Common use of Calculation of Losses Clause in Contracts

Calculation of Losses. The amount of any Loss for which indemnification is provided under Section 9.02 or Section 9.03 shall be net of any amounts actually recovered by the Indemnified Party under insurance policies (after reduction for any costs or expenses incurred in connection therewith, including, retrospective and prospective premium adjustments, experience-based premium adjustments) with respect to such Loss, and shall be reduced to take account of any net Tax benefit of the Indemnified Party arising from the occurrence or payment of any such Loss which is actually recognized via a reduction of income Tax liability that would have otherwise been due in the tax year such Loss is claimed (or, if applicable, in a prior year as a result of a carryback) on the Indemnified Party's federal and state income tax returns or within the four (4) succeeding tax years of the Indemnified Party. In computing the amount of such net Tax benefit, the Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt or accrual of the right to receive any indemnity payment under Section 9.02 or Section 9.03 or the incurrence or payment of any indemnified Loss. Further, if a net Tax benefit results in a tax year after the tax year the loss was originally claimed by the Indemnified Party, the net Tax benefit shall be computed by computing the present value thereof using a discount rate of ten percent (10%). Any indemnity payment under Section 9.02 or Section 9.03 shall be treated as an adjustment to the Purchase Price for Tax purposes, unless a final determination with respect to the Indemnified Party or any of its Affiliates causes any such payment not to be treated as an adjustment to such price for federal income Tax purposes.

Calculation of Losses. The amount of (i) Notwithstanding anything to the contrary herein, the Seller shall have no obligation to indemnify any Buyer Party pursuant to this Section 9.2 for any Loss for resulting from or arising from (i) any amounts included in the calculation of the Final Indebtedness, Final Transaction Expenses, or Final Working Capital, including as any Tax liabilities, as finally determined pursuant to Section 2.3(c) of this Agreement; (ii) any Taxes with respect to which Seller has an indemnification is provided obligation under Section 9.02 10.1(c) of this Agreement; (iii) Taxes resulting from an actual or deemed election under Section 338 or Section 9.03 shall be net 336 of the Code (or any amounts actually recovered by the Indemnified Party corresponding or similar election under insurance policies (after reduction for any costs state, local or expenses incurred in connection therewith, including, retrospective and prospective premium adjustments, experience-based premium adjustmentsforeign Tax law) with respect to such Loss, and shall be reduced the transactions pursuant to take account of any net Tax benefit of the Indemnified Party arising from the occurrence or payment of any such Loss which is actually recognized via a reduction of income Tax liability that would have otherwise been due in the tax year such Loss is claimed this Agreement; (or, if applicable, in a prior year as a result of a carrybackiv) on the Indemnified Party's federal and state income tax returns or within the four (4) succeeding tax years of the Indemnified Party. In computing the amount of such net Tax benefit, the Indemnified Party shall be deemed Taxes attributable to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt or accrual of the right to receive any indemnity payment under Section 9.02 or Section 9.03 or the incurrence or payment of any indemnified Loss. Further, if a net Tax benefit results in a tax year after the tax year the loss was originally claimed an action taken by the Indemnified Party, the net Tax benefit shall be computed by computing the present value thereof using a discount rate of ten percent (10%). Any indemnity payment under Section 9.02 or Section 9.03 shall be treated as an adjustment to the Purchase Price for Tax purposes, unless a final determination with respect to the Indemnified Party Buyer or any of its Affiliates causes (including any member of the Company Group) outside the Ordinary Course of Business and not contemplated by this Agreement on the Closing Date following the Closing; (vi) Taxes with respect to any Tax Period beginning on the day after the Closing Date or with respect to the portion of any Straddle Period beginning on the day after the Closing Date (determined under the principles of Section 10.1(d)) attributable to a breach of a Tax Representation other than a breach of any of the Tax Representations set forth in clauses (ix), (xii), (xv), and (xvii) (solely as such payment clause (xvii) relates to “listed transactions” within the meaning of Section 6707A(c)(2) of the Code) of Section 4.10; or (vii) Taxes attributable to a breach by Buyer of any of its obligations under Section 10.1(g) of this Agreement. (ii) Notwithstanding anything to the contrary contained herein, in no event shall any Party be liable for any punitive or exemplary damages, or any consequential damages to the extent (and only to the extent) that such damages are not otherwise recoverable under a breach of contract claim under Delaware Law (except to the extent any of the forgoing are awarded in a judgment issued by a court or other authority of competent jurisdiction in any Third Party Claim), in connection with (a) a breach of any Fundamental Representation or a breach of the representations and warranties in Section 4.6 of this Agreement, (b) Actual Fraud in the making of the representations and warranties in this Agreement or any other Transaction Document, or (c) a claim arising from the breach of any covenant or agreement to be treated as an adjustment performed by a Party pursuant to such price for federal income Tax purposesthis Agreement or the other Transaction Documents.

