Common use of Miscellaneous Indemnity Provisions Clause in Contracts

Miscellaneous Indemnity Provisions. (i) The indemnifying parties’ indemnities herein are intended solely for the benefit of the indemnified parties, and are in no way intended to, nor shall they, constitute an agreement for the benefit of, or be enforceable by, any other Person. (ii) Any payment by the Seller Parties of any Damages of the Buyer Indemnified Parties shall be deemed to be a reduction in the Purchase Price. (iii) In determining the amount of any Damages payable by an indemnifying party pursuant to this Article IX, such amount shall be reduced by the amount of any refund received by the indemnified parties of Taxes paid by them, to the extent such refund relates solely to the Damages or to the payments made pursuant to such Damages. In the event an indemnifying party has paid for any Damages which is later subject to reduction due to the receipt of a Tax refund relating solely to the Damages, the indemnified parties shall promptly pay the amount of such Tax refund to indemnifying party at the time actually received by the relevant indemnifying party. (iv) With respect to any indemnification obligation of the Seller Parties pursuant to any Damages related to the failure to collect accounts receivable of Seller which constituted a breach of Section 4.22 above, Buyer shall deliver and assign, on the date any such Damages are satisfied by a related payment of Damages to a member of the Buyer Indemnified Parties, without any further payment or consideration, such uncollected accounts receivable of Seller to which the Damages relates. (v) For purposes of determining the amount of any Damages under Section 9.4(a) above, such amount shall be reduced by the amount of any insurance proceeds actually received by the indemnified party in respect of the Damages (net of any deductible amounts or associated incremental premiums that the indemnified party reasonably expects to incur as a result of the claim). In the event the indemnifying party has paid for any Damages which later the indemnified party receives any insurance proceeds with respect thereto, the indemnified party shall promptly pay the amount of such insurance proceeds to the indemnifying party at the time actually received by the indemnified party (net of any deductible amounts or associated incremental premiums that the indemnified party reasonably expects to incur as a result of the claim) up to the amount of the Damages for which the indemnifying party has paid. (vi) Prior to any indemnification by the Seller Parties for any Damages related to the provisions of Section 4.22 above or otherwise in respect of the accounts receivable of Seller, Buyer shall (i) apply all collections for accounts receivable against the accounts receivable of a particular payor existing on the Closing Date on a first-billed, first-paid basis so that such collections are first applied against the earliest-date receivable of the applicable payor; provided, however, that if the payor designated a specific invoice or invoices to be paid or if Buyer otherwise reasonably determines that the payor intended a different application of the payment where the payment amount matches a specific outstanding invoice, then the payment shall be applied to the specific invoice or invoices so designated or intended; and (ii) use reasonable efforts to collect its accounts receivable, including the sending of demand letters and other similar practices (Seller, upon request, shall be entitled to a written description of all steps taken to collect an account receivable).

