Determination of Damages and Related Matters. (a) Upon the occurrence of any event which would give rise to a claim by PocketSpec against, or to a right of defense and indemnity against Members pursuant to this Section 12.5, or in the event that any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which Members may become obligated to PocketSpec hereunder, PocketSpec shall give notice to Members of the occurrence of such event and shall identify PocketSpec's choice of counsel to represent such investigation, claim or proceedings, provided that the failure of PocketSpec to give notice shall not affect the indemnification obligations of Members hereunder. PocketSpec shall have the exclusive right to so defend, contest or protect against such matter utilizing the counsel of PocketSpec's choice (who shall be reasonably acceptable to a representative of Members). Members shall have the right, but not the obligation, to participate, at its own expense, in the defense thereof by counsel of their choice.
(b) As PocketSpec incurs expenses for which indemnification hereunder is provided and after any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction, and the expiration of the time in which to appeal therefrom, or a settlement shall have been consummated, PocketSpec shall forward to Members notice of any sums due and owing by them pursuant to this Agreement with respect to such matter and they shall be required to pay all of the sums so due and owing to PocketSpec within ten (10) days of such notice.
(c) Upon the occurrence of any event which would give rise to a claim by Sierra Norte and/or Members against, or to a right of defense and indemnity against PocketSpec pursuant to this Section 12.5, or in the event that any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which PocketSpec may become obligated to Sierra Norte and/or Members hereunder, Sierra Norte and/or Members shall give notice to PocketSpec of the occurrence of such event and shall identify their choice of counsel to represent such investigation, claim or proceedings, provided that the failure of either or both of them to give notice shall not affect the indemnification obligations of PocketSpec hereunder. Sierra Norte and/or Members shall have the exclusive right to so defend, contest or protect against such matter utilizing the counsel of their choice (who shall be reasonably acce...
Determination of Damages and Related Matters. (a) For purposes of indemnification under Sections 12.1(a)(i)(A) and 12.1(b)(i)(A), any breach of any representation or warranty shall be deemed to constitute a breach of such representation or warranty notwithstanding any limitation or qualification as to materiality set forth in such representation or warranty on the scope, accuracy or completeness thereto, it being the intention of the parties hereto that, each Indemnified Party shall be indemnified and held harmless from and against any and all Losses arising out of or based upon or with respect to the failure of any such representation or warranty to be true, correct and complete in any respect.
(b) To the extent any payment under this Article XII cannot properly be treated as an adjustment to the Consideration for Tax purposes, then any such amount shall be increased to take account of any net Tax cost incurred by the Indemnified Party by reason of the receipt of any indemnity payment (grossed-up for such increase). Any payment to an Indemnified Party pursuant to this Article XII shall be reduced to take account of any net Tax benefit actually realized by the Indemnified Party in respect of the taxable year in which such Loss is incurred or paid and, with respect to a Tax benefit arising in a year subsequent to the year in which the Loss is paid or incurred, the Indemnified Party shall pay to the Indemnifying Party the amount of such Tax benefit (including, as relevant, any member of its Affiliated Group) when such Tax benefit is actually realized. In computing the amount of any such Tax cost or Tax benefit, the Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt of any indemnity payment hereunder or the incurrence or payment of any indemnified loss, liability, claim, damage or expense.
