Common use of Calculation of Losses Clause in Contracts

Calculation of Losses. (i) No Indemnified Person is required hereunder to pursue recovery under a contract for insurance prior to exercising its rights under an applicable indemnity set forth in this Agreement. If and to the extent an Indemnified Person elects to make a claim to its insurer for such Losses hereunder or as a result of a Third Party Claim subject to indemnification hereunder, is not making such claim as an additional insured under the Indemnifying Person’s insurance policy, and recovers monies pursuant to a contract for insurance for a Third Party Claim or Loss for which it has also received or is also pursuing or may be entitled to payment pursuant to an indemnity under this Agreement, the Indemnified Person will promptly pay the Indemnifying Person the amounts of such insurance recoveries that such Indemnified Person collects within 12 months of when such Losses were incurred or suffered by such Indemnified Person (up to the amounts the Indemnifying Person has already paid in fulfilling its indemnification obligations) and shall modify and reduce the outstanding claims under such indemnity against the Indemnifying Person by any and all remaining amounts *** Portions of this page have been omitted pursuant to a request for Confidential Treatment filed separately with the Commission. of the insurance recoveries in order to prevent any duplicative recovery. Notwithstanding anything to the contrary in this Section 8.5(e) or otherwise in this Agreement, no recovery by an Indemnified Person under any insurance policy shall limit the Indemnifying Person’s indemnification obligations under this Agreement for any Third Party Claim or Loss not covered by any recovery by the Indemnified Person under a contract for insurance for a Third Party Claim or Loss.”

Calculation of Losses. (i) No Indemnified Person is required hereunder to pursue recovery under a contract for insurance prior to exercising its rights under an applicable indemnity set forth in this Agreement. If and to the extent an Indemnified Person elects to make a claim to its insurer for such Losses hereunder or as a result of a Third Party Claim subject to indemnification hereunder, is not making such claim as an additional insured under the Indemnifying Person’s insurance policy, and recovers monies pursuant to a contract for insurance for a Third Party Claim or Loss for which it has also received or is also pursuing or may be entitled to payment pursuant to an indemnity under this Agreement, the Indemnified Person will promptly pay the Indemnifying Person the amounts of such insurance recoveries that such Indemnified Person collects within 12 months of when such Losses were incurred or suffered by such Indemnified Person (up to the amounts the Indemnifying Person has already paid in fulfilling its indemnification obligations) and shall modify and reduce the outstanding claims under such indemnity against the Indemnifying Person by any and all remaining amounts *** Portions of this page have been omitted pursuant to a request for Confidential Treatment filed separately with the Commission. of the insurance recoveries in order to prevent any duplicative recovery. Notwithstanding anything to the contrary in this Section 8.5(e) or otherwise in this Agreement, no recovery by an Indemnified Person under any insurance policy shall limit the Indemnifying Person’s indemnification obligations under this Agreement for any Third Party Claim or Loss not covered by any recovery by the Indemnified Person under a contract for insurance for a Third Party Claim or Loss.”