Miscellaneous Indemnity Provisions. Notwithstanding anything to the contrary contained in this Agreement, from and after the Effective Time: (i) The indemnifying parties’ indemnities herein are intended solely for To the benefit extent that any of the indemnified partiesPaeTec Parties has any claim for Damages arising out of this Agreement or any Voting Agreement, the sole and are exclusive remedy for such PaeTec Party shall be to make a claim against the CCS Indemnification Escrow Stock under the Escrow Agreement; provided, however, that nothing contained -------- ------- in no this Section 11.5(i) shall in any way intended to, nor shall they, constitute an agreement for limit or reduce the benefit of, or be enforceable by, any other Personscope of the post-closing adjustments expressly contemplated by Section 11.8. (ii) Any payment by To the Seller Parties of extent that any Damages of the Buyer Indemnified Parties Stockholders has any claim against PaeTec for Damages arising out of this Agreement, the sole and exclusive remedy for such Stockholder shall be deemed to be make a reduction in the Purchase Priceclaim for indemnification pursuant to this Article 11. (iii) In determining the amount of any Damages payable by an indemnifying party pursuant to this Article IX, such amount shall be reduced by the amount of any refund received by the indemnified parties of Taxes paid by them, to the extent such refund relates solely to the Damages or to the payments made pursuant to such Damages. In the event an indemnifying party has paid for any Damages which is later subject to reduction due to the receipt of a Tax refund relating solely to the Damages, the indemnified parties shall promptly pay the amount of such Tax refund to indemnifying party at the time actually received by the relevant indemnifying party. (iv) With respect to any indemnification obligation of the Seller Parties pursuant to any Damages related to the failure to collect accounts receivable of Seller which constituted a breach of Section 4.22 above, Buyer shall deliver and assign, on the date any such Damages are satisfied by a related payment of Damages to a member of the Buyer Indemnified Parties, without any further payment or consideration, such uncollected accounts receivable of Seller to which the Damages relates. (v) For purposes of determining the amount of any Damages under Section 9.4(a11.2 or 11.3, (A) above, such amount shall be reduced by the amount of any insurance proceeds actually received by the indemnified party Indemnified Party in respect of the Damages; and (B) such amount shall exclude all consequential or special damages suffered by the Indemnified Party and all punitive damages awarded against the Indemnifying Party. (iv) Any information disclosed pursuant to any Section of a party's Disclosure Schedule shall be deemed disclosed for purposes of all other Sections of such Disclosure Schedule so long as the relevance of such disclosure to such other Sections is reasonably apparent. (v) Notwithstanding anything in this Agreement or any statute or the common law to the contrary, the parties acknowledge and agree that the indemnification and post-closing adjustment rights set forth in this Article 11 shall be the sole and exclusive remedy of the Indemnified Parties for Damages (net of any deductible amounts kind or associated incremental premiums that nature arising under this Agreement or any statute or the indemnified party reasonably expects to incur as a result of the claim). In the event the indemnifying party has paid for any Damages which later the indemnified party receives any insurance proceeds with respect thereto, the indemnified party shall promptly pay the amount of such insurance proceeds to the indemnifying party at the time actually received by the indemnified party (net of any deductible amounts or associated incremental premiums that the indemnified party reasonably expects to incur as a result of the claim) up to the amount of the Damages for which the indemnifying party has paidcommon law. (vi) Prior to any indemnification by the Seller Parties CCS shall not be liable for any Damages related of the PaeTec Parties under Section 11.2 to the provisions of extent such PaeTec Parties have otherwise been made whole for such Damages pursuant to Section 4.22 above or otherwise in respect of the accounts receivable of Seller, Buyer shall (i) apply all collections for accounts receivable against the accounts receivable of a particular payor existing on the Closing Date on a first-billed, first-paid basis so that such collections are first applied against the earliest-date receivable of the applicable payor; provided, however, that if the payor designated a specific invoice or invoices to be paid or if Buyer otherwise reasonably determines that the payor intended a different application of the payment where the payment amount matches a specific outstanding invoice, then the payment shall be applied to the specific invoice or invoices so designated or intended; and (ii) use reasonable efforts to collect its accounts receivable, including the sending of demand letters and other similar practices (Seller, upon request, shall be entitled to a written description of all steps taken to collect an account receivable)11.8.