Calculation of Losses. The amount of any Loss for which indemnification that is provided indemnifiable under this Section 9.02 or Section 9.03 shall 4 will be net of any amounts proceeds actually recovered received by the Indemnified Party under insurance policies Indemnitee from any third party (after reduction for net of any deductible or retention amount or any other third-party costs or expenses incurred by the Indemnifying Party in connection therewithobtaining such recovery) for indemnification for such Loss that actually reduce the amount of the Loss (“Third-Party Proceeds”). Accordingly, including, retrospective and prospective premium adjustments, experience-based premium adjustments) with respect the amount which any Indemnifying Party is required to such Loss, and shall pay pursuant to this Section 4 to any Indemnitee pursuant to this Section 4 will be reduced to take account by Third-Party Proceeds theretofore actually recovered by or on behalf of the Indemnitee in respect of the related Loss. If an Indemnitee receives a payment required by this Agreement from an Indemnifying Party in respect of any net Tax benefit Loss (an “Indemnity Payment”) and subsequently receives Third-Party Proceeds, then the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnified Party arising from Indemnity Payment received over the occurrence or payment amount of any such Loss which is actually recognized via a reduction of income Tax liability the Indemnity Payment that would have otherwise been due if the Third-Party Proceeds had been received, realized or recovered before the Indemnity Payment was made. The Indemnitee shall use commercially reasonable efforts to seek to collect or recover any Third-Party Proceeds to which the Indemnitee is entitled in connection with any Liability for which the tax year such Loss is claimed (orIndemnitee seeks contribution or indemnification pursuant to this Section 4; provided, if applicablehowever, in a prior year as a result of a carryback) on that the Indemnified Party's federal and state income tax returns Indemnitee’s inability to collect or within the four (4) succeeding tax years of the Indemnified Party. In computing the amount of such net Tax benefit, the Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt or accrual of the right to receive any indemnity payment under Section 9.02 or Section 9.03 or the incurrence or payment of any indemnified Loss. Further, if a net Tax benefit results in a tax year after the tax year the loss was originally claimed by the Indemnified Party, the net Tax benefit shall be computed by computing the present value thereof using a discount rate of ten percent (10%). Any indemnity payment under Section 9.02 or Section 9.03 shall be treated as an adjustment to the Purchase Price for Tax purposes, unless a final determination with respect to the Indemnified Party or any of its Affiliates causes recover any such payment Third-Party Proceeds shall not to be treated as an adjustment to such price for federal income Tax purposeslimit the Indemnifying Party’s obligations hereunder.

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided Losses payable under Section 9.02 or Section 9.03 Article 10 by the Indemnifying Party shall be (i) net of any amounts actually recovered by the Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor (after reduction for including pursuant to the Accident and Health Coinsurance Agreement or the New York Accident and Health Coinsurance Agreement), net of any actual costs or expenses incurred in connection therewithwith securing or obtaining such amounts recovered with respect to such Loss and (ii) if a Section 338(h)(10) Election is not made, includingnet of any Tax benefit actually realized by the Indemnified Party. If the Indemnified Party actually recovers any amounts under applicable insurance policies, retrospective and prospective premium adjustmentsor from any other Person alleged to be responsible for any Losses, experience-based premium adjustmentssubsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for the excess (if any) of (i) the indemnification payment made by the Indemnifying Party with respect to such Loss or expense incurred by the Indemnifying Party in connection with providing such indemnification payment plus the amount received under applicable insurance policies or from any other Person by the Indemnified Party with respect to such Loss, and shall be reduced to take account net of any net Tax benefit of actual costs or expenses incurred in connection with securing or obtaining such amounts recovered less (ii) the Indemnified Party arising from the occurrence or payment of any such Loss which is actually recognized via a reduction of income Tax liability that would have otherwise been due in the tax year such Loss is claimed (or, if applicable, in a prior year as a result of a carryback) on the Indemnified Party's federal and state income tax returns or within the four (4) succeeding tax years of the Indemnified Party. In computing the full amount of such net Tax benefit, the Indemnified Loss. (b) The Indemnifying Party shall not be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt or accrual of the right to receive any indemnity payment liable under Section 9.02 or Section 9.03 or the incurrence or payment of 10.02 for any indemnified Loss. Further, if a net Tax benefit results in a tax year after the tax year the loss was originally claimed by the Indemnified Party, the net Tax benefit shall be computed by computing the present value thereof using a discount rate of ten percent (10%). Any indemnity payment under Section 9.02 or Section 9.03 shall be treated as an adjustment Losses relating to any matter to the extent that reserves for such Losses (plus interest per annum at LIBOR from and including the Closing Date) were expressly set forth on the Final Closing Date Purchase Price for Tax purposes, unless a final determination with respect to the Indemnified Party or any of its Affiliates causes any such payment not to be treated as an adjustment to such price for federal income Tax purposesStatement.

