Common use of Determination of Loss Amount Clause in Contracts

Determination of Loss Amount. (a) The amount of any and all Losses under this Article 9 will be determined net of any amounts recovered by any Claiming Party or any of such Claiming Party’s Affiliates under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rights (net of any costs of investigation, deductibles, collection, co-payments or premium increases related, directly or indirectly, to the underlying claim). (i) For purposes of calculating Losses to which a Buyer Indemnitee is entitled under this Article 9, such Losses shall not include (A) any punitive or speculative damages, except to the extent paid or payable to a third party; (B) 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; and (C) such Losses shall be reduced by the amount of any prior or subsequent recovery by a Buyer Indemnitee from any other Person (other than Seller or the Company) with respect to such Losses (net of any costs of recovery); (ii) for purposes of calculating Losses to which Seller Indemnitee is entitled under this Article 9, such Losses shall not include (A) any punitive or speculative damages, except to the extent paid or payable to a third party; (B) 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; and (C) such Losses shall be reduced by the amount of any prior or subsequent recovery by a Seller Indemnitee from any other Person (other than Buyer or Holdings) with respect to such Losses (net of any costs of recovery). (c) No Buyer Indemnitee will be entitled to any indemnification under this Article 9 to the extent such matter (i) was taken into account in determining the Final Aggregate Closing Cash Consideration pursuant to Section 1.02; (ii) was reserved for in the Financial Statements; (iii) is included in the Closing Statement; or (iv) is set forth on the disclosure schedules to this Agreement. (d) For purposes of determining failure of any representations or warranties to be true and correct, the breach of any covenants and agreements, and calculating the amount of Losses to which any Person is entitled to be indemnified under this Article 9, the terms “material,” “materiality,” “material adverse effect,” and “Material Adverse Effect” will be disregarded.

Determination of Loss Amount. (ai) The amount of any and all Losses Loss subject to indemnification under this Article 9 will Section 12A or Section 12B shall be determined calculated net of (a) any insurance proceeds actually received covering any of the Loss (excluding the R&W Policy) that is the subject to the claim for indemnity, less any costs incurred in recovering such proceeds, (b) any amounts recovered from other collateral sources (such as contractual indemnities of any Person which are contained outside of this Agreement), less any costs, and (c) any Tax Benefits actually realized by the party being indemnified on account of such Loss in the Tax year in which such Loss was incurred (or the immediately succeeding Tax year). In the event that an insurance or other recovery is received by any Claiming Party Indemnitee or any of such Claiming Party’s Affiliates under or pursuant a Tax Benefit is realized by an Indemnitee, in each case with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the amount of the insurance policyor other recovery or Tax Benefit, title insurance policy, indemnity, reimbursement arrangement or contract pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rights (net of less any costs of investigationincurred in recovering such amounts, deductibles, collection, co-payments or premium increases related, directly or indirectly, shall be made promptly to the underlying claim)Indemnity Administrator that made or directed such indemnification payments to such Indemnitee. (iii) For purposes of calculating Losses to which a Buyer Indemnitee is entitled under this Article 912 and for determining (a) whether a breach or inaccuracy of any representation or warranty in this Agreement, such and (b) the amount of Losses shall not include arising out of, relating to or resulting from a breach of or inaccuracy in any representation or warranty of the Company in this Agreement, all “Company Material Adverse Effect”, “in all material respects”, “Buyer Material Adverse Effect” and other materiality qualifications (A) any punitive or speculative damages, except other than to the extent paid such qualifications are used in Section 7E(i), the first sentence of Section 7E(iii), Section 7F(i) or payable to a third party; the definitions of Company Material Contracts, Material Customers or Material Providers) (Bcollectively, “Materiality Qualifiers”) such Losses shall be determined ignored and each such representation and warranty shall be read and interpreted without duplication of recovery by reason regard to any Materiality Qualifier. (iii) The Buyer Indemnified Parties shall not be entitled to recover any Losses to the extent accounted for in the determination of the state Closing Statement or the Closing Balance Sheet, as finally determined hereunder, or the calculation of facts giving rise the Closing Net Working Capital and Closing Net Cash, as finally determined hereunder. (iv) The right to indemnification, reimbursement, or other remedy based on such Loss constituting a breach representations, warranties, covenants and obligations will not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable of more than one being acquired) about, the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or agreement; and (C) such Losses shall be reduced by the amount of any prior or subsequent recovery by a Buyer Indemnitee from any other Person (other than Seller or the Company) with respect to such Losses (net of any costs of recovery); (ii) for purposes of calculating Losses to which Seller Indemnitee is entitled under this Article 9, such Losses shall not include (A) any punitive or speculative damages, except to the extent paid or payable to a third party; (B) 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; and (C) such Losses shall be reduced by the amount of any prior or subsequent recovery by a Seller Indemnitee from any other Person (other than Buyer or Holdings) with respect to such Losses (net of any costs of recovery)obligation. (c) No Buyer Indemnitee will be entitled to any indemnification under this Article 9 to the extent such matter (i) was taken into account in determining the Final Aggregate Closing Cash Consideration pursuant to Section 1.02; (ii) was reserved for in the Financial Statements; (iii) is included in the Closing Statement; or (iv) is set forth on the disclosure schedules to this Agreement. (d) For purposes of determining failure of any representations or warranties to be true and correct, the breach of any covenants and agreements, and calculating the amount of Losses to which any Person is entitled to be indemnified under this Article 9, the terms “material,” “materiality,” “material adverse effect,” and “Material Adverse Effect” will be disregarded.

