Common use of Determination of Amount Clause in Contracts

Determination of Amount. (a) Notwithstanding anything to the contrary contained herein, with respect to any representation or warranty contained in this Agreement or any Other Transaction Document 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 the purposes of (i) determining whether there has been a breach or inaccuracy of such representation, warranty or certificate for purposes of this ARTICLE 11 (Indemnification; Remedies) and (ii) calculating any Damages with respect to such breach or inaccuracy for purposes of this ARTICLE 11 (Indemnification; Remedies). (b) In calculating any Damages there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer) and the Party seeking indemnification hereunder shall use commercially reasonable efforts to seek an insurance recovery to the extent available. If any Party is required to indemnify an Indemnified Party pursuant to the provisions hereof, and the cost, expense or liability for which the indemnification is sought has actually provided the Indemnifying Party with a Tax benefit that is actually recognized by such Indemnified Party as a cash Tax savings in or before the taxable year in which the applicable indemnity payment is made, the amount of such Tax benefit shall reduce the Indemnifying Party’s liability to indemnify the Indemnified Party hereunder. (c) After the giving of any Claim Notice pursuant to Section 11.5 (Notice of Claims), (A) the amount of indemnification to which an Indemnified Party shall be entitled under this ARTICLE 11 (Indemnification; Remedies) and (B) if the Cap as then in effect does not include the Additional Cap Amount, (x) the amount of Damages, if any, for which a Buyer Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Buyer Contingent Damages Amount”) or (y) the amount of Damages, if any, for which a Seller Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Seller Contingent Damages Amount”), to the extent applicable, shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnifying Party; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnifying Party shall agree. (d) No Buyer Indemnified Party shall have any right of set-off or recoupment against any payment or other obligation that such Buyer Indemnified Party or its Affiliates may have to Seller Parties or their Affiliates under this Agreement, the Other Transaction Documents or otherwise.

Determination of Amount. (a) Notwithstanding anything to the contrary contained herein, with respect to any representation or warranty contained in this Agreement or any Other Transaction Document 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 the purposes of (i) determining whether there has been a breach or inaccuracy of such representation, warranty or certificate for purposes of this ARTICLE 11 (Indemnification; Remedies) and (ii) calculating any Damages with respect to such breach or inaccuracy for purposes of this ARTICLE 11 (Indemnification; Remedies). (b) In calculating any Damages amount that any Indemnitor is required to pay an Indemnified Party in respect of Indemnifiable Losses provided under this Agreement, there shall be deducted any insurance recovery in respect thereof (and no right actually received by or on behalf of subrogation shall accrue hereunder to any insurer) and the Party seeking indemnification hereunder shall use commercially reasonable efforts to seek an insurance recovery to the extent available. If any Party is required to indemnify an Indemnified Party pursuant to the provisions hereof, and the cost, expense or liability for which the indemnification is sought has actually provided the Indemnifying Party with a Tax benefit that is actually recognized by such Indemnified Party as a cash Tax savings in or before under any Policy (provided that if the taxable year in which insurance recovery is received following when the applicable indemnity payment is made, the insurance recovery shall be paid over when realized). In determining the amount of any Indemnifiable Losses, such amount shall be (i) reduced to take into account any net Tax benefit shall reduce the Indemnifying Party’s liability to indemnify realized by the Indemnified Party hereunderarising from the incurrence or payment by the Indemnified Party of such Indemnifiable Losses and (ii) increased to take into account any net Tax cost incurred by the Indemnified Party as a result of the receipt or accrual of payments hereunder (grossed-up for such increase), in each case determined by treating the Indemnified Party as recognizing all other items of income, gain, loss, deduction or credit before recognizing any item arising from such Indemnifiable Losses (provided that if the Tax benefit or cost is realized in a Tax period following the period in which the indemnity payment is made, the Tax benefit or cost amount (as the case may be) shall be paid over when realized). It is the intention of the parties to this Agreement that indemnity payments made pursuant to this Agreement are to be treated as relating back to the Cash Contribution as an adjustment to the amount of cash contributed by Gholdco to New Alpha, LLC. The parties to this Agreement shall not take any position inconsistent with such intention before any Tax authority, except to the extent that a final determination (as defined in Section 1313 of the Code) with respect to the recipient party causes any such payment not to be so treated. (cb) After the giving of any Claim Notice pursuant to Section 11.5 (Notice of Claims)4.04, (A) the amount of indemnification to which an Indemnified Party shall be entitled under this ARTICLE 11 (Indemnification; Remedies) and (B) if the Cap as then in effect does not include the Additional Cap Amount, (x) the amount of Damages, if any, for which a Buyer Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Buyer Contingent Damages Amount”) or (y) the amount of Damages, if any, for which a Seller Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Seller Contingent Damages Amount”), to the extent applicable, IV shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnifying PartyIndemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnifying Party Indemnitor shall agree. (d) No Buyer . The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. The Indemnified Party shall have any right the burden of set-off or recoupment against any payment or other obligation that proof in establishing the amount of Indemnifiable Losses suffered by it. (c) The Indemnitor shall pay all amounts payable pursuant to Section 4.05(b) by wire transfer of immediately available funds promptly, but in no case later than ten (10) days, after the date on which such Buyer Indemnified Party or its Affiliates may have to Seller Parties or their Affiliates under this Agreement, the Other Transaction Documents or otherwiseamount has been finally and conclusively determined.

