Common use of Calculation of Losses; Determination of Application Clause in Contracts

Calculation of Losses; Determination of Application. For purposes of this Article XI only, and except with respect to the statement in Section 3.9 that there has been no Material Adverse Effect and for the phrase “Material Contracts”, any inaccuracy in or breach of any representation or warranty and any calculation of Losses shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in such representation or warranty. Furthermore, for the purposes of calculating Losses to which the Buyer Indemnified Persons or Seller Indemnified Persons are entitled under this Article XI, (i) such Losses shall not include any punitive, special, indirect, exemplary or consequential damages, damages for lost profits, damages for diminution in value or business interruption or damages computed on a multiple of earnings or similar basis, except to the extent actually awarded to a Governmental Authority or third party; (ii) such Losses shall be determined without duplication of recovery by reason of the state of facts giving rise to such Loss constituting a breach of more than one representation, warranty, covenant or agreement; (iii) such Losses shall not include Losses related to any matter that was or has been taken into account (including with respect to any reserves) in the determination of the amount of any post-Closing adjustment pursuant to Section 2.9; (iv) such Losses shall be reduced by the amount of any net proceeds that any Buyer Indemnified Person or any Seller Indemnified Person receives pursuant to the terms of any insurance policies (net of any increase in premium or similar cost attributable to such recovery); provided, however, such Buyer Indemnified Person or such Seller Indemnified Person shall promptly reimburse Sellers or Buyer, respectively, for any subsequent recoveries from such sources if previously indemnified hereunder so as to avoid a double recovery; (v) such Losses shall be reduced by the amount of any prior or subsequent recovery by a Buyer Indemnified Person or a Seller Indemnified Person from any other Person with respect to such Losses; provided, however, such Buyer Indemnified Person or such Seller Indemnified Person shall promptly reimburse Sellers or Buyer, respectively, for any subsequent recoveries from such sources if previously indemnified hereunder so as to avoid a double recovery; and (vi) such Losses shall not include Losses reserved for in the Financial Statements. Any Indemnifying Party shall be subrogated to all rights of any Indemnified Party under available insurance coverage in respect of any Losses indemnified by the Indemnifying Party.

Calculation of Losses; Determination of Application. For purposes of this Article XI only, and except with respect to the statement in Section 3.9 that there has been no Material Adverse Effect and for the phrase “Material Contracts”, any inaccuracy in or breach of any representation or warranty and any calculation of Losses shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in such representation or warranty. Furthermore, for the purposes of calculating Losses to which the Buyer any Indemnified Persons or Seller Indemnified Persons are Party (as defined below) is entitled under this Article XIX, (i) such Losses shall not include any punitive, special, indirect, exemplary or consequential damages, speculative damages for lost profits, damages for diminution in value or business interruption or damages computed on a multiple of earnings or similar basis, except to the extent actually awarded paid or payable to a Governmental Authority or third partyparty as a result of any Third-Party Claim; (ii) such Losses shall be determined without duplication of recovery by reason of the state of facts giving rise to such Loss constituting a breach of more than one representation, warranty, covenant or agreement; (iii) such Losses shall not include duplicative Losses related to any matter that was or has been taken into account (including with respect to any reserves) in the determination of the amount of any post-Closing adjustment Final Adjustment Amount pursuant to Section 2.92.7; (iv) such Losses shall be reduced by the amount of any net proceeds that any Buyer Indemnified Person or any Seller Indemnified Person receives pursuant to the terms of any insurance policies (net of any increase in premium or similar cost attributable to such recovery); provided, however, such Buyer Indemnified Person or such Seller Indemnified Person shall promptly reimburse Sellers or Buyer, respectively, for any subsequent recoveries from such sources if previously indemnified hereunder so as to avoid a double recovery; (v) such Losses shall be reduced by the amount of any prior or subsequent recovery by the Indemnified Party from any other Person (other than from Purchaser in the case of a Buyer Seller Indemnified Person or a Seller Party in the case of a Purchaser Indemnified Person from any other Person Person) with respect to such LossesLosses (in each case, net of any costs of recovery); provided, however, provided that in the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Buyer Indemnified Person or such Seller Indemnified Person shall promptly reimburse Sellers or Buyer, respectively, for any subsequent recoveries from such sources if previously has been indemnified hereunder (including pursuant to the Purchaser Representation and Warranty Insurance), then a refund equal to the lesser of (A) the amount of such recovery (net of costs of recovery) and (B) the amount of indemnification so as paid, shall be made promptly to avoid a double recoverythe Indemnifying Party; and (viv) such Losses shall not include Losses reserved for in be limited to the Financial Statements. Any Indemnifying Party shall be subrogated to all rights amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment actually received by the Indemnified Party under available insurance coverage in respect of any such claim; provided, that any amounts received pursuant to making an insurance claim shall be offset by any Losses indemnified related to making such claim, including the payment of any deductible and the net present value of any increases in premium payments as a result of such claim, and the Losses shall be measured by the Indemnifying Partyamount, if any, by which the Losses from making the claim exceed the insurance proceeds actually received.

