Common use of Calculation of Damages Clause in Contracts

Calculation of Damages. Notwithstanding anything to the contrary herein: (a) No Buyer Indemnitee shall be entitled to indemnification to the extent a Liability or reserve relating to the matter giving rise to such Damages has been included in the calculation of Closing Date Indebtedness. (b) Notwithstanding anything to the contrary contained in this Agreement: (i) an Indemnifying Party shall not be liable for any claim for indemnification pursuant to Section 10.02(a)(i) or Section 10.02(b)(i), as the case may be, (A) unless the amount of Damages actually incurred by the Indemnified Parties in respect of such claim exceeds $5,000 and (B) unless and until the aggregate amount of indemnifiable Damages which may be recovered from the Indemnifying Party equals or exceeds $240,000, in which case the Indemnifying Party shall be liable for the full amount of such Damages from the first dollar thereof; (ii) the maximum aggregate amount of indemnifiable Damages which may be recovered from an Indemnifying Party arising out of or relating to the causes set forth in Section 10.02(a)(i) or Section 10.02(b)(i), as the case may be, shall be an amount equal to $3,200,000; and provided, that the foregoing clauses (i) and (ii) shall not apply to Damages arising out of or relating to the inaccuracy or breach of any Fundamental Representation. (c) Each Indemnified Party shall have a duty to use commercially reasonable efforts to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby, provided, that engaging in mitigating efforts is not a precondition to the making of a claim and such duty with respect to Taxes shall only apply to the extent expressly set forth in the last sentence of this Section 10.04(c). The Indemnifying Party shall have the right, but not the obligation, and shall be afforded the opportunity by the Indemnified Party to the extent reasonably possible, to take all available steps to minimize Damages for which the Indemnified Party is entitled to indemnification before such Damages actually are incurred by the Indemnified Party. Buyer shall take such actions as are reasonably requested by Seller to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby with respect to Taxes, provided that Seller shall bear and shall, upon the request of Buyer, fund in advance any out-of-pocket costs and expenses actually incurred by Buyer in complying with any such request (and Buyer may condition such actions on the prior payment of such amounts by Seller). (d) The amount of any Damage for which an Indemnified Party claims indemnification under this Agreement shall be reduced by any available insurance proceeds with respect to such Damage. (e) In the event an Indemnified Party shall recover Damages in respect of a claim of indemnification under this Article X, no other Indemnified Party shall be entitled to recover the same Damages in respect of a claim for indemnification. (f) For purposes of Section 10.02(a)(i) or Section 10.02(b)(i), (i) the determination of whether there has been an inaccuracy in or breach of a representation or warranty in this Agreement and (ii) the calculation of any Damage arising out of any inaccuracy in or breach of any representation or warranty shall each be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty; provided that, such materiality read out shall not apply to the representations and warranties contained in Section 4.06 (Financial Statements), Section 4.07(b) (No Material Adverse Effect), the first sentence of Section 4.15 (Permits), Section 4.17(a) (Employee Benefit Plans), and the defined term “Material Contract”. (g) If, prior to the Initial Closing, any Party (such Party, the “Waiving Party”) has knowledge of any breach by the other Party of any covenant or agreement contained in this Agreement and the Waiving Party proceeds with the Initial Closing, the Waiving Party shall be deemed to have waived such breach and the Waiving Party and the other Buyer Indemnitees or Seller Indemnitees, as applicable, shall not be entitled to indemnification pursuant to this Article X to xxx for damages or to assert any other right or remedy arising from any matters relating to such condition or breach, notwithstanding anything to the contrary contained herein or in any certificate delivered pursuant hereto and the Indemnified Parties hereby waive to the fullest extent permitted under applicable Law the remedy of rescission.

Calculation of Damages. Notwithstanding anything to the contrary herein: (a) No Buyer Indemnitee shall be entitled to indemnification to the extent a Liability or reserve relating to the matter giving rise to such Damages has been included in the calculation any other provision of Closing Date Indebtedness. (b) Notwithstanding anything to the contrary contained in this Agreement: (i) an Indemnifying Party , in no event shall not Seller or Purchaser be liable for diminution of value or punitive, consequential, indirect, incidental or special damages of any claim for indemnification pursuant to Section 10.02(a)(i) kind or Section 10.02(b)(i)nature, as regardless of the case may beform of action through which such damages are sought unless such damages are actually recovered or recovered by a third party in a Third Party Claim. Notwithstanding the foregoing, (A) unless the amount of any Damages actually incurred for which indemnification is provided under this Article VI shall be net of any amounts recovered or recoverable by the Indemnified Parties in Party under any Contracts or applicable insurance policies with respect to such Damages. To the extent an Indemnified Party recognizes any net Tax Benefits (as defined immediately below) as a result of any Damages for which indemnity is paid under this Article VI, the Indemnified Party shall pay the amount of such claim exceeds $5,000 and Tax Benefits (B) unless and until but not in excess of the aggregate amount of indemnifiable Damages which may be recovered indemnification payments received from the Indemnifying Party equals or exceeds $240,000, in which case with respect to such Damages) to the Indemnifying Party shall be liable for the full amount within 60 days of such Damages from the first dollar thereof; (ii) the maximum aggregate amount of indemnifiable Damages which may be recovered from an Indemnifying Party arising out of or relating to the causes set forth in Section 10.02(a)(i) or Section 10.02(b)(i), as the case may be, shall be an amount equal to $3,200,000; and provided, that the foregoing clauses (i) and (ii) shall not apply to Damages arising out of or relating to the inaccuracy or breach of any Fundamental Representation. (c) Each Indemnified Party shall have a duty to use commercially reasonable efforts to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby, provided, that engaging in mitigating efforts is not a precondition to the making of a claim and such duty with respect to Taxes shall only apply to the extent expressly set forth in the last sentence of this Section 10.04(c). The Indemnifying Party shall have the right, but not the obligation, and shall be afforded the opportunity Tax Benefits being recognized by the Indemnified Party (to the extent reasonably possible, such Tax Benefits are realized prior to take all available steps to minimize Damages for which the Indemnified Party is entitled to indemnification before such Damages actually are incurred by the Indemnified Party. Buyer shall take such actions as are reasonably requested by Seller to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby with respect to Taxes, provided that Seller shall bear and shall, upon the request of Buyer, fund in advance any out-of-pocket costs and expenses actually incurred by Buyer in complying with any such request (and Buyer may condition such actions on the prior payment of such amounts by Seller). (d) The the indemnity for the Damages, the amount of any Damage the indemnity for which an Indemnified Party claims indemnification under this Agreement the Damages shall be reduced by any available insurance proceeds with respect to such Damage. (e) In the event an Indemnified Party shall recover Damages in respect amount of a claim of indemnification under Tax Benefits actually realized). For this Article X, no other Indemnified Party shall be entitled to recover the same Damages in respect of a claim for indemnification. (f) For purposes of Section 10.02(a)(i) or Section 10.02(b)(i), (i) the determination of whether there has been an inaccuracy in or breach of a representation or warranty in this Agreement and (ii) the calculation of any Damage arising out of any inaccuracy in or breach of any representation or warranty shall each be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty; provided that, such materiality read out shall not apply to the representations and warranties contained in Section 4.06 (Financial Statements), Section 4.07(b) (No Material Adverse Effect)purpose, the first sentence of Section 4.15 (Permits), Section 4.17(a) (Employee Benefit Plans), and the defined term “Material Contract”. (g) If, prior to the Initial Closing, any Party (such Party, the “Waiving Party”) has knowledge of any breach by the other Party of any covenant or agreement contained in this Agreement and the Waiving Party proceeds with the Initial Closing, the Waiving Indemnified Party shall be deemed to have waived such breach recognize a tax benefit (“Tax Benefit”) with respect to a taxable year only if, and the Waiving Party and the other Buyer Indemnitees or Seller Indemnitees, as applicable, shall not be entitled to indemnification pursuant to this Article X to xxx for damages or to assert any other right or remedy arising from any matters relating to such condition or breach, notwithstanding anything to the contrary contained herein or in any certificate delivered pursuant hereto and extent that, the Indemnified Parties hereby waive Party’s liability for cash Taxes for such taxable year, calculated by excluding any Tax items attributed to the fullest extent permitted under applicable Law Damages, exceeds the remedy Indemnified Party’s actual liability for cash Taxes for such taxable year, calculated by taking into account any Tax items attributed to (i) the Damages or (ii) the receipt of rescissionany indemnification payments.