Calculation of Losses. (a) The amount of any Loss Losses for which indemnification is provided under Section 9.02 or Section 9.03 this Article X shall be net of any amounts actually recovered by (i) net Tax benefit realized in the Indemnified Party under insurance policies form of an actual cash reduction in Taxes of the indemnified party (or credits against Taxes) as a result of such Loss in the taxable year of the Loss or the year thereafter (determining such net Tax benefit after reduction for any costs or expenses incurred in connection therewith, including, retrospective and prospective premium adjustments, experience-based premium adjustments) taking into account the Tax effect of the receipt of the indemnity payment hereunder with respect to such Loss, ) and shall be reduced to take account (ii) insurance proceeds or other cash receipts or sources of reimbursement actually received as an offset against such Loss (net of any net Tax costs incurred to recover such amounts and any increase in premiums resulting directly from such claim), but in no event including amounts recovered under the R&W Policy. The Parties acknowledge and agree that no right of subrogation shall accrue or inure to the benefit of any Collateral Source hereunder and Purchaser shall use its best efforts to cause the insurers of any Purchaser Indemnified Party arising from to waive subrogation against the occurrence or payment of any such Loss which is actually recognized via a reduction of income Tax liability that would have otherwise been due Sellers other than in the tax year such Loss is claimed event of a claim for fraud. (orb) Notwithstanding anything to the contrary elsewhere in this Agreement, if applicableno Party shall, in a prior year as a result of a carryback) on the Indemnified Party's federal and state income tax returns or within the four any event, be liable to any other Person under this Article X for punitive damages (4) succeeding tax years of the Indemnified Party. In computing the amount of such net Tax benefit, the Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt or accrual of the right to receive any indemnity payment under Section 9.02 or Section 9.03 or the incurrence or payment of any indemnified Loss. Further, if a net Tax benefit results in a tax year after the tax year the loss was originally claimed by the Indemnified Party, the net Tax benefit shall be computed by computing the present value thereof using a discount rate of ten percent (10%). Any indemnity payment under Section 9.02 or Section 9.03 shall be treated as an adjustment to the Purchase Price for Tax purposes, unless a final determination than with respect to punitive damages awarded in connection with Third Party Claims). (c) Anything herein to the Indemnified Party contrary notwithstanding, no breach of any representation, warranty, covenant or agreement contained herein shall give rise to any right on the part of Purchaser, after the consummation of the transactions contemplated hereby, to rescind this Agreement or any of its Affiliates causes any such payment not to be treated as an adjustment to such price for federal income Tax purposesthe transactions contemplated hereby other than in the event of fraud.

Calculation of Losses. 10.5.1 Notwithstanding anything in this Agreement to the contrary, the existence of any breach of any representation or warranty set forth in this Agreement and the amount of Losses related thereto shall be determined without regard to any qualifications therein referencing terms “material,” “materially,” “Material Adverse Effect” or words of similar import set forth therein. 10.5.2 The amount which the Indemnifying Party is or may be required to pay to any Indemnified Party pursuant to this Article 10 shall be determined net of any refund received (or credit received in lieu of such a refund) of Taxes paid or any net reduction in the amount of Taxes that otherwise would have been paid by the Indemnified Party as a result of the relevant Loss in the taxable year such Loss is incurred, but, in the case of non-Income Taxes, only to the extent such refund (or credit in lieu of such refund or reduction in Taxes) is received or, in the case of a reduction in taxes, occurs in the taxable year such Loss is incurred. For purposes of the preceding sentence, in computing refunds (or credits in lieu of refunds) of Taxes paid or net reduction in the amount of Taxes that otherwise would have been paid, such items shall be offset by any Tax detriments to the Indemnifying Party resulting from, among other things, receipt of any such refunds (or credits in lieu of refunds) of Taxes paid or net reduction in the amount of Taxes that otherwise would have been paid. 10.5.3 The amount of any Loss for which Losses subject to indemnification is provided under Section 9.02 or Section 9.03 hereunder shall be calculated net of any amounts actually recovered by under or pursuant to any insurance policy (other than the R&W Insurance Policy), indemnity, reimbursement arrangement, contribution agreement or contract pursuant to or under which such Indemnified Party under insurance policies is a party or has rights (after reduction for any costs or expenses incurred but in connection therewith, including, retrospective and prospective premium adjustments, experience-based premium adjustments) with respect to such Loss, and no event shall be reduced to take account of any net Tax benefit of the Indemnified Party arising from the occurrence or payment of any such Loss which is actually recognized via a reduction of income Tax liability that would have otherwise been due in the tax year such Loss is claimed (or, if applicable, in a prior year as a result of a carryback) on the Indemnified Party's federal and state income tax returns or within the four (4) succeeding tax years of the Indemnified Party. In computing the amount of such net Tax benefitLosses exceed the Escrow Amount). If the Indemnified Party receives such a recovery or payment with respect to a Loss after payment is made pursuant to this Article 10 in connection with any such Loss, the Indemnified Party shall be deemed to recognize all other items pay the lesser of income, gain, loss, deduction (i) the amount of such recovery or credit before recognizing any item arising payment and (ii) the amount paid by the Indemnifying Party (whether through withdrawals or releases from the amounts held pursuant to the Escrow Agreement or otherwise) within thirty (30) days after receipt or accrual of thereof. 