Calculation of Losses. (i) No Any determination of Losses shall be net of a reasonable estimate of the value of any Tax benefits realizable by the Indemnified Person is required hereunder to pursue recovery under a contract for insurance prior to exercising its rights under an applicable indemnity set forth in this Agreement. If Party by reason of the facts and circumstances giving rise to the claim for indemnification. The calculation of Losses shall be net of the amount of any insurance proceeds (other than proceeds from the R&W Insurance Policy) recoverable by the Indemnified Party with respect to such Losses. The calculation of Losses shall not include damages arising because of a change after the Closing in Law or accounting policy. To the extent that a claim for indemnification by Buyer hereunder relates to a liability incurred by Seller and there is an accrual on the Closing Balance Sheet in respect of such liability, then the determination of Losses in respect of such Claim shall be net of such accrual. In the event that Buyer, Seller, Parent or any other Indemnified Party receives a payment in reimbursement or otherwise in respect of a Loss from a third party as to which an Indemnifying Party has previously made a payment to an Indemnified Person elects Party hereunder, the applicable Indemnified Party shall promptly pay over to make the applicable Indemnifying Parties their proportionate share (based on the amounts paid by the Indemnifying Parties) of such amount received from the third party (net of reasonable expenses incurred by the Indemnified Party in obtaining such payment). The Indemnified Parties shall take all reasonable steps to mitigate any Losses in respect of a claim to its insurer for such Losses hereunder or as a result of a Third Party Claim that is subject to indemnification hereunder. In the event an Indemnifying Party makes any payment in respect of Losses under this Article 6 to an Indemnified Party, is not making such claim Indemnifying Party shall have a right of subrogation against any third party as an additional insured under to which the Indemnified Party could recover some or all of such Losses so as to permit the Indemnifying Person’s insurance policy, and recovers monies pursuant Party to a contract for insurance for a Third Party Claim or Loss for which it has also received or is also pursuing or may be entitled to payment pursuant to an indemnity under this Agreement, recover the Indemnified Person will promptly pay the Indemnifying Person the amounts amount of such insurance recoveries that such Indemnified Person collects within 12 months of when such Losses were incurred or suffered by such Indemnified Person (up to the amounts the Indemnifying Person has already paid in fulfilling its indemnification obligations) and payment hereunder. Any determination of Losses hereunder shall modify and reduce the outstanding claims under such indemnity against the Indemnifying Person by not include any and all remaining amounts *** Portions amount in respect of this page have been omitted pursuant to a request for Confidential Treatment filed separately with the Commission. consequential, indirect, or incidental damages, including, without limitation, lost profits or Losses based on multipliers of the insurance recoveries in order to prevent any duplicative recovery. Notwithstanding anything to the contrary in this Section 8.5(e) Seller earnings or profits or otherwise in this Agreementrespect of a diminution value of Seller, no recovery by an Indemnified Person under any insurance policy shall limit the Indemnifying Person’s indemnification obligations under this Agreement for any Third Party Claim or Loss not covered by any recovery by the Indemnified Person under a contract for insurance for a Third Party Claim or Lossall of which are hereby excluded.”

Calculation of Losses. For the purposes of calculating Losses to which the Buyer Indemnitees are entitled under this Article X, (i) No Indemnified such Losses shall not include any punitive damages relating to the breach or alleged breach of this Agreement, except to the extent punitive damages are awarded to a Third-Party Claim; (ii) such Losses shall be determined without duplication of recovery by reason of the state of facts giving rise to such Loss constituting a breach of more than one representation, warranty, covenant or agreement; (iii) such Losses shall not include Losses related to any matter that was subject to the determination of the amount of any post-Closing adjustment pursuant to Section 2.14; and (iv) such Losses shall be reduced by the amount of any net proceeds that any Buyer Indemnitees actually receives pursuant to the terms of any insurance policies (taking into account any premiums, fees, expenses or other costs incurred by such Buyer Indemnitee in pursuing coverage under such insurance policies); provided, however, such Buyer Indemnitee shall promptly reimburse the Sellers for any subsequent recoveries for such sources if previously indemnified hereunder so as to avoid a double recovery; and (v) such Losses shall be reduced by the amount of any prior or subsequent recovery by a Buyer Indemnitee from any other Person is required with respect to such Losses; provided, however, such Buyer Indemnitee shall promptly reimburse the Sellers for any subsequent recoveries for such sources