Determination of Loss Amount. (a) The amount of any and all Losses Loss of any Indemnified Party pursuant to this Article VI resulting from, arising out of or relating to any breach or inaccuracy of any representation or warranty of any Indemnifying Party contained in this Agreement or any Transaction Document (or in any certificate delivered pursuant hereto by or on behalf of such Indemnifying Party with respect thereto) shall be determined, in each case, without giving effect to any limitation or qualification as to “materiality,” “material,” “Material Adverse Effect” or similar qualifiers set forth in such representation or warranty. (b) Each Seller agrees that it will not seek, nor will any Seller be entitled to, reimbursement or contribution from, subrogation to, or indemnification by the Company, under their organizational documents, this Agreement, applicable corporate Laws or other legal requirements or otherwise, in respect of any amounts due from the Sellers to any Buyer Indemnified Party under this Article 9 will VI or otherwise in connection with this Agreement. Each Seller further agrees not to make any claims against any directors and officers insurance policy maintained or to be determined net maintained by or for the benefit of any the Company in respect of amounts recovered due by any Claiming Party or any of such Claiming Party’s Affiliates under or pursuant the Sellers to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant to which or under which such Claiming Buyer Indemnified Party or such Claiming Party’s Affiliates is a party or has rights (net of any costs of investigation, deductibles, collection, co-payments or premium increases related, directly or indirectly, to the underlying claim). (i) For purposes of calculating Losses to which a Buyer Indemnitee is entitled under this Article 9, such Losses shall not include (A) any punitive VI or speculative damages, except to the extent paid or payable to a third party; (B) 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; and (C) such Losses shall be reduced by the amount of any prior or subsequent recovery by a Buyer Indemnitee from any other Person (other than Seller or the Company) otherwise in connection with respect to such Losses (net of any costs of recovery); (ii) for purposes of calculating Losses to which Seller Indemnitee is entitled under this Article 9, such Losses shall not include (A) any punitive or speculative damages, except to the extent paid or payable to a third party; (B) 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; and (C) such Losses shall be reduced by the amount of any prior or subsequent recovery by a Seller Indemnitee from any other Person (other than Buyer or Holdings) with respect to such Losses (net of any costs of recovery)Agreement. (c) No Buyer Indemnitee will be entitled Subject to paragraph (d), the right to indemnification and the payment of Losses of any indemnification under Indemnified Party pursuant to this Article 9 VI, or the availability of any other remedies contemplated hereby or otherwise available to the extent such matter (i) was taken into account Indemnified Parties at Law or in determining equity, based upon any representation, warranty, covenant, agreement or obligation of the Final Aggregate Closing Cash Consideration Indemnifying Parties contained in or made pursuant to Section 1.02; this Agreement will not be affected by any investigation made by or on behalf of any Indemnified Party or its Affiliates, or the knowledge of any such Indemnified Party’s (iior its Affiliates’) was reserved for in officers, directors, stockholders, managers, members, partners, employees or agents, with respect to the Financial Statements; (iii) is included in accuracy or inaccuracy of, or compliance or non-compliance with, any such representation, warranty, covenant, agreement or obligation at any time prior to or following the Closing Statement; or (iv) is set forth on the disclosure schedules to party’s entrance into this Agreement. (d) For purposes of determining failure of Notwithstanding paragraph (c), the Buyer shall not be entitled to indemnification for any representations or warranties to be true and correct, Losses resulting from the breach of any covenants representation or warranty of the Sellers contained in or made pursuant to Article III of this Agreement that is not qualified by the Sellers’ knowledge, if but only to the extent that the facts, circumstances, events, actions or absences of action giving rise to such breach were (i) disclosed in writing (A) to the Buyer’s representatives on the Company’s board of directors in “board books” or other written materials provided to board members specifically in connection with meetings of the board or actions or votes that were taken by written consent of the board and/or (B) to the Buyer in its capacity as a shareholder of the Company in materials provided to shareholders specifically in connection with shareholder meetings or actions or votes that were taken by the Company’s shareholders or (ii) explicitly approved or consented to (x) by the Buyer’s representatives on the Company’s board of directors in any formal vote taken by the Company’s board and agreementsreflected in the Company’s minutes and/or (y) by the Buyer in its capacity as a shareholder in any formal vote or action by written consent submitted to or taken by the Company’s shareholders and reflected in the Company’s written records for such meeting or action by written consent. For the sake of clarity, the parties agree that, for purposes of this Section 6.6(e), only the written materials identified in clauses (i) and calculating (ii) will be considered; all other discussions and communications that may or may not have taken place at or in connection with any such board or shareholder meeting or action by written consent shall, in accordance with paragraph (c) above, have no effect on the amount of Losses Buyer’s or its Affiliates’ rights to which indemnification or any Person is other recovery or remedy available to it under applicable Law. (e) Notwithstanding anything to the contrary in this Agreement, no Indemnified Party shall be entitled to be indemnified indemnification under this Article 9VI for any Losses that the applicable Indemnifying Party can prove, by clear and convincing evidence, were not reasonably foreseeable by one or more parties hereto as of the terms “material,” “materiality,” “material adverse effect,” date of this Agreement; provided, however, that this clause (e) shall not apply if and “Material Adverse Effect” will be disregardedto the extent that a Loss arises from an Indemnifying Party’s fraud, intentional misrepresentation or willful misconduct.

Determination of Loss Amount. (a) The amount Except in the case of (i) fraud, intentional or willful breach of this Agreement, (ii) any breach or inaccuracy of any and all Fundamental Representation by Sellers, the Company, Purchaser or Purchaser Parent, or (iii) any breach by Purchaser, Purchaser Parent, or the Company, or any Affiliates of the foregoing, of Section 1.07(c), an indemnifying person shall not be responsible or liable for Losses or other amounts under this Article 9 will VIII that are consequential, incidental, indirect (including loss of future revenue, income or profits or loss of business reputation or opportunity), special, exemplary or punitive (except for fines and penalties and indemnification claims to be determined net of any amounts recovered by any Claiming Party paid to a third party (whether or any of such Claiming Party’s Affiliates under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a not involving third party or has rights (net of any costs of investigation, deductibles, collection, co-payments or premium increases related, directly or indirectly, to the underlying claimclaims)). (ib) For purposes The Parties agree and acknowledge that, except in the case of calculating Losses fraud or intentional or willful breach of this Agreement, the rights to which a Buyer Indemnitee is entitled under indemnification provided for in this Article 9, such Losses shall not include (A) any punitive or speculative damages, except to the extent paid or payable to a third party; (B) such Losses VIII shall be determined without duplication of recovery by reason the sole and exclusive remedy (regardless of the state theory or cause of facts giving rise to such Loss constituting a breach action pled) for monetary damages of more than Sellers on the one representationhand, warrantyor Purchaser or Purchaser Parent, covenant or agreement; on the other hand, as the case may be, after the Closing for and (C) such Losses shall be reduced by the amount of any prior or subsequent recovery by a Buyer Indemnitee from any other Person (other than Seller or the Company) with respect to such Losses (net any breach of or inaccuracy in any costs representation or warranty of recovery); (ii) a Party and for purposes of calculating Losses any failure by the other party to which Seller Indemnitee is entitled under perform and comply with any covenants and agreements contained in this Article 9Agreement, such Losses shall not include (A) any punitive or speculative damages, except and each Party to this Agreement hereby waives to the fullest extent paid or payable to a third party; (B) such Losses shall be determined without duplication of recovery permitted by reason of the state of facts giving rise to such Loss constituting a breach of more than one representationlaw, warranty, covenant or agreement; and (C) such Losses shall be reduced by the amount of any prior or subsequent recovery by a Seller Indemnitee from any other Person (rights or remedies that may arise under any applicable law in connection therewith; provided, however, that nothing herein will limit in any way any Party’s rights hereunder or otherwise, to specific performance, injunctive relief or other than Buyer or Holdings) with respect to such Losses (net of any costs of recovery)non-monetary equitable relief. (c) No Buyer Indemnitee will be entitled Sellers shall not have any claim for contribution from or against the Company as a result of any indemnification or other payments made by Sellers to any indemnification under this Article 9 to the extent such matter (i) was taken into account in determining the Final Aggregate Closing Cash Consideration of Purchaser Indemnified Parties pursuant to Section 1.02; (ii) was reserved for in the Financial Statements; (iii) is included in the Closing Statement; or (iv) is set forth on the disclosure schedules to this Agreement. (d) For purposes Upon making an indemnity payment pursuant to this Agreement, the Indemnitor will, to the extent of determining failure such payment, be subrogated to all rights of the Indemnitee against any third party in respect of the damages to which the payment related. Without limiting the generality of any representations other provision hereof, each such Indemnitor and Indemnitee will duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rights. (e) Each Indemnitor’s liability pursuant to this Article VIII in respect of any Losses shall be reduced by an amount equal to any insurance proceeds actually recovered by the applicable Indemnitee for such Losses less the amounts paid or warranties to be true paid by the applicable Indemnitee for (i) the cost and correctexpense of pursuing such insurance recovery, the breach of (ii) any covenants and agreementsdeductible associated therewith, and calculating (iii) the amount of Losses any and all retro-premium obligations and any and all actual premium increases resulting from such recovery. Each Indemnitee shall use commercially reasonable efforts to which any Person is entitled to be indemnified under this Article 9obtain, the terms “material,” “materiality,” “material adverse effect,” and “Material Adverse Effect” will be disregardedreceive, or realize such insurance proceeds.