10.5.4 Each Indemnified Party shall use commercially reasonable efforts to take all measures as required under applicable Legal Requirements to mitigate the right Losses that are indemnifiable hereunder. 10.5.5 Notwithstanding anything to receive any indemnity payment under Section 9.02 or Section 9.03 or the incurrence or payment of any indemnified Loss. Further, if a net Tax benefit results contrary in a tax year after the tax year the loss was originally claimed by the Indemnified Partythis Agreement, the net Tax benefit Seller shall be computed by computing the present value thereof using a discount rate of ten percent (10%). Any indemnity payment have no liability under Section 9.02 or Section 9.03 shall be treated as an adjustment to the Purchase Price for Tax purposes, unless a final determination this Article 10 with respect to any (i) Taxes of the Buyer Indemnified Parties with respect to a taxable period (or portion thereof) beginning after the Closing Date (other than as a result of any inaccuracy in or breach of the representation set forth in the first sentence of Section 5.16.4 or in Section 5.16.9(iv) or 5.16.10) or (ii) Taxes (x) resulting from any transaction taken at the direction of the Buyer or any Affiliate thereof on the Closing Date following the Closing outside of the ordinary course of business or (y) in connection with the Debt Financing (including any transfer of Debt Financing proceeds or assumption (or guarantee) of obligations related to the Debt Financing). 10.5.6 No Indemnified Party shall be entitled to any indemnification under this Agreement to the extent (a) the applicable Losses were taken into account in determining the Adjusted Closing Consideration pursuant to Article 3 or any (b) the applicable Losses have otherwise previously been satisfied or paid, including pursuant to another provision of its Affiliates causes any such payment not to be treated as an adjustment to such price for federal income Tax purposesthis Agreement.

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided Losses payable under Section 9.02 or Section 9.03 this Article XIII by the Indemnifying Party, shall be net of any amounts actually recovered by the Indemnified Party under any insurance policies (after reduction for or from any costs other sources of indemnification or expenses incurred in connection therewith, including, retrospective and prospective premium adjustments, experience-based premium adjustments) other Person alleged to be responsible with respect to such Loss, and shall be reduced to take account of any net Tax benefit of Losses. If the Indemnified Party arising or any Affiliate thereof receives any amounts under any insurance policies, or from any other sources of indemnification or any other Person alleged to be responsible for any Losses, subsequent to an indemnification payment by the occurrence or payment of any such Loss which is actually recognized via a reduction of income Tax liability that would have otherwise been due in the tax year such Loss is claimed (or, if applicableIndemnifying Party, in a prior year as a result of a carryback) on each case, that was not taken into account under the Indemnified Party's federal and state income tax returns or within the four (4) succeeding tax years of the Indemnified Party. In computing the amount of immediately preceding sentence, then such net Tax benefit, the Indemnified Party shall be deemed 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 recognize all other items of income, gain, loss, deduction the amount received or credit before recognizing any item arising from the receipt or accrual of the right to receive any indemnity payment under Section 9.02 or Section 9.03 or the incurrence or payment of any indemnified Loss. Further, if a net Tax benefit results in a tax year after the tax year the loss was originally claimed realized by the Indemnified Party, the net Tax benefit of any expenses incurred by such Indemnified Party in collecting such amount. The Indemnified Party shall use reasonable best efforts to collect any amounts available under any insurance policies or from any other sources of indemnification or such other Person alleged to have responsibility therefor. (b) In no event shall any Indemnified Party be computed by computing the present value thereof using entitled to recover or make a discount rate of ten percent claim for any amounts in respect of, and in no event shall “Losses” be deemed to include under this Article XIII (10%). Any indemnity payment under i) any Liability included in Closing Date Debt, Closing Working Capital or Closing Transaction Expenses as finally determined in accordance with Section 9.02 4.03 or Section 9.03 shall be treated as an adjustment to the Purchase Price for Tax purposes, unless a final determination (ii) except with respect to Fraud or to the extent such damages are actually recovered against a Buyer Indemnified Party pursuant to a Third-Party Claim, any punitive, consequential (except to the extent reasonably foreseeable), special or any of indirect damages. (c) An Indemnified Party shall take, and shall cause its Affiliates causes to take, all reasonable steps to mitigate and otherwise minimize its Losses to the maximum extent reasonably possible upon and after becoming aware of any such payment not event which would reasonably be expected to be treated as an adjustment give rise to such price for federal income Tax purposesany Losses.