Determination of Amount. (a) Notwithstanding anything to the contrary contained herein, with respect to any representation or warranty contained in this Agreement or any Other Transaction Document 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 the purposes of (i) determining whether there has been a breach or inaccuracy of such representation, warranty or certificate for purposes of this ARTICLE 11 (Indemnification; Remedies) and (ii) calculating any Damages with respect to such breach or inaccuracy for purposes of this ARTICLE 11 (Indemnification; Remedies). (b) In calculating any Damages there Loss or Expense, such amounts shall be deducted calculated on an After-Tax Basis and shall be reduced by the net amount of any third-party insurance, indemnification or other proceeds (after deducting therefrom the full amount of the expenses incurred in procuring such recovery (including, in the case of insurance proceeds, any deductible or self-insured retention amount)) actually recovered by the Indemnified Party in respect of such Losses and Expenses under any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer) and the policy or other contract, agreement or undertaking. An Indemnified Party seeking indemnification hereunder shall use commercially reasonable efforts to seek an insurance recovery to make such recoveries (which, for the extent available. If any Party is required to indemnify an Indemnified Party pursuant to the provisions hereof, and the cost, expense or liability for which the indemnification is sought has actually provided the Indemnifying Party with a Tax benefit that is actually recognized by such Indemnified Party as a cash Tax savings in or before the taxable year in which the applicable indemnity payment is madeavoidance of doubt, the amount of such Tax benefit parties hereto agree shall reduce the Indemnifying Party’s liability to indemnify not require the Indemnified Party hereunderinitiate or maintain any lawsuit). (cb) After the giving of any Claim Notice pursuant to Section 11.5 (Notice of Claims)12.3, (A) the amount of indemnification to which an Indemnified Party shall be entitled under this ARTICLE 11 (Indemnification; Remedies) and (B) if the Cap as then in effect does not include the Additional Cap Amount, (x) the amount of Damages, if any, for which a Buyer Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Buyer Contingent Damages Amount”) or (y) the amount of Damages, if any, for which a Seller Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Seller Contingent Damages Amount”), to the extent applicable, XII shall be determineddetermined by any of the following methods: (i) by the written agreement between the Indemnified Party and the Indemnifying PartyIndemnitor; (ii) by a final judgment or decree of any court of competent jurisdictionjurisdiction in accordance with Section 14.3; or (iii) by any other means to which the Indemnified Party and the Indemnifying Party Indemnitor shall agreeagree in writing. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. (c) The Company and Xxxxxxx agree to report each indemnification payment made in respect of a Loss or Expense as an adjustment to the value of the Transferred Assets and the Assumed Liabilities for federal income Tax purposes. (d) No Buyer Indemnified Party Except for the representation of Xxxxxxx set forth in the first sentence of Section 5.6, the representations and warranties of the parties set forth herein shall have be deemed to not be qualified by, and shall be interpreted without giving effect to, any right limitations or qualifications as to “materiality” (including the word “material”) or “Material Adverse Effect” for the sole purpose of set-off or recoupment against any payment or other obligation that such Buyer Indemnified Party or its Affiliates may have determining the amount of Losses and Expenses subject to Seller Parties or their Affiliates indemnification under this Agreement, the Other Transaction Documents Article XII (but not for determining whether or otherwisenot any breach of any warranty or inaccuracy in any representation has occurred).

Determination of Amount. (a) Notwithstanding anything In calculating any Damage, such amounts shall be net of any third-party insurance, indemnification or other proceeds which have actually been recovered by the Parent Indemnitee, net of reasonable expenses incurred by the Parent Indemnitee in obtaining such recovery (including any applicable increases in premiums or deductibles in respect of any third-party insurance). If a Parent Indemnitee receives a payment required by this Article IX from the Member in respect of any Damages and subsequently receives insurance, indemnification or other proceeds from a third Person in respect of such Damages for which a payment has been received from the Member, Holdco shall, subject to the contrary contained herein, with respect to any representation or warranty contained in this Agreement or any Other Transaction Document is qualified by materiality, “Material Adverse Effect” or a derivative thereof, such qualification will be ignored other terms and deemed not included in such representation or warranty for the purposes of (i) determining whether there has been a breach or inaccuracy of such representation, warranty or certificate for purposes conditions of this ARTICLE 11 (Indemnification; Remedies) and (ii) calculating any Damages with respect Agreement, make a cash payment to the Member equal in value to such breach insurance, indemnification or inaccuracy for purposes other proceeds (such amount not to exceed the amount of this ARTICLE 11 (Indemnification; RemediesDamages paid by the Member), net of the actual expenses incurred by the Parent Indemnitee in obtaining such recovery and any other applicable increases in premiums or deductibles in respect of any third party insurance. (b) In calculating any For the sole purpose of determining Damages there shall be deducted any insurance recovery in respect thereof (and no right not for determining whether any inaccuracies in or breaches of subrogation shall accrue hereunder to any insurer) representations or warranties have occurred), the representations and warranties made by the Member in this Agreement and the Party seeking indemnification hereunder representations and warranties set forth in the Company Closing Certificate shall use commercially reasonable efforts not be deemed qualified by any references to seek an insurance recovery to materiality, Material Adverse Effect or any other similar qualification limiting the extent available. If any Party is required to indemnify an Indemnified Party pursuant to the provisions hereof, and the cost, expense or liability for which the indemnification is sought has actually provided the Indemnifying Party with a Tax benefit that is actually recognized by such Indemnified Party as a cash Tax savings in or before the taxable year in which the applicable indemnity payment is made, the amount scope of such Tax benefit shall reduce the Indemnifying Party’s liability to indemnify the Indemnified Party hereunderrepresentation or warranty. (c) After the giving of any Claim Notice pursuant to Section 11.5 (Notice of Claims)9.04, (A) the amount of indemnification to which an Indemnified Party a Parent Indemnitee shall be entitled under this ARTICLE 11 (Indemnification; Remedies) and (B) if the Cap as then in effect does not include the Additional Cap Amount, (x) the amount of Damages, if any, for which a Buyer Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Buyer Contingent Damages Amount”) or (y) the amount of Damages, if any, for which a Seller Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Seller Contingent Damages Amount”), to the extent applicable, Article IX shall be determined: (i) by the written agreement between the Indemnified Party Parent Indemnitee and the Indemnifying PartyMember; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party Parent Indemnitee and the Indemnifying Party Member shall agree. (d) No Buyer Indemnified Party . The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have any right of set-off expired and no appeal shall have been taken or recoupment against any payment or other obligation that such Buyer Indemnified Party or its Affiliates may when all appeals taken shall have to Seller Parties or their Affiliates under this Agreement, the Other Transaction Documents or otherwisebeen finally determined.

