Common use of Determination of Adverse Consequences Clause in Contracts

Determination of Adverse Consequences. The amount of any and all Adverse Consequences under this Article 12 shall be determined net of (a) the net present value of any tax benefits reasonably expected to be realized (calculated using a discount rate of 7.25%) by any party seeking indemnification hereunder arising from the deductibility of such Adverse Consequences and (b) any amounts recovered or recoverable by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Adverse Consequences. Each Party hereby waives, to the extent permitted under its applicable insurance policies, any subrogation rights that its insurer may have with respect to any indemnifiable Adverse Consequences. Sellers shall have no liability with respect to any Adverse Consequences that would have been covered by insurance had Purchaser maintained for the benefit of the Business and the Acquired Assets the same insurance coverage following the Closing that was in effect for the Business and the Acquired Assets immediately prior to the Closing. Sellers shall be subrogated to all rights of Purchaser in respect of any Adverse Consequences borne by Sellers. In no event shall Purchaser be entitled to recover or make a claim for any amounts in respect of exemplary, consequential, incidental, liquidated, or indirect damages, lost profits, or punitive, special, treble, or statutory damages or any other money damages that are not measured by and limited to the Indemnified Party’s actual direct damages resulting from such breaches and, in particular, no “multiple of profits” or “multiple of cash flow” or similar valuation methodology shall be used in calculating the amount of any Adverse Consequences; provided, however, that to the extent an indemnification claim arises hereunder as a result of a Third-Party Claim against an Indemnified Party, the Adverse Consequences shall be deemed to include incidental, consequential, special, enhanced, and punitive damages to the extent claimed by a third party against an Indemnified Party. Any indemnity payment under this Agreement shall be treated as an adjustment to the Purchase Price for tax purposes.

Determination of Adverse Consequences. The amount of any and all Adverse Consequences Indemnification payments under this Article 12 shall be determined net of (a) the net present value of any tax benefits reasonably expected to be realized (calculated using a discount rate of 7.25%) by any party seeking indemnification hereunder arising from the deductibility of such Adverse Consequences Section 8 and (b) any amounts recovered or recoverable by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Adverse Consequences. Each Party hereby waives, to the extent permitted under its applicable insurance policies, any subrogation rights that its insurer may have with respect to any indemnifiable Adverse Consequences. Sellers shall have no liability Section 9 with respect to any Adverse Consequences that would have been covered by insurance had Purchaser maintained shall be an amount which is sufficient to compensate the Indemnified Party for the benefit event giving rise to such Adverse Consequences (the “Indemnified Event”). For the avoidance of doubt, the Business calculation of indemnity payments shall be made only on a pre-tax basis and shall not take into account the Acquired Assets the same insurance coverage following the Closing that was in effect for the Business and the Acquired Assets immediately prior federal, state, local or other Tax impact to the ClosingBuyer, Sellers or Targets in making or receiving such payments. Sellers shall be subrogated to all rights For purposes of Purchaser in respect of any Adverse Consequences borne by Sellers. In no event shall Purchaser be entitled to recover or make a claim for any amounts in respect of exemplary, consequential, incidental, liquidated, or indirect damages, lost profits, or punitive, special, treble, or statutory damages or any other money damages that are not measured by and limited to the Indemnified Party’s actual direct damages resulting from such breaches and, in particular, no “multiple of profits” or “multiple of cash flow” or similar valuation methodology shall be used in calculating determining the amount of any Adverse Consequences; provided, however, that Consequences subject to the extent an indemnification claim arises hereunder as a result of a Third-Party Claim against an Indemnified Partypursuant to this Section 8, the amount of such Adverse Consequences shall be deemed determined net of any amounts specifically reflected in the Final Settlement Statement and directly resulting from the facts, events or circumstances giving rise to include incidental, consequential, special, enhanced, such Adverse Consequences. There shall be no indemnification for breaches of representations and punitive damages warranties under this Section 8 with respect to any Adverse Consequence to the extent claimed (and only to the extent) that such Adverse Consequence is indemnified pursuant to Section 9(a) or Section 9(j). All calculations shall be made at the time of the relevant indemnification payment using reasonable assumptions (as agreed to by a third party against an the Indemnifying Party and Indemnified Party) and present value concepts (using a discount rate equal to the Applicable Rate as of the date the applicable claim for indemnification is made). Any indemnity payment The Parties shall make appropriate adjustments for insurance coverage payments actually received (taking into account any costs, expenses, premiums and taxes incurred by the Indemnified Party or its Affiliates in connection with the pursuit or recovery of such amounts) in determining Adverse Consequences for purposes of this Section 8. All indemnification payments under this Agreement Section 8 and Section 9 shall be treated as an adjustment deemed adjustments to the Purchase Price for tax purposesto the extent permitted by applicable Law.

