factsany applicable insurance policies or other prior or subsequent recoveries from any other Person alleged to be responsible for such Losses, in each case subject to the limits in the last sentence of this Section 9.4(c) and (z) the aggregate amount of all Losses for which the Sellers Indemnified Parties are entitled to indemnification pursuant to in Section 10.3(b) exceeds, on a cumulative basis, the Threshold, and then only to the extent of such excess, 9.7 and (ii) required any Tax Benefit (net of any associated Tax Cost) actually realized by an Indemnified Party arising from the incurrence or payment of any such Losses and the receipt of indemnity payments hereunder. Any Indemnified Party shall use reasonable efforts to make indemnification payments pursuant to Section 10.3(b) to the extent indemnification payments thereunder would exceed in the aggregate the Maximum Indemnification Amount; provided that the limitations in clauses (i) collect any amounts available under such insurance policies or from such other Person alleged to be responsible and (ii) shall not apply realize any Tax Benefit with respect to any indemnified Losses. If an Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any indemnified Losses, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount; provided, that such reimbursement shall only be required to the extent the Indemnified Party would otherwise retain an amount greater than the full amount of the Losses resulting from, arising out incurred by the Indemnified Party as a result of the underlying claim. (d) The Indemnified Parties shall be deemed not to have suffered or relating to, incurred a Loss in respect of any item to the representations extent (and warranties set forth only to the extent) an amount in Sections 5.2 and 5.3 and any respect of such Losses item has reduced Closing Equity or indemnification payments shall not be counted in determining whether increased the Threshold or Maximum Indemnification Amount have been exceededCash Shortfall.