if previously indemnified hereunder so as to avoid a double recovery; and (vi) such Losses shall not include Losses reserved for in the Reference Balance Sheet. Buyer Indemnitees shall use commercially reasonable efforts to pursue recovery for Losses under any available insurance coverage (other than the R&W Insurance Policy, which is addressed above) and payment from any applicable Person under any agreement, contract, arrangement or commitment pursuant to which the Company Group or a contract for insurance prior to exercising its rights under an applicable indemnity set forth in this Agreement. If and to the extent an Indemnified Person elects to make a claim to its insurer for such Losses hereunder or as a result of a Third Party Claim subject Buyer Indemnitee is entitled to indemnification hereunder, is not making such claim as an additional insured under the Indemnifying Person’s insurance policy, and recovers monies pursuant to a contract for insurance for a Third Party Claim or any Loss for which it has also received or is also pursuing or may be entitled to payment a Buyer Indemnitee seeks indemnification pursuant to an indemnity this Article X; provided, however, the pursuit of recovery under any available insurance coverage (other than the R&W Insurance Policy) or under any Contract shall not be a condition for such Buyer Indemnitee to seek recovery for Losses under this AgreementArticle X. Without limiting Buyers’ obligations in the prior sentence or Sellers remedies hereunder, if Xxxxxx fail to pursue or unsuccessfully obtain recoveries under any applicable insurance policies or from such other applicable Persons, including pursuant to indemnification obligations of other applicable Persons in favor of the Indemnified Person will promptly pay Company Group, then the Indemnifying Person Sellers’ Representative, without limiting the amounts foregoing provisions or any of its other rights or remedies hereunder, shall have the right of subrogation to pursue such insurance recoveries that policies or other applicable Persons on behalf of the Sellers and may take any reasonable actions necessary, at Sellers’ sole cost and expense, to pursue such Indemnified Person collects within 12 months rights of when subrogation in a manner reasonably acceptable to Buyers (such Losses were incurred approval not to be unreasonably withheld, conditioned or suffered by such Indemnified Person (up delayed) in its name or the name of the party from whom subrogation is obtained. Buyers shall use commercially reasonable efforts to the amounts the Indemnifying Person has already paid in fulfilling its indemnification obligations) and shall modify and reduce the outstanding claims under such indemnity against the Indemnifying Person by any and all remaining amounts *** Portions of this page have been omitted pursuant to a request for Confidential Treatment filed separately cooperate with the Commission. of the insurance recoveries in order Sellers’ Representative to prevent pursue any duplicative recovery. Notwithstanding anything to the contrary in this Section 8.5(e) or otherwise in this Agreement, no recovery by an Indemnified Person under any insurance policy shall limit the Indemnifying Person’s indemnification obligations under this Agreement for any Third Party Claim or Loss not covered by any recovery by the Indemnified Person under a contract for insurance for a Third Party Claim or Losssuch subrogation claim at Sellers’ sole cost and expense.”

Calculation of Losses. The amount of any Losses subject to indemnification under Section 9.2(a) shall be calculated net of any amounts recovered by the Acquiror or its Affiliates (iincluding the Surviving Corporation after the Closing) No Indemnified Person is required hereunder to pursue under applicable insurance policies held by the Acquiror or its Affiliates (net of all direct unreimbursed collection expenses). The Acquiror and its Affiliates shall seek full recovery under a contract for all insurance prior to exercising its rights under an applicable indemnity set forth in this Agreement. If and policies covering any Loss to the same extent an Indemnified Person elects to make a claim to its insurer for as they would if such Losses hereunder or as a result of a Third Party Claim Loss were not subject to indemnification hereunder, and the Acquiror, Merger Sub and the Company shall not terminate or cancel any insurance policies maintained by the Company for periods prior to the Closing; provided, however, that none of the Acquiror nor its Affiliates shall be obligated to resort to litigation against insurance carriers in order to pursue any insurance claims except in the case of claims in excess of $500,000 where (i) the Acquiror and its Affiliates conclude in good faith after discussing the matter with the Stockholder Representative that they have a reasonable chance of success on the merits or (ii) the Principal Stockholders direct the Acquiror in writing to proceed with litigation and agree in writing to indemnify the Acquiror and its Affiliates for fifty percent (50%) of any unreimbursed collection expenses relating thereto that exceed the amount recovered from the insurance company. In the event that an insurance recovery is not making made by the Acquiror, Merger Sub, the Surviving Corporation or any of their Affiliates with respect to any