Common use of Determination of Damages and Related Matters Clause in Contracts

Determination of Damages and Related Matters. (a) In calculating any amounts payable to either party under Sections 9.3 and 9.4: (i) the indemnifying party shall receive credit for any reduction in the indemnified party's tax liability as a result of the facts giving rise to the claim for indemnification and any insurance recoveries by the indemnified party; (ii) any payments shall be deemed an increase or decrease, as the case may be, in the Purchase Price., and (iii) no amount shall be included for the indemnified party's special or consequential damages. (b) EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY HAS MADE OR SHALL HAVE LIABILITY FOR ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION REGARDING THE BUSINESS. (c) Neither the Buyer, on the one hand, nor Cognizant and Seller, on the other hand, shall have liability to the other under this Agreement or otherwise for breach of warranty or agreement, or misrepresentation, unless, and only to the extent that, the aggregate amount of the losses, liabilities, damages and expenses of that party from all claims under this Agreement or otherwise for breach of warranty or agreement, and misrepresentation, (other than of Sections 4.24 and 4.25) exceeds $35,000. Cognizant and Seller shall have no liability to Buyer under this Agreement or otherwise for a breach or inaccuracy of the representation and warranty set forth in Section 4.25 unless, and only to the extent that, the aggregate amount of the losses, liabilities, damages and expenses of the Buyer for breach of such representation or warranty exceeds the sum of $1,500,000 plus the amount of any recovery by Buyer under Section 9.3 hereof for a breach or inaccuracy of any representation or warranty other than in Section 4.25, where such recovery is from the same underlying facts or events. Cognizant and Seller shall not have liability to Buyer under this Agreement or otherwise for a breach or inaccuracy of the representation and warranty set forth in Section 4.24 unless, and only to the extent that, the aggregate amount of the losses, liabilities, damages and expenses of that party from all claims under this Agreement or otherwise for breach of the representation and warranty in Section 4.24, exceeds $50,000.

Determination of Damages and Related Matters. (a) In calculating any amounts amount payable to either party under Sections 9.3 and 9.4: (i) the indemnifying party Purchaser pursuant to Section 9.1 hereof or payable to the Seller pursuant to Section 9.2 hereof, the Seller or the Purchaser, as the case may be, shall receive credit for (i) any reduction in the indemnified party's tax liability benefit allowable as a result of the facts giving rise to the claim for indemnification indemnification, and any insurance recoveries by the indemnified party; (ii) any payments insurance recoveries; PROVIDED, HOWEVER, that no amount shall be deemed an increase included for the Seller's or decreasethe Purchaser's, as the case may be, in special, consequential or punitive damages as between the Purchase PriceSeller and the Purchaser (as distinguished from third party recoveries). (b) On the date six months after the Closing Date, the Seller and the Purchaser shall calculate the amount payable to the Purchaser pursuant to Section 9.1 hereof and the amount payable to the Seller pursuant to Section 9.2 hereof, which amounts remain unpaid and outstanding as of such time, and the Purchaser shall add or subtract, as the case may be, the difference between such amounts (the "Difference") from the total amount due to the Seller under the Note. In the event the Seller and the Purchaser shall not agree on the calculation of the Difference within five days after such date, the Purchaser shall: (i) add or subtract, as the case may be, its calculation of the Difference from the total amount due to the Seller at such time pursuant to the Note, (ii) pay the total amount due to the Seller under the Note less the Purchaser's calculation of the Difference, and (iii) no amount the Seller and the Purchaser shall be included for the indemnified party's special or consequential damages. (b) EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY HAS MADE OR SHALL HAVE LIABILITY FOR ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION REGARDING THE BUSINESSresolve such dispute in accordance with Section 10.4 hereof. (c) Neither The Seller and the BuyerPurchaser agree that, on the one handexcept as specifically set forth in this Agreement, nor Cognizant and Seller, on the other hand, neither party has made or shall have liability to the other under this Agreement or otherwise for breach of warranty or agreement, or misrepresentation, unless, and only to the extent that, the aggregate amount of the losses, liabilities, damages and expenses of that party from all claims under this Agreement or otherwise for breach of warranty or agreement, and misrepresentation, (other than of Sections 4.24 and 4.25) exceeds $35,000. Cognizant and Seller shall have no liability to Buyer under this Agreement or otherwise for a breach or inaccuracy of the representation and warranty set forth in Section 4.25 unless, and only to the extent that, the aggregate amount of the losses, liabilities, damages and expenses of the Buyer for breach of such representation or warranty exceeds the sum of $1,500,000 plus the amount of any recovery by Buyer under Section 9.3 hereof for a breach or inaccuracy of any representation or warranty, express or implied, in connection with the transactions contemplated by this Agreement, including in the case of the Seller and its representatives any representation or warranty, express or implied, as to the accuracy or completeness of any information regarding the Businesses, the Purchased Assets and the Assumed Liabilities. The Purchaser acknowledges and agrees that the Purchaser and its representatives have the experience and knowledge to evaluate the Businesses, the Purchased Assets and the Assumed Liabilities, that the Purchaser and its