Determination of Amount. (a) Notwithstanding anything to the contrary contained herein, with respect to any representation or warranty contained in this Agreement or any Other Transaction Document 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 the purposes of (i) determining whether there has been a breach or inaccuracy of such representation, warranty or certificate for purposes of this ARTICLE 11 (Indemnification; Remedies) and (ii) calculating any Damages with respect to such breach or inaccuracy for purposes of this ARTICLE 11 (Indemnification; Remedies). (b) In calculating any Damages Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer) and the Party seeking indemnification hereunder shall ). Each party agrees to use commercially reasonable efforts to seek make any such insurance recovery. Buyer and Seller agree that, for purposes of computing the amount of any indemnification payment under this Article X, any such indemnification payment shall be treated as an insurance recovery adjustment to the extent availablePurchase Price for all Tax purposes. If any Party Seller is required to indemnify an Indemnified Party a Buyer Group Member pursuant to the provisions hereofof Section 10.1, and the cost, expense or liability for which the indemnification is sought under Section 10.1 has actually provided the Indemnifying Party any Buyer Group Member with a Tax benefit that is actually recognized by such Indemnified Party as a cash Tax savings in saved or before the taxable year in which the applicable indemnity payment is maderecovered, the amount of such Tax benefit that has been realized or received, after taking into consideration all costs and expenses incurred in obtaining such Tax savings, shall reduce the Indemnifying PartySeller’s liability to indemnify a Buyer Group Member under Section 10.1. If Buyer is required to indemnify a Seller Group Member pursuant to the Indemnified Party hereunderprovisions of Section 10.2, and the cost, expense or liability for which the indemnification is sought under Section 10.2 has provided any Seller Group Member with a Tax benefit actually saved or recovered, the amount of such Tax benefit that has been realized or received, after taking into consideration all costs and expenses incurred in obtaining such Tax savings, shall reduce Buyer’s liability to indemnify a Seller Group Member under Section 10.2. (cb) After the giving of any Claim Notice pursuant to Section 11.5 (Notice of Claims)10.3, (A) the amount of indemnification to which an Indemnified Party shall be entitled under this ARTICLE 11 (Indemnification; Remedies) and (B) if the Cap as then in effect does not include the Additional Cap Amount, (x) the amount of Damages, if any, for which a Buyer Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Buyer Contingent Damages Amount”) or (y) the amount of Damages, if any, for which a Seller Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Seller Contingent Damages Amount”), to the extent applicable, Article X shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnifying PartyIndemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnifying Party Indemnitor shall agree. (d) No Buyer . The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. The Indemnified Party shall have any right the burden of set-off or recoupment against any payment or other obligation that such Buyer Indemnified Party or its Affiliates may have to Seller Parties or their Affiliates under this Agreement, proof in establishing the Other Transaction Documents or otherwiseamount of Losses and Expenses suffered by it.

Determination of Amount. (a) Notwithstanding anything to the contrary contained herein, with respect to any representation or warranty contained in this Agreement or any Other Transaction Document 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 the purposes of (i) determining whether there has been a breach or inaccuracy of such representation, warranty or certificate for purposes of this ARTICLE 11 (Indemnification; Remedies) and (ii) calculating any Damages with respect to such breach or inaccuracy for purposes of this ARTICLE 11 (Indemnification; Remedies). (b) In calculating any Damages Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer) and the Party seeking indemnification hereunder shall ). Each party agrees to use commercially reasonable efforts to seek make any such insurance recovery. Buyer and Seller agree that, for purposes of computing the amount of any indemnification payment under this Article XI, any such indemnification payment shall be treated as an insurance recovery adjustment to the extent availablePurchase Price for all Tax purposes. If any Party Seller is required to indemnify an Indemnified Party a Buyer Group Member pursuant to the provisions hereofof Section 11.1, and the cost, expense or liability for which the indemnification is sought under Section 11.1 has actually provided the Indemnifying Party any Buyer Group Member with a Tax benefit that is actually recognized by such Indemnified Party as a cash Tax savings in saved or before the taxable year in which the applicable indemnity payment is maderecovered, the amount of such Tax benefit that has been realized or received, after taking into consideration all costs and expenses incurred in obtaining such Tax savings, shall reduce the Indemnifying Party’s Seller's liability to indemnify the Indemnified Party hereundera Buyer Group Member under Section 11.1. (cb) After the giving of any Claim Notice pursuant to Section 11.5 (Notice of Claims)11.3, (A) the amount of indemnification to which an Indemnified Party shall be entitled under this ARTICLE 11 (Indemnification; Remedies) and (B) if the Cap as then in effect does not include the Additional Cap Amount, (x) the amount of Damages, if any, for which a Buyer Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Buyer Contingent Damages Amount”) or (y) the amount of Damages, if any, for which a Seller Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Seller Contingent Damages Amount”), to the extent applicable, Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnifying PartyIndemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnifying Party Indemnitor shall agree. (d) No Buyer . The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. The Indemnified Party shall have any right the burden of set-off or recoupment against any payment or other obligation that such Buyer Indemnified Party or its Affiliates may have to Seller Parties or their Affiliates under this Agreement, proof in establishing the Other Transaction Documents or otherwiseamount of Losses and Expenses suffered by it.