Loss for which any such claim as an additional insured under Person has been indemnified hereunder, then a refund equal to the Indemnifying Person’s insurance policy, and recovers monies aggregate amount of the recovery (net of all direct unreimbursed collection expenses) shall be made promptly to the Stockholder Representative (on behalf of the Principal Stockholders). The amount of any claims or Losses subject to indemnification pursuant to Article VII or Article IX shall be calculated net of any net Tax benefits actually realized by the Indemnified Party in the year of the Loss resulting from the matter giving rise to the indemnification claim hereunder. Except for Losses included in a contract for insurance for final, nonappealable order or decision issued by a court of competent jurisdiction relating to a Third Party Claim Claim, in no event will Losses include claims for consequential, punitive or Loss incidental damages, including consequential damages for which it has also received business interruption, lost profits, lost business opportunity or is also pursuing or may be entitled damage to payment pursuant to an indemnity under this Agreement, the Indemnified Person will promptly pay the Indemnifying Person the amounts of such insurance recoveries that such Indemnified Person collects within 12 months of when such Losses were incurred or suffered by such Indemnified Person (up to the amounts the Indemnifying Person has already paid in fulfilling its indemnification obligations) and shall modify and reduce the outstanding claims under such indemnity against the Indemnifying Person by any and all remaining amounts *** Portions of this page have been omitted pursuant to a request for Confidential Treatment filed separately with the Commission. of the insurance recoveries in order to prevent any duplicative recovery. Notwithstanding anything to the contrary in this Section 8.5(e) or otherwise in this Agreement, no recovery by an Indemnified Person under any insurance policy shall limit the Indemnifying Person’s indemnification obligations under this Agreement for any Third Party Claim or Loss not covered by any recovery by the Indemnified Person under a contract for insurance for a Third Party Claim or Lossbusiness reputation.”

Calculation of Losses. The amount of any Indemnifiable Loss for which indemnification is provided under this Article X shall be (ia) No net of any amounts recovered by the Indemnified Person is required hereunder Party under insurance policies with respect to pursue recovery under a contract for insurance prior to exercising its rights under an applicable indemnity set forth in this Agreement. If and such Indemnifiable Loss (including to the extent an such Indemnifiable Loss is reinsured by OneBeacon, Liberty or any of their respective Affiliates under the Indemnity Reinsurance Agreements) PROVIDED, that the Indemnified Person elects Party shall use commercially reasonable best efforts to make a collect the claim proceeds under such insurance policies with respect to its insurer such Indemnifiable Loss prior to seeking indemnification for such Losses hereunder or as a result of a Third Party Claim subject Indemnified Loss under this Article X and (b) with respect to indemnification hereunder, is not making such claim as an additional insured under the Indemnifying Person’s insurance policy, and recovers monies pursuant to a contract for insurance for a Third Party Claim or Loss for which it has also received or is also pursuing or may be entitled to payment pursuant to an indemnity under this Agreement, the Indemnified Person will promptly pay License Agreements, the Indemnifying Person Transition Services Agreement and the amounts Imaging Transition Services Agreement, net of any damages recovered with respect to Indemnifiable Losses arising from the same occurrence under any of such insurance recoveries that such Indemnified Person collects within 12 months of when such Losses were incurred or suffered by such Indemnified Person (up to the amounts the Indemnifying Person has already paid in fulfilling its indemnification obligations) agreements, and shall modify and reduce the outstanding claims under such indemnity against the Indemnifying Person by be (i) increased to take account of any and all remaining amounts *** Portions of this page have been omitted pursuant to a request for Confidential Treatment filed separately with the Commission. of the insurance recoveries in order to prevent any duplicative recovery. Notwithstanding anything to the contrary in this Section 8.5(e) or otherwise in this Agreement, no recovery by an Indemnified Person under any insurance policy shall limit the Indemnifying Person’s indemnification obligations under this Agreement for any Third Party Claim or Loss not covered by any recovery net Tax cost incurred by the Indemnified Person under a contract Party arising from the receipt of indemnity payments hereunder (grossed up for insurance for a Third such increase) and (ii) reduced to take account of any net Tax benefit realized by the Indemnified Party Claim arising from the incurrence or payment of any such Indemnifiable Loss. In computing the amount of any such Tax cost or 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 of any indemnity payment hereunder or the incurrence or payment of any Indemnifiable Loss.”

