Common use of Threshold; Ceiling Clause in Contracts

Threshold; Ceiling. (a) Subject to Section 6.3(b), the Sellers shall not be required to make any indemnification payment pursuant to Section 6.2 for any Breach as set forth in Section 6.2 until such time as the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the Indemnitees, or to which any one or more of the Indemnitees has or have otherwise become subject, exceeds $100,000 in the aggregate. At such time as the total amount of such Damages exceeds $100,000 in the aggregate, the Indemnitees shall be entitled to be indemnified against the full amount of such Damages (and not merely the portion of such Damages exceeding $100,000). (b) The aggregate Liability of the Sellers for monetary damages under Section 6.2 shall be limited to the Holdback Fund and shall be satisfied solely through the Purchaser’s right of setoff against the Holdback Fund. Once the Holdback Fund is distributed (or should have been distributed) pursuant to this Agreement, Purchaser’s right of setoff against the Holdback Fund shall cease and be of no further force or effect; provided however, that if, at any time on or prior to the date the Holdback Fund should have been distributed, any Indemnitee (acting in good faith) delivers to the Agent a notice of an indemnification claim under this Section 6, then the Purchaser’s right of setoff against the Holdback Fund shall survive until such time as such claim is fully and finally resolved. Additionally, Purchaser is not entitled to claim or receive any indemnity or Damages for any fact, matter or circumstance (including but not limited to a Breach) to the extent that the fact, matter or circumstance is disclosed in the applicable part of the Disclosure Schedule, or is otherwise known to Purchaser before the Closing and Purchaser still proceeds with the Closing (other than, in each case, for items included on Part 6.2 of the Disclosure Schedule), and the amount of any Damages for which an Indemnitee is entitled to indemnification as provided under this Section 6 shall be calculated net of any accruals, reserves or provisions therefor reflected in the ALC Financial Statements or ALC Unaudited Interim Financial Statements. Further, the amount of Damages recoverable by an Indemnitee under this Section 6 with respect to an indemnity claim shall be reduced by the amount of any payment actually received by such Indemnitee (or an Affiliate thereof), with respect to the Damages to which such indemnity claim relates, from any insurance carrier. If an Indemnitee (or an Affiliate) receives any insurance payment in connection with any claim for Damages for which it has already received an indemnification payment from any Seller(s) or the Holdback Fund, it shall pay to the Seller(s), within 30 days of receiving such insurance payment, an amount equal to the excess of (x) the amount previously received by the Indemnitee under this Section 6 with respect to such claim plus the amount of the insurance payments received, over (y) the amount of Damages with respect to such claim that the Indemnitee has become entitled to receive under this Section 6. (c) The limitations on the Sellers’ indemnification obligations that are set forth in this Section 6.3 shall not apply to (i) any Breach of any of the Specified Representations, or (ii) any Breach due to the actual fraud of any Seller, but in such case the limitation shall not apply only to such Seller.

