Common use of Calculation of Damages Clause in Contracts

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 by the Indemnifying Party shall be net of any (i) amounts actually recovered by the Indemnified Party under applicable insurance policies, or from any other Person alleged to be responsible therefor and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs). In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into account. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 11.02 by the Indemnifying Party shall be net of any (i) any amounts actually recovered by the Indemnified Party under applicable insurance policies, policies or from any other Person alleged to be responsible therefor (net of any deductible or any expenses incurred in securing such recovery), and (ii) any Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages, but shall be netted against any Damages (taking into account any current payable under Section 11.02 by the Indemnifying Party, or future Tax costs). In computing repaid by the amount of any Indemnified Party, only if, as and when such Tax benefitbenefit is actually realized in cash or a reduction in Taxes otherwise due. For purposes of clause (ii) of the preceding sentence, the Indemnified Party second through eighth sentences of Section 9.07(b) shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into accountapply mutatis mutandis. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any deductible or expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 7.02 by the Indemnifying Party shall be net of any (i) any Tax benefit actually realized by such Indemnified Party or its Affiliates as a result of such Damages in the taxable year in which such Damages are incurred and (ii) any amounts actually recovered or recoverable by the Indemnified Party under applicable insurance policies, or from any other Person alleged to be responsible therefor and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs). In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into accounttherefor. If the Indemnified Party realizes any such Tax benefit or receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, Damages subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount so realized or received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting realizing or receiving such amount. (b) The Indemnifying Party shall not be liable for consequential, special, indirect, exemplary or punitive Damages or Damages for lost profits or diminution in value (other than any payable to a third party pursuant to a Third Party Claim).

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 10.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered or recoverable by the Indemnified Party under applicable insurance policies, or from any other Person alleged to be responsible therefor and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs)Damages. In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into account. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount. (b) The Indemnifying Party shall not be liable under Section 10.02 for any (i) consequential or punitive Damages or (ii) Damages for lost profits.

Calculation of Damages. Except as otherwise provided in this Article VIII, in any case where the Indemnified Party subsequently actually recovers from third parties any amount (aexcluding any amount obtained in respect of any Tax Benefit) The in respect of a matter with respect to which the Indemnifying Party has indemnified the Indemnified Party pursuant to this Article VIII, the Indemnified Party shall promptly pay over to the Indemnifying Party the amount so recovered (after deducting therefrom the full amount of the costs, Taxes or other expenses incurred by it in procuring such recovery), but not in excess of any Damages payable under Section 11.03 amount previously so paid by the Indemnifying Party shall be net to or on behalf of any (i) amounts actually recovered by the Indemnified Party under applicable insurance policies, or from in respect of such matter. The computation of the amount of any other Person alleged indemnity payment required to be responsible therefor and (ii) made pursuant to this Article VIII shall be reduced by the amount of the Tax benefit Benefit, if any, actually realized by the Indemnified Party arising from as a result of incurring the incurrence liability at issue in the taxable period during which such liability is incurred or payment of any such Damages in the subsequent two (taking into account any current or future Tax costs). In computing the amount of any 2) taxable periods, provided that, if such Tax benefitBenefit is actually realized after the applicable indemnity payment is made pursuant to this Article VIII, the Indemnified Party shall be deemed repay to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into account. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then promptly after such Indemnified Party shall promptly reimburse determination, any amount that the Indemnifying Party for any payment would not have had to pay pursuant to this Article VIII had such determination been made or expense incurred by at the time of such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amountpayment.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 by Notwithstanding anything to the contrary herein, the Indemnifying Party shall not be net of liable under this Agreement for any (i) amounts actually recovered by the Indemnified Party under applicable insurance policiesconsequential, indirect, incidental, special, exemplary or from any other Person alleged to be responsible therefor and punitive Damages, (ii) Tax benefit actually realized by Damages for lost profits or opportunities or diminution in value or Damages based on a multiple, or (iii) Damages arising out of changes after the Indemnified Party arising from the incurrence or payment of any such Damages Closing Date in Applicable Law. (taking into account any current or future Tax costs). In computing the amount of any such Tax benefit, the b) Each Indemnified Party shall be deemed use its reasonable best efforts to fully utilize, at mitigate any loss or Damages for which such Indemnified Party seeks indemnification under this Agreement. (c) Each Indemnified Party shall use its commercially reasonable efforts to collect any amounts available under insurance coverage; provided that the highest applicable marginal tax rate then in effect, all Tax items arising from foregoing shall have no effect on the incurrence or payment of any indemnified Damages, with such Tax items to be Indemnifying Party's obligations under this Section 11.5. To the last items taken into account. If the extent that an Indemnified Party receives any amounts under applicable pursuant to any such insurance policiesclaim, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse pay such amount to the Indemnifying Party; provided that (i) the Indemnifying Party for has discharged its obligations to the Indemnified Party in full with regard to the Damages relating to any payment made or expense incurred by such insurance claim and (ii) in no event shall the Indemnified Party be obligated to pay over to the Indemnifying Party any amount in excess of the amount received from the Indemnifying Party in connection with providing relation to such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amountDamages.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 11.02, 7.02(c) or 7.09(f) by the Indemnifying Party shall be net of any (i) amounts actually recovered by the Indemnified Party under applicable insurance policies, policies or from any other Person alleged to be responsible therefor (net of any out-of-pocket expenses incurred by such Indemnified Party in collecting such amount), and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs). In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into account. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 11.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered by the Indemnified Party under applicable insurance policiespolicies that were maintained by Seller prior to the Closing for the benefit of the Business, or from any other Person alleged to be responsible therefor and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs). In computing the amount of any such Tax benefit, Damages; provided that nothing herein shall require the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all commence litigation to recover or realize any such amounts or Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into accountbenefits. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount, but, in the case of amounts received under applicable insurance policies, only to the extent such payments, together with all similar amounts previously received, are in excess of the aggregate deductibles or retentions under such insurance policies.