Miscellaneous Indemnity Provisions. (i) The indemnifying parties’ indemnities indemnification obligations herein are intended solely for the benefit of the indemnified parties, and are in no way intended to, nor shall they, constitute an agreement for the benefit of, or be enforceable by, any other Person. (ii) Any payment by the Seller Parties an indemnifying party of any Damages of the Buyer Indemnified Parties hereunder shall be deemed to be a reduction an adjustment in the Purchase PricePrice for Tax purposes. (iii) In determining the amount of any Damages payable by an indemnifying party pursuant to this Article IXSection 10.4, such amount shall be reduced by the amount of any refund Tax benefit received by the indemnified parties by reason of Taxes paid by themsuch Damages, to the extent such refund Tax benefit relates solely to the Damages or to the payments made pursuant to such Damages. In the event an indemnifying party has paid for any Damages which is are later subject to reduction due to the receipt of a Tax refund benefit relating solely to the Damages, the indemnified parties shall promptly pay the amount of such Tax refund benefit to indemnifying party at the time actually received by the relevant such indemnifying party. (iv) With respect to any indemnification obligation of the Seller Parties pursuant to any Damages related to the failure to collect accounts receivable of Seller which constituted a breach of Section 4.22 above, Buyer shall deliver and assignassign to Seller, on the date any such Damages are satisfied by a related payment of Damages to a member of the Buyer Indemnified PartiesParty, without any further payment or consideration, such uncollected accounts receivable of Seller to which the Damages relates. (v) For purposes of determining the amount of any Damages under payable by an indemnifying party pursuant to Section 9.4(a) above10.4, such amount shall be reduced by the amount of any insurance proceeds actually received by the indemnified party in respect of the Damages (net of any deductible amounts or associated incremental premiums that the indemnified party reasonably expects to incur as a result of the claim). In the event the indemnifying party has paid for any Damages which later the indemnified party receives any insurance proceeds with respect thereto, the indemnified party shall promptly pay the amount of such insurance proceeds to the indemnifying party at the time actually received by the indemnified party (net of any deductible amounts or associated incremental premiums that the indemnified party reasonably expects to incur as a result of the claim) up to the amount of the Damages for which the indemnifying party has paid. (vi) Prior to any indemnification by the Seller Parties for any Damages related to the provisions of Section 4.22 above or otherwise in respect of the accounts receivable of Seller, Buyer shall (i) apply all collections for accounts receivable against the accounts receivable of a particular payor existing on the Closing Date on a first-billed, first-paid basis so that such collections are first applied against the earliest-date receivable of the applicable payor; provided, however, that if the payor designated a specific invoice or invoices to be paid or if Buyer otherwise reasonably determines that the payor intended a different application of the payment where the payment amount matches a specific outstanding invoice, then the payment shall be applied to the specific invoice or invoices so designated or intended; and (ii) use commercially reasonable efforts to collect its accounts receivable, including the sending of demand letters and other similar practices practices. (Seller, upon request, vii) Nothing herein shall be entitled deemed to prevent an indemnified party from making a written description Claim hereunder for potential or contingent claims or demands; provided that the Claim Notice sets forth the specific basis for any such contingent claim to the extent then feasible and the indemnified party has reasonable grounds to believe that such a claim may be made. (viii) No Party shall be liable under this Section 10.4 for any Damages relating to any matter to the extent that such matter directly resulted in an adjustment to the Purchase Price pursuant to Section 2.5. (ix) In no event shall any Party be liable for any consequential, special, multiple, exemplary or punitive damages arising under any legal or equitable theory or arising under or in connection with this Agreement, all of all steps taken which are hereby excluded by agreement of the Parties regardless of whether or not any Party to collect this Agreement has been advised of the possibility of such damages, except to the extent an account receivable)indemnified party is required to pay such damages in connection with a third party claim.