Calculation of Damages. Notwithstanding anything to (i) For the contrary herein: (a) No Buyer Indemnitee purposes of this Article 8, the amount of Damages incurred or suffered by any Indemnified Party shall be entitled calculated (A) net of any amount actually recovered by such Indemnified Party from a third party alleged to indemnification be responsible for such Damages, less the costs and expenses incurred to the extent a Liability or reserve relating to the matter giving rise to obtain such recovery; and (B) net of any third party insurance proceeds actually received by such Indemnified Party for such Damages has been included under any insurance policy, (excluding self-insurance arrangements) less the costs and expenses incurred by such Indemnified Party to collect any such insurance proceeds (including reasonable attorneys’ fees, any deductibles or self- insured retentions, any increases in the calculation of Closing Date Indebtednesspremium or any retroactive premium adjustments directly related to obtaining such insurance proceeds). (bii) Notwithstanding anything to the contrary contained in this Agreement: (i) an Indemnifying Any Indemnified Party shall not be liable entitled to double recovery for any claim for indemnification pursuant to Section 10.02(a)(i) or Section 10.02(b)(i)Damages even though the Damages may have resulted from the breach of more than one of the representations, as the case may bewarranties, (A) unless the amount of Damages actually incurred agreements and covenants made by the Indemnified Parties in respect of such claim exceeds $5,000 and (B) unless and until the aggregate amount of indemnifiable Damages which may be recovered from the Indemnifying Party equals or exceeds $240,000, in which case the Indemnifying Party shall be liable for the full amount of such Damages from the first dollar thereof; (ii) the maximum aggregate amount of indemnifiable Damages which may be recovered from an Indemnifying Party arising out of or relating to the causes set forth in Section 10.02(a)(i) or Section 10.02(b)(i), as the case may be, shall be an amount equal to $3,200,000; and provided, that the foregoing clauses (i) and (ii) shall not apply to Damages arising out of or relating to the inaccuracy or breach of any Fundamental Representationthis Agreement. (c) Each Indemnified Party shall have a duty to use commercially reasonable efforts to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby, provided, that engaging in mitigating efforts is not a precondition to the making of a claim and such duty with respect to Taxes shall only apply to the extent expressly set forth in the last sentence of this Section 10.04(c). The Indemnifying Party shall have the right, but not the obligation, and shall be afforded the opportunity by the Indemnified Party to the extent reasonably possible, to take all available steps to minimize Damages for which the Indemnified Party is entitled to indemnification before such Damages actually are incurred by the Indemnified Party. Buyer shall take such actions as are reasonably requested by Seller to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby with respect to Taxes, provided that Seller shall bear and shall, upon the request of Buyer, fund in advance any out-of-pocket costs and expenses actually incurred by Buyer in complying with any such request (and Buyer may condition such actions on the prior payment of such amounts by Seller). (diii) The amount of any Damage for which an Purchaser Indemnified Party claims indemnification under this Agreement shall be reduced by any available insurance proceeds with respect to such Damage. (e) In the event an Indemnified Party shall recover Damages in respect of a claim of indemnification under this Article X, no other Indemnified Party shall be entitled to recover the same Damages in respect of a claim for indemnification. (f) For purposes of Section 10.02(a)(i) or Section 10.02(b)(i), (i) the determination of whether there has been an inaccuracy in or breach of a representation or warranty in this Agreement and (ii) the calculation of any Damage arising out of any inaccuracy in or breach of any representation or warranty shall each be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty; provided that, such materiality read out shall not apply to the representations and warranties contained in Section 4.06 (Financial Statements), Section 4.07(b) (No Material Adverse Effect), the first sentence of Section 4.15 (Permits), Section 4.17(a) (Employee Benefit Plans), and the defined term “Material Contract”. (g) If, prior to the Initial Closing, any Party (such Party, the “Waiving Party”) has knowledge of any breach by the other Party of any covenant or agreement contained in this Agreement and the Waiving Party proceeds with the Initial Closing, the Waiving Party shall be deemed to have waived such breach and the Waiving Party and the other Buyer Indemnitees or Seller Indemnitees, as applicable, Parties shall not be entitled to indemnification for any Damages relating to any matter to the extent (but only to the extent) that the amount of such Damages is specifically and identifiably reflected as a Current Liability in the calculation of the Final Closing Working Capital pursuant to this Article X Section 2.3. (iv) In no event shall an Indemnified Party be entitled to xxx make an indemnification claim for any punitive, special, incidental, indirect or consequential damages of any kind or to assert any other right or remedy arising from any matters relating to nature, regardless of the form of action through which such condition or breachdamages are sought, notwithstanding anything except to the contrary contained herein extent such damages are awarded to a third party in connection with a Third Party Claim or except in connection with any certificate delivered pursuant hereto and fraud, or fraudulent or intentional misrepresentation. In no event shall the Indemnified Parties hereby waive Seller be liable for lost profits resulting from an alleged breach of this Agreement, even if under Applicable Law, such lost profits would not be considered consequential or special damages, except to the fullest extent permitted under applicable Law the remedy of rescissiondamages for such lost profits are awarded to a third party in connection with a Third Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentation.

Calculation of Damages. Notwithstanding anything to the contrary herein: (a) No Buyer Indemnitee The amount of any Damages payable under Article 8 or 9 or Section 11.02 by the Indemnifying Party shall be entitled net of any amounts recovered or recoverable by the Indemnified Party under applicable insurance policies and any Tax Benefit realized by the Indemnified Party arising from the incurrence or payment of any such Damages. In computing the amount of any such Tax Benefit, the Indemnified Party shall be deemed fully to indemnification to utilize, at the extent a Liability highest marginal tax rate then in effect, all Tax items arising from the incurrence or reserve relating to the matter giving rise to such Damages has been included in the calculation payment of Closing Date Indebtednessany indemnified Damages. (b) Notwithstanding anything to the contrary contained in this Agreement: (i) an The Indemnifying Party shall not be liable under Article 8 or 9 or Section 11.02 for any claim for indemnification pursuant (i) Damages relating to Section 10.02(a)(i) or Section 10.02(b)(i), as any matter to the case may be, extent that (A) unless there is included in the amount of Damages actually incurred by Closing Balance Sheet a specific liability or reserve relating to such matter or the Indemnified Parties in respect of Party has otherwise been compensated for such claim exceeds $5,000 and (B) unless and until the aggregate amount of indemnifiable Damages which may be recovered from the Indemnifying Party equals or exceeds $240,000, in which case the Indemnifying Party shall be liable for the full amount of such Damages from the first dollar thereof; (ii) the maximum aggregate amount of indemnifiable Damages which may be recovered from an Indemnifying Party arising out of or relating matter pursuant to the causes set forth in Purchase Price adjustment under Section 10.02(a)(i) 2.05, consequential Damages or Section 10.02(b)(i)Damages for lost profits. For the purposes of this Agreement, as the case may be, shall be an amount equal to $3,200,000; and provided, that the foregoing clauses (i) and (ii) Damages shall not apply to Damages arising out be determined through any multiple of earnings approach or relating to variant thereof and shall take account of the inaccuracy or breach time value of any Fundamental Representationmoney. (c) Each Notwithstanding any other provision of this Agreement to the contrary, if on the Closing Date the Indemnified Party knows of any information that would cause one or more of the representations and warranties made by the Indemnifying Party to be inaccurate, the Indemnified Party shall have a duty to use commercially reasonable efforts to mitigate any Damages arising out of no right or relating to this Agreement or remedy after the transactions contemplated hereby, provided, that engaging in mitigating efforts is not a precondition to the making of a claim and such duty with respect to Taxes shall only apply to the extent expressly set forth in the last sentence of this Section 10.04(c). The Indemnifying Party shall have the right, but not the obligation, and shall be afforded the opportunity by the Indemnified Party to the extent reasonably possible, to take all available steps to minimize Damages for which the Indemnified Party is entitled to indemnification before such Damages actually are incurred by the Indemnified Party. Buyer shall take such actions as are reasonably requested by Seller to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby with respect to Taxes, provided that Seller shall bear and shall, upon the request of Buyer, fund in advance any out-of-pocket costs and expenses actually incurred by Buyer in complying with any such request (and Buyer may condition such actions on the prior payment of such amounts by Seller). (d) The amount of any Damage for which an Indemnified Party claims indemnification under this Agreement shall be reduced by any available insurance proceeds Closing with respect to such Damage. (e) In the event an Indemnified Party shall recover Damages in respect of a claim of indemnification under this Article X, no other Indemnified Party shall be entitled to recover the same Damages in respect of a claim for indemnification. (f) For purposes of Section 10.02(a)(i) or Section 10.02(b)(i), (i) the determination of whether there has been an inaccuracy in or breach of a representation or warranty in this Agreement and (ii) the calculation of any Damage arising out of any inaccuracy in or breach of any representation or warranty shall each be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty; provided that, such materiality read out shall not apply to the representations and warranties contained in Section 4.06 (Financial Statements), Section 4.07(b) (No Material Adverse Effect), the first sentence of Section 4.15 (Permits), Section 4.17(a) (Employee Benefit Plans), and the defined term “Material Contract”. (g) If, prior to the Initial Closing, any Party (such Party, the “Waiving Party”) has knowledge of any breach by the other Party of any covenant or agreement contained in this Agreement and the Waiving Party proceeds with the Initial Closing, the Waiving Party shall be deemed to have waived such breach and the Waiving Party and the other Buyer Indemnitees or Seller Indemnitees, as applicable, shall not be entitled its rights to indemnification pursuant to this Article X to xxx for damages or to assert any other right or remedy arising from any matters relating to such condition or breach, notwithstanding anything to the contrary contained herein or in any certificate delivered pursuant hereto and the Indemnified Parties hereby waive to the fullest extent permitted under applicable Law the remedy of rescissionrespect thereof.

Calculation of Damages. Notwithstanding anything to (i) For the contrary herein: (a) No Buyer Indemnitee purposes of this Article 8, the amount of Damages incurred or suffered by any Indemnified Party shall be entitled calculated (A) net of any amount actually recovered by such Indemnified Party from a third party alleged to indemnification be responsible for such Damages, less the costs and expenses incurred to the extent a Liability or reserve relating to the matter giving rise to obtain such recovery; and (B) net of any third party insurance proceeds actually received by such Indemnified Party for such Damages has been included under any insurance policy, (excluding self-insurance arrangements) less the costs and expenses incurred by such Indemnified Party to collect any such insurance proceeds (including reasonable attorneys’ fees, any deductibles or self-insured retentions, any increases in the calculation of Closing Date Indebtednesspremium or any retroactive premium adjustments directly related to obtaining such insurance proceeds). (bii) Notwithstanding anything to the contrary contained in this Agreement: (i) an Indemnifying Any Indemnified Party shall not be liable entitled to double recovery for any claim for indemnification pursuant to Section 10.02(a)(i) or Section 10.02(b)(i)Damages even though the Damages may have resulted from the breach of more than one of the representations, as the case may bewarranties, (A) unless the amount of Damages actually incurred agreements and covenants made by the Indemnified Parties in respect of such claim exceeds $5,000 and (B) unless and until the aggregate amount of indemnifiable Damages which may be recovered from the Indemnifying Party equals or exceeds $240,000, in which case the Indemnifying Party shall be liable for the full amount of such Damages from the first dollar thereof; (ii) the maximum aggregate amount of indemnifiable Damages which may be recovered from an Indemnifying Party arising out of or relating to the causes set forth in Section 10.02(a)(i) or Section 10.02(b)(i), as the case may be, shall be an amount equal to $3,200,000; and provided, that the foregoing clauses (i) and (ii) shall not apply to Damages arising out of or relating to the inaccuracy or breach of any Fundamental Representationthis Agreement. (c) Each Indemnified Party shall have a duty to use commercially reasonable efforts to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby, provided, that engaging in mitigating efforts is not a precondition to the making of a claim and such duty with respect to Taxes shall only apply to the extent expressly set forth in the last sentence of this Section 10.04(c). The Indemnifying Party shall have the right, but not the obligation, and shall be afforded the opportunity by the Indemnified Party to the extent reasonably possible, to take all available steps to minimize Damages for which the Indemnified Party is entitled to indemnification before such Damages actually are incurred by the Indemnified Party. Buyer shall take such actions as are reasonably requested by Seller to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby with respect to Taxes, provided that Seller shall bear and shall, upon the request of Buyer, fund in advance any out-of-pocket costs and expenses actually incurred by Buyer in complying with any such request (and Buyer may condition such actions on the prior payment of such amounts by Seller). (diii) The amount of any Damage for which an Purchaser Indemnified Party claims indemnification under this Agreement shall be reduced by any available insurance proceeds with respect to such Damage. (e) In the event an Indemnified Party shall recover Damages in respect of a claim of indemnification under this Article X, no other Indemnified Party shall be entitled to recover the same Damages in respect of a claim for indemnification. (f) For purposes of Section 10.02(a)(i) or Section 10.02(b)(i), (i) the determination of whether there has been an inaccuracy in or breach of a representation or warranty in this Agreement and (ii) the calculation of any Damage arising out of any inaccuracy in or breach of any representation or warranty shall each be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty; provided that, such materiality read out shall not apply to the representations and warranties contained in Section 4.06 (Financial Statements), Section 4.07(b) (No Material Adverse Effect), the first sentence of Section 4.15 (Permits), Section 4.17(a) (Employee Benefit Plans), and the defined term “Material Contract”. (g) If, prior to the Initial Closing, any Party (such Party, the “Waiving Party”) has knowledge of any breach by the other Party of any covenant or agreement contained in this Agreement and the Waiving Party proceeds with the Initial Closing, the Waiving Party shall be deemed to have waived such breach and the Waiving Party and the other Buyer Indemnitees or Seller Indemnitees, as applicable, Parties shall not be entitled to indemnification for any Damages relating to any matter to the extent (but only to the extent) that the amount of such Damages is specifically and identifiably reflected as a Current Liability in the calculation of the Final Closing Working Capital pursuant to this Article X Section 2.3. (iv) In no event shall an Indemnified Party be entitled to xxx make an indemnification claim for any punitive, special, incidental, indirect or consequential damages of any kind or to assert any other right or remedy arising from any matters relating to nature, regardless of the form of action through which such condition or breachdamages are sought, notwithstanding anything except to the contrary contained herein extent such damages are awarded to a third party in connection with a Third Party Claim or except in connection with any certificate delivered pursuant hereto and fraud, or fraudulent or intentional misrepresentation. In no event shall the Indemnified Parties hereby waive Seller be liable for lost profits resulting from an alleged breach of this Agreement, even if under Applicable Law, such lost profits would not be considered consequential or special damages, except to the fullest extent permitted under applicable Law the remedy of rescissiondamages for such lost profits are awarded to a third party in connection with a Third Party Claim or except in connection with any fraud, or fraudulent or intentional misrepresentation.