Calculation of Losses. All Losses under this Article IX will be determined net of (ia) No Indemnified Person any Third Party Awards actually recovered by the applicable Seller Indemnitee or Buyer Indemnitee with respect to the specific Loss claimed, (b) any Tax refund, Tax credit or reduction in Tax resulting or arising from such Losses, in each case, to the extent, and solely to the extent, realized by the applicable Buyer Indemnitee or Sellers’ Indemnitee (it being agreed that such Tax refund, credit or reduction will be deemed realized for purposes of this Section 9.09 at the time that it is required hereunder to pursue recovery under reflected on a contract for insurance prior to exercising its rights under an Tax Return of the applicable indemnity set forth in this Agreement. If and Buyer Indemnitee or Sellers’ Indemnitee) to the extent an Indemnified Person elects not then disputed by the applicable taxing authority or Governmental Authority, (c) any amount that specifically pertains to make such Loss and is taken into account and reflected in the calculation of Closing Working Capital as shown on the Final Closing Statement. Each Buyer Indemnitee or Seller Indemnitee, as applicable, shall use commercially reasonable efforts to seek full recovery under all applicable insurance policies that may cover a claim Loss to its insurer for the same extent as they would if such Losses hereunder Loss were not subject to indemnification or other recovery hereunder. In the event that a Tax refund, Tax credit or reduction in Tax is realized as a result contemplated by the foregoing clause (b) of this Section 9.09, a Third Party Claim subject to indemnification hereunder, Award is not making such claim as an additional insured under actually recovered by the Indemnifying Person’s insurance policy, and recovers monies pursuant applicable Seller Indemnitee or Buyer Indemnitee with respect to a contract for insurance for a Third Party Claim or specific Loss for which it any such Buyer Indemnitee or Seller Indemnitee has also received been fully indemnified or is also pursuing or may be entitled to payment pursuant to an indemnity under this Agreementotherwise recovered fully hereunder, the Indemnified Person will promptly pay the Indemnifying Person the amounts of such insurance recoveries that such Indemnified Person collects within 12 months of when such Losses were incurred or suffered by such Indemnified Person (up then a refund equal to the amounts the Indemnifying Person has already paid in fulfilling its indemnification obligations) and shall modify and reduce the outstanding claims under such indemnity against the Indemnifying Person by any and all remaining amounts *** Portions of this page have been omitted pursuant to a request for Confidential Treatment filed separately with the Commission. aggregate net amount of the insurance recoveries Tax refund, Tax credit or reduction in order to prevent any duplicative Tax or recovery (after reduction for all costs and expenses incurred in connection with obtaining such recovery. Notwithstanding anything ) shall be made promptly to the contrary in this Section 8.5(e) applicable Buyer Indemnitee or otherwise in this Agreement, no recovery by an Indemnified Person under any insurance policy shall limit Seller Indemnitee providing the Indemnifying Person’s indemnification obligations under this Agreement for any Third Party Claim indemnity or Loss not covered by any recovery by the Indemnified Person under a contract for insurance for a Third Party Claim or Lossother recovery.”