Miscellaneous Indemnity Provisions. Notwithstanding anything to the contrary contained in this Agreement, from and after the Effective Time: (ia) The indemnifying parties’ indemnities herein are intended solely for To the benefit extent that any of the indemnified partiesParent Parties has any claim for Damages arising out of this Agreement, the sole and exclusive remedy for such Parent Party shall be to make a claim for indemnification under, from the consideration, and are in no way intended topursuant to the limits set forth in, nor shall they, constitute an agreement for the benefit of, or be enforceable by, any other PersonAsset Purchase Agreement. (iib) Any payment by To the Seller Parties extent that the Stockholder or the Company has any claim against Parent for Damages arising out of any Damages of this Agreement, the Buyer Indemnified Parties sole and exclusive remedy for such Stockholder shall be deemed to be make a reduction in claim for indemnification under, from the consideration, and pursuant to the limits set forth in, the Asset Purchase PriceAgreement. (iii) In determining the amount of any Damages payable by an indemnifying party pursuant to this Article IX, such amount shall be reduced by the amount of any refund received by the indemnified parties of Taxes paid by them, to the extent such refund relates solely to the Damages or to the payments made pursuant to such Damages. In the event an indemnifying party has paid for any Damages which is later subject to reduction due to the receipt of a Tax refund relating solely to the Damages, the indemnified parties shall promptly pay the amount of such Tax refund to indemnifying party at the time actually received by the relevant indemnifying party. (iv) With respect to any indemnification obligation of the Seller Parties pursuant to any Damages related to the failure to collect accounts receivable of Seller which constituted a breach of Section 4.22 above, Buyer shall deliver and assign, on the date any such Damages are satisfied by a related payment of Damages to a member of the Buyer Indemnified Parties, without any further payment or consideration, such uncollected accounts receivable of Seller to which the Damages relates. (vc) For purposes of determining the amount of any Damages under Section 9.4(a8.2 or 8.3, (A) above, such amount shall be reduced by the amount of any insurance proceeds actually received by the indemnified party Indemnified Party in respect of the Damages; and (B) such amount shall exclude all consequential or special damages suffered by the Indemnified Party and all punitive damages awarded against the Indemnifying Party. (d) Notwithstanding anything in this Agreement or any statute or the common law to the contrary, the parties acknowledge and agree that the indemnification rights set forth in this Article 8 shall be the sole and exclusive remedy of the Indemnified Parties for Damages (net of any deductible amounts kind or associated incremental premiums that nature arising under this Agreement, any statute or the indemnified common law. (e) Each party reasonably expects agrees to incur as a result of the claim). In the event the indemnifying party has paid for use commercially reasonable efforts to mitigate any Damages which later the indemnified party receives any insurance proceeds with respect thereto, the indemnified party shall promptly pay the amount of such insurance proceeds to the indemnifying party at the time actually received by the indemnified party (net of any deductible amounts or associated incremental premiums that the indemnified party reasonably expects to incur as a result of the claim) up to the amount of the potential Damages for which the indemnifying other party has paidor parties is or may be obligated to indemnify such party under this Article 8. (vif) Prior Other than as set forth in Section 8.1, no Stockholder shall be liable to any indemnification by the Seller Parties Parent Party for Damages with respect to or in connection with any Damages related to the provisions breach of Section 4.22 above any representation or otherwise in respect warranty of the accounts receivable Company and/or the Stockholders for which any of Sellerthe Parent Parties had actual knowledge, Buyer shall (i) apply all collections for accounts receivable against based on a writing delivered by or on behalf of the accounts receivable of a particular payor existing Company, on and/or before the Closing Date on a first-billed, first-paid basis so that such collections are first applied against the earliest-date receivable of the applicable payor; provided, however, that if the payor designated a specific invoice or invoices to be paid or if Buyer otherwise reasonably determines that the payor intended a different application of the payment where the payment amount matches a specific outstanding invoice, then the payment shall be applied to the specific invoice or invoices so designated or intended; and (ii) use reasonable efforts to collect its accounts receivable, including the sending of demand letters and other similar practices (Seller, upon request, shall be entitled to a written description of all steps taken to collect an account receivable)Date.