Calculation of Damages. Notwithstanding anything to the contrary herein: (a) No no Buyer Indemnitee shall be entitled to indemnification to the extent a Liability or reserve relating to the matter giving rise to such Damages indemnification has been included in the calculation of Closing Date Indebtedness.Net Working Capital or Closing Date Indebtedness (as finally determined in accordance with Section 2.04(c)) in an amount greater than or equal to the Damages incurred by the Buyer Indemnitee related to such Liability; (b) Notwithstanding anything no Buyer Indemnitee shall be entitled to the contrary contained in this Agreement: indemnification for Damages with respect to (i) an Indemnifying Party shall Taxes that arise from any breach of a covenant or agreement made or to be performed by Buyer Parent or its Affiliates (including, from and after the Closing, the Group Companies) pursuant to this Agreement, (ii) Taxes that arise from any action taken by Buyer Parent or its Affiliates (including, from and after the Closing, the Group Companies) on the Closing Date following the Closing outside the ordinary course of business, (iii) the amount of any net operating loss, Tax basis, Tax credit or other Tax attribute (or the loss, unavailability or reduction thereof), except to the extent resulting directly in additional cash Tax liability of the Group Companies for a Pre-Closing Tax Period that otherwise would not be liable for have been imposed or (iv) any claim for indemnification Transfer Taxes arising from the transactions to occur at, or in connection with, Closing (other than Transfer Taxes allocated to Seller Parent or the Sellers pursuant to Section 10.02(a)(i) or Section 10.02(b)(i6.01(c), as the case may be, (A) unless the amount of Damages actually incurred by the Indemnified Parties in respect of such claim exceeds $5,000 and (B) unless and until the aggregate amount of indemnifiable Damages which may be recovered from the Indemnifying Party equals or exceeds $240,000, in which case the Indemnifying Party shall be liable for the full amount of such Damages from the first dollar thereof); (ii) the maximum aggregate amount of indemnifiable Damages which may be recovered from an Indemnifying Party arising out of or relating to the causes set forth in Section 10.02(a)(i) or Section 10.02(b)(i), as the case may be, shall be an amount equal to $3,200,000; and provided, that the foregoing clauses (i) and (ii) shall not apply to Damages arising out of or relating to the inaccuracy or breach of any Fundamental Representation. (c) Each each Indemnified Party shall have a duty shall, to the extent required by applicable Law, use its commercially reasonable efforts to mitigate any Damages arising out of or relating for which it seeks indemnification pursuant to this Agreement Article IX (it being understood that any reasonable costs or the transactions contemplated herebyexpenses incurred in connection with such mitigation shall be included in Damages indemnifiable pursuant to this Article IX and mitigation shall not be deemed to include a requirement for any party to threaten or commence any Action), provided, however, that engaging in mitigating efforts is (i) post-Closing environmental testing at the Owned Real Property and Leased Real Property by Buyer Parent and its Affiliates (including the Group Companies) as part of the Buyer Parent’s and its Affiliates’ (including the Group Companies) Environmental Health & Safety new real property onboarding and assessment process will not be a precondition to breach of this provision so long as such environmental testing does not involve any sampling, monitoring or other invasive testing or invasive activity not otherwise required by applicable Environmental Law and (ii) sampling of air at the making of a claim Owned Real Property and such duty with respect to Taxes shall only apply to Leased Real Property by Buyer Parent and its Affiliates (including the extent expressly set forth Group Companies) in the last sentence ordinary course of business will not be a breach of this Section 10.04(c). The Indemnifying Party shall have the right, but not the obligation, and shall be afforded the opportunity by the Indemnified Party to the extent reasonably possible, to take all available steps to minimize Damages for which the Indemnified Party is entitled to indemnification before such Damages actually are incurred by the Indemnified Party. Buyer shall take such actions as are reasonably requested by Seller to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby with respect to Taxes, provided that Seller shall bear and shall, upon the request of Buyer, fund in advance any out-of-pocket costs and expenses actually incurred by Buyer in complying with any such request (and Buyer may condition such actions on the prior payment of such amounts by Seller).provision; (d) The the amount of any Damage Damages for which an Indemnified Party claims indemnification under this Agreement shall be reduced by any available (i) insurance proceeds (net of any deductibles or self-insured amounts) with respect to such Damage.Damages (other than under the R&W Insurance Policy) actually received from third party insurers, (ii) all available cash Tax benefits actually received by such Indemnified Party with respect to such Damages utilized in the tax year such Damages were incurred or within the three (3) subsequent tax years and (iii) all other amounts actually recovered from a third party pursuant to indemnification or otherwise in respect of such Damages, in each case, net of costs and expenses or any increases in premiums or other chargebacks incurred by such Indemnified Party associated with receiving such recovery or proceeds in respect of a claim; provided, that if an Indemnified Party recovers any such amounts from a third party in respect of Damages that are the subject of indemnification hereunder after all or a portion of such Damages have been paid by an Indemnifying Party pursuant to this Article IX, then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (A)(1) the amount paid by the Indemnifying Party in respect of such Damages plus (2) the amount received by the Indemnified Party in respect thereof (net of costs and expenses reasonably incurred in obtaining such recovery) less (B) the full amount of the Damages; (e) In the event an Indemnifying Party shall not be liable to an Indemnified Party shall recover Damages for any adjustment or reassessment which would correspond to a mere change in the time when Taxes should have been paid or such Taxes can effectively be deducted or recovered by the relevant Person, other than with respect of a claim of indemnification to any interest, additions or penalties for late payment otherwise indemnifiable under this Article X, no other Indemnified Party shall be entitled to recover the same Damages in respect of a claim for indemnification.Agreement; (f) For for purposes of Section 10.02(a)(i) or Section 10.02(b)(i), (i) the determination of whether there has been an inaccuracy in or breach of a representation or warranty in determining Damages pursuant to this Agreement and (ii) the calculation of any Damage arising out of any inaccuracy in or breach of any representation or warranty shall each be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty; provided that, such materiality read out shall not apply to the representations and warranties contained in Section 4.06 (Financial Statements), Section 4.07(b) (No Material Adverse Effect), the first sentence of Section 4.15 (Permits), Section 4.17(a) (Employee Benefit Plans), and the defined term “Material Contract”. (g) If, prior to the Initial ClosingArticle IX, any Party (such Partybreach of, the “Waiving Party”) has knowledge of or inaccuracy in, any breach by the other Party of any covenant representation, warranty, covenant, obligation or agreement contained in this Agreement and the Waiving Party proceeds with the Initial Closingor any other Transaction Document, shall be determined without giving effect to any limitations or qualifications regarding materiality, the Waiving Party use of the words “material,” “material respects,” “Material Adverse Effect,” or any similar term, qualification or limitation based on materiality contained herein or therein (provided, however, that the foregoing shall be deemed not apply to have waived such breach and the Waiving Party and applicable portions of Section 3.06(a), Section 3.07(b), Section 3.09(a) or the applicable portions of any of the other Buyer Indemnitees representations and warranties set forth in Article III requiring the listing of matters and which are qualified by materiality or similar qualifications); (g) Seller Indemnitees, as applicable, Parent shall not be entitled required to indemnification pursuant indemnify a Buyer Indemnitee for any Damages to this Article X the extent any response activities, remediation or cleanup of the Real Property in connection with any Environmental Health & Safety Laws is (i) in response to xxx for damages any voluntary environmental sampling or reporting of any confidential information with respect to assert environmental, health or safety conditions at the Real Property undertaken after the Closing Date (excluding sampling of air at the Owned Real Property and Leased Real Property by Buyer Parent and its Affiliates (including the Group Companies) in the ordinary course of business), which is not (A) required by Environmental Health & Safety Law or any other right Permit; (B) ordered, directed or remedy arising from otherwise required by any matters relating Governmental Authority; or (C) required by the landlord (who is not an Affiliate of Buyer Parent) of any Leased Real Property; or (ii) to a cleanup standard more stringent than the least stringent permissible standard under Environmental Health & Safety Laws applicable to the Real Property and the business and operations of the Buyer Indemnitee at the time of such condition response activity, remediation or breachcleanup, consistent with industrial use (except where a more stringent standard is required by a Governmental Authority, the landlord/owner of any Leased Real Property, or a Governmental Order). Such applicable cleanup standards shall include, where permitted and approved by a Governmental Authority, the use of restrictive covenants and institutional controls, provided such restrictive covenants or institutional controls do not significantly interfere with Buyer’s use or operation of the Real Property or the conduct of such Buyer Indemnitee’s business; and (h) notwithstanding anything to the contrary contained herein herein, no Party shall be liable for any (i) special, punitive or exemplary damages, (ii) incidental, consequential or indirect damages, (iii) lost profits or lost business, loss of enterprise value, diminution in value, damage to reputation or loss of goodwill or (iv) damages calculated based on a multiple of profits, revenue or any certificate delivered pursuant hereto other financial metric, in each case, whether based on contract, tort, strict liability, other Law or otherwise, and whether or not arising from any other Party’s sole, joint or concurrent negligence, strict liability or other fault, except, in the Indemnified Parties hereby waive case of clauses (i) – (iv), to the fullest extent permitted awarded and paid on account of a Third Party Claim or otherwise available under applicable Delaware Law or, in the remedy case of rescissionclauses (ii) – (iv), to the extent reasonably foreseeable.