Determination of Amount. (a) Notwithstanding anything to the contrary contained herein, with respect to any representation or warranty contained in this Agreement or any Other Transaction Document 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 the purposes of (i) determining whether there has been a breach or inaccuracy of such representation, warranty or certificate for purposes of this ARTICLE 11 (Indemnification; Remedies) and (ii) calculating any Damages with respect to such breach or inaccuracy for purposes of this ARTICLE 11 (Indemnification; Remedies). (b) In calculating any Damages amount that any Indemnitor is required to pay an Indemnified Party in respect of Indemnifiable Losses provided under this Agreement, there shall be deducted any insurance recovery in respect thereof (and no right actually received by or on behalf of subrogation shall accrue hereunder to any insurer) and the Party seeking indemnification hereunder shall use commercially reasonable efforts to seek an insurance recovery to the extent available. If any Party is required to indemnify an such Indemnified Party pursuant under any Policy (net of any deductibles, retentions or self insurance provisions). In determining the amount of any Indemnifiable Losses, such amount shall be (i) reduced to the provisions hereof, and the cost, expense or liability for which the indemnification is sought has actually provided the Indemnifying Party with a take into account any net Tax benefit that is actually recognized realized by the Indemnified Party arising from the incurrence or payment by the Indemnified Party of such Indemnifiable Losses and (ii) increased to take into account any net Tax cost incurred by the Indemnified Party as a cash result of the receipt or accrual of payments hereunder (grossed-up for such increase), in each case determined by treating the Indemnified Party as recognizing all other items of income, gain, loss, deduction or credit before recognizing any item arising from such Indemnifiable Losses (provided that if the Tax savings benefit or cost is realized in or before a Tax period following the taxable year period in which the applicable indemnity payment is made, the amount of such Tax benefit or cost amount (as the case may be) shall reduce be paid over when realized). It is the Indemnifying Party’s liability intention of the parties to indemnify this Agreement that indemnity payments made pursuant to this Agreement are to be treated as relating back to the Indemnified Party hereunderDistribution as an adjustment to capital (i.e., capital contribution or distribution), and the parties shall not take any position inconsistent with such intention before any Tax authority, except to the extent that a final determination (as defined in Section 1313 of the Code) with respect to the recipient party causes any such payment not to be so treated. (cb) After the giving of any Claim Notice pursuant to Section 11.5 (Notice of Claims)4.04, (A) the amount of indemnification to which an Indemnified Party shall be entitled under this ARTICLE 11 (Indemnification; Remedies) and (B) if the Cap as then in effect does not include the Additional Cap Amount, (x) the amount of Damages, if any, for which a Buyer Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Buyer Contingent Damages Amount”) or (y) the amount of Damages, if any, for which a Seller Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Seller Contingent Damages Amount”), to the extent applicable, Article IV shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnifying PartyIndemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnifying Party Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. (dc) No Buyer Indemnified Party The Indemnitor shall have any right pay all amounts payable pursuant to Section 4.05(b) by wire transfer of set-off or recoupment against any payment or other obligation that immediately available funds promptly, but in no case later than ten (10) days, after the date on which such Buyer Indemnified Party or its Affiliates may have to Seller Parties or their Affiliates under this Agreement, the Other Transaction Documents or otherwiseamount has been finally and conclusively determined.

Determination of Amount. (a) Notwithstanding anything to the contrary contained herein, with respect to any representation or warranty contained in this Agreement or any Other Transaction Document 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 the purposes of (i) determining whether there has been a breach or inaccuracy of such representation, warranty or certificate for purposes of this ARTICLE 11 (Indemnification; Remedies) and (ii) calculating any Damages with respect to such breach or inaccuracy for purposes of this ARTICLE 11 (Indemnification; Remedies). (b) In calculating any Damages Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer) and the Party seeking indemnification hereunder shall ). Each party agrees to use commercially reasonable efforts to seek make any such insurance recovery. Buyer and Seller agree that, for purposes of computing the amount of any indemnification payment under this Article X, any such indemnification payment shall be treated as an insurance recovery adjustment to the extent availablePurchase Price for all Tax purposes. If any Party Seller is required to indemnify an Indemnified Party a Buyer Group Member pursuant to the provisions hereofof Section 10.1, and the cost, expense or liability for which the indemnification is sought under Section 10.1 has actually provided the Indemnifying Party any Buyer Group Member with a Tax benefit that is actually recognized by such Indemnified Party as a cash Tax savings in saved or before the taxable year in which the applicable indemnity payment is maderecovered, the amount of such Tax benefit that has been realized or received, after taking into consideration all costs and expenses incurred in obtaining such Tax savings, shall reduce the Indemnifying PartySeller’s liability to indemnify the Indemnified Party hereundera Buyer Group Member under Section 10.1. (cb) After the giving of any Claim Notice pursuant to Section 11.5 (Notice of Claims)10.3, (A) the amount of indemnification to which an Indemnified Party shall be entitled under this ARTICLE 11 (Indemnification; Remedies) and (B) if the Cap as then in effect does not include the Additional Cap Amount, (x) the amount of Damages, if any, for which a Buyer Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Buyer Contingent Damages Amount”) or (y) the amount of Damages, if any, for which a Seller Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Seller Contingent Damages Amount”), to the extent applicable, Article X shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnifying PartyIndemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnifying Party Indemnitor shall agree. (d) No Buyer . The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. The Indemnified Party shall have any right the burden of set-off or recoupment against any payment or other obligation that such Buyer Indemnified Party or its Affiliates may have to Seller Parties or their Affiliates under this Agreement, proof in establishing the Other Transaction Documents or otherwiseamount of Losses and Expenses suffered by it.

