Common use of Calculation of Losses Clause in Contracts

Calculation of Losses. The amount of any Loss for which indemnification is provided under Article VIII or this Article X shall be net of (i) any amounts recovered and actually received by the Indemnified Party under any insurance policy with respect to such Loss, and (ii) any amounts actually recovered from other third parties with respect to such Loss. In the event any Indemnified Party is entitled to any insurance proceeds, indemnity payments or any third-party recoveries in respect of any Losses for which such Indemnified Party is entitled to indemnification pursuant to Article VIII or this Article X, such Indemnified Party shall use commercially reasonable efforts to obtain, receive or realize such proceeds, payments or recoveries. In the event that any such insurance proceeds, indemnity payments or other third-party recoveries are realized by an Indemnified Party subsequent to receipt by such Indemnified Party of any indemnification payment hereunder in respect of the claims to which such insurance proceeds, indemnity payments or other third-party recoveries relate, appropriate refunds shall be made promptly by the relevant Indemnified Parties of all or the relevant portion of such indemnification payment, net of costs incurred by such indemnified Party to obtain such insurance proceeds, indemnity payments or other third-party recoveries.

Calculation of Losses. The In calculating any amount indemnifiable hereunder in respect of any Loss for which indemnification is provided under Article VIII or this Article X Losses, such Losses shall be net of reduced by (ia) any amounts amount recovered and actually received by the Indemnified Party under applicable insurance policies, under any insurance policy indemnification or similar agreements, or from any other person alleged to be responsible for any Losses, or other rights of recovery with respect to such Loss, Losses (and (ii) any amounts actually recovered from other third parties with respect to such Loss. In the event any Indemnified Party is entitled to any insurance proceeds, indemnity payments or any third-party recoveries in respect of any Losses for which such Indemnified Party is entitled to indemnification pursuant to Article VIII or this Article X, such Indemnified Party shall use commercially reasonable efforts to obtainseek such recoveries), receive net of any deductible or realize any other reasonable and necessary out-of-pocket expense incurred by the Indemnified Party in obtaining such proceedsrecovery and (b) any Tax benefit available to the Indemnified Party or its affiliates in connection with the accrual, payments incurrence or recoveriespayment of any such Losses (determined as actually realized on a “with or without” basis). If an Indemnified Party or its affiliates receives any such recovery described in clause (a) above after an indemnification payment by the Indemnifying Party has been made, then such Indemnified Party or its affiliates shall promptly reimburse the Indemnifying Party for any payment made, but not in excess of the amount received by the Indemnified Party or its affiliates. In the event of the occurrence of any Losses, an Indemnified Party shall seek recovery under any and all available third party insurance policies or third party indemnification obligations or other rights of recovery with respect to such Losses. Each party shall make commercially reasonable efforts to mitigate any claim or liability that any such insurance proceeds, indemnity payments or other third-party recoveries are realized by asserts under this Article IX. No Indemnifying Party shall be responsible for Losses of an Indemnified Party subsequent to receipt the extent caused by unlawful conduct of such Indemnified Party of any indemnification payment hereunder in respect of the claims to which such insurance proceeds, indemnity payments or other third-party recoveries relate, appropriate refunds shall be made promptly by the relevant Indemnified Parties of all or the relevant portion of such indemnification payment, net of costs incurred by such indemnified Party to obtain such insurance proceeds, indemnity payments or other third-party recoveriesParty.