Calculation of Damages. Notwithstanding anything to the contrary herein: (a) No Buyer Indemnitee The amount of any Damages suffered by any party hereto shall be entitled to indemnification reduced by (i) any amount that is reserved for sums held in reserve in respect of the indemnifiable event on the balance sheet of the Entities, as applicable, as of December 31, 2006 to the extent a Liability or reserve relating to the matter giving rise to such Damages has been included in the calculation of Closing Date Indebtednessare suffered by a Buyer Indemnified Party, or (ii) any amount that an Indemnified Party is entitled to receive with respect thereto under any third party insurance coverage or from any other party alleged to be responsible therefor. (b) Notwithstanding anything to the contrary contained in this Agreement: (i) If an Indemnifying Indemnified Party shall not be liable for any makes a claim for indemnification pursuant under this Article VI, the Indemnified Party shall use its reasonable best efforts to Section 10.02(a)(i) collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If an Indemnified Party receives an amount under insurance coverage or Section 10.02(b)(i)from such other party with respect to Damages at any time subsequent to any indemnification provided by Seller or Buyer, as the case may be, (A) unless pursuant to this Article VI, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by the Indemnifying Party in connection with providing such indemnification up to such amount received by the Indemnified Party, but net of Damages actually any expenses incurred by the Indemnified Parties Party in collecting such amount. To the extent the Indemnifying Party makes any indemnification payment pursuant to this Article VII in respect of such claim exceeds $5,000 and Damages for which an Indemnified Party has a right to recover against a third party (B) unless and until the aggregate amount of indemnifiable Damages which may be recovered from the Indemnifying Party equals or exceeds $240,000including an insurance company), in which case the Indemnifying Party shall be liable for the full amount of such Damages from the first dollar thereof; (ii) the maximum aggregate amount of indemnifiable Damages which may be recovered from an Indemnifying Party arising out of or relating subrogated to the causes set forth in Section 10.02(a)(i) or Section 10.02(b)(i), as the case may be, shall be an amount equal to $3,200,000; and provided, that the foregoing clauses (i) and (ii) shall not apply to Damages arising out right of or relating to the inaccuracy or breach of any Fundamental Representation. (c) Each Indemnified Party shall have a duty to use commercially reasonable efforts to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby, provided, that engaging in mitigating efforts is not a precondition to the making of a claim and such duty with respect to Taxes shall only apply to the extent expressly set forth in the last sentence of this Section 10.04(c). The Indemnifying Party shall have the right, but not the obligation, and shall be afforded the opportunity by the Indemnified Party to seek and obtain recovery from such third party; provided, however, that if the extent reasonably possibleIndemnifying Party shall be prohibited from such subrogation, to take all available steps to minimize Damages for which the Indemnified Party is entitled to indemnification before shall seek recovery from such Damages actually are incurred by third party on the Indemnified Indemnifying Party. Buyer shall take such actions as are reasonably requested by Seller to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby with respect to Taxes, provided that Seller shall bear ’s behalf and shall, upon the request of Buyer, fund in advance any out-of-pocket costs and expenses actually incurred by Buyer in complying with pay any such request (and Buyer may condition such actions on the prior payment of such amounts by Seller). (d) The amount of any Damage for which an Indemnified Party claims indemnification under this Agreement shall be reduced by any available insurance proceeds with respect to such Damage. (e) In the event an Indemnified Party shall recover Damages in respect of a claim of indemnification under this Article X, no other Indemnified Party shall be entitled to recover the same Damages in respect of a claim for indemnification. (f) For purposes of Section 10.02(a)(i) or Section 10.02(b)(i), (i) the determination of whether there has been an inaccuracy in or breach of a representation or warranty in this Agreement and (ii) the calculation of any Damage arising out of any inaccuracy in or breach of any representation or warranty shall each be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty; provided that, such materiality read out shall not apply recovery to the representations and warranties contained in Section 4.06 (Financial Statements), Section 4.07(b) (No Material Adverse Effect), the first sentence Indemnifying Party net of Section 4.15 (Permits), Section 4.17(a) (Employee Benefit Plans), and the defined term “Material Contract”expenses. (g) If, prior to the Initial Closing, any Party (such Party, the “Waiving Party”) has knowledge of any breach by the other Party of any covenant or agreement contained in this Agreement and the Waiving Party proceeds with the Initial Closing, the Waiving Party shall be deemed to have waived such breach and the Waiving Party and the other Buyer Indemnitees or Seller Indemnitees, as applicable, shall not be entitled to indemnification pursuant to this Article X to xxx for damages or to assert any other right or remedy arising from any matters relating to such condition or breach, notwithstanding anything to the contrary contained herein or in any certificate delivered pursuant hereto and the Indemnified Parties hereby waive to the fullest extent permitted under applicable Law the remedy of rescission.

Calculation of Damages. Notwithstanding anything to the contrary herein: (a) No Buyer Indemnitee shall be entitled to indemnification to the extent a Liability or reserve relating to the matter giving rise to such Damages has been included in the calculation of Closing Date Indebtedness. (b) Notwithstanding anything to the contrary contained in this Agreement: : (i) an Indemnifying Party shall not be liable for any claim for indemnification pursuant to Section 10.02(a)(i) or Section 10.02(b)(i), as the case may be, (A) unless the amount of Damages actually incurred by the Indemnified Parties in respect of such claim exceeds $5,000 and (B) unless and until the aggregate amount of indemnifiable Damages which may be recovered from the Indemnifying Party equals or exceeds $240,000, in which case the Indemnifying Party shall be liable for the full amount of such Damages from the first dollar thereof; ; (ii) the maximum aggregate amount of indemnifiable Damages which may be recovered from an Indemnifying Party arising out of or relating to the causes set forth in Section 10.02(a)(i) or Section 10.02(b)(i), as the case may be, shall be an amount equal to $3,200,000; and provided, that the foregoing clauses (i) and (ii) shall not apply to Damages arising out of or relating to the inaccuracy or breach of any Fundamental Representation. (c) Each Indemnified Party shall have a duty to use commercially reasonable efforts to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby, provided, that engaging in mitigating efforts is not a precondition to the making of a claim and such duty with respect to Taxes shall only apply to the extent expressly set forth in the last sentence of this Section 10.04(c). The Indemnifying Party shall have the right, but not the obligation, and shall be afforded the opportunity by the Indemnified Party to the extent reasonably possible, to take all available steps to minimize Damages for which the Indemnified Party is entitled to indemnification before such Damages actually are incurred by the Indemnified Party. Buyer shall take such actions as are reasonably requested by Seller to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby with respect to Taxes, provided that Seller shall bear and shall, upon the request of Buyer, fund in advance any out-of-pocket costs and expenses actually incurred by Buyer in complying with any such request (and Buyer may condition such actions on the prior payment of such amounts by Seller). (d) The amount of any Damage for which an Indemnified Party claims indemnification under this Agreement shall be reduced by any available insurance proceeds with respect to such Damage. (e) In the event an Indemnified Party shall recover Damages in respect of a claim of indemnification under this Article X, no other Indemnified Party shall be entitled to recover the same Damages in respect of a claim for indemnification. (f) For purposes of Section 10.02(a)(i) or Section 10.02(b)(i), (i) the determination of whether there has been an inaccuracy in or breach of a representation or warranty in this Agreement and (ii) the calculation of any Damage arising out of any inaccuracy in or breach of any representation or warranty shall each be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty; provided that, such materiality read out shall not apply to the representations and warranties contained in Section 4.06 (Financial Statements), Section 4.07(b) (No Material Adverse Effect), the first sentence of Section 4.15 (Permits), Section 4.17(a) (Employee Benefit Plans), and the defined term “Material Contract”. (g) If, prior to the Initial Closing, any Party (such Party, the “Waiving Party”) has knowledge of any breach by the other Party of any covenant or agreement contained in this Agreement and the Waiving Party proceeds with the Initial Closing, the Waiving Party shall be deemed to have waived such breach and the Waiving Party and the other Buyer Indemnitees or Seller Indemnitees, as applicable, shall not be entitled to indemnification pursuant to this 55 Article X to xxx for damages or to assert any other right or remedy arising from any matters relating to such condition or breach, notwithstanding anything to the contrary contained herein or in any certificate delivered pursuant hereto and the Indemnified Parties hereby waive to the fullest extent permitted under applicable Law the remedy of rescission.