Calculation of Losses; Determination of Application. For purposes of this Article XI only, and except with respect to the statement in Section 3.9 that there has been no Material Adverse Effect and for the phrase “Material Contracts”, any inaccuracy in or breach of any representation or warranty and any calculation of Losses shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in such representation or warranty. Furthermore, for the purposes of calculating Losses to which the Buyer any Indemnified Persons or Seller Indemnified Persons are Party (as defined below) is entitled under this Article XIVII, (i) such Losses shall not include any punitive, special, indirect, punitive or exemplary or consequential damages, damages for lost profitsexcept, damages for diminution in value or business interruption or damages computed on a multiple of earnings or similar basiswith respect to such damages, except to the extent actually awarded to by a Governmental Authority or third partycourt of competent jurisdiction in connection with a Third Party Claim; (ii) such Losses shall be determined without duplication of recovery by reason of the state of facts giving rise to such Loss constituting a breach of more than one representation, warranty, covenant or agreement; (iii) such Losses shall not include duplicative Losses related to any matter that was or has been taken into account (including with respect to any reserves) in the determination of the amount of any post-Closing adjustment Final Adjustment Amount pursuant to Section 2.92.8; (iv) such Losses shall be reduced by the amount of any net proceeds that any Buyer Indemnified Person or any Seller Indemnified Person receives pursuant to the terms of any insurance policies (net of any increase in premium or similar cost attributable to such recovery); provided, however, such Buyer Indemnified Person or such Seller Indemnified Person shall promptly reimburse Sellers or Buyer, respectively, for any subsequent recoveries from such sources if previously indemnified hereunder so as to avoid a double recovery; (v) such Losses shall be reduced by the amount of any prior or subsequent recovery by the Indemnified Party from any other Person (other than from Purchaser in the case of a Buyer Seller Indemnified Person or a Seller in the case of a Purchaser Indemnified Person from any other Person Person) with respect to such Losses; provided, however, such Buyer Indemnified Person or such Seller Indemnified Person shall promptly reimburse Sellers or Buyer, respectively, for Losses (net of any subsequent recoveries from such sources if previously indemnified hereunder so as to avoid a double costs of recovery); and (viv) such Losses shall not include Losses reserved for in be limited to the Financial Statements. Any Indemnifying Party shall be subrogated to all rights amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment actually received by the Indemnified Party under available insurance coverage in respect of any such claim; provided, that any amounts received pursuant to making an insurance claim shall be offset by any Losses indemnified related to making such claim, including the payment of any deductible, and the Losses shall be measured by the Indemnifying Partyamount, if any, by which the Losses from making the claim exceed the insurance proceeds actually received.