Determination of Adverse Consequences. The Parties shall take into account the time cost of money (using the Applicable Rate as the discount rate) in determining Adverse Consequences for purposes of this Section 8. The amount which an Indemnifying Party is required to pay to, for or on behalf of any and all Adverse Consequences under Indemnified Party pursuant to this Article 12 Section 8 shall be determined net adjusted (including, without limitation, retroactively) (i) by any insurance proceeds actually recovered by or on behalf of such Indemnified Party in reduction of the related indemnifiable loss (athe "INDEMNIFIABLE LOSS") the net present value and (ii) to take account of any tax benefits reasonably expected to be benefit realized (calculated using a discount rate of 7.25%) by any party seeking indemnification hereunder arising from the deductibility of such Adverse Consequences and (b) any amounts recovered or recoverable by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Adverse Consequences. Each Party hereby waives, to the extent permitted under its applicable insurance policies, any subrogation rights that its insurer may have with respect to any indemnifiable Adverse Consequences. Sellers shall have no liability with respect to any Adverse Consequences that would have been covered by insurance had Purchaser maintained for the benefit of the Business and the Acquired Assets the same insurance coverage following the Closing that was in effect for the Business and the Acquired Assets immediately prior to the Closing. Sellers shall be subrogated to all rights of Purchaser in respect of any Adverse Consequences borne by Sellers. In no event shall Purchaser be entitled to recover or make a claim for any amounts in respect of exemplary, consequential, incidental, liquidated, or indirect damages, lost profits, or punitive, special, treble, or statutory damages or any other money damages that are not measured by and limited to the Indemnified Party’s actual direct damages resulting from such breaches and, in particular, no “multiple of profits” or “multiple of cash flow” or similar valuation methodology shall be used in calculating the amount of any Adverse Consequences; provided, however, that to the extent an indemnification claim arises hereunder as a result of a Third-Party Claim against any Indemnifiable Loss. Amounts required to be paid, as so reduced, are hereafter sometimes called an "INDEMNITY PAYMENT". If an Indemnified PartyParty shall have received or shall have had paid on its behalf an Indemnity Payment in respect of an Indemnifiable Loss and shall subsequently receive insurance proceeds in respect of such Indemnifiable Loss, or realized any tax benefit as a result of such Indemnifiable Loss, then the Indemnified Party shall pay to the Indemnifying Party the amount of such insurance proceeds or tax benefit or, if less, the Adverse Consequences amount of the Indemnity Payment. All indemnification payments under this Section 8 shall be deemed to include incidental, consequential, special, enhanced, and punitive damages to the extent claimed by a third party against an Indemnified Party. Any indemnity payment under this Agreement shall be treated as an adjustment adjustments to the Purchase Price for tax purposesPrice.