Calculation of Damages. (ai) The amount of any Damages payable under Section 11.03 10.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered or recoverable by the Indemnified Party under applicable insurance policies, or from any other Person alleged to be responsible therefor and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs)Damages. In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into account. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount. (ii) The Indemnifying Party shall not be liable under Section 10.02 for any (i) consequential or punitive Damages or (ii) Damages for lost profits.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 10.02 or Section 10.03 by the Indemnifying Party shall be net of any (i) amounts actually recovered or recoverable by the Indemnified Party under applicable insurance policies, policies (including any deductibles) or from any other Person alleged to be responsible therefor and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs). In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into accounttherefor. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount. (b) The Indemnifying Party shall not be liable under Section 10.02(a) for any Damages relating to any matter (A) that is included in the Closing Balance Sheet as a specific liability or reserve to the extent that such liability or reserve reflects the Damages relating to such matter or (B) the Indemnified Party had otherwise been compensated for such matter pursuant to the Purchase Price adjustment under Section 2.04 to the extent such Damages relate to such matter.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 11.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered or recoverable by the Indemnified Party under applicable insurance policies, policies or from any other Person alleged to be responsible therefor therefor, and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs)Damages. In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into account. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 9.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered or recoverable by the Indemnified Party under applicable insurance policies, policies or from any other Person alleged to be responsible therefor and therefor, (ii) Tax tax cost incurred by the Indemnified Party arising from the receipt of indemnity payments and (iii) tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs)Damages. In computing the amount of any such Tax tax cost or tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax tax items arising from the receipt of any indemnity payment hereunder or the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into account. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 11.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered by the Indemnified Party under applicable insurance policies, policies or from any other Person alleged to be responsible therefor and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs)therefor. In computing the amount of any such Tax benefit, the Each Indemnified Party shall be deemed use commercially reasonable efforts to fully utilizecollect any amounts available under insurance coverage for any Damages payable under Section 11.02. If, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of with respect to any indemnified indemnifiable Damages, with such Tax items to be the last items taken into account. If the Indemnified Party receives any amounts from a third party (including under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, ) subsequent to an indemnification payment by the Indemnifying PartyParty with respect to such Damages, then such Indemnified Party shall shall, to the extent that the amounts received by the Indemnified Party are duplicative of Damages paid by an Indemnifying Party to the Indemnified Party in relation to the applicable indemnification claim, promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to a maximum of the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 9.2 by the Indemnifying Party shall be net of any (i) amounts actually recovered or recoverable by the Indemnified Party under applicable insurance policies, policies or from any other Person alleged to be responsible therefor and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs). In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into accountbenefit realized therefrom. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount. (a) Notwithstanding any other provision of this Agreement to the contrary, if at the Closing the Indemnified Party knows or has been advised by the Indemnifying Party that one or more of the representations and warranties made by the Indemnifying Party is inaccurate as of the Closing Date or the date made, then the Indemnified Party shall have no right or remedy after the Effective Time with respect to such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereof.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 11.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered by the Indemnified Party or its Affiliates under applicable third-party insurance policies, policies (other than Seller’s and its Affiliates’ respective self-insurance programs (including insurance policies issued by any Affiliate of Seller)) or from any other Person alleged to be responsible therefor therefor, and (ii) Tax benefit actually realized by the Indemnified Party or its Affiliates (in cash or as a direct reduction in Taxes otherwise due) arising from the incurrence or payment of any such Damages (taking into account and, for the avoidance of doubt, Damages shall be increased by any current Tax detriment actually realized from either the indemnifiable loss or future Tax costs). In computing the amount receipt of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into accountindemnification payments). If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or out-of-pocket expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any deductible, retention amounts, increases in insurance premiums (retroactive or otherwise) or other expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 9.2 by the Indemnifying Party shall be net of any (i) amounts actually recovered or recoverable by the Indemnified Party under applicable insurance policies, policies or from any other Person alleged to be responsible therefor and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs). In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into accountbenefit realized therefrom. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount. (b) Notwithstanding any other provision of this Agreement to the contrary, if at the Closing the Indemnified Party knows or has been advised by the Indemnifying Party that one or more of the representations and warranties made by the Indemnifying Party is inaccurate as of the Closing Date or the date made, then the Indemnified Party shall have no right or remedy after the Effective Time with respect to such inaccuracy and shall be deemed to have waived its rights to indemnification in respect thereof.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 11.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered by the Indemnified Party under applicable insurance policies, policies or from any other Person alleged to be responsible therefor (net of any (i) costs incurred in recovering such amounts including the amount of any deductible paid and increased cost of insurance and (ii) Net Tax benefit Benefit, if any, actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costsDamages). In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into account. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified PartyParty from such insurance policy or other Person, net of any expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) 11.4.1 The amount of any Damages payable under Section 11.03 Clause 11.2 by the Indemnifying Party shall be net of any (ia) amounts actually recovered received by the Indemnified Party under applicable insurance policies, policies or from any other Person alleged to be responsible therefor therefore, and (iib) Tax benefit actually realized by Benefit allowable to the Indemnified Party arising from or its Affiliates calculated in accordance with the incurrence or payment of any such Damages (taking into account any current or future Tax costs). In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then principles set forth in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into accountClause 8.7. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such that Indemnifying Party in connection with providing such that indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such that Indemnified Party in collecting such that amount. 11.4.2 Notwithstanding anything to the contrary contained in this Agreement, in no event shall any Indemnifying Party be liable to any Indemnified Party for any incidental, consequential, indirect, special, punitive, exemplary or other similar Damages (including loss of future revenue, income or profits, diminution of value or loss of business reputation or opportunity) in connection with this Agreement or the transactions contemplated hereby, unless such Damages are part of the Damages suffered by the Indemnified Party in connection with a Third Party Claim and awarded by a court of competent jurisdiction.

Calculation of Damages. (a9a) The amount of any Damages payable under Section 11.03 11.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered or recoverable by the Indemnified Party under applicable insurance policies, policies or from any other Person alleged to be responsible therefor therefor, and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs)Damages. In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into account. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 9.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered by the Indemnified Party under applicable insurance policies, or from any other Person alleged to be responsible therefor and for any such Damages or (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs)Damages. In computing the amount of any such Tax benefitBenefit actually realized, the Indemnified Party such Tax benefit shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all net of any Tax items detriment arising from the incurrence or payment receipt of any indemnified Damages, with such Tax items to be the last items taken into accountindemnification payment. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall must promptly reimburse notify the Indemnifying Party for any payment made or expense incurred by such and pay to the Indemnifying Party in connection with providing such indemnification payment up to the amount extent of the value of the benefit received by the Indemnified Party, net of any expenses Party (less the reasonable costs incurred by such the Indemnified Party in collecting such amount) within two Business Days after the benefit is received. Solely for purposes of calculating the amount of Damages incurred arising out of or relating to any breach of a representation or warranty (and not for purposes of determining whether or not a breach has occurred), the exceptions and qualifications referring to “Material Adverse Effect” or other materiality qualifications (or correlative terms) shall be disregarded.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 9.02(a), Section 9.03 or Section 9.04, as applicable, by the Indemnifying Party shall be net of any (i) amounts actually recovered by the Indemnified Party under applicable insurance policies, policies or from any other Person alleged to be responsible therefor (in each case net of any costs of collection) and (ii) Tax benefit actually realized by the Indemnified Party (in cash or as a reduction in Tax otherwise due) in the taxable year in which such Damages occur arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs). In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into account. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to after the Indemnifying Party makes an indemnification payment in respect of such Damages, and which amounts were not previously deducted from the Damages payable by the Indemnifying Party, then such the Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 11.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered by the Indemnified Party under applicable insurance policies, policies or from any other Person alleged to be responsible therefor and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment covering Damages in respect of any such Damages (taking into account any current or future Tax costs)which indemnification may be sought under Section 11.01. In computing the amount of any such Tax benefit, the The Indemnified Party shall be deemed use reasonable efforts to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising collect any amounts available under such insurance policies and from the incurrence or payment of any indemnified Damages, with such Tax items other Person alleged to be the last items taken into accountresponsible. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount, but, in the case of amounts received under applicable insurance policies, only to the extent such payments, together with all similar amounts previously received, are in excess of the aggregate deductibles or retentions under such insurance policies.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 11.