Calculation of Losses. The amount (a) Notwithstanding any other provision of this Agreement to the contrary, the Indemnifying Party shall not be liable under this Article XIII for any Loss for which indemnification is provided under Section 9.02 or Section 9.03 shall be net of (i) Losses relating to any amounts actually recovered by matter to the extent that the Indemnified Party shall have otherwise been compensated for such matter pursuant to the Purchase Price adjustment under insurance policies Section 4.02; (after reduction ii) Losses that are for punitive damages; or (iii) Losses based upon any costs multiplier of profits, earnings, or expenses incurred in connection therewithcash flow, including, retrospective and prospective premium adjustmentswithout limitation, experience-based premium adjustments“earnings before interest, Tax, depreciation or amortization” or any other valuation metric. (b) with respect to such Loss, and shall be reduced to take account of any net Tax benefit of If the Indemnified Party arising receives any payment from the occurrence or payment an Indemnifying Party in respect of any Losses and the Indemnified Party could have recovered all or a part of such Loss which is actually recognized via Losses from a reduction of income Tax liability that would have otherwise been due in the tax year such Loss is claimed (or, if applicable, in a prior year as a result of a carryback) third party based on the Indemnified underlying claim asserted against the Indemnifying Party's federal and state income tax returns or within the four (4) succeeding tax years of the Indemnified Party. In computing the amount of such net Tax benefit, the Indemnified Party shall (but only to the extent it has recovered the full amount of such Losses) assign such of its rights to proceed against such third party as are necessary to permit the Indemnifying Party to recover from such third party the amount of such indemnification payment. (c) In calculating the amount of any Loss or indemnity for Taxes, there shall be deemed deducted an amount equal to recognize all other items any actual reduction in indemnified Taxes realized by the Indemnified Party (if and when received and treating any resulting deductions as the last item of income, gain, loss, deduction or credit before recognizing for the taxable year) and there shall be added an amount equal (on an after-tax basis) to any item arising from Tax cost actually incurred by the Indemnified Party upon the receipt or accrual of the right to receive any related indemnity payment under Section 9.02 or Section 9.03 or the incurrence or payment of any indemnified Loss. Further, if a net Tax benefit results in a tax year after the tax year the loss was originally claimed by the Indemnified Party, the net Tax benefit shall be computed by computing the present value thereof using a discount rate of ten percent (10%). Any indemnity payment under Section 9.02 or Section 9.03 shall be treated as an adjustment to the Purchase Price for Tax purposes, unless a final determination with respect to the Indemnified Party or any of its Affiliates causes any such payment not to be treated as an adjustment to such price for federal income Tax purposespayment.

Calculation of Losses. (a) The amount of any Loss Losses for which indemnification is provided under Section 9.02 this Article XI shall (i) be net of any Tax benefits actually recognized as a cash reduction in Taxes or Section 9.03 shall by the indemnified ACTIVE 218042945 party and amounts actually recovered by the indemnified party under insurance policies or otherwise with respect to such Losses (net of any Tax or expenses incurred in connection with such recovery), (ii) be net of any amounts actually recovered by the Indemnified Party under insurance policies indemnified party from Collateral Sources, (after reduction for any costs or expenses incurred iii) take into account all increases in connection therewith, including, retrospective and prospective premium adjustments, experience-based premium adjustments) with respect to such Loss, and shall be reduced to take account of any net Tax benefit of Taxes payable by the Indemnified Party arising from the occurrence or payment of any such Loss which is actually recognized via a reduction of income Tax liability that would have otherwise been due in the tax year such Loss is claimed (or, if applicable, in a prior year indemnified party as a result of a carryback) on the Indemnified Party's federal and state income tax returns or within the four (4) succeeding tax years receipt of the Indemnified Party. In indemnity payment, and (iv) to the extent not previously taken into account in computing the amount of the Loss, all increases in Taxes payable by the indemnified party for all affected taxable years and periods as a result of the event giving rise to such net Tax benefit, the Loss. If amounts are recovered from a Collateral Source after an indemnifying party makes a payment to or on behalf of an Indemnified Party shall be deemed pursuant to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt or accrual of the right to receive any indemnity payment under Section 9.02 or Section 9.03 or the incurrence or payment of any indemnified Loss. Further, if a net Tax benefit results in a tax year after the tax year the loss was originally claimed by the Indemnified Partythis Article XI, the net Tax benefit proceeds thereof shall promptly be computed by computing the present value thereof using a discount rate of ten percent (10%). Any indemnity payment under Section 9.02 or Section 9.03 shall be treated as an adjustment remitted to the Purchase Price for Tax purposes, unless a final determination with respect Indemnifying Party that made such payment. The Parties acknowledge and agree that no right of subrogation to any rights of any party hereunder shall accrue or inure to the Indemnified Party or benefit of any Collateral Source. (b) Notwithstanding anything to the contrary elsewhere in this Agreement, no party shall, in any event, be liable to any other Person for any punitive damages of its Affiliates causes any such payment not other Person, except to be treated as an adjustment the extent payable to such price for federal income Tax purposesa third party.