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided under Article VIII or this Article X IX shall be net of (i) any amounts recovered and actually received by the Indemnified Party under any insurance policy with respect to such Loss, and (ii) or from any amounts actually recovered from other third parties party with respect to such Loss. In the event any Indemnified Party is entitled to any insurance proceeds, indemnity payments or any third-party recoveries in respect of any Losses for which such Indemnified Party is entitled to indemnification pursuant to Article VIII or this Article X, such Each Indemnified Party shall use commercially reasonable efforts to obtain, receive collect the proceeds of any insurance or realize such proceeds, payments or recoveriesany obligation of any third party which would have the effect of reducing any Losses. In the event that any such insurance proceeds, indemnity payments or other third-party recoveries are realized by If an Indemnified Party subsequent recovers under any insurance policy or from any third party, with respect to receipt by any Loss for which an Indemnifying Party has actually made an indemnification payment pursuant to this Article IX, such Indemnified Party shall promptly pay over to the Indemnifying Party the amount so recovered but not in excess of any indemnification payment hereunder the amount previously paid by the Indemnifying Party to or on behalf of the Indemnified Party in respect of such claim. (b) Notwithstanding anything in this Agreement to the claims contrary, solely for purposes of the indemnification provisions set forth in Section 9.1 and Section 9.3, if any representation or warranty contained in this Agreement or in any certificate delivered pursuant to which this Agreement is qualified by materiality, “Material Adverse Effect,” or any other similar qualification, such insurance proceedsqualification will be ignored and deemed not included in such representation or warranty for purposes of (i) determining whether there has been a breach of or inaccuracy in such representation or warranty and (ii) calculating the amount of Losses resulting from, indemnity payments arising out of, or other third-party recoveries relate, appropriate refunds shall be made promptly by the relevant Indemnified Parties of all relating to such breach or the relevant portion of such indemnification payment, net of costs incurred by such indemnified Party to obtain such insurance proceeds, indemnity payments or other third-party recoveriesinaccuracy.

Calculation of Losses. The amount of any Loss for which indemnification is provided payable under Article VIII or this Article X shall Section 3.01 will be calculated net of (i) any amounts recovered and insurance proceeds actually received by the applicable Holdings Indemnified Party under the Policy, less any costs and expenses incurred in connection with the recovery of such insurance policy with respect to such Loss, and proceeds (ii) excluding any amounts actually recovered from other third parties with respect to such Lossdeductible or retention amount). In the event any Indemnified Party is entitled to any insurance proceeds, indemnity payments or any third-The applicable insured party recoveries in respect of any Losses for which such Indemnified Party is entitled to indemnification pursuant to Article VIII or this Article X, such Indemnified Party shall use commercially reasonable efforts to obtainmake insurance claims and to seek and obtain recoveries under the Policy covering the applicable Loss; provided, receive or realize such proceedshowever, payments or recoveries. In the event that “commercially reasonable efforts” for purposes of this Section 3.05 shall not require any such insurance proceeds, indemnity payments or other third-party recoveries are realized by an Holdings Indemnified Party to commence litigation or make any material expenditure; provided, further, that the availability of the Policy and such obligation to pursue coverage under the Policy shall not prejudice any Holdings Indemnified Party’s right to (a) deliver a notice for indemnification pursuant to Section 3.06 or (b) indemnification for Losses pursuant to this Article III to the extent coverage under the Policy is not available. If, at any time subsequent to receipt by such the Holdings Indemnified Party of any receiving an indemnity payment for an indemnification payment hereunder claim under this Article III from Marine, the Holdings Indemnified Party receives an insurance recovery under the Policy in respect of the claims Loss underlying such claim through recovery, settlement or otherwise under or pursuant to which such insurance proceedscoverage, an amount equal to the excess, if any, of (i) the sum of (A) the amount of such payment, less any costs and expenses incurred in connection with such recovery (as set forth in the first sentence of this Section 3.05), plus (B) the amount of the indemnity payments or other third-party recoveries relate, appropriate refunds shall payment previously paid by Marine with respect to such Loss over (ii) the amount of the Loss will promptly be made promptly repaid by the relevant Holdings Indemnified Parties of all or the relevant portion of such indemnification payment, net of costs incurred by such indemnified Party to obtain such insurance proceedsMarine. For the avoidance of doubt, indemnity payments or other third-party recoveriesany amount repaid to Marine in respect of a Loss that is subsequently covered under the Policy will not be treated as an indemnification payment that counts toward the Marine Indemnification Cap.