Calculation of Damages. Notwithstanding anything to the contrary herein: (a) No Buyer Indemnitee The amount of any Damages payable under Article 8 or 9 or Section 11.02 by the Indemnifying Party shall be entitled net of any amounts recovered or recoverable by the Indemnified Party under applicable insurance policies and any Tax Benefit realized by the Indemnified Party arising from the incurrence or payment of any such Damages. In computing the amount of any such Tax Benefit, the Indemnified Party shall be deemed fully to indemnification to utilize, at the extent a Liability highest marginal tax rate then in effect, all Tax items arising from the incurrence or reserve relating to the matter giving rise to such Damages has been included in the calculation payment of Closing Date Indebtednessany indemnified Damages. (b) Notwithstanding anything to the contrary contained in this Agreement: (i) an The Indemnifying Party shall not be liable under Article 8 or 9 or Section 11.02 for any claim for indemnification pursuant (i) Damages relating to Section 10.02(a)(i) or Section 10.02(b)(i), as any matter to the case may be, extent that (A) unless there is included in the amount of Damages actually incurred by April 30 Balance Sheet a specific liability or reserve relating to such matter or the Indemnified Parties in respect of Party has otherwise been compensated for such claim exceeds $5,000 and (B) unless and until the aggregate amount of indemnifiable Damages which may be recovered from the Indemnifying Party equals or exceeds $240,000, in which case the Indemnifying Party shall be liable for the full amount of such Damages from the first dollar thereof; (ii) the maximum aggregate amount of indemnifiable Damages which may be recovered from an Indemnifying Party arising out of or relating matter pursuant to the causes set forth in Purchase Price adjustment under Section 10.02(a)(i) 2.05, consequential Damages or Section 10.02(b)(i)Damages for lost profits. For the purposes of this Agreement, as the case may be, shall be an amount equal to $3,200,000; and provided, that the foregoing clauses (i) and (ii) Damages shall not apply to Damages arising out be determined through any multiple of earnings approach or relating to variant thereof and shall take account of the inaccuracy or breach time value of any Fundamental Representationmoney. (c) Each Notwithstanding any other provision of this Agreement to the contrary, if on the Closing Date the Indemnified Party knows of any information that would cause one or more of the representations and warranties made by the Indemnifying Party to be inaccurate, the Indemnified Party shall have a duty to use commercially reasonable efforts to mitigate any Damages arising out of no right or relating to this Agreement or remedy after the transactions contemplated hereby, provided, that engaging in mitigating efforts is not a precondition to the making of a claim and such duty with respect to Taxes shall only apply to the extent expressly set forth in the last sentence of this Section 10.04(c). The Indemnifying Party shall have the right, but not the obligation, and shall be afforded the opportunity by the Indemnified Party to the extent reasonably possible, to take all available steps to minimize Damages for which the Indemnified Party is entitled to indemnification before such Damages actually are incurred by the Indemnified Party. Buyer shall take such actions as are reasonably requested by Seller to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby with respect to Taxes, provided that Seller shall bear and shall, upon the request of Buyer, fund in advance any out-of-pocket costs and expenses actually incurred by Buyer in complying with any such request (and Buyer may condition such actions on the prior payment of such amounts by Seller). (d) The amount of any Damage for which an Indemnified Party claims indemnification under this Agreement shall be reduced by any available insurance proceeds Closing with respect to such Damage. (e) In the event an Indemnified Party shall recover Damages in respect of a claim of indemnification under this Article X, no other Indemnified Party shall be entitled to recover the same Damages in respect of a claim for indemnification. (f) For purposes of Section 10.02(a)(i) or Section 10.02(b)(i), (i) the determination of whether there has been an inaccuracy in or breach of a representation or warranty in this Agreement and (ii) the calculation of any Damage arising out of any inaccuracy in or breach of any representation or warranty shall each be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty; provided that, such materiality read out shall not apply to the representations and warranties contained in Section 4.06 (Financial Statements), Section 4.07(b) (No Material Adverse Effect), the first sentence of Section 4.15 (Permits), Section 4.17(a) (Employee Benefit Plans), and the defined term “Material Contract”. (g) If, prior to the Initial Closing, any Party (such Party, the “Waiving Party”) has knowledge of any breach by the other Party of any covenant or agreement contained in this Agreement and the Waiving Party proceeds with the Initial Closing, the Waiving Party shall be deemed to have waived such breach and the Waiving Party and the other Buyer Indemnitees or Seller Indemnitees, as applicable, shall not be entitled its rights to indemnification pursuant to this Article X to xxx for damages or to assert any other right or remedy arising from any matters relating to such condition or breach, notwithstanding anything to the contrary contained herein or in any certificate delivered pursuant hereto and the Indemnified Parties hereby waive to the fullest extent permitted under applicable Law the remedy of rescissionrespect thereof.

Calculation of Damages. Notwithstanding anything to the contrary herein: (a) No Buyer Indemnitee Each Indemnified Party shall use commercially reasonable efforts to collect any amounts available under insurance coverage for any Damages payable under Section 7.02. The amount of any Damages payable under Section 7.02 by the Indemnifying Party shall be entitled net of any amounts actually recovered by the Indemnified Party under applicable insurance policies or from any other Person alleged to indemnification to the extent a Liability or reserve relating to the matter giving rise to such Damages has been included in the calculation of Closing Date Indebtednessbe responsible therefor. (b) Notwithstanding anything to the contrary contained in this Agreement: (i) an The Indemnifying Party shall not be liable under Section 7.02 for any claim punitive Damages (except for indemnification pursuant to Section 10.02(a)(i) or Section 10.02(b)(ipunitive Damages awarded against an Indemnified Party in a Third Party Claim), as the case may be, (A) unless the amount of Damages actually incurred by the Indemnified Parties in respect of such claim exceeds $5,000 and (B) unless and until the aggregate amount of indemnifiable Damages which may be recovered from the Indemnifying Party equals or exceeds $240,000, in which case the Indemnifying Party shall be liable for the full amount of such Damages from the first dollar thereof; (ii) the maximum aggregate amount of indemnifiable Damages which may be recovered from an Indemnifying Party arising out of or relating to the causes set forth in Section 10.02(a)(i) or Section 10.02(b)(i), as the case may be, shall be an amount equal to $3,200,000; and provided, that the foregoing clauses (i) and (ii) shall not apply to Damages arising out of or relating to the inaccuracy or breach of any Fundamental Representation. (c) Each The Indemnified Party Parties shall have act in good faith and a duty to use commercially reasonable efforts manner to mitigate any Damages arising out of they may pay, incur, suffer or relating to this Agreement or the transactions contemplated hereby, provided, that engaging in mitigating efforts sustain for which indemnification is not a precondition to the making of a claim and such duty with respect to Taxes shall only apply available hereunder to the extent expressly set forth required by Law. If an Indemnified Party recovers an amount from a third party (including an insurer) in respect of Damages that are the last sentence subject of this Section 10.04(c). The indemnification hereunder after all or a portion of such Damages has been paid by an Indemnifying Party shall have the rightpursuant to Section 7.02, but not the obligation, and shall be afforded the opportunity by the Indemnified Party shall promptly remit to the extent reasonably possible, to take all available steps to minimize Damages for which Indemnifying Party the Indemnified Party is entitled to indemnification before such Damages actually are incurred excess (if any) of (i) the amount paid by the Indemnified Party. Buyer shall take such actions as are reasonably requested by Seller to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby with Indemnifying Party in respect to Taxes, provided that Seller shall bear and shall, upon the request of Buyer, fund in advance any out-of-pocket costs and expenses actually incurred by Buyer in complying with any such request (and Buyer may condition such actions on the prior payment of such amounts by Seller)Damages, plus the amount received from the third party (including an insurer) in respect thereof, less (ii) the full amount of the Damages finally determined in accordance with Section 7.09, within ten Business Days after the amount is received. (d) The amount of any Damage for which an Indemnified Party claims indemnification under this Agreement With respect to Buyer and its Affiliates, Damages shall be reduced by any available insurance proceeds with respect to such Damage. (e) In the event an Indemnified Party shall recover Damages in respect of a claim of indemnification under this Article X, no other Indemnified Party shall be entitled to recover the same Damages in respect of a claim for indemnification. (f) For purposes of Section 10.02(a)(i) or Section 10.02(b)(i), (i) the determination of whether there has been an inaccuracy in or breach of a representation or warranty in this Agreement and (ii) the calculation of any Damage arising out of any inaccuracy in or breach of any representation or warranty shall each be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty; provided that, such materiality read out shall not apply limited to the representations Damages imposed on, sustained, incurred or suffered by Buyer and warranties contained its Affiliates attributable to the Purchased Interest. In no circumstances shall Damages include any Damages suffered by Sumitomo Arizona or any Damages indirectly suffered by Buyer or its Affiliates as a result of Buyer’s indirect interest in Section 4.06 (Financial Statements), Section 4.07(b) (No Material Adverse Effect), the first sentence of Section 4.15 (Permits), Section 4.17(a) (Employee Benefit Plans), Business and the defined term “Material Contract”Venture Property through its interest in Sumitomo Arizona. (g) If, prior to the Initial Closing, any Party (such Party, the “Waiving Party”) has knowledge of any breach by the other Party of any covenant or agreement contained in this Agreement and the Waiving Party proceeds with the Initial Closing, the Waiving Party shall be deemed to have waived such breach and the Waiving Party and the other Buyer Indemnitees or Seller Indemnitees, as applicable, shall not be entitled to indemnification pursuant to this Article X to xxx for damages or to assert any other right or remedy arising from any matters relating to such condition or breach, notwithstanding anything to the contrary contained herein or in any certificate delivered pursuant hereto and the Indemnified Parties hereby waive to the fullest extent permitted under applicable Law the remedy of rescission.