Determination of Loss Amount. (a) For purposes of determining whether any breach has occurred, and the amount of Losses pursuant to this Article VI, all qualifications and limitations as to materiality, including “material,” “in all material respects,” “Material Adverse Effect” or similar qualifiers or monetary qualifiers to similar effect shall be deemed to be deleted therefrom. (b) Each Person entitled to indemnification hereunder will take commercially reasonable steps to mitigate all Losses after becoming aware of any event that could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder or in connection herewith. In the event that an Indemnifying Party makes any payment to any Indemnified Party for indemnification for which such Indemnified Party could have collected on a claim against a third party (including under any contract and any insurance claims), such Indemnifying Party will be entitled to pursue claims and conduct litigation on behalf of such Indemnified Party to pursue and collect on any indemnification or other remedy available to such Indemnified Party thereunder with respect to such claim. Except pursuant to a settlement agreed to by the Indemnifying Party, the Indemnified Party will not waive or release any contractual right to recover from a third party any Loss subject to indemnification hereby without the prior written consent of such Indemnifying Party. The Indemnified Party will, and will cause its Affiliates (including the Company if the Company is an Affiliate) to, cooperate with the Indemnifying Party, at such Indemnifying Party’s expense, with respect to any such effort to pursue and collect with respect thereto, including executing any assignments or related documents. (c) The amount of any and all Losses under this Article 9 VI will be determined net of any amounts actually recovered by any Claiming the Indemnified Party or any of such Claiming Party’s Affiliates under or pursuant to any insurance policy, Insurance Policy or title insurance policy, indemnity, reimbursement arrangement or contract pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rights policy (net of the present value of any increase in premiums actually imposed by the applicable insurance carrier as a result of the occurrence of the Loss, the deductible and all costs of investigation, deductibles, collection, co-payments or premium increases related, directly or indirectly, and expenses incurred in recovering such insurance proceeds with respect to the underlying claimsuch Loss). (d) In no event will any Indemnified Party be entitled to recover or make a claim for any amounts in respect of consequential, incidental or indirect damages, lost profits, or punitive damages unless such Losses (i) For purposes of calculating Losses are required to which a Buyer Indemnitee is entitled under this Article 9, such Losses shall not include (A) any punitive or speculative damages, except to the extent be paid or payable to a third party; party pursuant to a Third Party Claim for which the Indemnified Parties were entitled to indemnification pursuant to this Article VI or (Bii) such Losses shall be determined without duplication of recovery by reason were reasonably foreseeable as of the state of facts date hereof and flow proximately from the breach giving rise to such Loss constituting a breach of more than one representation, warranty, covenant or agreement; and (C) such Losses shall be reduced by the amount of any prior or subsequent recovery by a Buyer Indemnitee from any other Person (other than Seller or the Company) with respect to such Losses (net of any costs of recovery); (ii) for purposes of calculating Losses to which Seller Indemnitee is entitled under this Article 9, such Losses shall not include (A) any punitive or speculative damages, except to the extent paid or payable to a third party; (B) 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; and (C) such Losses shall be reduced by the amount of any prior or subsequent recovery by a Seller Indemnitee from any other Person (other than Buyer or Holdings) with respect to such Losses (net of any costs of recovery)Losses. (ce) No Buyer Indemnitee Indemnified Party will be entitled to any indemnification under this Article 9 VI to the extent such matter (i) was taken into account in determining the Final Aggregate Closing Cash Consideration pursuant to Section 1.02; (ii) was reserved for in the Financial Statements; (iii) amount is included in the Final Closing Statement; or Statement (iv) is set forth on the disclosure schedules to this Agreementi.e., “no double counting”). (d) For purposes of determining failure of any representations or warranties to be true and correct, the breach of any covenants and agreements, and calculating the amount of Losses to which any Person is entitled to be indemnified under this Article 9, the terms “material,” “materiality,” “material adverse effect,” and “Material Adverse Effect” will be disregarded.