Calculation of Losses; Determination of Application. For purposes of this Article XI only, and except with respect to the statement in Section 3.9 that there has been no Material Adverse Effect and for the phrase “Material Contracts”, any inaccuracy in or breach of any representation or warranty and any calculation of Losses shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in such representation or warranty. Furthermore, for the purposes of calculating Losses to which the Buyer Indemnified Persons or Seller Indemnified Persons are entitled under this Article XIIX, (i) such Losses shall not include any punitive, special, indirect, exemplary or consequential damages, damages for lost profits, damages for diminution in value or business interruption or damages computed on a multiple of earnings or similar basis, except to the extent actually awarded to a Governmental Authority or third party; (ii) such Losses shall be determined without duplication of recovery by reason of the state of facts giving rise to such Loss constituting a breach of more than one representation, warranty, covenant or agreement; (iii) such Losses shall not include Losses related to any matter that was or has been taken into account (including with respect to any reserves) in the determination of the amount of any post-Closing adjustment pursuant to Section 2.9; (iv) such Losses shall be reduced by the amount of any net proceeds that any the applicable Buyer Indemnified Person Party or any Seller Indemnified Person receives Party (as applicable) actually recovers (reduced by deductibles paid and the portion of any increase in deductibles, increase in premiums, costs of collection and/or retro-premiums resulting from such matter) pursuant to the terms of any insurance policies (net of any increase in premium or similar cost attributable to such recovery)policies; provided, however, such Buyer Indemnified Person Party or such Seller Indemnified Person Party (as applicable) shall promptly reimburse Sellers Buyers or Buyer, respectively, Sellers’ Representative (as applicable) for any subsequent recoveries from such sources if previously indemnified paid hereunder so as to avoid a double recovery, in each case other than in respect of the RWI Policy; (vii) such Losses shall be reduced by the amount of any prior or subsequent recovery proceeds actually recovered by a Buyer Indemnified Person Party or a Seller Indemnified Person Party (as applicable) from any other Person with respect to such Losses; provided, however, such Buyer Indemnified Person Party or such Seller Indemnified Person Party (as applicable) shall promptly reimburse Sellers Buyers or Buyer, respectively, Sellers’ Representative (as applicable) for any subsequent recoveries from for such sources if previously indemnified paid hereunder so as to avoid a double recovery, in each case other than in respect of the RWI Policy; (iii) any inaccuracy in or breach of any representation, warranty or covenant and the calculation of any Losses in connection therewith, shall be determined without regard to any materiality, Material Adverse Effect or other correlative terms of phrase contained in or otherwise applicable to such representation, warranty or covenant; provided that, the foregoing clause (iii) shall not apply to (A) Section 4.8(ii); (B) and the word “material” in defined terms including, without limitation, “Material Contracts,” “Material Customers,” and “Material Vendors,” and (viiv) such Losses shall not include Losses reserved no Indemnified Party's rights pursuant to this ‎Article IX will be adversely affected by any investigation conducted, or any knowledge acquired or capable of being acquired (other than, for in the Financial Statements. Any Indemnifying Party shall be subrogated to all rights avoidance of any Indemnified Party under available insurance coverage doubt, in respect of any Losses indemnified matters expressly disclosed on the Disclosure Schedule in accordance therewith and not indicated as being for informational purposes only (or with a substantially similar indication)), by an Indemnified Party at any time, whether before or after the execution or delivery of this Agreement or the Closing, or by the Indemnifying Partywaiver of any condition to Closing, and no Indemnified Party shall be required to show reliance on any representation, warranty, certificate or other agreement in order for such Indemnified Party to be entitled to indemnification hereunder.

Calculation of Losses; Determination of Application. For purposes of this Article XI only, and except with respect to the statement in Section 3.9 that there has been no Material Adverse Effect and for the phrase “Material Contracts”, any inaccuracy in or breach of any representation or warranty and any calculation of Losses shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in such representation or warranty. Furthermore, for the purposes of calculating Losses to which the Buyer Indemnified Persons or Seller and the Stockholder Indemnified Persons are entitled under this Article XIVII, (i) such Losses shall not include any punitive, exemplary, special, indirect, exemplary indirect or consequential punitive damages, damages for lost profits, damages for diminution in value or business interruption or damages computed on a multiple of earnings or similar basis, except to the extent actually awarded to a Governmental Authority or third party; party in connection with a Third Party Claim, (ii) such Losses shall be determined without duplication of recovery by reason of the state of facts giving rise to such Loss constituting a breach of more than one representation, warranty, covenant or agreement; (iii) such Losses shall not include Losses related to any matter that was or has been taken into account (including with respect to any reserves) in the determination of the amount of any post-Closing adjustment pursuant to Section 2.9; (iv) such Losses shall be reduced by the amount of any net proceeds that any Buyer an Indemnified Person or any Seller Indemnified Person Party actually receives pursuant to the terms of any from insurance policies (policies, net of any increase costs of recovery or premium increases incurred in premium or similar cost attributable connection therewith, and such Indemnified Party shall use commercially reasonable efforts to seek recovery of such recovery); insurance proceeds, provided, however, that the failure to secure any such Buyer insurance proceeds shall not (A) be a condition of such Indemnified Person Party’s rights to any indemnification payments hereunder, or (B) reduce the amount of any such Seller indemnification payments to such Indemnified Person shall promptly reimburse Sellers or BuyerParty, respectively, for any subsequent recoveries from such sources if previously indemnified hereunder so as to avoid a double recovery; and (viii) such Losses shall be reduced by the amount of any prior or subsequent recovery actually received by a Buyer an Indemnified Person or a Seller Indemnified Person Party from any other Person in the form of contribution, indemnification or similar payments with respect to such Losses; , net of any costs of recovery or premium increases incurred in connection therewith, and such Indemnified Party shall use good faith efforts to seek recovery of such amounts, provided, however, that the failure to secure any such Buyer Indemnified Person or such Seller Indemnified Person shall promptly reimburse Sellers or Buyer, respectively, for any subsequent recoveries from such sources if previously indemnified hereunder so as to avoid a double recovery; and (vi) such Losses amounts shall not include Losses reserved for in (A) be a condition of such Indemnified Party’s rights to any indemnification payments hereunder, or (B) reduce the Financial Statements. Any Indemnifying Party shall be subrogated to all rights amount of any such indemnification payments to such Indemnified Party under available insurance coverage in respect of any Losses indemnified by the Indemnifying Party.