Threshold; Ceiling. (a) Subject to Except as set forth in this Section 6.3(b), 9.3 the Sellers Stockholders shall not be required to make any indemnification payment pursuant to Section 6.2 9.2 for any Breach as inaccuracy in or breach of any of their representations, covenants or obligations set forth in Section 6.2 herein until such time as the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the IndemniteesParent Indemnities, or to which any one or more of the Indemnitees Parent Indemnities has or have otherwise become subject, exceeds $100,000 400,000 in the aggregateaggregate (excluding (i) any liability for Taxes payable pursuant to Section 8, other than the Excluded Liability; and (ii) any liability under clauses (ii) and (iv) of Section 9.2(a), or any Legal Proceeding relating thereto; (collectively, the "Excluded Claims"), each of which shall be payable without any deductible). At such time as If the total amount of such Damages exceeds $100,000 in 400,000, then the aggregate, the Indemnitees Parent Indemnities shall be entitled to be indemnified against the full amount of such Damages (and not merely compensated and reimbursed only for the portion of such Damages exceeding $100,000400,000. Any legal fees incurred in defending any action, claim, or proceeding, brought or threatened by those persons listed on Schedule 9.3 against SRC shall count against the deductible, even though the claim itself is not subject to indemnification. If any Damages are incurred due to a claim as set forth in Section 9.2(a)(iii), the first $200,000 in Damages shall count against the $400,000 deductible to the extent of any remaining deductible. The Stockholders shall jointly and severally indemnify each of the Parent Indemnitees, pursuant to Section 9.2(a)(iii) to the extent such Damages exceed $200,000 and the extent of the portion of any of the first $200,000 in Damages that cannot be set off against the deductible because of prior claims against the deductible. (b) The aggregate Liability indemnification liability of the Sellers for monetary damages under Section 6.2 shall be limited to the Holdback Fund and shall be satisfied solely through the Purchaser’s right of setoff against the Holdback Fund. Once the Holdback Fund is distributed (or should have been distributed) pursuant to this Agreement, Purchaser’s right of setoff against the Holdback Fund shall cease and be of no further force or effect; provided however, that if, at any time on or prior to the date the Holdback Fund should have been distributed, any Indemnitee (acting in good faith) delivers to the Agent a notice of an indemnification claim Stockholders under this Section 6, then the Purchaser’s right of setoff against the Holdback Fund shall survive until such time as such claim is fully and finally resolved. Additionally, Purchaser is not entitled to claim or receive any indemnity or Damages for any fact, matter or circumstance (including but not limited to a Breach) to the extent that the fact, matter or circumstance is disclosed in the applicable part of the Disclosure Schedule, or is otherwise known to Purchaser before the Closing and Purchaser still proceeds with the Closing (other than, in each case, for items included on Part 6.2 of the Disclosure Schedule), and the amount of any Damages for which an Indemnitee is entitled to indemnification as provided under this Section 6 shall be calculated net of any accruals, reserves or provisions therefor reflected in the ALC Financial Statements or ALC Unaudited Interim Financial Statements. Further, the amount of Damages recoverable by an Indemnitee under this Section 6 with respect to an indemnity claim shall be reduced by the amount of any payment actually received by such Indemnitee (or an Affiliate thereof), with respect to the Damages to which such indemnity claim relates, from any insurance carrier. If an Indemnitee (or an Affiliate) receives any insurance payment in connection with any claim for Damages for which it has already received an indemnification payment from any Seller(s) or the Holdback Fund, it shall pay to the Seller(s), within 30 days of receiving such insurance payment, an amount equal to the excess of (x) the amount previously received by the Indemnitee under this Section 6 with respect to such claim plus the amount of the insurance payments received, over (y) the amount of Damages with respect to such claim that the Indemnitee has become entitled to receive under this Section 6. (c) The limitations on the Sellers’ indemnification obligations that are set forth in this Section 6.3 9 shall not apply exceed $2,625,000 (excluding any interest payable pursuant to (i) any Breach of any of the Specified Representations, or (ii) any Breach due to the actual fraud of any Seller, but in such case the limitation shall not apply only to such SellerSection 9.8).