representatives have had access to such of the information and documents and to such of the Businesses, the Purchased Assets and the Assumed Liabilities as the Purchaser and its representatives shall have requested to see and/or review, that the Purchaser and its representatives have had a full opportunity to meet with appropriate management and other employees of the Seller to discuss the Businesses, the Purchased Assets and the Assumed Liabilities; and that, in determining to purchase the Purchased Assets and assume the Assumed Liabilities, the Purchaser has made its own investigation into, and based thereon the Purchaser has formed an independent judgment concerning, the Businesses, the Purchased Assets and the Assumed Liabilities. It is therefore expressly understood and agreed that, except for the representations and warranties made and as otherwise expressly provided herein, the Purchaser accepts the condition of the Businesses , the Purchased Assets and the Assumed Liabilities "AS IS, WHERE IS" and without any representation, warranty other than in Section 4.25or guarantee, where such recovery is from the same underlying facts express or events. Cognizant and Seller shall not have liability implied, as to Buyer under this Agreement merchantability, fitness for a particular purpose or otherwise for a breach as to the condition, size, extent, quantity, type or inaccuracy value of the representation and warranty set forth in Section 4.24 unless, and only to the extent thatBusinesses, the aggregate amount of Purchased Assets or the losses, liabilities, damages and expenses of that party from all claims under this Agreement or otherwise for breach of the representation and warranty in Section 4.24, exceeds $50,000Assumed Liabilities.

Determination of Damages and Related Matters. (a) In calculating Upon the occurrence of any amounts payable event which would give rise to either a claim by a party under Sections 9.3 (the "Claimant Party") against, or to a right of defense and 9.4: indemnity against a party (ithe "Indemnifying Party") the indemnifying party shall receive credit for any reduction pursuant to this Section , or in the indemnified party's tax liability event that any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which a party (the facts giving rise "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 for or proceedings, provided that the failure of the Claimant Party to give notice shall not affect the indemnification and any insurance recoveries by obligations of the indemnified party; 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 (ii) any payments who shall be deemed an increase or decreasereasonably acceptable to a representative of the Indemnifying Party). The Indemnifying Party shall have the right, as but not the case may beobligation, to participate, at its own expense, in the Purchase Price.defense thereof by counsel of their choice. In addition, and (iii) no amount 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 included 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 indemnified partyClaimant 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 special consent, provided that any such consent shall not be unreasonably withheld or consequential damagesdelayed. (b) EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENTProvided that the Indemnifying Party has not elected to assume the defense of the matter in accordance with the provisions of Section , NEITHER PARTY HAS MADE OR SHALL HAVE LIABILITY FOR ANY REPRESENTATION OR WARRANTYas 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, EXPRESS OR IMPLIEDarbitration board or administrative agency of competent jurisdiction, IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENTand the expiration of the time in which to appeal therefrom, INCLUDING ANY REPRESENTATION OR WARRANTYor a settlement shall have been consummated, EXPRESS OR IMPLIED, AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION REGARDING THE BUSINESSthe Claimant Party shall forward to the Indemnifying Party 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 the Claimant Party by certified or bank cashier's check within ten (10) days of such notice. (c) Neither Each of the Buyer, on parties shall fully cooperate with the one hand, nor Cognizant and Seller, on others in connection with any proceeding for which a claim of indemnification may be made hereunder. If any dispute shall arise with respect to the other hand, shall have liability obligations of any party to the other parties under this Agreement or otherwise for breach of warranty or agreement, or misrepresentation, unlessSection , and only the parties shall be unable to the extent thatresolve such dispute after good faith negotiations, the aggregate amount of parties shall, upon the losses, liabilities, damages and expenses of that party from all claims under this Agreement or otherwise for breach of warranty or agreement, and misrepresentation, (other than of Sections 4.24 and 4.25) exceeds $35,000. Cognizant and Seller shall have no liability to Buyer under this Agreement or otherwise for a breach or inaccuracy of the representation and warranty set forth in Section 4.25 unless, and only to the extent that, the aggregate amount of the losses, liabilities, damages and expenses of the Buyer for breach of such representation or warranty exceeds the sum of $1,500,000 plus the amount request of any recovery by Buyer under party involved, submit the dispute to arbitration in accordance with Section 9.3 hereof for a breach or inaccuracy of any representation or warranty other than in Section 4.25, where such recovery is from the same underlying facts or events. Cognizant and Seller shall not have liability to Buyer under this Agreement or otherwise for a breach or inaccuracy of the representation and warranty set forth in Section 4.24 unless, and only to the extent that, the aggregate amount of the losses, liabilities, damages and expenses of that party from all claims under this Agreement or otherwise for breach of the representation and warranty in Section 4.24, exceeds $50,000.