Determination of Loss Amount. (a) The amount of In the event that the Closing occurs, each Indemnifying Stockholder agrees that such Stockholder will not seek, nor will any and all Losses Indemnifying Stockholder be entitled to, reimbursement or contribution from, subrogation to, or indemnification by the Company or its Subsidiaries, under their organizational documents, this Article 9 will be determined net Agreement, applicable corporate Laws or other Legal Requirements or otherwise, in respect of any amounts recovered by any Claiming Party or any of such Claiming Party’s Affiliates under or pursuant due from the Indemnifying Stockholders to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant to which or under which such Claiming Parent Indemnified Party or such Claiming Party’s Affiliates is a party or has rights (net of any costs of investigation, deductibles, collection, co-payments or premium increases related, directly or indirectly, to the underlying claim). (i) For purposes of calculating Losses to which a Buyer Indemnitee is entitled under this Article 9, such Losses ‎Article VII or otherwise in connection with this Agreement; provided that the foregoing shall not include (A) limit the rights of the Indemnified Parties under Section ‎7.3 to seek indemnification in accordance with the provisions therein. Each Indemnifying Stockholder further agrees not to make any punitive claims against any directors and officers insurance policy maintained or speculative damages, except to be maintained by or for the extent paid benefit of the Company or payable its Subsidiaries in respect of amounts due by the Indemnifying Stockholders to a third party; (B) 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; and (C) such Losses shall be reduced by the amount of any prior or subsequent recovery by a Buyer Indemnitee from any other Person (other than Seller or the Company) with respect to such Losses (net of any costs of recovery); (ii) for purposes of calculating Losses to which Seller Indemnitee is entitled Parent Indemnified Party under this Article 9, such Losses shall not include (A) any punitive ‎Article VII or speculative damages, except to the extent paid or payable to a third party; (B) 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; and (C) such Losses shall be reduced by the amount of any prior or subsequent recovery by a Seller Indemnitee from any other Person (other than Buyer or Holdings) otherwise in connection with respect to such Losses (net of any costs of recovery). (c) No Buyer Indemnitee will be entitled to any indemnification under this Article 9 to the extent such matter (i) was taken into account in determining the Final Aggregate Closing Cash Consideration pursuant to Section 1.02; (ii) was reserved for in the Financial Statements; (iii) is included in the Closing Statement; or (iv) is set forth on the disclosure schedules to this Agreement. (db) For purposes The right to indemnification and the payment of determining failure Losses of any representations Parent Indemnified Party pursuant to this ‎Article VII, or warranties to be true and correct, the breach availability of any covenants and agreementsother remedies contemplated hereby, and calculating based upon any representation, warranty, covenant, agreement or obligation of the amount Company contained in or made pursuant to this Agreement will not be affected by any investigation made by or on behalf of Losses any Parent Indemnified Party or its Affiliates, or the knowledge of any such Parent Indemnified Party’s or its Representatives, with respect to which the accuracy or inaccuracy of, or compliance or non-compliance with, any Person is entitled such representation, warranty, covenant, agreement or obligation at any time prior to be indemnified under or following the party’s entrance into this Article 9, the terms “material,” “materiality,” “material adverse effect,” and “Material Adverse Effect” will be disregardedAgreement.