Threshold; Ceiling. (a) Subject to Section 6.3(b), the Sellers The Indemnitees shall not be required entitled to make seek any indemnification payment pursuant to Section 6.2 for any Breach as set forth in Section 6.2 9.2(a) until such time as the total amount of all Damages (including the Damages arising from such Breach inaccuracy or breach and all other Damages arising from any other Breaches inaccuracies in or breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the Indemnitees, or to which any one or more of the Indemnitees has or have otherwise become subject, exceeds $100,000 0.5% of the Purchase Price in the aggregate. At such time as If the total amount of such Damages exceeds $100,000 in 0.5% of the aggregatePurchase Price, then the Indemnitees shall be entitled to be indemnified against and compensated and reimbursed from the full amount of such Damages (and not merely Escrow Fund only for the portion of such Damages exceeding $100,000)0.5% of the Purchase Price. (b) The aggregate Liability right of the Sellers for monetary damages under Section 6.2 shall be limited Indemnitees to the Holdback Fund assert indemnification claims and shall be satisfied solely through the Purchaser’s right of setoff against the Holdback Fund. Once the Holdback Fund is distributed (or should have been distributed) receive indemnification payments pursuant to this Agreement, Purchaser’s right of setoff against the Holdback Fund shall cease and be of no further force or effect; provided however, that if, at any time on or prior to the date the Holdback Fund should have been distributed, any Indemnitee (acting in good faith) delivers to the Agent a notice of an indemnification claim under this Section 6, then the Purchaser’s right of setoff against the Holdback Fund shall survive until such time as such claim is fully and finally resolved. Additionally, Purchaser is not entitled to claim or receive any indemnity or Damages for any fact, matter or circumstance (including but not limited to a Breach) to the extent that the fact, matter or circumstance is disclosed in the applicable part of the Disclosure Schedule, or is otherwise known to Purchaser before the Closing and Purchaser still proceeds with the Closing (other than, in each case, for items included on Part 6.2 of the Disclosure Schedule), and the amount of any Damages for which an Indemnitee is entitled to indemnification as provided under this Section 6 9 shall be calculated net of any accruals, reserves or provisions therefor reflected in the ALC Financial Statements or ALC Unaudited Interim Financial Statements. Further, the amount of Damages recoverable by an Indemnitee under this Section 6 with respect to an indemnity claim shall be reduced sole and exclusive right and remedy exercisable by the amount of any payment actually received by such Indemnitee (or an Affiliate thereof), Indemnitees with respect to the Damages matters set forth in Section 9.2(a). Without limiting the generality of the foregoing, any indemnification payments required to which such indemnity claim relatesbe made by the shareholders of Peach under Section 9 shall be made exclusively from the funds held by the Escrow Agent in the Escrow Fund, from and the Indemnitees shall have no recourse against the shareholders of Peach, or against any insurance carrier. If an Indemnitee (or an Affiliate) receives any insurance payment of the assets of the shareholders of Peach, in connection with any indemnification claim for Damages for which it has already received an indemnification payment from or any Seller(s) or the Holdback Fund, it shall pay other claim relating to the Seller(s), within 30 days performance by Peach of receiving such insurance payment, an amount equal to the excess of (x) the amount previously received by the Indemnitee under this Section 6 with respect to such claim plus the amount of the insurance payments received, over (y) the amount of Damages with respect to such claim that the Indemnitee has become entitled to receive under this Section 6. (c) The limitations on the Sellers’ indemnification its obligations that are set forth in this Section 6.3 shall not apply to (i) any Breach of any of Agreement or the Specified Representations, or (ii) any Breach due to the actual fraud of any Seller, but representations and warranties made by Peach in such case the limitation shall not apply only to such Sellerthis Agreement.