Determination of Amount. (a) Notwithstanding anything to the contrary contained herein, with respect to any representation or warranty contained in this Agreement or any Other Transaction Document 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 the purposes of (i) determining whether there has been a breach or inaccuracy of such representation, warranty or certificate for purposes of this ARTICLE 11 (Indemnification; Remedies) and (ii) calculating any Damages with respect to such breach or inaccuracy for purposes of this ARTICLE 11 (Indemnification; Remedies). (b) In calculating any Damages Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer) and the Party seeking indemnification hereunder shall ). Each party agrees to use commercially reasonable efforts to seek make any such insurance recovery. Buyer and Seller agree that, for purposes of computing the amount of any indemnification payment under this Article X, any such indemnification payment shall be treated as an insurance recovery adjustment to the extent availablePurchase Price for all Tax purposes. If any Party Seller is required to indemnify an Indemnified Party a Buyer Group Member pursuant to the provisions hereofof Section 10.1, and the cost, expense or liability for which the indemnification is sought under Section 10.1 has actually provided the Indemnifying Party any Buyer Group Member with a Tax benefit that is actually recognized by such Indemnified Party as a cash Tax savings in saved or before the taxable year in which the applicable indemnity payment is maderecovered, the amount of such Tax benefit that has been realized or received, after taking into consideration all costs and expenses incurred in obtaining such Tax savings, shall reduce the Indemnifying Party’s Seller's liability to indemnify the Indemnified Party hereundera Buyer Group Member under Section 10.1. (cb) After the giving of any Claim Notice pursuant to Section 11.5 (Notice of Claims)10.3, (A) the amount of indemnification to which an Indemnified Party shall be entitled under this ARTICLE 11 (Indemnification; Remedies) and (B) if the Cap as then in effect does not include the Additional Cap Amount, (x) the amount of Damages, if any, for which a Buyer Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Buyer Contingent Damages Amount”) or (y) the amount of Damages, if any, for which a Seller Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Seller Contingent Damages Amount”), to the extent applicable, Article X shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnifying PartyIndemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnifying Party Indemnitor shall agree. (d) No Buyer . The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. The Indemnified Party shall have any right the burden of set-off or recoupment against any payment or other obligation that such Buyer Indemnified Party or its Affiliates may have to Seller Parties or their Affiliates under this Agreement, proof in establishing the Other Transaction Documents or otherwiseamount of Losses and Expenses suffered by it.

Determination of Amount. (a) Notwithstanding anything to the contrary contained herein, with respect to any representation or warranty contained in this Agreement or any Other Transaction Document 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 the purposes of (i) determining whether there has been a breach or inaccuracy of such representation, warranty or certificate for purposes of this ARTICLE 11 (Indemnification; Remedies) and (ii) calculating any Damages with respect to such breach or inaccuracy for purposes of this ARTICLE 11 (Indemnification; Remedies). (b) In calculating any Damages amount that any Indemnitor is required to pay an Indemnified Party in respect of Indemnifiable Losses provided under this Agreement, there shall be deducted any insurance recovery in respect thereof (and no right actually received by or on behalf of subrogation shall accrue hereunder to any insurer) and the Party seeking indemnification hereunder shall use commercially reasonable efforts to seek an insurance recovery to the extent available. If any Party is required to indemnify an such Indemnified Party pursuant under any Policy. In determining the amount of any Indemnifiable Losses, such amount shall be (i) reduced to the provisions hereof, and the cost, expense or liability for which the indemnification is sought has actually provided the Indemnifying Party with a take into account any net Tax benefit that is actually recognized realized by the Indemnified Party arising from the incurrence or payment by the Indemnified Party of such Indemnifiable Losses and (ii) increased to take into account any net Tax cost incurred by the Indemnified Party as a cash result of the receipt or accrual of payments hereunder (grossed-up for such increase), in each case determined by treating the Indemnified Party as recognizing all other items of income, gain, loss, deduction or credit before recognizing any item arising from such Indemnifiable Losses (provided that if the Tax savings benefit or cost is realized in or before a Tax period following the taxable year period in which the applicable indemnity payment is made, the amount of such Tax benefit or cost amount (as the case may be) shall reduce be paid over when realized). It is the Indemnifying Party’s liability intention of the parties to indemnify this Agreement that indemnity payments made pursuant to this Agreement are to be treated as relating back to the Indemnified Party hereunderDistribution as an adjustment to capital (i.e., capital contribution or distribution), and the parties shall not take any position inconsistent with such intention before any Tax authority, except to the extent that a final determination (as defined in Section 1313 of the Code) with respect to the recipient party causes any such payment not to be so treated. (cb) After the giving of any Claim Notice pursuant to Section 11.5 (Notice of Claims)4.04, (A) the amount of indemnification to which an Indemnified Party shall be entitled under this ARTICLE 11 (Indemnification; Remedies) and (B) if the Cap as then in effect does not include the Additional Cap Amount, (x) the amount of Damages, if any, for which a Buyer Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Buyer Contingent Damages Amount”) or (y) the amount of Damages, if any, for which a Seller Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Seller Contingent Damages Amount”), to the extent applicable, Article IV shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnifying PartyIndemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnifying Party Indemnitor shall agree. (d) No Buyer . The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. The Indemnified Party shall have any right the burden of set-off or recoupment against any payment or other obligation that such Buyer Indemnified Party or its Affiliates may have to Seller Parties or their Affiliates under this Agreement, proof in establishing the Other Transaction Documents or otherwiseamount of Indemnifiable Losses suffered by it.

