Post-Closing Litigation Losses Sample Clauses

Post-Closing Litigation Losses. Notwithstanding anything in this Agreement to the contrary, Seller shall not be liable to the Purchaser Indemnified Parties for Post-Closing Litigation Losses incurred by the Purchaser Indemnified Parties during the first three years following the Closing Date until the aggregate amount of Post-Closing Litigation Losses incurred in each successive twelve (12) month period beginning on the Closing Date and ending on the third anniversary of the Closing Date exceeds $2,000,000, after which the Purchaser Indemnified Parties shall be entitled to receive the amount of all such Losses incurred in excess of $2,000,000; provided that under this Section 10.4(a)(ii), the amount of any Post-Closing Litigation Loss shall be calculated in accordance with Section 10.4(d); and provided further that such Losses shall not be subject to any indemnity cap. To the extent any Action involves both (1) Post-Closing Litigation Losses and (2) Losses attributable to facts, circumstances, matters, or events occurring after the Closing Date, Purchaser and Seller shall equitably allocate liability for Losses between them based on Losses attributable to facts, circumstances, matters, or events occurring prior to the Closing Date (for which Seller shall be liable to the Purchaser Indemnified Parties) and Losses attributable to facts, circumstances, matters, or events occurring after the Closing Date (for which Seller shall not be liable to the Purchaser Indemnified Parties). If Purchaser and Seller cannot agree on an equitable allocation of liability for Losses described in the immediately preceding sentence, Purchaser and Seller shall jointly engage the Independent Accounting Firm to resolve such dispute in accordance with the standards set forth in this Section 10.4(a)(ii). Seller and Purchaser shall use reasonable best efforts to cause the Independent Accounting Firm to render a written decision resolving the matters submitted to the Independent Accounting Firm within thirty (30) days of such submission. The Independent Accounting Firm shall address only those items in dispute. The Independent Accounting Firm shall determine, on such basis, the disputed equitable allocation of liability for Losses. The written decision of the Independent Accounting Firm shall be final and binding on all parties hereto. The fees of the Independent Accounting Firm shall be borne by the parties in relative proportion to change in such equitable allocation from that calculated by each respective party.