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered by the Indemnified Party under applicable insurance policiespolicies (taking into account, however, the amount by which the premiums for any such policies increase as a result of such recovery) or from any other Person alleged to be responsible therefor therefore and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future for this purpose, Tax costs). In benefits shall be calculated by computing the amount of Taxes before and after inclusion of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with attributable to such Losses for which indemnification was made and treating such Tax items to be as the last items taken into accountclaimed for any taxable period and shall be reduced by the amount of any related Tax detriment suffered by the Indemnified Party). If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses and any other liabilities incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 10.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered by the Indemnified Party under applicable insurance policies, policies or from any other Person alleged to be responsible therefor therefor, and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs)Damages. In computing the amount of any such Tax benefit, the Each Indemnified Party shall be deemed use reasonable best efforts to fully utilizecollect any amounts available under insurance coverage, at the highest applicable marginal tax rate then in effect, all Tax items arising or from the incurrence or payment of any indemnified Damages, with such Tax items other Person alleged to be the last items taken into accountresponsible, for any Damages payable under Section 10.02. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount, and without interest.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 10.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered by the Indemnified Party under applicable insurance policiespolicies (but any such offset for amounts so recovered shall be reduced by the present value of any insurance policy increases to Indemnified Party relating thereto), from any other third party with indemnification obligations or from any other Person alleged to be responsible therefor and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs). In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into accounttherefor. If the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount actually received by the Indemnified Party, Party (but any such offset for amounts so recovered shall be reduced by the present value (calculated at a 10% interest rate) of any insurance policy increases to Indemnified Party relating thereto) and net of any expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 11.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered by the Indemnified Party under applicable insurance policies, policies (net of any increase in insurance premium incurred with respect to the receipt of indemnification payments) or from any other Person alleged to be responsible therefor therefor, and (ii) Tax benefit actually realized received by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs). In computing the amount net of any such Tax benefit, detriment incurred with respect to the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment receipt of any indemnified Damages, with such Tax items to be the last items taken into accountindemnification payments). If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount actually received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 9.02 by the Indemnifying Party shall (i) be net of any (i) amounts actually recovered by the Indemnified Party under applicable insurance policies, policies or from any other Person alleged to be responsible therefor and for such Damages, (ii) Tax be reduced by any tax benefit actually realized by or other reduction of the tax liability of the Indemnified Party arising from as a result of the incurrence facts and circumstances giving rise to any Damages hereunder and (iii) not include any indirect, special, consequential or payment punitive Damages or Damages for lost profits, except in the case of any such Damages (taking into account any current or future Tax costs). In computing the amount of any such Tax benefit, the Indemnified Third Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into accountClaims. If the Indemnified Party receives any amounts under applicable insurance policies, policies or from any other Person alleged to be responsible for any DamagesDamages or obtains any tax benefit referred to in Section 9.05(ii), in each case, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 11.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered or recoverable by the Indemnified Party under applicable insurance policies, or from any other Person alleged to be responsible therefor therefor, and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs). In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed use commercially reasonable efforts to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with recover such Tax items to be the last items taken into accountamounts. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amountamount (including any increased premiums under any such insurance policies). For purposes of calculating the unpaid Taxes of the Transferred Subsidiaries and HEE as of the Closing Date for which ACI is responsible pursuant to Section 8.02(d)(viii), in the case of any Taxes that are payable for a taxable period that includes (but does not end on) the Closing Date, the portion of such Tax related to the portion of such taxable period ending on the Closing Date shall, in the case of any Tax based upon or related to income, be deemed equal to the amount which would be payable if the relevant taxable period ended on the Closing Date.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 ‎Section 11.02 by the Indemnifying Party shall be net of any (i) any amounts actually recovered by the Indemnified Party under applicable insurance policies, policies or from any other Person alleged to be responsible therefor (net of any deductible or any expenses incurred in securing such recovery), and (ii) any Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages, which shall be netted against any Damages (taking into account any current payable under ‎Section 11.02 by the Indemnifying Party, or future Tax costs). In computing repaid by the amount of any Indemnified Party, only if, as and when such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then benefit is actually realized in effect, all Tax items arising from the incurrence cash or payment of any indemnified Damages, with such Tax items to be the last items taken into accounta reduction in Taxes otherwise due. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any deductible or expenses incurred by such Indemnified Party in collecting such amount.