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided Losses payable under Article VIII or this Article X 10 by the Indemnifying Party shall be net of any (i) any amounts actually recovered and actually received by the Indemnified Party under applicable insurance policies or from any insurance policy with respect other Person alleged to such Lossbe responsible therefor, and (ii) any Tax benefit actually realized by the Indemnified Party, and (iii) amounts actually recovered from other third parties received by an Indemnified Party with respect to such Lossthe same Losses pursuant to the Non-Core Coinsurance Agreement. In If the event any Indemnified Party is entitled actually recovers any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any insurance proceedsLosses, indemnity payments or any third-party recoveries in respect of any Losses for which such Indemnified Party is entitled subsequent to an indemnification pursuant to Article VIII or this Article Xpayment by the Indemnifying Party, then such Indemnified Party shall use commercially reasonable efforts 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 obtainthe amount received by the Indemnified Party, receive or realize such proceeds, payments or recoveries. In the event that net of any such insurance proceeds, indemnity payments or other third-party recoveries are realized by an Indemnified Party subsequent to receipt expenses incurred by such Indemnified Party of in collecting such amount. (b) The Indemnifying Party shall not be liable under Section 10.02 for any indemnification payment hereunder in respect (i) Losses relating to any matter to the extent that reserves for such Losses were expressly set forth on the Pro Forma Closing Balance Sheet and such reserves reduced the amount of the claims to which Final Adjustment or (ii) consequential or punitive Losses (unless such insurance proceeds, indemnity payments Losses were obtained by a third party in connection with a Claim or other third-party recoveries relate, appropriate refunds shall be made promptly by the relevant Indemnified Parties of all or the relevant portion of such indemnification payment, net of costs incurred by such indemnified a Third Party to obtain such insurance proceeds, indemnity payments or other third-party recoveriesRepresentation Claim).

Calculation of Losses. (a) Following the Closing, if any claim is made against the Sellers by a Purchaser Indemnified Party pursuant Article VIII in respect of any Loss (a “Loss Payment”), neither the Sellers nor any of its respective Affiliates, successors and assigns shall have any rights against Purchaser, the Company or their respective Affiliates, officers, directors, managers or members by reason of contribution or subrogation in respect of any such Loss Payment. (b) Notwithstanding anything in this Agreement to the contrary, for purposes of the Parties’ indemnification obligations under Article VIII, all of the representations and warranties set forth in this Agreement that are qualified as to “material,” “materiality,” “material respects,” “Material Adverse Effect” or words of similar import or effect or exception related thereto shall be deemed to have been made without any such qualification or exception for the purpose of determining the amount of Losses resulting from, arising out of or relating to any such breach of representation or warranty. (c) The Losses incurred or suffered by an Indemnified Party shall be reduced by (i) the amount of any Loss for which indemnification is provided under Article VIII related insurance proceeds actually received by such Indemnified Party or this Article X shall be its Affiliates in connection with the corresponding claim (net of (iA) any amounts recovered applicable deductible or retention amounts, based on the parties’ reasonable estimate of the increases in insurance premiums directly resulting from such claim and actually received by the Indemnified Party under any insurance policy with respect to such Loss(B) costs of collection or recovery), and (ii) any amounts other compensatory payments actually recovered received by such Indemnified Party or its Affiliates from any other third parties Persons by way of indemnification, guarantee or similar mechanism with respect to the Losses for which indemnification is claimed net of costs of collection or recovery. To the extent available, each Indemnified Party shall use its commercially reasonable efforts to obtain recovery from any such Loss. In available insurance policy or indemnification, guarantee or similar mechanism; provided, however, such obligation shall not include any requirement to commence any action, suit or proceeding to obtain such recovery, and shall not prevent or delay receipt of indemnification payments hereunder to the event any extent an Indemnified Party is otherwise entitled to thereto. If any insurance proceedsamount referenced in this Section 8.7(c) is actually received after the related indemnification payment has been made, indemnity payments or any third-party recoveries in respect of any Losses for which such then the applicable Indemnified Party is entitled shall remit such amounts to indemnification pursuant to Article VIII the applicable Indemnifying Party (net of (A) applicable deductible or this Article Xretention amounts, based on the parties’ reasonable estimate of the increases in insurance premiums directly resulting from such claim and (B) costs of collection or recovery). (d) To the extent required by Law, an Indemnified Party shall use commercially reasonable efforts to obtain, receive or realize such proceeds, payments or recoveries. mitigate any Losses for which it is entitled to indemnification pursuant to this Article VIII. (e) In the no event that shall any such insurance proceeds, indemnity payments or other third-party recoveries are realized by an Indemnifying Party be liable to any Indemnified Party subsequent for any punitive, incidental, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to receipt by such Indemnified Party the breach or alleged breach of this Agreement, or diminution of value or any indemnification payment hereunder in respect damages based on any type of the claims to which such insurance proceeds, indemnity payments or other third-party recoveries relate, appropriate refunds shall be made promptly by the relevant Indemnified Parties of all or the relevant portion of such indemnification payment, net of costs incurred by such indemnified Party to obtain such insurance proceeds, indemnity payments or other third-party recoveriesmultiple.