Threshold; Ceiling. (a) Subject to Section 6.3(b), the Sellers Horn shall not be required to make any indemnification payment pursuant to Section 6.2 7.2(a) for any Breach as inaccuracy in or breach of any of the representations and warranties set forth in Section 6.2 2 (other than the representations and warranties set forth in Section 2.14) until such time as the total amount of all Damages (including the Damages arising from such Breach inaccuracy or breach and all other Damages arising from any other Breaches inaccuracies in or breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the Indemnitees, or to which any one or more of the Indemnitees has or have otherwise become subject, exceeds $100,000 in the aggregate. At such time as If the total amount of such Damages exceeds $100,000 in the aggregate100,000, then the Indemnitees shall be entitled to be indemnified against the full amount of such Damages (and not merely compensated and reimbursed only for the portion of such Damages exceeding $50,000. Parent shall not be required to make any indemnification payment pursuant to Section 7.3 for any inaccuracy in or breach of any of their representations and warranties set forth in Section 4 until such time as the total amount of all Damages (including the Damages arising from such inaccuracy or breach and all other Damages arising from any other inaccuracies in or breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the Shareholder Indemnitees, or to which any one or more of the Shareholder Indemnitees has or have otherwise become subject, exceeds $100,000 in the aggregate. If the total amount of such Damages exceeds $100,000), then the Shareholder Indemnitees shall be entitled to be indemnified against and compensated and reimbursed only for the portion of such Damages exceeding $50,000. (b) The aggregate Liability maximum liability of Horn under Section 7.2(a) for breaches of the Sellers for monetary damages under representations and warranties set forth in Section 6.2 shall be limited to the Holdback Fund and shall be satisfied solely through the Purchaser’s right of setoff against the Holdback Fund. Once the Holdback Fund is distributed (or should have been distributed) pursuant to this Agreement, Purchaser’s right of setoff against the Holdback Fund shall cease and be of no further force or effect; provided however, that if, at any time on or prior to the date the Holdback Fund should have been distributed, any Indemnitee (acting in good faith) delivers to the Agent a notice of an indemnification claim under this Section 6, then the Purchaser’s right of setoff against the Holdback Fund shall survive until such time as such claim is fully and finally resolved. Additionally, Purchaser is not entitled to claim or receive any indemnity or Damages for any fact, matter or circumstance (including but not limited to a Breach) to the extent that the fact, matter or circumstance is disclosed in the applicable part of the Disclosure Schedule, or is otherwise known to Purchaser before the Closing and Purchaser still proceeds with the Closing (other than, in each case, for items included on Part 6.2 of the Disclosure Schedule)2, and the amount maximum liability of any Damages Parent under Section 7.3 for which an Indemnitee is entitled to indemnification as provided under this Section 6 shall be calculated net of any accruals, reserves or provisions therefor reflected in the ALC Financial Statements or ALC Unaudited Interim Financial Statements. Further, the amount of Damages recoverable by an Indemnitee under this Section 6 with respect to an indemnity claim shall be reduced by the amount of any payment actually received by such Indemnitee (or an Affiliate thereof), with respect to the Damages to which such indemnity claim relates, from any insurance carrier. If an Indemnitee (or an Affiliate) receives any insurance payment in connection with any claim for Damages for which it has already received an indemnification payment from any Seller(s) or the Holdback Fund, it shall pay to the Seller(s), within 30 days of receiving such insurance payment, an amount equal to the excess of (x) the amount previously received by the Indemnitee under this Section 6 with respect to such claim plus the amount breaches of the insurance payments received, over (y) the amount of Damages with respect to such claim that the Indemnitee has become entitled to receive under this Section 6. (c) The limitations on the Sellers’ indemnification obligations that are representations and warranties set forth in this Section 6.3 4, shall not apply be equal to (i) any Breach of any of $2,490,000 in the Specified Representations, or (ii) any Breach due to the actual fraud of any Seller, but in such case the limitation shall not apply only to such Selleraggregate.