Determination of Loss Amount. (a) The amount of any and all Losses under this Article 9 will be determined net of any amounts recovered by any Claiming Party or any of such Claiming Party’s Affiliates under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rights (net of any costs of investigation, deductibles, collection, co-payments or premium increases related, directly or indirectly, Notwithstanding anything to the underlying claim). (i) For contrary in this Agreement, for purposes of calculating Losses to which a Buyer Indemnitee is entitled under this Article 9, such Losses shall not include (A) any punitive or speculative damages, except to the extent paid or payable to a third party; (B) such Losses shall be determined without duplication of recovery by reason of the state of facts giving rise to such Loss constituting determining whether there has been a breach of more than one any representation, warranty, covenant or agreement; other agreement set forth in this Agreement and (C) such Losses shall be reduced by calculating the amount of any prior or subsequent recovery by a Buyer Indemnitee from any other Person (other than Seller or the Company) with respect to such Losses (net of any costs of recovery); (ii) for purposes of calculating Losses to which Seller Indemnitee an indemnified party is entitled under this Article 9VII, such Losses shall the terms “material,” “materiality,” and “Material Adverse Effect” and similar phrases are to be disregarded. The indemnification provisions of this Article VII will be enforceable regardless of whether any party alleges or proves the sole, concurrent, contributory or comparative negligence or fault of the indemnified Party. (b) In no event will Buyer Indemnitees or Seller Indemnities be liable hereunder for any (i) punitive damages, or (ii) indirect, incidental, special or consequential damages, in either case, whether based on contract, strict liability, other applicable Law or otherwise and whether or not include arising from any other Party’s sole, joint or concurrent negligence, strict liability or other fault, except, in the case of clause (i), to the extent owed to a Third Party pursuant to a Third Party Claim and in the case of clause (ii), to the extent (A) any punitive or speculative damages, except to the extent paid or payable owed to a third party; Third Party pursuant to a Third Party Claim, (B) such Losses shall be determined without duplication of recovery by reason damages were a reasonably foreseeable consequence of the state of facts giving rise to such Loss constituting a Party’s breach of more than one representationand are otherwise recoverable under applicable law, warranty, covenant or agreement; and (C) such Losses shall be reduced arise out of the matters contemplated by the amount of any prior Section 7.02(a)(ii) or subsequent recovery by a Seller Indemnitee from any other Person Section 7.03(d) (other than Buyer or Holdings) and only with respect to such Losses this clause (net C), excluding lost profits). In addition, no indemnifying party will be liable hereunder in respect of any costs claim if such claim would not have arisen but for a change in legislation or accounting policies or a change in interpretation of recovery)applicable law as determined by a court or pursuant to an administration rule-making decision. Attorney, consultant, and other professional fees and disbursements incurred by an indemnified party in connection with this Article VII will be reasonable and based only on time actually spent, which will be charged at no more than such professional’s standard hourly rate. THE PARTIES ACKNOWLEDGE THAT THE AGREEMENTS CONTAINED IN THIS SECTION 7.07(b) ARE AN INTEGRAL PART OF THE TRANSACTION, AND THAT, WITHOUT THESE AGREEMENTS, THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT. (c) No Buyer Indemnitee will be entitled to any indemnification under this Article 9 VII to the extent such matter (i) such matter was taken into account in determining the Final Aggregate Closing Cash Consideration Purchase Price pursuant to Section 1.02; , (ii) such matter was reserved for in the Financial Statements; , or (iii) is included in the Closing Statement; or (iv) is set forth on the disclosure schedules to this Agreement. (d) For purposes of determining failure of any representations or warranties to be true and correct, the breach of any covenants and agreements, and calculating the amount of Losses to which any Person is entitled to be indemnified under this Article 9, the terms “material,” “materiality,” “material adverse effect,” and “Material Adverse Effect” will be disregarded.