Calculation of Losses. The In calculating any amount indemnifiable hereunder in respect of any Loss for which indemnification is provided under Article VIII or this Article X Losses, Losses shall be net of reduced by (ia) any amounts recovered by the Indemnified Party under available insurance policies, indemnification obligations or other rights of recovery with respect to such Losses, net of any deductible or any other reasonable out-of-pocket expense incurred by the Indemnified Party in obtaining such recovery, and (b) any Tax benefit actually realized by the Indemnified Party or its Affiliates arising in connection with the accrual, incurrence or payment of any such Losses in the taxable year in which such Loss was accrued, incurred or paid or in any subsequent taxable year. If an Indemnified Party or its Affiliates receives any such recovery described in clause (a) or (b) above after an indemnification payment by the Indemnifying Party has been made, then such Indemnified Party or its Affiliates shall promptly reimburse the Indemnifying Party for any payment made, but not in excess of the amount received by the Indemnified Party or its Affiliates. In the event of the occurrence of any Losses, an Indemnified Party shall seek recovery under any available insurance policy policies, indemnification obligations or other rights of recovery with respect to such Loss, and (ii) any amounts actually recovered from other third parties with respect to such Loss. In the event any Indemnified Party is entitled to any insurance proceeds, indemnity payments or any third-party recoveries in respect of any Losses for which such Indemnified Party is entitled to indemnification pursuant to Article VIII or this Article X, such Indemnified Party shall use commercially reasonable efforts to obtain, receive or realize such proceeds, payments or recoveries. In the event that any such insurance proceeds, indemnity payments or other third-party recoveries are realized by an Indemnified Party subsequent to receipt by such Indemnified Party of any indemnification payment hereunder in respect of the claims to which such insurance proceeds, indemnity payments or other third-party recoveries relate, appropriate refunds shall be made promptly by the relevant Indemnified Parties of all or the relevant portion of such indemnification payment, net of costs incurred by such indemnified Party to obtain such insurance proceeds, indemnity payments or other third-party recoveriesLosses.