Threshold; Ceiling. (a) Subject to Section 6.3(bExcept in the case of “fraud” (as defined below), the Sellers Indemnitees shall not be required entitled to make any indemnification payment pursuant to Section 6.2 for any Breach as set forth in Section 6.2 matter until such time as the total amount of all Damages (including the Damages arising from in connection with such Breach matter and all other Damages arising from any other Breaches of any representations or warranties) matter that have been directly or indirectly suffered or incurred by any one or more of the Indemnitees, or to which any one or more of the Indemnitees has or have otherwise become subject, exceeds $100,000 in the aggregate. At such time as the total amount of such Damages exceeds $100,000 75,000 in the aggregate, and then only to the Indemnitees shall be entitled to be indemnified against the full amount extent of such Damages (and excess, provided, however, that once such threshold has been exceeded at any time, then any future indemnification shall not merely the portion be subject to such threshold. For purposes of such Damages exceeding $100,000)this Agreement, “fraud” shall exclusively mean any knowing or intentional breach, misrepresentation or omission. (b) The aggregate Liability of the Sellers for monetary damages under Section 6.2 shall be limited to the Holdback Fund and shall be satisfied solely through the Purchaser’s right of setoff against the Holdback Fund. Once the Holdback Fund is distributed (or should have been distributed) pursuant to this Agreement, Purchaser’s right of setoff against the Holdback Fund shall cease and be of no further force or effect; provided however, that if, at any time on or prior to the date the Holdback Fund should have been distributed, any Indemnitee (acting in good faith) delivers to the Agent a notice of an indemnification claim under this Section 6, then the Purchaser’s right of setoff against the Holdback Fund shall survive until such time as such claim is fully and finally resolved. Additionally, Purchaser is not entitled to claim or receive any indemnity or Damages for any fact, matter or circumstance (including but not limited to a Breach) to the extent that the fact, matter or circumstance is disclosed Except in the applicable part case of the Disclosure Schedule, or is otherwise known to Purchaser before the Closing and Purchaser still proceeds with the Closing (other than, in each case, for items included on Part 6.2 of the Disclosure Schedule), and the amount of any Damages for which an Indemnitee is entitled to indemnification as provided under this Section 6 shall be calculated net of any accruals, reserves or provisions therefor reflected in the ALC Financial Statements or ALC Unaudited Interim Financial Statements. Furtherfraud, the amount maximum liability of Damages recoverable by an Indemnitee under this Section 6 with respect to an indemnity claim Founder for indemnification shall be reduced by the amount of any payment actually received by such Indemnitee be: (or an Affiliate thereof), with respect to the Damages to which such indemnity claim relates, from any insurance carrier. If an Indemnitee (or an Affiliatei) receives any insurance payment in connection with any claim for Damages for which it has already received an indemnification payment from any Seller(s) or the Holdback Fund, it shall pay to the Seller(s), within 30 days of receiving such insurance payment, an amount equal to the excess Aggregate Indemnity Escrow Cash Amount for matters not relating to Intellectual Property, and (ii) $3,500,000 for claims relating to infringement, misappropriation or violation of (xIntellectual Property Rights, including any matters arising in connection with Section 2.9(g) the amount previously received by the Indemnitee under of this Section 6 with respect to Agreement, such claim plus the amount of the insurance payments received, over (y) the amount of Damages with respect to such claim that the Indemnitee has become entitled maximum aggregate liability of Founder for indemnification shall not exceed the sum of such amounts. Except in the case of fraud, Indemnitees agree to receive first seek recourse against the Indemnity Escrow Fund to the extent funds remain available under this Section 6. (c) The limitations on the Sellers’ indemnification obligations that are set forth Indemnity Escrow Fund prior to seeking recourse directly against Founder. Nothing contained in this Section 6.3 or elsewhere in this Agreement shall not apply to (i) any Breach limit the rights of any of the Specified Representations, Indemnitee to seek or (ii) obtain injunctive relief or any Breach due other equitable remedy to the actual fraud of any Seller, but in which such case the limitation shall not apply only to such SellerIndemnitee is otherwise entitled.