Calculation of Losses. The amount of any Loss for which indemnification is provided to any Party pursuant to this Article VIII shall be net of (each, a “Loss Reduction Amount”) (i) No any amounts actually recovered by the indemnified party under any insurance policies with respect to such Loss; provided, that no Party shall be obligated to obtain or maintain insurance for such purpose, (ii) with respect to a Parent Indemnified Person is required hereunder Party, any amounts actually recovered thereby from the landlord relating to pursue recovery under a contract for insurance prior the leased real property at Fredericksburg, Virginia, (iii) with respect to exercising its rights under an applicable indemnity claims made pursuant to Section 8.2(iii), the amount of the Specific Reserves allocable to such Loss, (iv) with respect to claims made 50 pursuant to Section 8.2(ii), the amount of any specific reserves established with respect to such Loss as reflected on the Recent Financial Statements and set forth on Schedule 8.7 and (v) the amount of the Tax benefits actually received; provided, that no Indemnifying Party shall be entitled to approve, review or otherwise participate in this Agreementthe analysis or determination of any such Tax benefits and no Indemnified Party shall have any obligation to maximize any such Tax benefit. If and the amount of any Losses incurred by an Indemnified Party at any time subsequent to the making of a payment by an Indemnifying Party pursuant to this Article VIII is reduced by a Loss Reduction Amount, the amount of such Loss Reduction Amount (less any costs, expenses (including Taxes) or premiums incurred in connection therewith) shall promptly be repaid by the Indemnified Party to the Indemnifying Party. Except with respect to indemnification for Losses pursuant to Section 8.2(iii), upon making a full indemnity payment, the Indemnifying Party shall, to the extent an Indemnified Person elects of such indemnity payment, be subrogated to make a claim to its insurer for such Losses hereunder or as a result all rights of a Third Party Claim subject to indemnification hereunder, is not making such claim as an additional insured under the Indemnifying Person’s insurance policy, and recovers monies pursuant to a contract for insurance for a Third Party Claim or Loss for which it has also received or is also pursuing or may be entitled to payment pursuant to an indemnity under this Agreement, the Indemnified Person will promptly pay the Indemnifying Person the amounts of such insurance recoveries that such Indemnified Person collects within 12 months of when such Losses were incurred or suffered by such Indemnified Person (up to the amounts the Indemnifying Person has already paid Party against any third party in fulfilling its indemnification obligations) and shall modify and reduce the outstanding claims under such indemnity against the Indemnifying Person by any and all remaining amounts *** Portions of this page have been omitted pursuant to a request for Confidential Treatment filed separately with the Commission. respect of the insurance recoveries in order Losses to prevent any duplicative recovery. Notwithstanding anything to which the contrary in this Section 8.5(e) or otherwise in this Agreement, no recovery by an Indemnified Person under any insurance policy shall limit the Indemnifying Person’s indemnification obligations under this Agreement for any Third Party Claim or Loss not covered by any recovery by the Indemnified Person under a contract for insurance for a Third Party Claim or Lossindemnity payment relates.”

Calculation of Losses. The amount of any Loss subject to indemnification under Sections 8.1(a) and (ib) No Indemnified Person is required hereunder to pursue recovery under a contract for shall be calculated net of (a) any Tax Benefit received by the indemnified party or any of their affiliates on account of such Loss and (b) any insurance prior to exercising its rights under an applicable indemnity set forth in this Agreementproceeds or any indemnity, contribution or other similar payment received by the indemnified party from any third party with respect thereto. If the indemnified party receives a Tax Benefit after an indemnification payment is made to it, the indemnified party shall promptly pay to the indemnifying party the amount of such Tax Benefit at such time or times as and to the extent an Indemnified Person elects that such Tax Benefit is actually realized by the indemnified party. For purposes hereof, “Tax Benefit” shall mean any refund of taxes paid or reduction in the amount of taxes which otherwise would have been paid. The indemnified party shall seek full recovery under all insurance policies covering any Loss to make a claim to its insurer for the same extent as they would if such Losses hereunder or as a result of a Third Party Claim Loss were not subject to indemnification hereunder, . In the event that an insurance or other recovery is not making such claim as an additional insured under the Indemnifying Person’s insurance policy, and recovers monies pursuant made by any indemnified party with respect to a contract for insurance for a Third Party