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided under Article VIII or this Article X Section 8.2 and Section 7.1 shall be net of reduced by an amount (the “Offset Amount”) equal to (i) any amounts recovered and the proceeds actually received by the Indemnified Party Person under any insurance policy or from any third-party in respect of such Loss, less (ii) all out-of-pocket costs and expenses incurred by such Indemnified Person in connection with obtaining such insurance proceeds or third-party recovery (including reasonable attorneys’ fees). An Indemnified Person shall use reasonable best efforts to pursue any insurance recovery or third-party recovery available to it with respect to any Loss for which such Loss, Indemnified Person seeks indemnification pursuant to this Article VIII. (b) The amount of Loss for which indemnification is provided under Section 8.2 and Section 7.1 shall be (i) increased to take account of any net Tax cost (other than a reduction in Tax basis or utilization of Tax attributes of an Acquired Company) incurred by the Indemnified Person arising from the receipt of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any amounts net Tax benefit actually recovered realized by the Indemnified Person arising from other third parties with respect to the incurrence or payment of such Loss. In Loss (but in no event more than three (3) years after the event any date of the applicable indemnification payment), in each case when and as such Tax cost or benefit is actually realized through an increase or reduction in Taxes otherwise due. (c) If an Indemnified Party is entitled to Person receives a payment for a Loss under any insurance proceedspolicy or from a third-party, indemnity payments or receives any Tax benefit as described in clause (ii) of Section 8.3(b), at any time subsequent to receiving any indemnification payment by the Indemnifying Person pursuant to Section 8.2, then such Indemnified Person shall promptly reimburse, in an amount up to the amount of such third-party recoveries in respect of payment or Tax benefit, the Indemnifying Person for any Losses for which such Indemnified Party is entitled to indemnification pursuant to Article VIII or this Article X, such Indemnified Party shall use commercially reasonable efforts to obtain, receive or realize such proceeds, payments or recoveries. In the event that any such insurance proceeds, indemnity payments or other third-party recoveries are realized by an Indemnified Party subsequent to receipt by such Indemnified Party of any indemnification payment hereunder in respect of the claims to which such insurance proceeds, indemnity payments or other third-party recoveries relate, appropriate refunds shall be made promptly by the relevant Indemnified Parties of all or the relevant portion of such indemnification payment, net of costs incurred by such indemnified Party to obtain such insurance proceeds, indemnity payments or other third-party recoveriesIndemnifying Person related thereto.

Calculation of Losses. (a) For purposes of Section 5.2 and Section 5.3, the existence of an inaccuracy or breach of a representation or warranty and the amount of Losses arising therefrom shall be determined without giving effect to any qualification of materiality, including by use of “in all material respects”, “Material Adverse Effect”, or words of similar effect (“Materiality Qualifiers”). Notwithstanding the foregoing, (x) Materiality Qualifiers in Section 2.11(c) shall not be so disregarded, and (y) the foregoing shall not have any impact on the use of the word “material” as part of the name of a defined term (e.g., Material Contract). (b) The amount of any Loss Losses for which indemnification indemnification, compensation or reimbursement is provided under Article VIII or this Article X V shall be calculated net of (i) any amounts recovered and actually received by the Indemnified Party under any insurance policy with respect to such Loss, and (ii) any amounts actually recovered under insurance policies (except, solely with respect to determining Losses that any Buyer Party seeks to recover from the Indemnity Escrow Amount for amounts recoverable or for which there is a right of recovery under the R&W Insurance Policy) or other amounts recoverable from third parties with respect to such Loss. In Losses (“Insurance Proceeds”), and any net Tax benefits arising from the event incurrence or payment of any indemnifiable Losses by the Indemnified Party is entitled (or its Affiliates), to any insurance proceedsthe extent such Tax benefits are realized, indemnity payments or any third-party recoveries in respect of the Taxable period of such Loss, any Losses for which such prior Taxable period, or any of the three succeeding Taxable years, by the Indemnified Party is entitled to indemnification pursuant to Article VIII (or this Article X, such its Affiliates). Each Indemnified Party shall use commercially reasonable efforts to obtain, receive or realize make claims under third party insurance policies providing coverage with respect to Losses suffered by such proceeds, payments or recoveriesIndemnified Party. In the event that any such insurance proceeds, indemnity payments or other third-party recoveries Insurance Proceeds are realized received by an Indemnified Party subsequent after payment for the related indemnification claim has been made pursuant to receipt by such this Section 5.6(b), then the Indemnified Party of any indemnification payment hereunder in respect shall pay to the Indemnifying Party an amount equal to the amount of the claims reduction in Losses that would have been applied pursuant to which the first sentence of this Section 5.6(b) had such insurance proceeds, indemnity Insurance Proceeds been received at the time such indemnification claim was made. (c) The Buyer Parties may not recover under Section 5.2(a) for any item of Losses in the event and to the extent Buyer previously received recovery for such item as a result of the Purchase Price Adjustment. (d) Amounts paid by any Party as indemnification payments or other third-party recoveries relate, appropriate refunds shall be made promptly treated as adjustments to the Purchase Price, including, for the avoidance of doubt, for Tax purposes, unless otherwise required by the relevant Indemnified Parties of all or the relevant portion of such indemnification payment, net of costs incurred by such indemnified Party to obtain such insurance proceeds, indemnity payments or other third-party recoveriesLaw.