Miscellaneous Indemnity Provisions. (i) The indemnifying parties’ indemnities indemnification obligations herein are intended solely for the benefit of the indemnified parties, and are in no way intended to, nor shall they, constitute an agreement for the benefit of, or be enforceable by, any other Person. (ii) Any payment by the Seller Parties of any Damages of the Buyer Indemnified Parties shall be deemed to be a reduction in the Purchase PricePrice for Tax purposes. (iii) In determining the amount of any Damages payable by an indemnifying party pursuant to this Article IXSection 9.4, such amount shall be reduced by the amount of any refund received by the indemnified parties of Taxes paid by them, to the extent such refund relates solely to the Damages or to the payments made pursuant to such Damages. In the event an indemnifying party has paid for any Damages which is later subject to reduction due to the receipt of a Tax refund relating solely to the Damages, the indemnified parties shall promptly pay the amount of such Tax refund to indemnifying party at the time actually received by the relevant indemnifying party. (iv) With respect to any indemnification obligation of the Seller Parties pursuant to any Damages related to the failure to collect accounts receivable of Seller which constituted a breach of Section 4.22 above, Buyer shall deliver and assignassign to Seller, on the date any such Damages are satisfied by a related payment of Damages to a member of the Buyer Indemnified Parties, without any further payment or consideration, such uncollected accounts receivable of Seller to which the Damages relates. (v) For purposes of determining the amount of any Damages under payable by an indemnifying party pursuant to Section 9.4(a) above9.4, such amount shall be reduced by the amount of any insurance proceeds actually received by the indemnified party in respect of the Damages (net of any deductible amounts or associated incremental premiums that the indemnified party reasonably expects to incur as a result of the claim). In the event the indemnifying party has paid for any Damages which later the indemnified party receives any insurance proceeds with respect thereto, the indemnified party shall promptly pay the amount of such insurance proceeds to the indemnifying party at the time actually received by the indemnified party (net of any deductible amounts or associated incremental premiums that the indemnified party reasonably expects to incur as a result of the claimamounts) up to the amount of the Damages for which the indemnifying party has paid. (vi) Prior to any indemnification by the Seller Parties for any Damages related to the provisions of Section 4.22 above or otherwise in respect of the accounts receivable of Seller, Buyer shall (i) apply all collections for accounts receivable against the accounts receivable of a particular payor existing on the Closing Date on a first-billed, first-paid basis so that such collections are first applied against the earliest-date receivable of the applicable payor; provided, however, that if the payor designated a specific invoice or invoices to be paid or if Buyer otherwise reasonably determines that the payor intended a different application of the payment where the payment amount matches a specific outstanding invoice, then the payment shall be applied to the specific invoice or invoices so designated or intended; and (ii) use commercially reasonable efforts to collect its accounts receivable, including the sending of demand letters and other similar practices practices. (Sellervii) Nothing herein shall be deemed to prevent an indemnified party from making a Claim hereunder for potential or contingent claims or demands; provided that the Claim Notice sets forth the specific basis for any such contingent claim to the extent then feasible and the indemnified party has reasonable grounds to believe that such a claim may be made. (viii) No Party shall be liable under this Section 9.4 for any Damages relating to any matter to the extent that such matter directly resulted in an adjustment to the Purchase Price pursuant to Section 2.5. (ix) In no event shall any Party be liable for any special, upon requestmultiple, exemplary or punitive damages arising under any legal or equitable theory or arising under or in connection with this Agreement, all of which are hereby excluded by agreement of the Parties regardless of whether or not any Party to this Agreement has been advised of the possibility of such damages, except to the extent an indemnified party is required to pay such damages in connection with a third party claim. (x) Notwithstanding anything to the contrary in this Agreement, none of the Seller Parties shall have any right of contribution against the Affiniti Companies with respect to any matter for which any Buyer Indemnified Party may be entitled to a written description indemnification from any Seller Party pursuant to this Agreement, and in furtherance of the foregoing, each Seller Party hereby unconditionally, fully and finally releases the Affiniti Companies from any claim of any kind or nature for, and waives any and all steps taken rights of every kind or character with respect to, indemnification or contribution by the Affiniti Companies with respect to collect an account receivable)any matter for which any Buyer Indemnified Party may be entitled to indemnification from any Seller Party pursuant to this Agreement.