Calculation of Damages. Notwithstanding anything to the contrary herein: Except as otherwise provided in this Article X (a) No Buyer Indemnitee shall be entitled to indemnification to the extent a Liability or reserve relating to the matter giving rise to such Damages has been included or, in the calculation case of Closing Date Indebtedness. (b) Notwithstanding anything to the contrary contained any and all Tax matters, in this Agreement: (i) an Indemnifying Party shall not be liable for any claim for indemnification pursuant to Section 10.02(a)(i) or Section 10.02(b)(i7.08(d)), as the in any case may be, (A) unless the amount of Damages actually incurred by the Indemnified Parties in respect of such claim exceeds $5,000 and (B) unless and until the aggregate amount of indemnifiable Damages which may be recovered from the Indemnifying Party equals or exceeds $240,000, in which case the Indemnifying Party shall be liable for the full amount of such Damages from the first dollar thereof; (ii) the maximum aggregate amount of indemnifiable Damages which may be recovered from an Indemnifying Party arising out of or relating to the causes set forth in Section 10.02(a)(i) or Section 10.02(b)(i), as the case may be, shall be an amount equal to $3,200,000; and provided, that the foregoing clauses (i) and (ii) shall not apply to Damages arising out of or relating to the inaccuracy or breach of any Fundamental Representation. (c) Each Indemnified Party shall have a duty to use commercially reasonable efforts to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby, provided, that engaging in mitigating efforts is not a precondition to the making of a claim and such duty with respect to Taxes shall only apply to the extent expressly set forth in the last sentence of this Section 10.04(c). The Indemnifying Party shall have the right, but not the obligation, and shall be afforded the opportunity by where the Indemnified Party to the extent reasonably possible, to take all available steps to minimize Damages for which the Indemnified Party is entitled to indemnification before such Damages actually are incurred by the Indemnified Party. Buyer shall take such actions as are reasonably requested by Seller to mitigate subsequently recovers from third parties any Damages arising out of or relating to this Agreement or the transactions contemplated hereby with respect to Taxes, provided that Seller shall bear and shall, upon the request of Buyer, fund in advance any out-of-pocket costs and expenses actually incurred by Buyer in complying with any such request (and Buyer may condition such actions on the prior payment of such amounts by Seller). (d) The amount of any Damage for which an Indemnified Party claims indemnification under this Agreement shall be reduced by any available insurance proceeds with respect to such Damage. (e) In the event an Indemnified Party shall recover Damages in respect of a claim of indemnification under this Article X, no other Indemnified matter with respect to which an Indemnifying Party shall be entitled to recover the same Damages in respect of a claim for indemnification. (f) For purposes of Section 10.02(a)(i) or Section 10.02(b)(i), (i) the determination of whether there has been an inaccuracy in or breach of a representation or warranty in this Agreement and (ii) the calculation of any Damage arising out of any inaccuracy in or breach of any representation or warranty shall each be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty; provided that, such materiality read out shall not apply to the representations and warranties contained in Section 4.06 (Financial Statements), Section 4.07(b) (No Material Adverse Effect), the first sentence of Section 4.15 (Permits), Section 4.17(a) (Employee Benefit Plans), and the defined term “Material Contract”. (g) If, prior to the Initial Closing, any Party (such Party, the “Waiving Party”) has knowledge of any breach by the other Party of any covenant or agreement contained in this Agreement and the Waiving Party proceeds with the Initial Closing, the Waiving Party shall be deemed to have waived such breach and the Waiving Party and the other Buyer Indemnitees or Seller Indemnitees, as applicable, shall not be entitled to indemnification indemnified it pursuant to this Article X (or, in the case of any and all Tax matters, to xxx for damages or to assert any other right or remedy arising from any matters relating to Section 7.08(d)), such condition or breach, notwithstanding anything Indemnified Party shall promptly pay over to the contrary contained herein Indemnifying Party the amount so recovered (after deducting therefrom the full amount of the expenses incurred by it in procuring such recovery), but not in excess of any amount previously so paid by the Indemnifying Party to or in any certificate delivered pursuant hereto and on behalf of the Indemnified Parties hereby waive Party in respect of such matter. The computation of the amount of any indemnity payment required to be made pursuant to this Article X (or, in the case of any and all Tax matters, to Section 7.08(d)) shall be reduced by the amount of the Tax benefit, if any, actually realized by the Indemnified Party as a result of incurring the liability at issue net of any Tax costs incurred by the Indemnified Party relating or attributable to the fullest extent permitted under receipt of such indemnity payment; provided that, if such net Tax benefit is determined after the applicable Law indemnity payment is made pursuant to this Article X (or, in the remedy case of rescission.any and all Tax matters, to Section 7.08(d)), the Indemnified Party shall repay to the Indemnifying Party, promptly after such determination, any amount that the Indemnifying Party would not have had to pay pursuant to this Article X (or, in the case of any and all Tax matters, to Section 7.08(d)) had such determination been made at the time of such payment

Calculation of Damages. Notwithstanding anything to the contrary herein: (a) No Buyer Indemnitee The amount of any Damages suffered by any party hereto shall be entitled to indemnification reduced by (i) any amount that is reserved for sums held in reserve in respect of the indemnifiable event on the balance sheet of the Entities, as applicable, as of December 31, 2006 to the extent a Liability or reserve relating to the matter giving rise to such Damages has been included in the calculation of Closing Date Indebtednessare suffered by a Buyer Indemnified Party, or (ii) any amount that an Indemnified Party is entitled to receive with respect thereto under any third party insurance coverage or from any other party alleged to be responsible therefor. (b) Notwithstanding anything to the contrary contained in this Agreement: (i) If an Indemnifying Indemnified Party shall not be liable for any makes a claim for indemnification pursuant under this Article VI, the Indemnified Party shall use its reasonable best efforts to Section 10.02(a)(i) collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If an Indemnified Party receives an amount under insurance coverage or Section 10.02(b)(i)from such other party with respect to Damages at any time subsequent to any indemnification provided by Seller or Buyer, as the case may be, (A) unless pursuant to this Article VI, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by the Indemnifying Party in connection with providing such indemnification up to such amount received by the Indemnified Party, but net of Damages actually any expenses incurred by the Indemnified Parties Party in collecting such amount. To the extent the Indemnifying Party makes any indemnification payment pursuant to this Article VII in respect of such claim exceeds $5,000 and Damages for which an Indemnified Party has a right to recover against a third party (B) unless and until the aggregate amount of indemnifiable Damages which may be recovered from the Indemnifying Party equals or exceeds $240,000including an insurance company), in which case the Indemnifying Party shall be liable for the full amount of such Damages from the first dollar thereof; (ii) the maximum aggregate amount of indemnifiable Damages which may be recovered from an Indemnifying Party arising out of or relating subrogated to the causes set forth in Section 10.02(a)(i) or Section 10.02(b)(i), as the case may be, shall be an amount equal to $3,200,000; and provided, that the foregoing clauses (i) and (ii) shall not apply to Damages arising out right of or relating to the inaccuracy or breach of any Fundamental Representation. (c) Each Indemnified Party shall have a duty to use commercially reasonable efforts to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby, provided, that engaging in mitigating efforts is not a precondition to the making of a claim and such duty with respect to Taxes shall only apply to the extent expressly set forth in the last sentence of this Section 10.04(c). The Indemnifying Party shall have the right, but not the obligation, and shall be afforded the opportunity by the Indemnified Party to seek and obtain recovery from such third party; provided, however, that if the extent reasonably possibleIndemnifying Party shall be prohibited from such subrogation, to take all available steps to minimize Damages for which the Indemnified Party is entitled to indemnification before shall seek recovery from such Damages actually are incurred by third party on the Indemnified Indemnifying Party. Buyer shall take such actions as are reasonably requested by Seller to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby with respect to Taxes, provided that Seller shall bear 's behalf and shall, upon the request of Buyer, fund in advance any out-of-pocket costs and expenses actually incurred by Buyer in complying with pay any such request (and Buyer may condition such actions on the prior payment of such amounts by Seller). (d) The amount of any Damage for which an Indemnified Party claims indemnification under this Agreement shall be reduced by any available insurance proceeds with respect to such Damage. (e) In the event an Indemnified Party shall recover Damages in respect of a claim of indemnification under this Article X, no other Indemnified Party shall be entitled to recover the same Damages in respect of a claim for indemnification. (f) For purposes of Section 10.02(a)(i) or Section 10.02(b)(i), (i) the determination of whether there has been an inaccuracy in or breach of a representation or warranty in this Agreement and (ii) the calculation of any Damage arising out of any inaccuracy in or breach of any representation or warranty shall each be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty; provided that, such materiality read out shall not apply recovery to the representations and warranties contained in Section 4.06 (Financial Statements), Section 4.07(b) (No Material Adverse Effect), the first sentence Indemnifying Party net of Section 4.15 (Permits), Section 4.17(a) (Employee Benefit Plans), and the defined term “Material Contract”expenses. (g) If, prior to the Initial Closing, any Party (such Party, the “Waiving Party”) has knowledge of any breach by the other Party of any covenant or agreement contained in this Agreement and the Waiving Party proceeds with the Initial Closing, the Waiving Party shall be deemed to have waived such breach and the Waiving Party and the other Buyer Indemnitees or Seller Indemnitees, as applicable, shall not be entitled to indemnification pursuant to this Article X to xxx for damages or to assert any other right or remedy arising from any matters relating to such condition or breach, notwithstanding anything to the contrary contained herein or in any certificate delivered pursuant hereto and the Indemnified Parties hereby waive to the fullest extent permitted under applicable Law the remedy of rescission.