Calculation of Losses. The In calculating any amount indemnifiable hereunder in respect of any Loss for which indemnification is provided under Article VIII or this Article X Losses, Losses shall be net of reduced by (ia) any amounts recovered by the Indemnified Party under available insurance policies, indemnification, contribution, obligations or other rights of recovery with respect to such Losses, net of any deductible or any other reasonable out-of- pocket expense incurred by the Indemnified Party in obtaining such recovery, and (b) any Tax benefit actually realized by the Indemnified Party or its Affiliates arising in connection with the accrual, incurrence or payment of any such Losses in the taxable year in which such Loss was accrued, incurred or paid or in any subsequent taxable year. If an Indemnified Party or its Affiliates receives any such recovery described in clause (a) or (b) above after an indemnification payment by the Indemnifying Party has been made, then such Indemnified Party or its Affiliates shall promptly reimburse the Indemnifying Party for any payment made, but not in excess of the amount received by the Indemnified Party or its Affiliates. In the event of the occurrence of any Losses, an Indemnified Party shall seek recovery under any available insurance policy policies, indemnification obligations or other rights of recovery with respect to such Loss, and (ii) any amounts actually recovered from other third parties with respect to such Loss. In the event any Indemnified Party is entitled to any insurance proceeds, indemnity payments or any third-party recoveries in respect of any Losses for which such Indemnified Party is entitled to indemnification pursuant to Article VIII or this Article X, such Indemnified Party shall use commercially reasonable efforts to obtain, receive or realize such proceeds, payments or recoveries. In the event that any such insurance proceeds, indemnity payments or other third-party recoveries are realized by an Indemnified Party subsequent to receipt by such Indemnified Party of any indemnification payment hereunder in respect of the claims to which such insurance proceeds, indemnity payments or other third-party recoveries relate, appropriate refunds shall be made promptly by the relevant Indemnified Parties of all or the relevant portion of such indemnification payment, net of costs incurred by such indemnified Party to obtain such insurance proceeds, indemnity payments or other third-party recoveriesLosses.

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided Losses payable under Article VIII or this Article X 10 by the Indemnifying Party shall be net of any (ii)amounts recovered by the Indemnified Party under applicable insurance policies, or from any other Person other than the Indemnifying Party (pursuant to this Article 10) alleged to be responsible therefor, and (ii)Tax benefit realized by the Indemnified Party arising from the incurrence or payment of any such Losses. If the Indemnified Party receives any amounts recovered and actually under applicable insurance policies, or from any other Person other than the Indemnifying Party (pursuant to this Article 10) alleged to be responsible for any Losses, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party under (net of any insurance policy with respect costs or expenses incurred or to such Loss, and (ii) any amounts actually recovered from other third parties with respect to such Loss. In be incurred by the event any Indemnified Party is entitled in obtaining such amount). (b) Notwithstanding anything to the contrary herein, the Indemnifying Party shall not be liable under this Agreement for any insurance proceeds(i)consequential, indemnity payments indirect, incidental, special, exemplary or any third-party recoveries in respect punitive Losses, (ii)Losses for lost profits or opportunities or (iii)Losses specifically reserved on one of the Balance Sheets. (c) Each Indemnified Party must use its commercially reasonable efforts to mitigate any Losses for which such Indemnified Party is entitled to seeks indemnification pursuant to Article VIII or under this Article X, such Agreement. (d) Each Indemnified Party shall use its commercially reasonable efforts to obtaincollect any amounts available under insurance coverage, receive or realize such proceedsfrom any other Person other than the Indemnifying Party potentially responsible, payments or recoveries. In the event that for any such insurance proceeds, indemnity payments or other third-party recoveries are realized by an Indemnified Party subsequent to receipt by such Indemnified Party of any indemnification payment hereunder in respect of the claims to which such insurance proceeds, indemnity payments or other third-party recoveries relate, appropriate refunds shall be made promptly by the relevant Indemnified Parties of all or the relevant portion of such indemnification payment, net of costs incurred by such indemnified Party to obtain such insurance proceeds, indemnity payments or other third-party recoveriesLosses payable under this Article 10.