Determination of Amount. (a) Notwithstanding anything to the contrary contained herein, with respect to any representation or warranty contained in this Agreement or any Other Transaction Document 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 the purposes of (i) determining whether there has been a breach or inaccuracy of such representation, warranty or certificate for purposes of this ARTICLE 11 (Indemnification; Remedies) and (ii) calculating any Damages with respect to such breach or inaccuracy for purposes of this ARTICLE 11 (Indemnification; Remedies). (b) In calculating any Damages Loss or Expense there shall be deducted any insurance recovery in respect thereof thereof. Buyer and Parent agree that, for purposes of computing the amount of any indemnification payment under this ARTICLE XI, the indemnification payment otherwise payable shall be increased by an amount sufficient to compensate the indemnified party for actual net increases in Taxes payable by the indemnified party as a result of the indemnification payment being included in taxable income; PROVIDED, Buyer and Parent agree to treat (and no right of subrogation shall accrue hereunder to cause each Buyer Group Member or Parent Group Member, respectively, to treat) each indemnification payment (including any insurerpayment made pursuant to this SECTION 11.4) and the Party seeking indemnification hereunder shall use commercially reasonable efforts to seek as an insurance recovery adjustment to the extent availablePurchase Price for all Tax purposes (unless, with respect to the recipient of the indemnification payment, such reporting position is later disallowed in a final determination in any administrative or court proceeding). If any Party Parent is required to indemnify an Indemnified Party a Buyer Group Member pursuant to the provisions hereofof SECTION 11.1, and the cost, expense or liability for which the indemnification is sought has actually provided the Indemnifying Party under SECTION 11.1 could provide any Buyer Group Member with a Tax benefit, Buyer shall pay Parent the actual Tax benefit that is actually recognized realized by such Indemnified Party as a cash Buyer Group Member. The Tax savings in or before benefit shall be determined by Buyer (with such determination to be evidenced by an officer's certificate delivered by Buyer to Parent not later than thirty (30) days after the taxable year in which day the applicable indemnity payment Tax Benefit is maderealized by any Buyer Group Member) and, at the request of Parent (and at Parent's expense), shall be verified by Buyer's accounting firm. Such determination (and any such verification) shall be based on the position taken by Buyer Group Members and their Affiliates on their Tax Returns. The amount of any Tax benefit shall be paid by Buyer to Parent not later than sixty (60) days after the day such Tax benefit is actually realized by any Buyer Group Member; PROVIDED, that in connection with the initial computation of the indemnification payment relating to a cost, expense or liability that could provide Tax benefits to any Buyer Group Member, Buyer and Parent shall reduce endeavor in good faith to arrive at a reasonably acceptable estimate of the Indemnifying Party’s liability present value of all such actual Tax Benefits provided or to indemnify be provided to all Buyer Group Members, in which case Buyer shall pay to Parent such estimated amount at such time (whether or not in advance of the Indemnified Party hereunderbenefits actually being realized). (cb) After the giving of any Claim Notice pursuant to Section 11.5 (Notice of Claims)SECTION 11.3, (A) the amount of indemnification to which an Indemnified Party shall be entitled under this ARTICLE 11 (Indemnification; Remedies) and (B) if the Cap as then in effect does not include the Additional Cap Amount, (x) the amount of Damages, if any, for which a Buyer Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Buyer Contingent Damages Amount”) or (y) the amount of Damages, if any, for which a Seller Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Seller Contingent Damages Amount”), to the extent applicable, XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnifying PartyIndemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnifying Party Indemnitor shall agree. (d) No Buyer . The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. The Indemnified Party shall have any right the burden of set-off or recoupment against any payment or other obligation that such Buyer Indemnified Party or its Affiliates may have to Seller Parties or their Affiliates under this Agreement, proof in establishing the Other Transaction Documents or otherwiseamount of Losses and Expenses suffered by it.

Determination of Amount. (a) Notwithstanding anything to the contrary contained herein, with respect to any representation or warranty contained in this Agreement or any Other Transaction Document 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 the purposes of (i) determining whether there has been a breach or inaccuracy of such representation, warranty or certificate for purposes of this ARTICLE 11 (Indemnification; Remedies) and (ii) calculating any Damages with respect to such breach or inaccuracy for purposes of this ARTICLE 11 (Indemnification; Remedies). (b) In calculating any Damages amount that any Indemnitor is required to pay an Indemnified Party in respect of Indemnifiable Losses provided under this Agreement, there shall be deducted any insurance recovery in respect thereof (and no right actually received by or on behalf of subrogation shall accrue hereunder to any insurer) and the Party seeking indemnification hereunder shall use commercially reasonable efforts to seek an insurance recovery to the extent available. If any Party is required to indemnify an Indemnified Party pursuant to the provisions hereof, and the cost, expense or liability for which the indemnification is sought has actually provided the Indemnifying Party with a Tax benefit that is actually recognized by such Indemnified Party as a cash Tax savings in or before under any Policy (provided that if the taxable year in which insurance recovery is received following when the applicable indemnity payment is made, the insurance recovery shall be paid over when realized). In determining the amount of any Indemnifiable Losses, such amount shall be (i) reduced to take into account any net Tax benefit shall reduce the Indemnifying Party’s liability to indemnify realized by the Indemnified Party hereunderarising from the incurrence or payment by the Indemnified Party of such Indemnifiable Losses and (ii) increased to take into account any net Tax cost incurred by the Indemnified Party as a result of the receipt or accrual of payments hereunder (grossed-up for such increase), in each case determined by treating the Indemnified Party as recognizing all other items of income, gain, loss, deduction or credit before recognizing any item arising from such Indemnifiable Losses (provided that if the Tax benefit or cost is realized in a Tax period following the period in which the indemnity payment is made, the Tax benefit or cost amount (as the case may be) shall be paid over when realized). It is the intention of the parties to this Agreement that indemnity payments made pursuant to this Agreement are to be treated as relating back to the Cash Contribution as an adjustment to the amount of cash contributed by Gholdco to New Alpha LLC. The parties to this Agreement shall not take any position inconsistent with such intention before any Tax authority, except to the extent that a final determination (as defined in Section 1313 of the Code) with respect to the recipient party causes any such payment not to be so treated. (cb) After the giving of any Claim Notice pursuant to Section 11.5 (Notice of Claims)4.04, (A) the amount of indemnification to which an Indemnified Party shall be entitled under this ARTICLE 11 (Indemnification; Remedies) and (B) if the Cap as then in effect does not include the Additional Cap Amount, (x) the amount of Damages, if any, for which a Buyer Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Buyer Contingent Damages Amount”) or (y) the amount of Damages, if any, for which a Seller Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Seller Contingent Damages Amount”), to the extent applicable, IV shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnifying PartyIndemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnifying Party Indemnitor shall agree. (d) No Buyer . The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. The Indemnified Party shall have any right the burden of set-off or recoupment against any payment or other obligation that proof in establishing the amount of Indemnifiable Losses suffered by it. (c) The Indemnitor shall pay all amounts payable pursuant to Section 4.05(b) by wire transfer of immediately available funds promptly, but in no case later than ten (10) days, after the date on which such Buyer Indemnified Party or its Affiliates may have to Seller Parties or their Affiliates under this Agreement, the Other Transaction Documents or otherwiseamount has been finally and conclusively determined.