Determination of Loss Amount. (a) The amount Each Seller agrees that such Seller will not seek, nor will any Seller be entitled to, reimbursement or contribution from, subrogation to, or indemnification by the Company, under their organizational documents, this Agreement, applicable corporate Laws or other Laws or otherwise, in respect of any and all Losses amounts due from the Sellers to any Buyer Indemnified Party under this Article 9 will VI or otherwise in connection with this Agreement. Each Seller further agrees not to make any claims against any directors and officers insurance policy maintained or to be determined net maintained by or for the benefit of any the Company in respect of amounts recovered due by any Claiming Party or any of such Claiming Party’s Affiliates under or pursuant the Sellers to any insurance policy, title insurance policy, indemnity, reimbursement arrangement Buyer Indemnified Party under this Article VI or contract pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rights (net of any costs of investigation, deductibles, collection, co-payments or premium increases related, directly or indirectly, to the underlying claim)otherwise in connection with this Agreement. (ib) For purposes The right to indemnification and the payment of calculating Losses of any Buyer Indemnified Party pursuant to which a Buyer Indemnitee is entitled under this Article 9VI, such Losses shall not include (A) or the availability of any punitive other remedies contemplated hereby or speculative damages, except otherwise available to the extent paid Buyer Indemnified Parties at law or payable to a third party; (B) 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 in equity, based upon any representation, warranty, covenant covenant, agreement or agreement; and (C) such Losses shall obligation of the Sellers or the Company contained in or made pursuant to this Agreement will not be reduced affected by the amount any investigation made by or on behalf of any prior Buyer Indemnified Party or subsequent recovery by a Buyer Indemnitee from any other Person (other than Seller its Affiliates, or the Companyknowledge of any such Buyer Indemnified Party’s (or its Affiliates’) officers, directors, stockholders, managers, members, partners, employees or agents, with respect to the accuracy or inaccuracy of, or compliance or non-compliance with, any such Losses (net of any costs of recovery); (ii) for purposes of calculating Losses to which Seller Indemnitee is entitled under this Article 9, such Losses shall not include (A) any punitive or speculative damages, except to the extent paid or payable to a third party; (B) 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 covenant, agreement or agreement; and (C) such Losses shall be reduced by obligation at any time prior to or following the amount of any prior or subsequent recovery by a Seller Indemnitee from any other Person (other than Buyer or Holdings) with respect to such Losses (net of any costs of recovery)Party’s entrance into this Agreement. (c) No Buyer Indemnitee will be entitled to any indemnification under this Article 9 to the extent such matter (i) was taken into account in determining the Final Aggregate Closing Cash Consideration pursuant to Section 1.02; (ii) was reserved for in the Financial Statements; (iii) is included in the Closing Statement; or (iv) is set forth on the disclosure schedules to this Agreement. (d) For purposes of determining failure of whether any representations or warranties to be true breach has occurred and correct, the breach of any covenants and agreements, and calculating the amount of Losses pursuant to which any Person is entitled to be indemnified under this Article 9VI, the terms all qualifications and limitations as to materiality, including “material,” “materialityin all material respects,” “material adverse effect,” and “Material Adverse Effect” will similar qualifications as to materiality shall be disregardeddeemed to be deleted therefrom.

Determination of Loss Amount. (a) The amount of any and all Losses under this Article 9 will be determined net of any amounts recovered by any Claiming Party or any of such Claiming Party’s Affiliates under or subject to indemnification pursuant to any insurance policySection 12.2, title insurance policy, indemnity, reimbursement arrangement or contract pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rights (net of any costs of investigation, deductibles, collection, co-payments or premium increases related, directly or indirectly, to the underlying claim). (i) For purposes of calculating Losses to which a Buyer Indemnitee is entitled under this Article 9, such Losses shall not include (A) any punitive or speculative damages, except to the extent paid or payable to a third party; (B) 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; and (C) such Losses shall be reduced by any insurance proceeds previously received by the amount of any prior or subsequent recovery by a Buyer Indemnitee from any other Person (other than Seller or the Company) Indemnified Party with respect to such Losses (net of any costs of recovery); (iideductible or co-payment) for purposes of calculating If any insurance proceeds are subsequently recovered by the Indemnified Party from an insurance carrier after payment has been made by the Indemnifying Party to the Indemnified Party in accordance with this Article XII with respect to the Losses to which Seller Indemnitee is entitled under this Article 9such insurance recoveries relate, such Losses then the Indemnified Party shall not include (A) any punitive or speculative damages, except promptly remit to the extent paid Indemnifying Party such insurance recoveries (net of any deductible or payable co-payment and all out of pocket costs related to a third partysuch recovery); provided that in no event shall Indemnified Party have any obligation hereunder (Bi) to remit to the Indemnifying Party any portion of such Losses shall be determined without duplication of recovery by reason insurance recoveries in excess of the state of facts giving rise to such Loss constituting a breach of more than one representation, warranty, covenant indemnification payment or agreement; and (C) such Losses shall be reduced by payments actually received from the amount of any prior or subsequent recovery by a Seller Indemnitee from any other Person (other than Buyer or Holdings) Stockholders with respect to such Losses or (net of ii) to make, any costs of recovery)insurance claim or to pursue any recovery from any insurance carrier or third party with respect thereto. (cb) No Buyer Indemnitee will be entitled The right to indemnification and the payment of Losses of any indemnification under Parent Indemnified Party pursuant to this Article 9 XII or the availability of any other remedies contemplated hereby or otherwise available to the extent such matter (i) was taken into account Parent Indemnified Parties at law or in determining equity, based upon any representation, warranty, covenant, agreement or obligation of Company or the Final Aggregate Closing Cash Consideration Stockholders contained in or made pursuant to Section 1.02; this Agreement will not be affected by any investigation made by or on behalf of any Parent Indemnified Party or its Affiliates, or the knowledge of any such Parent Indemnified Party’s (iior its Affiliates’) was reserved for in officers, directors, stockholders, managers, members, partners, employees or agents, with respect to the Financial Statements; (iii) is included in accuracy or inaccuracy of, or compliance or non-compliance with, any such representation, warranty, covenant, agreement or obligation at any time prior to or following the Closing Statement; or (iv) is set forth on the disclosure schedules to party’s entrance into this Agreement. (d) For purposes of determining failure of any representations or warranties to be true and correct, the breach of any covenants and agreements, and calculating the amount of Losses to which any Person is entitled to be indemnified under this Article 9, the terms “material,” “materiality,” “material adverse effect,” and “Material Adverse Effect” will be disregarded.