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided Losses payable under Article VIII or this Article X 10 by the Indemnifying Party shall be net of any (i) amounts recovered by the Indemnified Party under applicable insurance policies, or from any other Person other than the Indemnifying Party (pursuant to this Article 10) alleged to be responsible therefor, and (ii) Tax benefit realized by the Indemnified Party arising from the incurrence or payment of any such Losses. If the Indemnified Party receives any amounts recovered and actually under applicable insurance policies, or from any other Person other than the Indemnifying Party (pursuant to this Article 10) alleged to be responsible for any Losses, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party (net of any costs or expenses incurred or to be incurred by the Indemnified Party in obtaining such amount). (b) Notwithstanding anything to the contrary herein, the Indemnifying Party shall not be liable under this Agreement for any insurance policy with respect to such Loss(i) consequential, and indirect, incidental, special, exemplary or punitive Losses, (ii) any amounts actually recovered from other third parties with respect to such Loss. In Losses for lost profits or opportunities or (iii) Losses specifically reserved on one of the event any Balance Sheets. (c) Each Indemnified Party is entitled must use its commercially reasonable efforts to any insurance proceeds, indemnity payments or any third-party recoveries in respect of mitigate any Losses for which such Indemnified Party is entitled to seeks indemnification pursuant to Article VIII or under this Article X, such Agreement. (d) Each Indemnified Party shall use its commercially reasonable efforts to obtaincollect any amounts available under insurance coverage, receive or realize such proceedsfrom any other Person other than the Indemnifying Party potentially responsible, payments or recoveries. In the event that for any such insurance proceeds, indemnity payments or other third-party recoveries are realized by an Indemnified Party subsequent to receipt by such Indemnified Party of any indemnification payment hereunder in respect of the claims to which such insurance proceeds, indemnity payments or other third-party recoveries relate, appropriate refunds shall be made promptly by the relevant Indemnified Parties of all or the relevant portion of such indemnification payment, net of costs incurred by such indemnified Party to obtain such insurance proceeds, indemnity payments or other third-party recoveriesLosses payable under this Article 10.

Calculation of Losses. (a) No Purchaser Indemnitee or Seller Indemnitee shall be entitled to indemnification to the extent a Liability or reserve relating to the matter giving rise to such Losses has been included in the final determination of the Final Closing Amounts. (b) Each Indemnified Party shall, and shall cause their respective Affiliates to, take reasonably prudent steps consistent with customary business practices to mitigate any Losses arising out of or relating to this Agreement or the transactions contemplated hereby after becoming actually aware of the incurrence of such Losses, (c) The amount of any Loss for which an Indemnified Party claims indemnification is provided under Article VIII or this Article X shall be net of Agreement: (i) shall be reduced by any amounts recovered and insurance proceeds actually received from third-party insurers with respect to such Loss; (ii) shall be reduced by any reduction in Taxes actually paid (or any increase in any Tax refund actually received) by the Indemnified Party under as a result of the incurrence or payment of such Loss in the taxable year of the incurrence or payment of such Loss, or in any insurance policy prior taxable year; and (iii) shall be reduced by indemnification or reimbursement payments actually received from third-parties with respect to such Loss, net, in the case of each of clauses (i) and (ii) above, of any amounts actually recovered from other third parties reasonable costs associated with respect to the recovery of such Lossamounts. In the event any Indemnified Party is entitled to actually recovers any insurance proceeds, indemnity payments or any third-party recoveries in respect of any Losses for which such Indemnified Party is entitled Losses, in each case at any time subsequent to any indemnification payment pursuant to Article VIII or this Article X, such Indemnified Party shall use commercially reasonable efforts thereafter promptly reimburse the Indemnifying Party for any indemnity payment made up to obtainthe amount actually received by the Indemnified Party (net of any costs, receive fees or realize expenses incurred by the Indemnified Party in collecting such proceedsamount). (d) Except with respect to those actually awarded and paid on account of a Third Party Claim, payments and identified as such in connection with such award, no party shall be liable for punitive, exemplary, speculative or recoveries. In the event that remote damages, or any such insurance proceedsdamages based on any multiple of earnings or revenue or loss of profits, indemnity payments 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 third-party recoveries are realized by an Indemnified Party subsequent to receipt by such Indemnified Party of any indemnification payment hereunder in respect of the claims to which such insurance proceeds, indemnity payments or other third-party recoveries relate, appropriate refunds shall be made promptly by the relevant Indemnified Parties of all or the relevant portion of such indemnification payment, net of costs incurred by such indemnified Party to obtain such insurance proceeds, indemnity payments or other third-party recoveriesfault.