Determination of Adverse Consequences. The amount (i) All indemnification payments under this Section 8 shall be paid by the Indemnifying Party net of any Tax benefits and all insurance coverage actually received by the Indemnified Party. All indemnification payments under this Section 8 shall be deemed adjustments to the Purchase Price. (ii) In no event shall any Party hereunder be liable to another Party hereunder (including, without limitation, liability to indemnify such other Party) for punitive, special, exemplary, incidental, unforeseen or consequential damages (including, without limitation, for lost profit or revenue) or for any multiple of damages or any multiple of earnings or EBITDA. (iii) In no event shall any Adverse Consequences be recoverable under this Section 8 for any breach, inaccuracy, nonfulfillment or failure to perform under one Section or provision of this Agreement to the extent any Party or Indemnifying Party has already made payment, or any Party or Indemnified Party has already received payment, in respect of the matter giving rise to such Adverse Consequences under another Section or provision of this Article 12 shall be determined net of Agreement (a) the net present value of including any tax benefits reasonably expected to be realized (calculated using a discount rate of 7.25%) by any party seeking indemnification hereunder arising from the deductibility of such amounts that would otherwise have constituted Adverse Consequences but were taken into account in determining the Purchase Price pursuant to Sections 2(e) and (b) any amounts recovered or recoverable by the 2(f)). The Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect shall not be entitled to such indemnification for any Adverse Consequences. Each Party hereby waives, Consequences to the extent permitted under its applicable insurance policies, any subrogation rights that its insurer may have with respect to any indemnifiable Adverse Consequences. Sellers reflected or accrued in the calculation of the Closing Date Net Working Capital. (iv) No Indemnifying Party shall have no liability with respect to be liable (A) for any Adverse Consequences that would have been covered by insurance had Purchaser maintained for is contingent unless and until such contingent Adverse Consequences become an actual liability and is due and payable or (B) to pay any amount in discharge of a claim under this Section 8 unless and until the benefit of the Business and the Acquired Assets the same insurance coverage following the Closing that was in effect for the Business and the Acquired Assets immediately prior to the Closing. Sellers shall be subrogated to all rights of Purchaser Adverse Consequences in respect of which the claim is made has become due and payable. (v) Notwithstanding anything to the contrary contained herein, upon the Indemnified Party becoming aware of any claim as to which indemnification may be sought by the Indemnified Party, Indemnified Party shall utilize all reasonable efforts, consistent with normal practices and policies and good commercial practice, to mitigate any Adverse Consequences borne (including, without limitation, by Sellers. In no event shall Purchaser be entitled to recover or make a claim for pursuing available insurance coverages and indemnification from third parties), and any amounts in respect of exemplary, consequential, incidental, liquidated, or indirect damages, lost profits, or punitive, special, treble, or statutory damages or any other money damages that are not measured by and limited Adverse Consequences to the extent directly resulting from such Indemnified Party’s actual direct damages resulting from such breaches and, in particular, no “multiple of profits” or “multiple of cash flow” or similar valuation methodology failure to comply with the foregoing shall be used in calculating the amount of any Adverse Consequences; provided, however, that to the extent an indemnification claim arises hereunder as a result of a Third-Party Claim against an Indemnified Party, excluded from the Adverse Consequences shall be deemed to include incidental, consequential, special, enhanced, and punitive damages to recoverable by such Indemnified Party from the extent claimed by a third party against an Indemnified Party. Any indemnity payment under this Agreement shall be treated as an adjustment to the Purchase Price for tax purposesIndemnifying Party hereunder.

Determination of Adverse Consequences. (a) The amount of any and all Adverse Consequences recoverable by an Indemnified Party under this Article 12 X with respect to an indemnity claim shall be determined net of reduced by (ai) any proceeds received by such Indemnified Party or its Affiliates, with respect to the Adverse Consequences to which such indemnity claim relates, from an insurance carrier, (ii) the net present value amount of any tax benefits reasonably expected to be savings actually realized (calculated using a discount rate of 7.25%) by any party seeking indemnification hereunder arising from such Indemnified Party or an Affiliate for the deductibility of tax year in which such Adverse Consequences are incurred, which are attributable to the Adverse Consequences to which such indemnity claim relates, and (b) shall be increased by any amounts recovered increased tax liability which may result from the receipt of the indemnity payment or recoverable by the Indemnified Party under any insurance policies, indemnities or other reimbursement arrangements with respect proceeds relating to such Adverse Consequences, and (iii) any amounts taken into account as a downward adjustment in the Net Working Capital Calculation. All indemnification payments made to an Indemnified Party under this Article X shall be deemed adjustments to the Purchase Price. (b) For purposes of Article X, any Adverse Consequences suffered or incurred by any of the Companies arising from a breach of any representation, warranty, covenant, agreement or obligation by a Seller shall be deemed suffered or incurred by the Purchaser, and the Purchaser shall be entitled to seek indemnification under this Article X against the Sellers for any such Adverse Consequences without any liability of the Companies. Each Party hereby waivesSeller waives any and all rights of contribution, cost recovery or other