Determination of Amount. (a) Notwithstanding anything to the contrary contained herein, with respect to any representation or warranty contained in this Agreement or any Other Transaction Document 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 the purposes of (i) determining whether there has been a breach or inaccuracy of such representation, warranty or certificate for purposes of this ARTICLE 11 (Indemnification; Remedies) and (ii) calculating any Damages with respect to such breach or inaccuracy for purposes of this ARTICLE 11 (Indemnification; Remedies). (b) In calculating any Damages amount that any Indemnitor is required to pay an Indemnified Party in respect of Indemnifiable Losses provided under this Agreement, there shall be deducted any insurance recovery in respect thereof (and no right actually received by or on behalf of subrogation shall accrue hereunder to any insurer) and the Party seeking indemnification hereunder shall use commercially reasonable efforts to seek an insurance recovery to the extent available. If any Party is required to indemnify an such Indemnified Party pursuant under any Policy. In determining the amount of any Indemnifiable Losses, such amount shall be (i) reduced to the provisions hereof, and the cost, expense or liability for which the indemnification is sought has actually provided the Indemnifying Party with a take into account any net Tax benefit that is actually recognized realized by the Indemnified Party arising from the incurrence or payment by the Indemnified Party of such Indemnifiable Losses and (ii) increased to take into account any net Tax cost incurred by the Indemnified Party as a cash result of the receipt or accrual of payments hereunder (grossed-up for such increase), in each case determined by treating the Indemnified Party as recognizing all other items of income, gain, loss, deduction or credit before recognizing any item arising from such Indemnifiable Losses (provided that if the Tax savings benefit or cost is realized in or before a Tax period following the taxable year period in which the applicable indemnity payment is made, the amount of such Tax benefit or cost amount (as the case may be) shall reduce be paid over when realized). It is the Indemnifying Party’s liability intention of the parties to indemnify this Agreement that indemnity payments made pursuant to this Agreement are to be treated as relating back to the Indemnified Party hereunderDistributions as an adjustment to capital (i.e., capital contribution or distribution), and the parties shall not take any position inconsistent with such intention before any Tax authority, except to the extent that a final determination (as defined in Section 1313 of the Code) with respect to the recipient party causes any such payment not to be so treated. (cb) After the giving of any Claim Notice pursuant to Section 11.5 (Notice of Claims)4.04, (A) the amount of indemnification to which an Indemnified Party shall be entitled under this ARTICLE 11 (Indemnification; Remedies) and (B) if the Cap as then in effect does not include the Additional Cap Amount, (x) the amount of Damages, if any, for which a Buyer Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Buyer Contingent Damages Amount”) or (y) the amount of Damages, if any, for which a Seller Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Seller Contingent Damages Amount”), to the extent applicable, Article IV shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnifying PartyIndemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnifying Party Indemnitor shall agree. (d) No Buyer . The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. The Indemnified Party shall have any right the burden of set-off or recoupment against any payment or other obligation that such Buyer Indemnified Party or its Affiliates may have to Seller Parties or their Affiliates under this Agreement, proof in establishing the Other Transaction Documents or otherwiseamount of Indemnifiable Losses suffered by it.

Determination of Amount. (a) Notwithstanding anything For purposes of determining Losses and Expenses pursuant to the contrary contained hereinSection 11.1(a)(i) and Section 11.2(a)(i), with respect representations and warranties shall be read without regard to any representation or warranty contained in this Agreement or any Other Transaction Document is qualified by materiality, “Material Adverse Effect” Effect or a derivative thereof, such knowledge limitation or qualification will be ignored and deemed not included in such representation or warranty for the purposes of (i) determining whether there has been a breach or inaccuracy of such representation, warranty or certificate for purposes of this ARTICLE 11 (Indemnification; Remedies) and (ii) calculating any Damages with respect to such breach or inaccuracy for purposes of this ARTICLE 11 (Indemnification; Remedies)contained therein. (b) In calculating any Damages Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer) and proceeds which the Indemnified Party seeking indemnification hereunder shall use commercially reasonable efforts to seek an insurance recovery to the extent availablehas received. If any Party an Indemnitor is required to indemnify an Indemnified Party pursuant to the provisions hereofof Sections 11.1 or 11.2, and the cost, expense or liability for which the indemnification is sought has actually provided the Indemnifying such Indemnified Party with a Tax benefit that is actually recognized by such Indemnified Party as a cash Tax savings in or before the taxable year in which the applicable indemnity payment is madecurrently, the amount of such Tax benefit shall reduce the Indemnifying PartyIndemnitor’s liability to indemnify the such Indemnified Party hereunderParty. (c) After the giving of any Claim Notice pursuant to Section 11.5 (Notice of Claims)11.3, (A) the amount of indemnification to which an Indemnified Party shall be entitled under this ARTICLE 11 (Indemnification; Remedies) and (B) if the Cap as then in effect does not include the Additional Cap Amount, (x) the amount of Damages, if any, for which a Buyer Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Buyer Contingent Damages Amount”) or (y) the amount of Damages, if any, for which a Seller Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Seller Contingent Damages Amount”), to the extent applicable, Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnifying PartyIndemnitor; (ii) by a final judgment or decree of any court court, arbitration board or administrative agency of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnifying Party Indemnitor shall agree. The judgment or decree of a court, arbitration board or administrative agency shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. (d) No Buyer Indemnified Party and Seller agree that, for purposes of computing the amount of any indemnification payment under this Article XI, the parties shall have treat any right such indemnification payment as an adjustment to the Final Cash Purchase Price for all Tax purposes. If, contrary to the position of set-off or recoupment against the parties, any payment or other obligation that made pursuant to this Agreement is required by any taxing authority to be treated as taxable income of the recipient, then the payor shall indemnify and hold harmless the recipient on an after-Tax basis from any liability for Taxes attributable to the receipt of such Buyer Indemnified Party or its Affiliates may have to Seller Parties or their Affiliates under this Agreement, the Other Transaction Documents or otherwisepayment.