Claim or any Loss for which it any such person has also received or is also pursuing or may be entitled to payment pursuant to an indemnity under this Agreementbeen indemnified hereunder, the Indemnified Person will promptly pay the Indemnifying Person the amounts of such insurance recoveries that such Indemnified Person collects within 12 months of when such Losses were incurred or suffered by such Indemnified Person (up then a refund equal to the amounts the Indemnifying Person has already paid in fulfilling its indemnification obligations) and shall modify and reduce the outstanding claims under such indemnity against the Indemnifying Person by any and all remaining amounts *** Portions of this page have been omitted pursuant to a request for Confidential Treatment filed separately with the Commission. aggregate amount of the insurance recoveries in order to prevent any duplicative recovery. Notwithstanding anything recovery shall be made promptly to the contrary indemnifying party. The indemnifying party shall be subrogated to all rights of the indemnified party and their affiliates in this Section 8.5(e) or otherwise in this Agreement, no recovery by an Indemnified Person under respect of any insurance policy shall limit the Indemnifying Person’s indemnification obligations under this Agreement for any Third Party Claim or Loss not covered by any recovery Losses indemnified by the Indemnified Person under a contract for insurance for a Third Party Claim or Loss.”indemnifying party

Calculation of Losses. (ia) No Indemnified Person is required hereunder The indemnified party shall use commercially reasonable efforts to pursue seek full recovery under a contract for all insurance prior to exercising its rights under an applicable indemnity set forth in this Agreement. If and policies any Losses to the same extent an Indemnified Person elects to make a claim to its insurer for as they would if such Losses hereunder or as a result of a Third Party Claim were not subject to indemnification hereunder; provided, is not making that (i) the indemnified party shall in no event be required to (A) maintain any insurance policies, including any insurance policies that provided coverage for NewCo, the Company or any of its Subsidiaries prior to the Closing Date, or (B) assert, or threaten to assert, any action, suit or proceeding against any Person or take any other action that would reasonably be expected to have an adverse impact in any material respect on the relationship between such claim as an additional insured indemnified party and such other Person or any of their respective Affiliates and (ii) the indemnified party shall be permitted to make claims under this Article X and the Indemnifying Person’s indemnifying party shall be required to indemnify the indemnified party under this Article X irrespective of whether the indemnified party has sought recovery under any insurance policy, . The amount of any Losses for which indemnification is provided under this Article X shall (i) be net of any amounts actually recovered by the indemnified party under insurance policies or otherwise with respect to such Losses (net of any expenses incurred in connection with such recovery) and recovers monies (ii) be net of any amounts recovered by the indemnified party from other Collateral Sources. If amounts are recovered from a Collateral Source after an indemnifying party makes a payment to or on behalf of an indemnified party pursuant to a contract for insurance for a Third Party Claim or Loss for which it has also received or is also pursuing or may be entitled to payment pursuant to an indemnity under this AgreementArticle X, the Indemnified Person will net proceeds thereof shall promptly pay be remitted to the Indemnifying Person the amounts of indemnifying party that made such insurance recoveries that such Indemnified Person collects within 12 months of when such Losses were incurred or suffered by such Indemnified Person (payment up to the amounts the Indemnifying Person has already paid in fulfilling its indemnification obligations) and shall modify and reduce the outstanding claims under such indemnity against the Indemnifying Person by any and all remaining amounts *** Portions of this page have been omitted pursuant to a request for Confidential Treatment filed separately with the Commission. amount of the insurance recoveries in order indemnification payment made by the applicable indemnifying party (less any costs to prevent recover from such Collateral Source). The parties acknowledge and agree that no right of subrogation to any duplicative recovery. Notwithstanding anything rights of any party hereunder shall accrue or inure to the contrary in this Section 8.5(e) or otherwise in this Agreement, benefit of any Collateral Source and no recovery by an Indemnified Person under claims of any insurance policy indemnified party against any Collateral Source shall limit the Indemnifying Person’s indemnification obligations under this Agreement for be subrogated to any Third Party Claim or Loss not covered by any recovery by the Indemnified Person under a contract for insurance for a Third Party Claim or Lossindemnifying party.”