Determination of Damages and Related Matters. (a) Upon the occurrence of any event which would give rise to a claim by a party (the "Claimant Party") against, or to a right of defense and indemnity against a party (the "Indemnifying Party") pursuant to this Section , or in the event that any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which a party (the "Indemnifying Party") may become obligated to another party hereunder, the Claimant Party shall give notice to the Indemnifying Party of the occurrence of such event and shall identify the Claimant Party's choice of counsel to represent such investigation, claim or proceedings, provided that the failure of the Claimant Party to give notice shall not affect the indemnification obligations of the Indemnifying Party hereunder. The Claimant Party shall have the non-exclusive right to so defend, contest or protect against such matter utilizing the counsel of the Claimant Party's choice (who shall be reasonably acceptable to a representative of the Indemnifying Party). The Indemnifying Party shall have the right, but not the obligation, to participate, at its own expense, in the defense thereof by counsel of their choice. In addition, the Indemnifying Party shall have the right to elect to assume the defense of any such matter in the name of the Claimant Party with counsel who shall be reasonably satisfactory to the Claimant Party. If the Indemnifying Party shall elect to assume the defense in the name of the Claimant Party, it shall provide written notice of such election to the Claimant Party and from and after the giving of such notice to the Claimant Party, the Indemnifying Party shall not be liable to the Claimant Party for any legal or other expenses subsequently incurred by the Claimant Party in connection with the defense, other than reasonable costs of investigation. The Indemnifying Party shall not be liable to the Claimant Party on account of any settlement of any claim, action or proceeding effected without the Indemnifying Party's consent, provided that any such consent shall not be unreasonably withheld or delayed.
(b) Provided that the Indemnifying Party has not elected to assume the defense of the matter in accordance with the provisions of Section , as the Claimant Party incurs expenses for which indemnification hereunder is provided and prior to any final judgment or award shall have been rendered by a court, arbitration board or administrative agency of competent jurisdiction, and the expira...
Determination of Damages and Related Matters. (a) In calculating any amounts payable to Buyer or any other indemnitee pursuant to Sections 9.1(a) or 9.5 or payable to Sellers or any other indemnitee pursuant to Sections 9.1(b) or 9.5, (i) Sellers or Buyer, as the case may be, shall receive credit for (y) any reduction in actual tax liability as a result of the facts giving rise to the claim for indemnification, and (z) any insurance recoveries, and (ii) no amount shall be included for Parent's, Buyer's or Sellers', as the case may be, special or consequential damages.
(b) Buyer acknowledges and agrees that Buyer and its representatives have had access to such of the information and documents and to such of the real property, fixtures and tangible personal property of the Business as Buyer and its representatives shall have requested to see and/or review; that Buyer and its representatives have had a full opportunity to meet with appropriate management and employees of each Seller to discuss the Business and Assets, and that, in determining to acquire the Business and Assets, Buyer has made its own investigation into, and based thereon Buyer has formed an independent judgment concerning, the Business and the Assets. It is therefore understood and agreed that, except as specifically set forth in this Agreement, Buyer accepts the Business and the condition of the Assets "AS IS, WHERE IS" without any representation, warranty or guaranty, express or implied, as to merchantability, fitness for a particular purpose or otherwise as to the condition, size, extent, quantity, type or value of such property. Buyer represents and warrants to Sellers and Shareholder that Buyer and its officers, directors and other affiliates have no knowledge of a breach of any of Sellers' and Shareholder's representations and warranties set forth in Article 4 hereof. To the extent that Buyer or its officers, directors or other affiliates have knowledge of facts or circumstances constituting a breach of the representations and warranties set forth in Article 4 at the time such representations and warranties were made, Buyer shall have no right or remedy hereunder or otherwise in respect to such breach or the facts and circumstances related thereto.
(c) Sellers acknowledges and agrees that Sellers and its representatives have had access to such of the information and documents and assets of Parent and with respect to the Stock as Sellers and its representatives shall have requested to see and/or review; that Sellers and its represen...
Determination of Damages and Related Matters. In calculating any amounts payable pursuant to paragraphs (a) and (b) above, Sellers or the EqualNet Parties, as the case may be, shall receive credit for (a) any tax benefit allowable as a result of the facts giving rise to the claim for indemnification, and (b) any insurance recoveries, and no amount shall be included for the EqualNet Parties' or Sellers', as the case may be, special, consequential or punitive damages. Sellers and the EqualNet Parties agree that, except as specifically set forth in this Agreement (including the Schedules and Exhibits hereto), no party to this Agreement (including its respective representatives) has made or shall have liability for any representation or warranty, express or implied, in connection with the transactions contemplated by this Agreement, including in the case of Sellers and their respective representatives, any representation or warranty, express or implied (written or oral), as to the accuracy or completeness of any information regarding the Business.