Threshold; Ceiling. (ai) Subject to Section 6.3(b), the Sellers PBT shall not be required have the right to make claw back any indemnification payment PBT Shares pursuant to Section 6.2 14(e) for any Breach as inaccuracy in any of WinWin’s representations and warranties set forth in Section 6.2 3 until such time as the total amount of all Damages (including the Damages arising from such Breach inaccuracy and all other Damages arising from any other Breaches of inaccuracies in any WinWin representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the WinWin Indemnitees, or to which any one or more of the WinWin Indemnitees has or have otherwise become subject, exceeds $100,000 50,000 in the aggregate. At such time as (If the total amount of such Damages exceeds $100,000 in 50,000, then the aggregate, the WinWin Indemnitees shall be entitled to be indemnified against and compensated and reimbursed for all such Damages.) (ii) WinWin shall not have the full right to claw back any WinWin Shares pursuant to Section 14(e) for any inaccuracy in any of PBT’s representations and warranties set forth in Section 4 until such time as the total amount of all Damages (including the Damages arising from such inaccuracy and all other Damages arising from any other inaccuracies in any PBT representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the PBT Indemnitees, or to which any one or more of the PBT Indemnitees has or have otherwise become subject, exceeds $50,000 in the aggregate. (If the total amount of such Damages (exceeds $50,000, then the PBT Indemnitees shall be entitled to be indemnified against and not merely the portion of compensated and reimbursed for all such Damages exceeding $100,000Damages.). (biii) The maximum liability of WinWin under Section 14 for inaccuracies of WinWin’s representations and warranties set forth in Section 3 shall be equal to the aggregate Liability WinWin Share Deemed Value of the Sellers for monetary damages WinWin Shares issued to PBT under this Agreement. The maximum liability of PBT under Section 6.2 14 for inaccuracies of PBT’s representations and warranties set forth in Section 4 shall be limited equal to the Holdback Fund and shall be satisfied solely through aggregate PBT Share Deemed Value of the Purchaser’s right of setoff against the Holdback Fund. Once the Holdback Fund is distributed (or should have been distributed) PBT Shares issued to WinWin pursuant to this Agreement, Purchaser’s right of setoff against the Holdback Fund shall cease and be of no further force or effect; provided however, that if, at any time on or prior to the date the Holdback Fund should have been distributed, any Indemnitee (acting in good faith) delivers to the Agent a notice of an indemnification claim under this Section 6, then the Purchaser’s right of setoff against the Holdback Fund shall survive until such time as such claim is fully and finally resolved. Additionally, Purchaser is not entitled to claim or receive any indemnity or Damages for any fact, matter or circumstance (including but not limited to a Breach) to the extent that the fact, matter or circumstance is disclosed in the applicable part of the Disclosure Schedule, or is otherwise known to Purchaser before the Closing and Purchaser still proceeds with the Closing (other than, in each case, for items included on Part 6.2 of the Disclosure Schedule), and the amount of any Damages for which an Indemnitee is entitled to indemnification as provided under this Section 6 shall be calculated net of any accruals, reserves or provisions therefor reflected in the ALC Financial Statements or ALC Unaudited Interim Financial Statements. Further, the amount of Damages recoverable by an Indemnitee under this Section 6 with respect to an indemnity claim shall be reduced by the amount of any payment actually received by such Indemnitee (or an Affiliate thereof), with respect to the Damages to which such indemnity claim relates, from any insurance carrier. If an Indemnitee (or an Affiliate) receives any insurance payment in connection with any claim for Damages for which it has already received an indemnification payment from any Seller(s) or the Holdback Fund, it shall pay to the Seller(s), within 30 days of receiving such insurance payment, an amount equal to the excess of (x) the amount previously received by the Indemnitee under this Section 6 with respect to such claim plus the amount of the insurance payments received, over (y) the amount of Damages with respect to such claim that the Indemnitee has become entitled to receive under this Section 6. (civ) The limitations on the Sellers’ indemnification obligations that are set forth in this Section 6.3 14(f) shall not apply to (i) any Breach of any of the Specified Representations, or (ii) any Breach due to the actual fraud of any Seller, but in such case the limitation shall not apply only to such Sellerlosses caused by fraud.