Calculation of Losses. (a) The amount of any Loss Losses for which indemnification is provided under Section 9.02 this ARTICLE VIII or Section 9.03 6.4 shall (i) be net of any amounts actually recovered or recoverable by the Indemnified Party under insurance policies or otherwise with respect to such Losses and each Indemnified Party will use commercially reasonable efforts to collect and/or recover any such amounts, and (ii) be reduced by the product of (x) the portion of any such Loss that constitutes a deductible payment for U.S. federal income Tax purposes and (y) an income tax rate of thirty-five percent (35%). Any reduction to an indemnity payment under this Section 8.6(a) shall not apply with respect to Special Losses (payments in respect of which shall be subject to the Special Loss Tax Benefit). (b) For the purposes hereof, if any Purchaser Indemnified Party, the Company or any of its or their Affiliates (each, a “Special Loss Party,” and collectively, the “Special Loss Parties”) receives any Special Loss Offset at any time after reduction a distribution has been made from the Special Indemnity Escrow, and such Special Loss Offset had not already been (c) Notwithstanding anything to the contrary elsewhere in this Agreement, no Party shall, in any event, be liable to any other Person for any costs Losses pursuant to this ARTICLE VIII or expenses incurred Section 6.4 to the extent such Losses constitute, include or relate to any consequential, incidental, indirect, special or punitive damages, including loss of future revenue, income or profits, diminution of value or loss of business reputation or opportunity or a multiple of revenue, income, profits or any other amount. (d) Notwithstanding anything to the contrary elsewhere in connection therewiththis Agreement, includingthe Purchaser Indemnified Parties are not entitled to indemnification pursuant to this ARTICLE VIII or Section 6.4 to the extent that any matter, retrospective amount, item of other fact for which they are seeking indemnification hereunder is an Excluded Item. (e) For the purposes of determining the amount of Losses for which indemnification is provided under this ARTICLE VIII (and, for the avoidance of doubt, not for determining whether a breach of any representation or warranty set forth in ARTICLE III or ARTICLE IV has occurred), all qualifications and prospective premium adjustmentslimitations as to materiality, experience-based premium adjustmentsMaterial Adverse Effect and words of similar import in ARTICLE III and ARTICLE IV shall be disregarded, except in each case (i) with respect to such Lossthe representations and warranties in Section 3.4(b), the lead in to Section 3.5 and Section 3.13(b), and shall be reduced (ii) to take account of any net Tax benefit of the Indemnified Party arising from extent “material” is used to qualify the occurrence or payment of any such Loss which is actually recognized via a reduction of income Tax liability that would have otherwise been due in the tax year such Loss is claimed (or, if applicable, in a prior year as a result subject matter of a carrybackrepresentation or warranty (e.g., “material” contract) on rather than the Indemnified Party's federal and state income tax returns nature of an occurrence (e.g., “material” violation or within the four (4) succeeding tax years of the Indemnified Party. In computing the amount of such net Tax benefit, the Indemnified Party shall be deemed to recognize “in all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt or accrual of the right to receive any indemnity payment under Section 9.02 or Section 9.03 or the incurrence or payment of any indemnified Loss. Further, if a net Tax benefit results in a tax year after the tax year the loss was originally claimed by the Indemnified Party, the net Tax benefit shall be computed by computing the present value thereof using a discount rate of ten percent (10%material respects”). Any indemnity payment under Section 9.02 or Section 9.03 shall be treated as an adjustment to the Purchase Price for Tax purposes, unless a final determination with respect to the Indemnified Party or any of its Affiliates causes any such payment not to be treated as an adjustment to such price for federal income Tax purposes.

Calculation of Losses. (a) The amount of any Loss for which indemnification is provided Losses payable under Section 9.02 or Section 9.03 ‎Section 8.02 by the Indemnifying Party shall be net of reduced by (i) any amounts actually recovered or recoverable by the Indemnified Party under applicable insurance policies (after reduction for deducting any Taxes, reasonable costs or and expenses incurred in connection therewith, including, retrospective and prospective premium adjustments, experience-based premium adjustments) with respect relating to such Lossrecovery and directly related increases in the future premiums payable under such insurance policies) or from any indemnity, contribution, or other similar payment actually received by the Indemnified Person (or its Affiliates) from any third parties (other than the Indemnifying Party) in respect of any such Claim, and shall be reduced to take account of (ii) any net Tax benefit of realized by the Indemnified Party arising from the occurrence incurrence or payment of any such Loss which is actually recognized via a reduction of income Losses to the extent such net Tax liability that would have otherwise been due in benefit has generated for the tax year such Loss is claimed (or, if applicable, in a prior Indemnified Party an actual cash saving during the same taxable year as a result of a carryback) on the Indemnified Party's federal and state income tax returns one during which the Loss occurs or within during the four (4) succeeding tax taxable years immediately following such taxable year; provided that (x) to the extent that such actual cash savings is actually realized after the date on which payment in respect of such Loss is made or deemed made under ‎Section 8.02, and (y) to the extent there are no outstanding amounts owed, due, or otherwise payable by any of the Sellers to any of the Purchaser or any of its Affiliate under this Agreement, the Indemnified PartyParty shall reimburse the party or parties obligated to indemnify such Indemnified Party in respect of such