Determination of Loss Amount. (a) The amount Each Seller agrees that such Seller will not seek, nor will any Seller be entitled to, reimbursement or contribution from, subrogation to, or indemnification by the Company, under their organizational documents, this Agreement, applicable corporate Laws or other requirements of Law or otherwise, in respect of any and all Losses amounts due from such Seller to any Buyer Indemnified Party under this Article 9 will VIII or otherwise in connection with this Agreement. Each Seller further agrees not to make any claims against any directors and officers insurance policy maintained or to be determined net maintained by or for the benefit of any the Company in respect of amounts recovered due by any Claiming Party or any of such Claiming Party’s Affiliates under or pursuant Seller to any insurance policy, title insurance policy, indemnity, reimbursement arrangement Buyer Indemnified Party under this Article VIII or contract pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rights (net of any costs of investigation, deductibles, collection, co-payments or premium increases related, directly or indirectly, to the underlying claim)otherwise in connection with this Agreement. (ib) The right to indemnification and the payment of Losses of any Buyer Indemnified Party pursuant to this Article VIII, or the availability of any other remedies contemplated hereby or otherwise available to the Buyer Indemnified Parties at law or in equity, based upon any representation, warranty, covenant, agreement or obligation of Sellers or the Company contained in or made pursuant to this Agreement will not be affected by any investigation made by or on behalf of any Buyer Indemnified Party or its Affiliates. (c) For purposes of calculating determining the amount of Losses with respect to which a Buyer Indemnitee is entitled under this Article 9breach of a representation or warranty all qualifications and limitations as to materiality, such Losses including “material,” “in all material respects,” “Material Adverse Effect,” “knowledge” and similar qualifications as to materiality or Knowledge shall not include be given any effect. (Ad) Payments by an Indemnifying Party pursuant to Section 8.2 or Section 8.3 in respect of any Loss shall be limited to the 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 in respect of any such claim, less any costs of recovery. The Indemnified Party shall use its commercially reasonable efforts to seek coverage under insurance policies for the reimbursement or payment in respect of any Losses. (e) Payments by an Indemnifying Party pursuant to Section 8.2 or Section 8.3 in respect of any Loss shall be reduced by an amount equal to any Tax benefit actually realized in the same or following Tax year of such Loss by the Indemnified Party. (f) In no event shall any Indemnifying Party be liable to any Indemnified Party for any speculative, punitive or speculative damagesspecial damages relating to the breach or alleged breach of this Agreement, except to the extent paid or payable awarded to a third party; (B) such Losses shall be determined without duplication of recovery by reason of the state of facts giving rise to such Loss constituting Third-Party in a breach of more than one representation, warranty, covenant or agreement; and (C) such Losses shall be reduced by the amount of any prior or subsequent recovery by a Buyer Indemnitee from any other Person (other than Seller or the Company) with respect to such Losses (net of any costs of recovery); (ii) for purposes of calculating Losses to which Seller Indemnitee is entitled under this Article 9, such Losses shall not include (A) any punitive or speculative damages, except to the extent paid or payable to a third party; (B) 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; and (C) such Losses shall be reduced by the amount of any prior or subsequent recovery by a Seller Indemnitee from any other Person (other than Buyer or Holdings) with respect to such Losses (net of any costs of recovery)Third-Party Claim. (c) No Buyer Indemnitee will be entitled to any indemnification under this Article 9 to the extent such matter (i) was taken into account in determining the Final Aggregate Closing Cash Consideration pursuant to Section 1.02; (ii) was reserved for in the Financial Statements; (iii) is included in the Closing Statement; or (iv) is set forth on the disclosure schedules to this Agreement. (d) For purposes of determining failure of any representations or warranties to be true and correct, the breach of any covenants and agreements, and calculating the amount of Losses to which any Person is entitled to be indemnified under this Article 9, the terms “material,” “materiality,” “material adverse effect,” and “Material Adverse Effect” will be disregarded.