Threshold; Ceiling. (ai) Subject to Section 6.3(b), the Sellers PBT shall not be required have the right to make claw back any indemnification payment PBT Shares pursuant to Section 6.2 14(e) for any Breach as inaccuracy in any of WinWin’s representations and warranties set forth in Section 6.2 3 until such time as the total amount of all Damages (including the Damages arising from such Breach inaccuracy and all other Damages arising from any other Breaches of inaccuracies in any WinWin representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the WinWin Indemnitees, or to which any one or more of the WinWin Indemnitees has or have otherwise become subject, exceeds $100,000 50,000 in the aggregate. At such time as (If the total amount of such Damages exceeds $100,000 in 50,000, then the aggregate, the WinWin Indemnitees shall be entitled to be indemnified against and compensated and reimbursed for all such Damages.) (ii) WinWin shall not have the full right to claw back any WinWin Shares pursuant to Section 14(e) for any inaccuracy in any of PBT’s representations and warranties set forth in Section 4 until such time as the total amount of all Damages (including the Damages arising from such inaccuracy and all other Damages arising from any other inaccuracies in any PBT representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the PBT Indemnitees, or to which any one or more of the PBT Indemnitees has or have otherwise become subject, exceeds $50,000 in the aggregate. (If the total amount of such Damages (exceeds $50,000, then the PBT Indemnitees shall be entitled to be indemnified against and not merely the portion of compensated and reimbursed for all such Damages exceeding $100,000Damages.). (biii) The maximum liability of WinWin under Section 14 for inaccuracies of WinWin’s representations and warranties set forth in Section 3 shall be equal to the aggregate Liability WinWin Share Deemed Value of the Sellers for monetary damages WinWin Shares issued to PBT under this Agreement. The maximum liability of PBT under Section 6.2 14 for inaccuracies of PBT’s representations and warranties set forth in Section 4 shall be limited equal to the Holdback Fund and shall be satisfied solely through aggregate PBT Share Deemed Value of the Purchaser’s right of setoff against the Holdback Fund. Once the Holdback Fund is distributed (or should have been distributed) PBT Shares issued to WinWin pursuant to this Agreement, Purchaser’s right of setoff against the Holdback Fund shall cease and be of no further force or effect; provided however, that if, at any time on or prior to the date the Holdback Fund should have been distributed, any Indemnitee (acting in good faith) delivers to the Agent a notice of an indemnification claim under this Section 6, then the Purchaser’s right of setoff against the Holdback Fund shall survive until such time as such claim is fully and finally resolved. Additionally, Purchaser is not entitled to claim or receive any indemnity or Damages for any fact, matter or circumstance (including but not limited to a Breach) to the extent that the fact, matter or circumstance is disclosed in the applicable part of the Disclosure Schedule, or is otherwise known to Purchaser before the Closing and Purchaser still proceeds with the Closing (other than, in each case, for items included on Part 6.2 of the Disclosure Schedule), and the amount of any Damages for which an Indemnitee is entitled to indemnification as provided under this Section 6 shall be calculated net of any accruals, reserves or provisions therefor reflected in the ALC Financial Statements or ALC Unaudited Interim Financial Statements. Further, the amount of Damages recoverable by an Indemnitee under this Section 6 with respect to an indemnity claim shall be reduced by the amount of any payment actually received by such Indemnitee (or an Affiliate thereof), with respect to the Damages to which such indemnity claim relates, from any insurance carrier. If an Indemnitee (or an Affiliate) receives any insurance payment in connection with any claim for Damages for which it has already received an indemnification payment from any Seller(s) or the Holdback Fund, it shall pay to the Seller(s), within 30 days of receiving such insurance payment, an amount equal to the excess of (x) the amount previously received by the Indemnitee under this Section 6 with respect to such claim plus the amount of the insurance payments received, over (y) the amount of Damages with respect to such claim that the Indemnitee has become entitled to receive under this Section 6. (civ) The limitations on the Sellers’ indemnification obligations that are set forth in this Section 6.3 (f) shall not apply to (i) any Breach of any of the Specified Representations, or (ii) any Breach due to the actual fraud of any Seller, but in such case the limitation shall not apply only to such SellerLosses caused by fraud.