Calculation of Losses. The amount of 10.5.1 With respect to any Loss representation or warranty contained in this Agreement or any other Transaction Document that is qualified by materiality, “Material Adverse Effect” or a derivative thereof, such qualification will be ignored and deemed not included in such representation or warranty for which indemnification is provided under Article VIII or this Article X shall be net the purposes of (i) calculating the amount of Losses indemnifiable under this Article 10 with respect to such breach or inaccuracy and (ii) determining whether there has been a breach or inaccuracy of such representation or warranty for purposes of this Article 10. 10.5.2 Notwithstanding anything contained herein to the contrary, the amount of any amounts recovered and actually Losses incurred or suffered by the Indemnified Party shall be calculated after giving effect to (a) any net insurance proceeds received by the Indemnified Party under and any insurance policy of its Affiliates with respect to such Loss, Losses (after taking into account any increases in premiums) and (iib) any net amounts actually recovered from other third parties with respect to such Loss. In by the event any Indemnified Party is entitled to and any insurance proceeds, indemnity payments or of its Affiliates from any third-party recoveries in respect other Third Party (after taking into account the costs of any Losses for which such Indemnified Party is entitled to indemnification pursuant to Article VIII or this Article X, such recovery). Each Indemnified Party shall use commercially reasonable efforts to obtain, receive obtain such proceeds or realize such proceeds, payments recoveries either prior or recoveriessubsequent to seeking indemnification under this Agreement. In the event that If any such insurance proceeds, indemnity payments proceeds or other third-party recoveries are realized received by an Indemnified Party subsequent or any of its Affiliates with respect to receipt by such any Losses after the Indemnified Party has received the benefit of any indemnification hereunder with respect thereto, the Indemnified Party shall pay to the Indemnifying Party the amount of such proceeds or recoveries, up to the amount of the Indemnifying Party’s payment, within fifteen (15) Business Days of the Indemnified Party’s receipt of such proceeds or recoveries. 10.5.3 Upon making any payment hereunder to an Indemnified Party in respect of any Losses under this Article 10, the Indemnifying Party shall, to the extent of such payment, be subrogated to all rights of the Indemnified Party and its Affiliates against any Third Party in respect of the claims Losses to which such insurance proceeds, indemnity payments payment relates. Such Indemnified Party and its Affiliates and Indemnifying Party shall execute upon request all instruments reasonably necessary to evidence or other third-party recoveries relate, appropriate refunds further perfect such subrogation rights. 10.5.4 Each Indemnified Party shall be made promptly use commercially reasonable efforts to mitigate to the extent required by the relevant Applicable Law any Loss for which such Indemnified Parties of all or the relevant portion of such Party seeks indemnification payment, net of costs incurred by such indemnified Party to obtain such insurance proceeds, indemnity payments or other third-party recoveriesunder this Agreement.