payment from the Companies, whether arising by agreement or operation of Law, to the extent permitted under its applicable insurance policies, of any subrogation rights that its insurer may have with respect liability of the Companies owed to any indemnifiable Adverse Consequences. Sellers shall have no liability with respect to any Adverse Consequences that would have been covered by insurance had Purchaser maintained for the benefit of the Business and the Acquired Assets the same insurance coverage following the Closing that was in effect for the Business and the Acquired Assets immediately prior to the Closing. Sellers shall be subrogated to all rights of Purchaser in respect of any Adverse Consequences borne by Sellers. In no event shall Purchaser be entitled to recover or make a claim for any amounts in respect of exemplary, consequential, incidental, liquidated, or indirect damages, lost profits, or punitive, special, treble, or statutory damages or any other money damages that are not measured by and limited to the Indemnified Party’s actual direct damages resulting from such breaches and, in particular, no “multiple of profits” or “multiple of cash flow” or similar valuation methodology shall be used in calculating the amount of any Adverse Consequences; provided, however, that to the extent an indemnification claim arises hereunder as a result of a Third-Party Claim against an Indemnified Party, the Adverse Consequences shall be deemed to include incidental, consequential, special, enhanced, and punitive damages to the extent claimed by a third party against an Indemnified Party. Any indemnity payment under this Agreement shall be treated as an adjustment to the Purchase Price for tax purposesAgreement.

Determination of Adverse Consequences. The amount For the purposes of this Section 11, with respect to any and all Adverse Consequences under this Article 12 claim for indemnification, indemnifiable Losses shall be determined net of reduced by (a) any amounts related to such Losses already reserved on the net present value Estimated Closing Balance Sheet for the purposes of any tax benefits reasonably expected to be realized (calculated using a discount rate of 7.25%) by any party seeking indemnification hereunder arising from the deductibility of such Adverse Consequences and computing Actual Net Assets, (b) any amounts recovered or recoverable actually received by the Indemnified Party claiming party in respect of claims under insurance policiesany third party indemnification agreements (including any agreement relating to the acquisitions of Prior Acquisition Entities), indemnities and (c) to the extent such Losses relate to the payment of Taxes pursuant to the Special Items Indemnity Claims set forth in Sections 11.3(c)(i) or other reimbursement arrangements with (iii), the amount of any Tax credits that are under applicable Laws used by the Purchaser Parties to reduce United States federal income tax in the year that the payment of such Taxes is due. Upon making payment in full in respect to such Adverse Consequences. Each Party hereby waivesof any claim for indemnification, an indemnifying party shall, to the extent permitted under its applicable insurance policiesof such payment, any subrogation rights that its insurer may have with respect to any indemnifiable Adverse Consequences. Sellers shall have no liability with respect to any Adverse Consequences that would have been covered by insurance had Purchaser maintained for the benefit of the Business and the Acquired Assets the same insurance coverage following the Closing that was in effect for the Business and the Acquired Assets immediately prior to the Closing. Sellers shall be subrogated to all rights of Purchaser the claiming party against any third party in respect of such claim; provided that the indemnifying party hereby agrees that it will not file an legal action against any Adverse Consequences borne by Sellerscurrent customer or current subcontractor of the Parent, the Company or their Affiliates. In no event addition, Losses for which indemnification is provided pursuant to Section 11 of this Agreement shall Purchaser be entitled to recover or make a claim for net of any amounts in respect of exemplary, consequential, incidental, liquidated, or indirect damages, lost profits, or punitive, special, treble, or statutory damages or any other money damages that are not measured actually recovered by the Purchaser Parties under any insurance policy with respect to such Losses (and limited any such recovery related to Losses for which the Purchaser Parties have previously been indemnified shall be repaid to the Indemnified Party’s actual direct damages resulting from such breaches andSeller Parties, subject to the limitations set forth in particular, no “multiple of profits” or “multiple of cash flow” or similar valuation methodology shall be used in calculating the amount of any Adverse Consequencessubsection (i) below); provided, however, that (i) amounts actually recovered by the Purchaser Parties or Seller Parties under any insurance policy with respect to such Losses shall be net of the extent an indemnification claim arises hereunder as a result cost of a Thirdcollection thereof, any retroactive premium adjustment on account of such Losses, and the present value of any increases in insurance premiums on the account of such Losses, (ii) Purchaser Parties shall be obligated to use only the same efforts they would use to pursue collection under insurance policies for themselves, consistent with their past practices, (iii) any obligation to seek insurance coverage shall not apply to any self-Party Claim against an Indemnified Partyinsurance programs or policies, (iv) if insurance is available under the policy described in the definition of Seller Expenses, the Adverse Consequences parties will look to coverage first under that policy, and (v) in connection with claims involving less than $500,000, no party, under any circumstances, shall be deemed obligated to include incidental, consequential, special, enhanced, and punitive damages to pursue litigation against the extent claimed by a third party against an Indemnified Party. Any indemnity payment under this Agreement shall be treated as an adjustment to the Purchase Price for tax purposesapplicable insurer.