Calculation of Losses. For the purposes of calculating Losses to which an Indemnified Party is entitled under this Section 9, such Losses (i) No shall not include (x) any punitive, special or exemplary damages or (y) any consequential, incidental, indirect, or multiple damages or any lost profits, opportunity costs or similar items; provided, however, (A) that in the case of clauses (x) and (y) the Indemnified Person is required hereunder Party shall not be precluded from claiming as Losses any such damage or loss paid by the Indemnified Party to pursue recovery under a contract for insurance prior to exercising its rights under an applicable indemnity set forth third party, (B) that in this Agreement. If and case of clause (y) the Indemnified Party shall not be precluded from claiming as Losses any such damage or loss (excluding multiple damages) to the extent reasonably foreseeable by the parties as of the date hereof as a direct or indirect and probable result of the breach or the event otherwise giving rise to the right of indemnification and (C) that in the case of clause (y) that the Indemnified Party shall not be precluded from claiming Losses for multiple damages to the extent the Indemnified Party can prove that the Losses pertain to underlying damages indemnifiable hereunder and pertain to items representing impairments that will continue for the foreseeable future or result in impairments of future cash flows that would reasonably be expected to continue for the foreseeable future (including because of an increase in future expenses or a decrease in future revenue that, in each case, would reasonably be expected to be continue for the foreseeable future); (ii) shall be determined without duplication of amount recovered by reason of the state of facts giving rise to such Loss constituting a breach of more than one representation, warranty, covenant or agreement; (iii) shall be reduced by the amount of any proceeds that any Indemnified Party receives pursuant to the terms of any insurance policies; provided, however, such Indemnified Party shall promptly reimburse the Indemnifying Party for any subsequent recoveries from such sources if previously indemnified hereunder so as to avoid a double recovery; (v) shall be reduced by the amount of any prior or subsequent recovery by an Indemnified Party from any other Person elects (other than a Seller) with respect to make a claim such Losses; (vi) shall not include Losses to its insurer the extent reserved for such Losses hereunder or reflected on the Final Closing Date Net Working Capital (as finally determined pursuant to Section 2.2 above); and (vii) shall be determined net of any Tax deduction or Tax credit benefits actually realized by the Indemnified Party as a result of a Third Party Claim subject any Losses in any tax year in which or prior to indemnification hereunder, is not making such claim as an additional insured under the Indemnifying Person’s insurance policy, and recovers monies pursuant to a contract for insurance for a Third Party Claim or Loss for which it has also received or is also pursuing or may be entitled to payment pursuant to an indemnity under this Agreement, the Indemnified Person will promptly pay the Indemnifying Person the amounts of such insurance recoveries that such Indemnified Person collects within 12 months of when such Losses were incurred or suffered by such or, if later, any tax year in which an indemnification payment is made. An Indemnified Person (up to the amounts the Indemnifying Person has already paid in fulfilling its indemnification obligations) Party shall diligently pursue recovery for Losses under any available insurance coverage and shall modify use commercially reasonable efforts (taking into account the existence of any customer relationships and reduce the outstanding claims merits of the claim) to pursue payment from any third party under such indemnity against the Indemnifying Person by any and all remaining amounts *** Portions of this page have been omitted agreement, contract, arrangement or commitment pursuant to a request which the Company, the Subsidiary or an Indemnified Party is entitled to indemnification for Confidential Treatment filed separately with the Commission. of the insurance recoveries in order any Loss for which an Indemnified Party seeks indemnification pursuant to prevent any duplicative recovery. Notwithstanding anything to the contrary in this Section 8.5(e) or otherwise in this Agreement, no recovery by an Indemnified Person under any insurance policy shall limit the Indemnifying Person’s indemnification obligations under this Agreement for any Third Party Claim or Loss not covered by any recovery by the Indemnified Person under a contract for insurance for a Third Party Claim or Loss9.”