Calculation of Damages. Notwithstanding anything to the contrary herein: (a) No Buyer Indemnitee The amount of any Damages payable under Section 11.02 by the Indemnifying Party shall be entitled net of any amounts recovered by the Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor. 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 extent a Liability or reserve relating to amount received by the matter giving rise to Indemnified Party, net of any expenses incurred by such Damages has been included Indemnified Party in the calculation of Closing Date Indebtednesscollecting such amount. (b) Notwithstanding anything to the contrary contained in this Agreement: (i) an The Indemnifying Party shall not be liable under Section 11.02 for any claim for indemnification pursuant (i) Damages relating to Section 10.02(a)(i) or Section 10.02(b)(iany matter to the extent that such matter has been reflected in the determination of the Final Purchase Price (i.e., as an adjustment to the dollar amount set forth in the definition of “Purchase Price”), as the case may be, (A) unless the amount of Damages actually incurred by the Indemnified Parties in respect of such claim exceeds $5,000 and (B) unless and until the aggregate amount of indemnifiable Damages which may be recovered from the Indemnifying Party equals or exceeds $240,000, in which case the Indemnifying Party shall be liable for the full amount of such Damages from the first dollar thereof; (ii) the maximum aggregate amount of indemnifiable Damages which may be recovered from an Indemnifying Party arising out of consequential, punitive or relating to the causes set forth damages or lost profits, in Section 10.02(a)(i) each case other than fraud, criminal activity or Section 10.02(b)(i), as the case may be, shall be an amount equal to $3,200,000willful misconduct; and provided, however, that the foregoing clauses (i) and (iithis Section 11.05(b) shall not apply limit a Party’s right to Damages arising out of or relating recover losses under this Article 11 for any such losses to the inaccuracy extent (x) such Party is required to pay such losses to a third party in connection with a matter for which such Party is otherwise entitled to indemnification under this Article 11 or (y) such losses (other than punitive or exemplary damages) were a reasonably foreseeable result of the applicable breach of any Fundamental Representationthis Agreement. (c) Each Indemnified Party shall have a duty to use commercially reasonable efforts to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby, provided, that engaging in mitigating efforts is not a precondition Notwithstanding anything herein to the making of a claim and such duty with respect to Taxes shall only apply to the extent expressly set forth in the last sentence of this Section 10.04(c). The Indemnifying Party shall have the rightcontrary, but not the obligation, and shall be afforded the opportunity by the Indemnified Party to the extent reasonably possible, to take all available steps to minimize Damages for which the Indemnified Party is entitled to indemnification before such Damages actually are incurred by the Indemnified Party. Buyer shall take such actions as are reasonably requested by Seller to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby with respect to Taxes, provided that Seller shall bear and shall, upon the request of Buyer, fund in advance any out-of-pocket costs and expenses actually incurred by Buyer in complying with any such request (and Buyer may condition such actions on the prior payment of such amounts by Seller). (d) The amount of any Damage for which an Indemnified Party claims indemnification under this Agreement shall be reduced by any available insurance proceeds with respect to such Damage. (e) In the event an Indemnified Party shall recover Damages in respect of a claim of indemnification under this Article X, no other Indemnified Party shall be entitled to recover the same Damages in respect of a claim for indemnification. (f) For purposes of Section 10.02(a)(i) or Section 10.02(b)(i), (i) the determination of determining whether there has been an inaccuracy in or any breach of a representation or warranty has occurred and the amount of the Damages to which any Indemnified Party may be entitled under this ARTICLE 11, each of the representations and warranties that contains any “Material Adverse Effect”, “material” or similar qualifications shall be read as though such qualifications were not contained therein. (d) Each Indemnified Party must mitigate in accordance with Applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement provided, in no event shall any Buyer Indemnified Party be obligated to initiate litigation or arbitration with any supplier or customer of the Company. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit to the Indemnified Party of that mitigation (iiless the Indemnified Party’s costs (including reasonable attorney’s fees) of mitigation) within two (2) Business Days after the calculation of benefit is received. (e) Each Indemnified Party shall use its commercially reasonable efforts to collect any Damage arising out amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 11.02. (f) Except to the extent expressly provided in Section 13.11, no knowledge by any Buyer Indemnified Party of any inaccuracy in or breach of any representation or warranty under ARTICLE 3, or any failure of Seller to perform any covenant hereunder, shall each be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty; provided that, such materiality read out shall not apply to limit the representations and warranties contained in Section 4.06 (Financial Statements), Section 4.07(b) (No Material Adverse Effect), the first sentence of Section 4.15 (Permits), Section 4.17(a) (Employee Benefit Plans), and the defined term “Material Contract”. (g) If, prior to the Initial Closing, any Party (such Party, the “Waiving Party”) has knowledge ability of any breach by the other Buyer Indemnified Party of to bring any covenant or agreement contained in claim under this Agreement and the Waiving Party proceeds with the Initial Closing, the Waiving Party shall be deemed to have waived such breach and the Waiving Party and the other Buyer Indemnitees or Seller Indemnitees, as applicable, shall not be entitled to indemnification pursuant to this Article X to xxx for damages or to assert any other right or remedy arising from any matters relating to such condition or breach, notwithstanding anything to the contrary contained herein or in any certificate delivered pursuant hereto and the Indemnified Parties hereby waive to the fullest extent permitted under applicable Law the remedy of rescissionAgreement.

Calculation of Damages. Notwithstanding anything to the contrary herein: (a) No Buyer Indemnitee shall be entitled to indemnification to the extent a Liability or reserve relating to the matter giving rise to such Damages has been included in the calculation of Closing Date Indebtedness. (b) Notwithstanding anything to the contrary contained in this Agreement: (i) an The Indemnifying Party shall not be liable for under this Article 4 or any claim for indemnification pursuant (i) Losses to Section 10.02(a)(i) or Section 10.02(b)(i), as the case may be, extent that they are in the nature of (A) unless the amount of Damages actually incurred by the Indemnified Parties in respect of such claim exceeds $5,000 and punitive damages or (B) unless and until the aggregate amount of indemnifiable Damages which may be recovered from the Indemnifying Party equals consequential, special or exceeds $240,000indirect damages, except, in which the case the Indemnifying Party shall be liable for the full amount of such Damages from the first dollar thereof; this clause (ii) the maximum aggregate amount of indemnifiable Damages which may be recovered from an Indemnifying Party arising out of or relating B), to the causes set forth extent such Losses are a reasonably foreseeable result of the event that gave rise thereto or the matter for which indemnification is sought hereunder, regardless of the form of action through which such Losses are sought, except in Section 10.02(a)(i) or Section 10.02(b)(i), as the each case may be, shall be an amount equal to $3,200,000; and provided, that of the foregoing clauses (iA) and (B), to the extent any such Loss are included in any proceeding by a third party against such Indemnified Party for which it is entitled to indemnification under this Agreement or (ii) shall not apply to Damages arising out of or Losses relating to any matter (or underlying set of facts) to the inaccuracy or breach of any Fundamental Representationextent that the Indemnified Party has otherwise been compensated for such Losses pursuant to a separate indemnification provision in this Article 4. (cb) Each Indemnified Party shall have a duty to use commercially reasonable efforts commercial effort to mitigate in accordance with applicable Law any Damages arising out of or relating to this Agreement or the transactions contemplated hereby, provided, that engaging in mitigating efforts is not a precondition to the making of a claim and Loss for which such duty with respect to Taxes shall only apply to the extent expressly set forth in the last sentence of this Section 10.04(c). The Indemnifying Party shall have the right, but not the obligation, and shall be afforded the opportunity by the Indemnified Party to the extent reasonably possible, to take all available steps to minimize Damages for which the Indemnified Party is entitled to indemnification before such Damages actually are incurred by the Indemnified Party. Buyer shall take such actions as are reasonably requested by Seller to mitigate any Damages arising out of or relating to this Agreement or the transactions contemplated hereby with respect to Taxes, provided that Seller shall bear and shall, upon the request of Buyer, fund in advance any out-of-pocket costs and expenses actually incurred by Buyer in complying with any such request (and Buyer may condition such actions on the prior payment of such amounts by Seller). (d) The amount of any Damage for which an Indemnified Party claims seeks indemnification under this Agreement or any Ancillary Agreement; provided, however, that the Indemnified Parties shall not be reduced by required to institute or threaten any available insurance proceeds with respect to such Damage. (e) In the event an Indemnified Party shall recover Damages in respect of a claim of indemnification under this Article XAction against any supplier, no other Indemnified Party shall be entitled to recover the same Damages in respect of a claim for indemnification. (f) For purposes of Section 10.02(a)(i) or Section 10.02(b)(i), (i) the determination of whether there has been an inaccuracy in or breach of a representation or warranty in this Agreement and (ii) the calculation of any Damage arising out of any inaccuracy in or breach of any representation or warranty shall each be determined without regard to any materiality, Material Adverse Effect customer or other similar qualification contained in or otherwise applicable to such representation or warranty; provided that, such materiality read out shall not apply to the representations and warranties contained in Section 4.06 (Financial Statements), Section 4.07(b) (No Material Adverse Effect), the first sentence third party. Any costs of Section 4.15 (Permits), Section 4.17(a) (Employee Benefit Plans), and the defined term “Material Contract”. (g) If, prior to the Initial Closing, any Party (such Party, the “Waiving Party”) has knowledge of any breach by the other Party of any covenant or agreement contained in this Agreement and the Waiving Party proceeds with the Initial Closing, the Waiving Party mitigation shall be deemed to have waived be indemnifiable Losses. If such breach and Indemnified Party mitigates its Loss after the Waiving Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that Loss, the Indemnified Party must notify the Indemnifying Party and the other Buyer Indemnitees or Seller Indemnitees, as applicable, shall not be entitled to indemnification pursuant to this Article X to xxx for damages or to assert any other right or remedy arising from any matters relating to such condition or breach, notwithstanding anything pay to the contrary contained herein or in any certificate delivered pursuant hereto and Indemnifying Party the extent of the value of the benefit to the Indemnified Parties hereby waive to Party of that mitigation (less the fullest extent permitted under applicable Law the remedy Indemnified Party’s reasonable costs of rescissionmitigation).