Determination of Damages and Related Matters. (a) In calculating any amounts payable to either party under Sections 9.3 and 9.4: (i) the indemnifying party Except as specifically set forth in this Agreement, neither Party has made or shall receive credit have liability for any reduction representation or warranty, express or implied, in connection with the indemnified party's tax liability transactions contemplated by this Agreement, including any representation or warranty, express or implied, as a result of the facts giving rise to the claim accuracy or completeness of any information regarding the Company or its Subsidiaries. The Parties agree that the remedies provided in this Section 6 are the exclusive remedies for indemnification breach of warranty and any insurance recoveries by the indemnified party; agreement, and misrepresentation, under this Agreement. (ii) any payments shall be deemed an increase or decrease, as the case may be, in the Purchase Price., and (iii) no amount shall be included for the indemnified party's special or consequential damages. (b) EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY HAS MADE OR SHALL HAVE LIABILITY FOR ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION REGARDING THE BUSINESS. (c) Neither the Buyer, on the one hand, nor Cognizant and Seller, on the other hand, The Seller shall have no liability to the other under this Agreement or otherwise for any Purchaser's Losses resulting from a breach of warranty or agreement, or misrepresentationmisrepresentation contained in Section 4 hereof unless, and only to the extent that, the aggregate amount of Purchaser's Losses from all claims for breach of any warranty, agreement or misrepresentation under Section 4 hereof exceeds $50,000. The amount of Purchaser's Losses shall not include any amount for breach of any warranty or agreement, or misrepresentation contained in Sections 4(n), 4(p) or 4(t) unless, and only to the extent that, the aggregate amount of the losses, liabilities, damages and expenses of that party from all claims for breach of any warranty, agreement or misrepresentation under this Agreement or otherwise Section 4(n), 4(p) and 4(t) hereof exceeds $150,000. In addition, the Seller shall have no liability for breach of warranty or agreement, and misrepresentationor misrepresentation under Section 4 hereof, (other than of Sections 4.24 and 4.25) exceeds $35,000. Cognizant and Seller shall have no liability to Buyer under this Agreement or otherwise for a breach or inaccuracy of the representation and warranty set forth in Section 4.25 unless, and only except to the extent thatof the Fund (as defined in the escrow agreement dated the date hereof among the Purchaser, the aggregate amount of Seller and IBJ (the losses, liabilities, damages "ESCROW AGREEMENT")) and expenses of then only in accordance with and pursuant to the Buyer for breach of such representation or warranty exceeds the sum of $1,500,000 plus the amount of Escrow Agreement. (iii) In calculating any recovery by Buyer amounts payable under Section 9.3 hereof 6(a), (A) the indemnifying Party shall receive credit for a breach any insurance recoveries by the indemnified Party; and (B) no amount shall be included for the indemnified Party's special or inaccuracy of any representation or warranty other than in Section 4.25, where such recovery is from the same underlying facts or events. Cognizant and Seller shall not have liability to Buyer under this Agreement or otherwise for a breach or inaccuracy of the representation and warranty set forth in Section 4.24 unless, and only to the extent that, the aggregate amount of the losses, liabilities, damages and expenses of that party from all claims under this Agreement or otherwise for breach of the representation and warranty in Section 4.24, exceeds $50,000consequential damages.