Loss promptly following the time or times at which such cash saving is actually realized; provided, further, where an actual cash saving is realized in the conditions set in the preceding clause (x) but the requirement in the preceding clause (y) is not met, the Indemnified Party shall only reimburse the Indemnifying Parties once the remaining amounts that have been determined to be due and payable to the Purchaser under this Agreement have been definitely settled. The Indemnified Party shall be deemed to have “actually realized” a net Tax benefit to the extent that, and at such time as, the amount of Taxes paid by the Indemnified Party or any of its Affiliates is reduced below the amount of Taxes that such Persons would have been required to pay but for the Tax benefit. In computing the amount of any such net Tax benefit, the Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item items arising from the receipt or accrual of the right to receive any indemnity payment under Section 9.02 or Section 9.03 or the incurrence or payment of any indemnified LossLosses for which indemnification is provided under ‎Section 8.02). FurtherIf the Indemnified Party receives any amounts under applicable insurance policies, if a net Tax benefit results or from any other Person 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 or expense incurred by such Indemnifying Party in a tax year after connection with providing such indemnification payment up to the tax year the loss was originally claimed amount received by the Indemnified Party, Party net of any expenses incurred by such Indemnified Party in collecting such amount. (b) Each Indemnified Party shall use commercially reasonable efforts to mitigate any Loss for which such Indemnified Party seeks indemnification under this Agreement; provided that the net Tax benefit amount of any such Loss shall be computed increased by computing the present value thereof using a discount rate of ten percent (10%). Any indemnity payment under Section 9.02 or Section 9.03 shall be treated as an adjustment to the Purchase Price for Tax purposes, unless a final determination with respect to reasonable and documented costs and expenses incurred by the Indemnified Party in connection with such mitigation efforts. (c) Each Indemnified Party shall use commercially reasonable efforts to collect any amounts available under insurance coverage for any Losses payable under ‎Section 8.02 to the extent such Losses are covered by any insurance policy. (d) Notwithstanding anything contained herein to the contrary, in determining whether there is any inaccuracy or breach of any representation or warranty in this Agreement, or in calculating the amount of its Affiliates causes any Losses arising out of any inaccuracy or breach of any representation or warranty in this Agreement, the representations and warranties will be read without regard to any materiality or Material Adverse Effect qualifiers contained in such payment not to be treated as an adjustment to such price for federal income Tax purposesprovisions.

Calculation of Losses. The (i) Subject to Section 18(d)(ii), the amount of any Loss Losses for which indemnification is provided under Section 9.02 18(a) or Section 9.03 18(b) shall be net (A) increased to take account of any amounts actually recovered net tax cost incurred by the Indemnified Party under insurance policies arising from the receipt of indemnity payments hereunder (after reduction grossed up for any costs or expenses incurred in connection therewith, including, retrospective and prospective premium adjustments, experience-based premium adjustments) with respect to such Lossincrease), and shall be (B) reduced to take account of any net Tax tax benefit of immediately realized by the Indemnified Party in cash arising from the occurrence incurrence or payment of any such Loss which is actually recognized via a reduction of income Tax liability that would have otherwise been due in the tax year such Loss is claimed (or, if applicable, in a prior year as a result of a carryback) on the Indemnified Party's federal and state income tax returns or within the four (4) succeeding tax years of the Indemnified PartyLosses. In computing the amount of any such net Tax tax cost or tax benefit, the Indemnified Party shall be deemed to recognize all other items of income, gain, loss, loss deduction or credit before recognizing any item arising from the receipt or accrual of the right to receive any indemnity payment under Section 9.02 18(a) or Section 9.03 19(b) or the incurrence or payment of any indemnified LossLosses. (ii) The amount of Losses recoverable by an Indemnified Party under Section 18(a) or Section 18(b) shall be reduced by the amount of any payment received from an insurance carrier or other third-party indemnitor by such Indemnified Party (or an Affiliate thereof) with respect to the Losses to which such claim for indemnification relates, net of the cost of collection and any increase in insurance cost resulting from such recovery. FurtherIf an Indemnified Party (or an Affiliate) receives any insurance payment in connection with any claim for Losses for which it has already received an indemnification or other third-party indemnity payment from the Indemnifying Party, if a net Tax benefit results in a tax year after it shall pay to the tax year Indemnifying Party (as defined below), within thirty (30) days of receiving such insurance payment, an amount equal to the loss was originally claimed excess of (A) the amount previously received by the Indemnified Party under Section 18(a) or Section 18(b), as applicable, with respect to such claim plus the amount of the insurance payments directly related to such claim received by the Indemnified Party, over (B) the net Tax benefit shall be computed by computing the present value thereof using a discount rate amount of ten percent (10%). Any indemnity payment under Section 9.02 or Section 9.03 shall be treated as an adjustment to the Purchase Price for Tax purposes, unless a final determination Losses with respect to such claim which the Indemnified Party has become entitled to receive under Section 18(a) or any of its Affiliates causes any such payment not to be treated Section 18(b), as an adjustment to such price for federal income Tax purposesapplicable.