Determination of Damages and Related Matters. In calculating any amounts payable to Purchaser pursuant to Section 9.2(a) or payable to Seller pursuant to Section 9.2(b), Seller or Purchaser, as the case may be, shall receive credit for (i) any actual reduction in tax liability as a result of the facts giving rise to the claim for indemnification, and (ii) any insurance recoveries actually received by the party to be indemnified, and no amount shall be included for Purchaser's or Seller's, as the case may be, special or consequential damages.
Determination of Damages and Related Matters. In calculating any amount owing pursuant hereto and in respect of which indemnification is sought in accordance with the terms hereof, the Indemnifying Party shall receive credit for any insurance recoveries of the Indemnified Party. Nothing in this Agreement in any way restricts or limits the general obligation at law of an Indemnified Party to mitigate any Claim which it may suffer or incur.
Determination of Damages and Related Matters. In calculating any amounts payable pursuant to Sections 9.1 and 9.2 hereof, Seller or Buyer, as the case may be, shall receive credit for (a) any Tax benefit allowable as a result of the facts giving rise to the claim for indemnification, and (b) any insurance recoveries, and no amount shall be included for Buyer's or Seller's, as the case may be, special, consequential or punitive damages.
Determination of Damages and Related Matters. In calculating any amounts payable to Buyer pursuant to Article 12.01 or payable to Seller pursuant to Article 12.02, any diminution of value to the Business shall be deemed damages suffered by Buyer, and Seller or Buyer, as the case may be, shall receive credit for (i) any actual reduction in tax liability as a result of the facts giving rise to the claim for indemnification, and (ii) any insurance recoveries actually received by the party to be indemnified. The right to indemnification, reimbursement or other remedy based on a breach of any representations, warranties, covenants, and obligations hereunder will not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable of being acquired) about the accuracy or inaccuracy of, or compliance with, any such representation, warranty, covenant, or obligation.
Determination of Damages and Related Matters. (a) For purposes of indemnification under Section 11.1(a)(i)(A) and Section 11.1(b)(i)(A), any breach of any representation or warranty shall be deemed to constitute a breach of such representation or warranty notwithstanding any limitation or qualification as to materiality (or, in the case of the representation and warranty set forth in Section 3.5, as to dollar amounts) set forth in such representation or warranty on the scope, accuracy or completeness thereto, it being the intention of the parties hereto that, except as provided in Sections 11.3(b) and (c), each Indemnified Party shall be indemnified and held harmless from and against any and all Losses arising out of or based upon or with respect to the failure of any such representation or warranty to be true, correct and complete in any respect.
(b) An Indemnifying Party shall not have any liability under Sections 11.1(a)(i)(A) and 11.1(b)(i)(A) unless the aggregate amount of Losses to the Indemnified Party finally determined to arise thereunder exceeds $100,000, and then only to the extent of such excess.
(c) In the absence of fraud or willful misconduct on the part of the Indemnifying Party or any of its employees or agents, an Indemnifying Party shall not have liability for Losses indemnifiable under Section 11.1(a) or Section 11.1(b) in excess of $6,000,000 in the aggregate; PROVIDED, HOWEVER, that the foregoing cap shall not apply to any Losses in respect of Taxes for which Seller and the Seller Parties have indemnified Buyer under Section 11.1(a).
(d) Notwithstanding anything to the contrary set forth in this Article XI, in the absence of fraud or willful misconduct, Pamela West's liability under Section 11.1(a) shall in no event excexx xxx xxxxxxr of (i) $1,000,000 and (ii) the market value of any assets directly or indirectly transferred to Pamela West by Brett West on or after the date hereof.
(e) Xxx xxxxxx of xxx Xxxxxx for which indemnification is provided under this Article XI shall be reduced by any amounts recovered or recoverable by the Indemnified Party under any insurance policy with respect to such Losses.
(f) To the extent any payment under this Article XI is not treated as an adjustment to the Consideration for Tax purposes, then an additional amount shall be paid to the Indemnified Party to take into account any additional Tax cost by reason of the receipt of any indemnity payment (including any payment pursuant to this paragraph). Any payment to an Indemnified Party pursuant t...