Calculation of Damages. Notwithstanding anything to the contrary herein: (a) No Buyer no Purchaser Indemnitee shall be entitled to indemnification to the extent a Liability or reserve relating to the matter giving rise to such Damages has been were specifically reserved for or included in the calculation final determination of Net Working Capital, Closing Date Indebtedness.Indebtedness or the Audited Financial Statements; (b) Notwithstanding anything no Purchaser Indemnitee shall be entitled to indemnification for Damages with respect to (1) Taxes that arise from any breach of a covenant or agreement made or to be performed by Purchaser or its Subsidiaries (including, from and after the contrary contained in Closing, the Group Companies) pursuant to this Agreement: ; (i2) an Indemnifying Party shall not be liable for any claim for indemnification pursuant to Section 10.02(a)(i) or Section 10.02(b)(i), as the case may be, (A) unless the amount of Damages actually incurred by any net operating loss, Tax basis, Tax credit or other Tax attribute (or the Indemnified Parties loss, unavailability or reduction thereof) or (3) any Transfer Taxes, except as provided in respect of such claim exceeds $5,000 and Section 5.10(c); | (Bc) unless and until the aggregate amount of indemnifiable any Damages which may be recovered from the Indemnifying Party equals that are subject to indemnification, payment or exceeds $240,000, in which case the Indemnifying Party reimbursement under this Article 7 shall be liable for the full amount of such Damages from the first dollar thereof; (ii) the maximum aggregate amount of indemnifiable Damages which may be recovered from an Indemnifying Party arising out of or relating to the causes set forth in Section 10.02(a)(i) or Section 10.02(b)(i), as the case may be, shall be reduced by an amount equal to $3,200,000; and providedany Tax refund, credit, offset or other similar benefit (a “Tax Benefit”) actually realized as a result of such Damages by the Indemnified Party. The Indemnified Party shall be deemed to have “actually received” a Tax Benefit to the extent that the foregoing clauses amount of Taxes actually paid by the Indemnified Party or any of its Affiliates in the taxable period in which Damages occur is reduced below the amount of Taxes that such Persons would have been required to pay but for the Tax Benefit; (d) (i) and (ii) shall not apply to Damages arising out of or relating to the inaccuracy or breach of any Fundamental Representation. (c) Each each Indemnified Party shall have a duty to use its commercially reasonable efforts to mitigate any Damages arising out of or relating for which it is entitled to indemnification pursuant to this Agreement or Article 7 and (ii) the transactions contemplated hereby, provided, that engaging in mitigating efforts is not a precondition to the making of a claim and such duty with respect to Taxes shall only apply to the extent expressly set forth in the last sentence of this Section 10.04(c). The Indemnifying Party shall have the right, but not the obligation, and shall be afforded the opportunity by the Indemnified Party to the extent reasonably possible, to take all available steps to minimize Damages for which the Indemnified Party is entitled to indemnification before such Damages actually are incurred by the Indemnified Party. Buyer ; provided, however, that in each case, no party shall take be required to make such actions as are reasonably requested by Seller to mitigate efforts if they would be detrimental in any Damages arising out of or relating to this Agreement or the transactions contemplated hereby with material respect to Taxes, provided that Seller shall bear and shall, upon the request of Buyer, fund in advance any out-of-pocket costs and expenses actually incurred by Buyer in complying with any such request (and Buyer may condition such actions on the prior payment of such amounts by Seller).party; (de) The the amount of any Damage Damages for which an Indemnified Party claims indemnification under this Agreement shall be reduced by (i) any available insurance proceeds with respect to such Damage.Damages (net of any expenses or costs of collection incurred by such Indemnified Party in recovering such amounts, including any increases in premiums under any insurance policies where such increase directly resulted from any such insurance payments), and (ii) all other amounts recovered from a third party pursuant to indemnification or otherwise in respect of such Damages, in each case, net of out-of-pocket costs and expenses reasonably incurred by such Indemnified Party; provided that if an Indemnified Party recovers an amount from a third party in respect of Damages that are the subject of indemnification hereunder after all or a portion of such Damages have been paid by an Indemnifying Party pursuant to this Article 7, then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (A) (1) the amount paid by the Indemnifying Party in respect of such Damages plus (2) the amount received by the Indemnified Party in respect thereof (net of out-of-pocket costs and expenses reasonably incurred in obtaining such recovery) over (B) the full amount of the Damages; for the avoidance of doubt, such remitted amount shall not be in excess of the applicable indemnification payment; (ef) In in the event an Indemnified Party shall recover Damages in respect of a claim of indemnification under this Article X7, no other Indemnified Party shall be entitled to recover the same Damages in respect of a claim for indemnification. (f) For purposes of Section 10.02(a)(i) or Section 10.02(b)(i), (i) the determination of whether there has been an inaccuracy in or breach of a representation or warranty in this Agreement and (ii) the calculation of any Damage arising out of any inaccuracy in or breach of any representation or warranty shall each be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty; provided that, such materiality read out shall not apply to the representations and warranties contained in Section 4.06 (Financial Statements), Section 4.07(b) (No Material Adverse Effect), the first sentence of Section 4.15 (Permits), Section 4.17(a) (Employee Benefit Plans), and the defined term “Material Contract”.; (g) If, prior no Party shall be liable for any Damages to the Initial Closingextent that such claim arises or the amount of Damages is increased (and if increased, only to the extent of such increase) as a result of any Party (such Partychange in the accounting policies or practices of, or applicable to, the “Waiving Party”Company or the Company Subsidiary introduced or having effect on or after the | Closing Date; provided such change was not required to comply with any Law or Order or the standards of IFRS; (h) no Party shall be liable for any Damages to the extent that the amount of such Damages has knowledge been increased (and if increased, only to the extent of such increase) as a result of statutory Law promulgated after the Closing Date; (i) no Party will be entitled to recover damages in respect of any claim under this Agreement or otherwise obtain indemnification more than once in respect of the same losses suffered. In the event that any circumstance gives rise to more than one right of claim or constitutes a breach by the other Party of any more than one representation, warranty, covenant or agreement contained in this Agreement and the Waiving Party proceeds with the Initial Closinghereunder, the Waiving Party relevant party shall be deemed to have waived such breach and the Waiving Party and the other Buyer Indemnitees or Seller Indemnitees, as applicable, shall not be entitled to indemnification pursuant be indemnified or make recovery only once in respect of any such circumstance; and (j) For the purposes of calculating the amount of Damages related to this Article X any breach of representation or warranty, for the purposes of Section 7.2(a), any qualification as to xxx for damages materiality, “Material Adverse Effect” or to assert any other right similar qualification or remedy arising from any matters relating to such condition or breachstandard (including the monetary thresholds contained in Section 3.13(a), notwithstanding anything to the contrary Section 3.14, Section 3.16(b), Section 3.17(d) and Section 3.22(b)) contained herein or in any certificate delivered pursuant hereto and the Indemnified Parties hereby waive to the fullest extent permitted under applicable Law the remedy Article 3 of rescissionthis Agreement shall be disregarded.

Calculation of Damages. Notwithstanding anything to the contrary herein: (a) No Buyer Indemnitee shall be entitled to indemnification to the extent a Liability or reserve relating to the matter giving rise to such Damages has been included in the calculation of Closing Date Indebtedness. (b) Notwithstanding anything to the contrary contained in this Agreement: (i) an Indemnifying Each Indemnified Party shall not be liable for in connection with any claim for indemnification under Section 9.1 use commercially reasonable efforts to obtain any insurance proceeds available to such Indemnified Party as applicable to the claim. Commercially reasonable efforts shall obligate such Indemnified Party to submit claims but not to commence litigation against any insurer or submit claims under insurance policies held by a Person other than the Indemnified Party and its Affiliates. For the purposes of this ARTICLE IX, the amount which the Indemnifying Party is or may be required to pay to any Indemnified Party pursuant to Section 10.02(a)(i9.1 shall be reduced by (i) or Section 10.02(b)(i), as the case may beany insurance proceeds, (Aii) unless the amount of Damages actually incurred any indemnity, contribution or other similar payment recoverable by the Indemnified Parties Party or any of its Affiliates from any third party with respect thereto (it being understood that there is no obligation to recover or pursue recovery of any amounts referred to in respect of such claim exceeds $5,000 and this clause (B) unless and until the aggregate amount of indemnifiable Damages which may be recovered from the Indemnifying Party equals or exceeds $240,000ii)), in which each case the Indemnifying Party shall be liable for the full amount of such Damages from the first dollar thereof; (ii) the maximum aggregate amount of indemnifiable Damages which may be recovered from an Indemnifying Party arising out of or relating to the causes set forth in Section 10.02(a)(i) or Section 10.02(b)(i), as the case may be, shall be an amount equal to $3,200,000; and provided, that the foregoing clauses clause (i) and (ii) shall not apply immediately above, that are actually recovered by or on behalf of such Indemnified Party in reduction of the related Losses (net of any reasonable and documented costs and expenses of obtaining such insurance proceeds or other amounts and any reasonable projected increases in insurance premiums arising because of such claim), and (iii) any Tax benefit realized or reasonably expected to Damages arising out be realized as a result of such Loss by the Indemnified Party (such recoveries under clauses (i) through (iii) immediately above are collectively referred to as "Indemnity Reduction Amounts"). (b) If any Indemnified Party or relating any of its Affiliates receives any Indemnity Reduction Amounts in respect of a Claim for which indemnification is provided under this Agreement after the full amount of such Claim has been paid by an Indemnifying Party or after an Indemnifying Party has made a partial payment of such Claim and such Indemnity Reduction Amounts exceed the remaining unpaid balance of such Claim, then the Indemnified Party will promptly remit to the inaccuracy Indemnifying Party an amount equal to the excess (if any) of (x) the amount theretofore paid by the Indemnifying Party or breach any of any Fundamental Representationits Affiliates in respect of such Claim, less (y) the amount of the indemnity payment that would have been due if such Indemnity Reduction Amounts in respect thereof had been received before the indemnity payment was made. (c) Each Indemnified Party If any fact, circumstance or condition forming a basis for a Claim for indemnification under this ARTICLE IX shall have a duty to use commercially reasonable efforts to mitigate overlap with any Damages arising out fact, circumstance, condition, agreement or event forming the basis of or relating to any other claim for indemnification under this Agreement or the transactions contemplated herebyARTICLE IX, provided, that engaging in mitigating efforts is not a precondition to the making of a claim and such duty with respect to Taxes there shall only apply to the extent expressly set forth be no duplication in the last sentence calculation of this Section 10.04(c). The Indemnifying Party shall have the right, but not the obligation, and shall be afforded the opportunity by the Indemnified Party to the extent reasonably possible, to take all available steps to minimize Damages for which the Indemnified Party is entitled to indemnification before such Damages actually are incurred by the Indemnified Party. Buyer shall take such actions as are reasonably requested by Seller to mitigate any Damages arising out amount of or relating to this Agreement or the transactions contemplated hereby with respect to Taxes, provided that Seller shall bear and shall, upon the request of Buyer, fund in advance any out-of-pocket costs and expenses actually incurred by Buyer in complying with any such request (and Buyer may condition such actions on the prior payment of such amounts by Seller)Losses. (d) The amount After becoming aware of any Damage for event giving rise to or which an Indemnified Party claims indemnification could reasonably be expected to give rise to indemnifiable Losses under this Agreement shall be reduced by any available insurance proceeds with respect to such Damage. (e) In the event an Indemnified Party shall recover Damages in respect of a claim of indemnification under this Article XSection 9.1(a)(i), no other Indemnified Party shall be entitled to recover the same Damages in respect of a claim for indemnification. (f) For purposes of Section 10.02(a)(i9.1(a)(ii), Section 9.1(b)(i) or Section 10.02(b)(i9.1(b)(ii), (i) the determination of whether there has been an inaccuracy in or breach of a representation or warranty in this Agreement and (ii) the calculation of any Damage arising out of any inaccuracy in or breach of any representation or warranty shall each be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty; provided that, such materiality read out shall not apply to the representations and warranties contained in Section 4.06 (Financial Statements), Section 4.07(b) (No Material Adverse Effect), the first sentence of Section 4.15 (Permits), Section 4.17(a) (Employee Benefit Plans), and the defined term “Material Contract”. (g) If, prior to the Initial Closing, any Party (such Party, the “Waiving Party”) has knowledge of any breach by the other Party of any covenant or agreement contained in this Agreement and the Waiving Party proceeds with the Initial Closing, the Waiving Party shall be deemed to have waived such breach and the Waiving Party and the other Buyer Indemnitees or Seller Indemnitees, as applicable, the applicable Indemnified Party shall not be entitled take, and cause its Affiliates to indemnification pursuant take, commercially reasonable steps to this Article X to xxx for damages or to assert any other right or remedy arising from any matters relating to mitigate such condition or breach, notwithstanding anything to the contrary contained herein or in any certificate delivered pursuant hereto and the Indemnified Parties hereby waive to the fullest extent permitted under applicable Law the remedy of rescissionindemnifiable Losses.