Determination of Adverse Consequences. The amount Notwithstanding any provision of any this Agreement, (i) no Party shall be liable for, and all the definition of Adverse Consequences under this Article 12 shall be determined net of not include, (a) the net present value of any tax benefits reasonably expected to be realized (calculated using a discount rate of 7.25%) by any party seeking indemnification hereunder arising from the deductibility of such Adverse Consequences and (bx) any amounts recovered or recoverable by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Adverse Consequences. Each Party hereby waives, to the extent permitted under its applicable insurance policies, any subrogation rights that its insurer may have with respect to any indemnifiable Adverse Consequences. Sellers shall have no liability with respect to any Adverse Consequences that would have been covered by insurance had Purchaser maintained for the benefit of the Business and the Acquired Assets the same insurance coverage following the Closing that was in effect for the Business and the Acquired Assets immediately prior to the Closing. Sellers shall be subrogated to all rights of Purchaser in respect of any Adverse Consequences borne by Sellers. In no event shall Purchaser be entitled to recover or make a claim for any amounts in respect of exemplarypunitive, consequential, incidental, liquidated, special or indirect damages, including any such damages based on lost profitsprofits or diminution in value, or punitive, special, treble, or statutory damages or any other money damages that are not measured by and limited to the Indemnified Party’s actual direct damages resulting from such breaches and, in particular, no without limiting the generality of the foregoing, any “multiple of profitsearnings” or “multiple of cash flow” or similar valuation methodology shall be used in calculating the amount of any Adverse Consequences; providedbased on financial “multiples”, however, that except to the extent an indemnification claim arises hereunder as actually awarded and paid to a result third party, or (y) any damages based on reputational harm, except to the extent actually awarded and paid to a third party, and (ii) for purposes of a Third-Party Claim against an Indemnified Partythis Section 8, any inaccuracy in or breach of any representation or warranty, and the resulting determination of the Adverse Consequences arising therefrom, shall be determined without reference to any “material” qualification (other than those contained in Section 4(h)(i) and Section 4(aa)) or “Material Adverse Effect” qualification (other than that contained in clause (1) of the first paragraph of Section 4(i)) contained in or otherwise applicable to such representation or warranty. All indemnification payments under this Section 8 shall be reduced by (i) insurance proceeds or any indemnity, contribution or other similar payment actually received by the Indemnified Party and (ii) the value of any Tax benefits actually realized by the Indemnified Party or its Affiliates arising from the Adverse Consequences. The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnification, contribution or similar agreement for Adverse Consequences prior to seeking indemnification under this Agreement and to obtain and realize the value of any Tax benefits described above. All indemnification payments under this Section 8 shall be deemed to include incidental, consequential, special, enhanced, and punitive damages to the extent claimed by a third party against an Indemnified Party. Any indemnity payment under this Agreement shall be treated as an adjustment adjustments to the Purchase Price for tax purposes.Price, and shall be allocated to the appropriate Seller(s) and Optionholder