Calculation of Losses. The amount of (a) In calculating any Loss for which indemnification is provided under Section 9.02 or Section 9.03 there shall be net deducted (i) any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any amounts insurer), (ii) all Tax benefits actually recovered realized by the Indemnified Party under insurance policies (after reduction for any costs or expenses incurred in connection therewith, including, retrospective and prospective premium adjustments, experience-based premium adjustments) with respect to such Loss, and shall be reduced to take account of any net Tax benefit of the Indemnified Party arising from the occurrence or payment of any such Loss which is actually recognized via a reduction of income Tax liability that would have otherwise been due in the tax year such Loss is claimed (or, if applicable, in a prior year as a result of a carryback) on the Indemnified Party's federal and state income tax returns or within the four (4) succeeding tax years of the Indemnified Party. In computing the amount of such net Tax benefit, the Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt or accrual of the right to receive any indemnity payment under Section 9.02 or Section 9.03 or the incurrence or payment of any indemnified Loss. Further, if a net Tax benefit results in a tax year after the tax year the loss was originally claimed by the Indemnified Party, the net Tax benefit shall be computed by computing the present value thereof using a discount rate of ten percent (10%). Any indemnity payment under Section 9.02 or Section 9.03 shall be treated as an adjustment to the Purchase Price for Tax purposes, unless a final determination with respect to the Indemnified Party or any of its Affiliates causes through a reduction in federal, state, local and foreign Taxes (including estimated Taxes) then due and payable, or a refund of Taxes previously paid, with respect to the taxable year or period in which such Loss occurred or a prior taxable year or period, but only if and to the extent such reduction or refund in Tax results from incurrence of such Loss, and (iii) any amount to the extent accrued for or reserved against in the Financial Statements or accounted for in the Closing Date Balance Sheet and the Closing Date Working Capital, excluding for purposes of this clause (iii) any such payment amounts accrued for or reserved against in the Financial Statements or accounted for in the Closing Date Balance Sheet with respect to Taxes (except to the extent such Taxes are also accounted for in Closing Date Working Capital). In the event that expenses are incurred by an Indemnitor in conducting the defense against a Third Party Claim in accordance with Section 11.4(b), such expenses shall not constitute Losses for purposes of determining the maximum aggregate amount to be treated paid by the applicable Indemnitor pursuant to Section 11.1 or 11.2, as an adjustment the case may be. To the extent a Loss (A) has not otherwise been reduced pursuant to clause (ii) of this Section 11.6(a), and (B) remains available to be utilized to reduce Taxes actually due and payable by the Indemnified Party or its Affiliates with respect to future years, the Indemnified Party shall remit to the Indemnitor the amount, if any, of any Tax benefit actually realized by the Indemnified Party or its Affiliates with respect to the two (2) taxable years or periods following the year or period in which the Loss was incurred. For purposes of this Section 11.6, a Tax benefit is realized to the extent (i) the Tax liability of the Indemnified Party or its Affiliates calculated by excluding the relevant Tax deductions, losses and credits attributable to the Loss exceeds (ii) the actual Tax liability of the Indemnified Party or its Affiliates calculated by taking into account the relevant Tax deductions, losses and credits attributable to the Loss (and treating such price deductions, losses and credits as the last items in such calculation). The Indemnified Party shall remit to the Indemnitor the amount of the realized Tax benefit within thirty (30) days after the date of realization. (b) No party shall have any liability or obligation under any provision of this Agreement for federal income Tax purposesany punitive, consequential, special or indirect damages, including business interruption, loss of future revenue whether or not expected, profits or income, or loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement. (c) Buyer and Seller shall cooperate with each other with respect to resolving any claim or Loss for which indemnification may be required hereunder, including by making, or causing the applicable Indemnified Party to make, all commercially reasonable efforts to mitigate any such claim or Loss. If Buyer or Seller shall fail to make such commercially reasonable efforts, then notwithstanding anything else to the contrary contained herein, the other party shall not be required to indemnify any Person for any claim, liability or Loss that would reasonably be expected to have been avoided if such efforts had been made. Without limiting the generality of the foregoing, Buyer and Seller shall, or shall cause the applicable Indemnified Party to, use commercially reasonable efforts to seek full recovery under all insurance policies covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. (d) Notwithstanding any other provision of this Agreement to the contrary, Seller shall have no Liability for any inaccuracy in or breach of any representation, warranty, covenant or agreement by Seller if Buyer had Knowledge on or before the Closing Date of the facts as a result of which or in connection with such representation, warranty, covenant or agreement was inaccurate or breached. Solely for purposes of this Section 11.6(d), Knowledge of Buyer as it relates to materials in the Data Room shall be confined to those materials in the Data Room and available for viewing by Buyer on or prior to October 28, 2014. Notwithstanding any other provision of this Agreement to the contrary, Buyer shall have no Liability for any inaccuracy in or breach of any representation, warranty, covenant or agreement by Buyer if Seller had Knowledge on or before the Closing Date of the facts as a result of which or in connection with such representation, warranty, covenant or agreement was inaccurate or breached.