Determination of Amount. (a) Notwithstanding anything to the contrary contained herein, with respect to any representation or warranty contained in this Agreement or any Other Transaction Document 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 the purposes of (i) determining whether there has been a breach or inaccuracy of such representation, warranty or certificate for purposes of this ARTICLE 11 (Indemnification; Remedies) and (ii) calculating any Damages with respect to such breach or inaccuracy for purposes of this ARTICLE 11 (Indemnification; Remedies). (b) In calculating any Damages Loss or Expense there shall be deducted any after-Tax insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer) and the Party seeking indemnification hereunder shall ). Each party agrees to use commercially its reasonable best efforts to seek an make any such insurance recovery to recovery. Buyer and Seller agree that, for purposes of computing the extent availableamount of any indemnification payment under this ARTICLE XI, any such 1. If any Party Buyer is required to indemnify an Indemnified Party a Seller Group Member pursuant to the provisions hereofof SECTION 11.2, and the cost, expense or liability for which the indemnification is sought under SECTION 11.2 has actually provided the Indemnifying Party provided, or could reasonably be expected to provide, any Seller Group Member with a Tax benefit that is actually recognized by such Indemnified Party as a cash Tax savings in or before the taxable year in which the applicable indemnity payment is madebenefit, the amount of such Tax benefit (computed assuming such Seller Group Member is subject to United States federal income tax at the highest marginal rate applicable to corporations and to state tax at 6%) shall reduce the Indemnifying Party’s Buyer's liability to indemnify the Indemnified Party hereundera Seller Group Member under SECTION 11.2. (cb) After the giving of any Claim Notice pursuant to Section 11.5 (Notice of Claims)SECTION 11.3, (A) the amount of indemnification to which an Indemnified Party shall be entitled under this ARTICLE 11 (Indemnification; Remedies) and (B) if the Cap as then in effect does not include the Additional Cap Amount, (x) the amount of Damages, if any, for which a Buyer Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Buyer Contingent Damages Amount”) or (y) the amount of Damages, if any, for which a Seller Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Seller Contingent Damages Amount”), to the extent applicable, XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnifying PartyIndemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnifying Party Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. Notwithstanding the foregoing, interest shall accrue on such amount from the date of the Claim Notice up to the date of receipt of payment by such Indemnified Part at an annual rate equal to the three-month LIBOR rate in effect as of the Closing Date, calculated on the basis of the number of days elapsed from the date of the Claim Notice to but excluding the payment date. (dc) No Buyer Indemnified Party Any amount paid pursuant to this SECTION 11.4 shall have not be reduced by any right of set-off or recoupment against any payment value added, goods and services, sales or other obligation that such Buyer Indemnified Party or its Affiliates may have to Seller Parties or their Affiliates under this Agreementindirect Taxes of any nature which, if due, shall be borne by the Other Transaction Documents or otherwiseIndemnitor.

Determination of Amount. (a) Notwithstanding anything to the contrary contained herein, with respect to any representation or warranty contained in this Agreement or any Other Transaction Document 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 the purposes of (i) determining whether there has been a breach or inaccuracy of such representation, warranty or certificate for purposes of this ARTICLE 11 (Indemnification; Remedies) and (ii) calculating any Damages with respect to such breach or inaccuracy for purposes of this ARTICLE 11 (Indemnification; Remedies). (b) In calculating any Damages Loss or Expense there shall be deducted any insurance recovery in respect thereof (and no right of subrogation shall accrue hereunder to any insurer) and the Party seeking indemnification hereunder shall ). Each party agrees to use commercially reasonable efforts to seek make any such insurance recovery. Buyer and Seller agree that, for purposes of computing the amount of any indemnification payment under this Article XI, any such indemnification payment shall be treated as an insurance recovery adjustment to the extent availablePurchase Price for all Tax purposes. If any Party Seller is required to indemnify an Indemnified Party a Buyer Group Member pursuant to the provisions hereofof Section 11.1, and the cost, expense or liability for which the indemnification is sought under Section 11.1 has actually provided the Indemnifying Party any Buyer Group Member with a Tax benefit that is actually recognized by such Indemnified Party as a cash Tax savings in saved or before the taxable year in which the applicable indemnity payment is maderecovered, the amount of such Tax benefit that has been realized or received, after taking into consideration all costs and expenses incurred in obtaining such Tax savings, shall reduce the Indemnifying PartySeller’s liability to indemnify the Indemnified Party hereundera Buyer Group Member under Section 11.1. (cb) After the giving of any Claim Notice pursuant to Section 11.5 (Notice of Claims)11.3, (A) the amount of indemnification to which an Indemnified Party shall be entitled under this ARTICLE 11 (Indemnification; Remedies) and (B) if the Cap as then in effect does not include the Additional Cap Amount, (x) the amount of Damages, if any, for which a Buyer Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Buyer Contingent Damages Amount”) or (y) the amount of Damages, if any, for which a Seller Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Seller Contingent Damages Amount”), to the extent applicable, Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnifying PartyIndemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnifying Party Indemnitor shall agree. (d) No Buyer . The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. The Indemnified Party shall have any right the burden of set-off or recoupment against any payment or other obligation that such Buyer Indemnified Party or its Affiliates may have to Seller Parties or their Affiliates under this Agreement, proof in establishing the Other Transaction Documents or otherwiseamount of Losses and Expenses suffered by it.

Determination of Amount. (a) Notwithstanding anything to the contrary contained herein, with respect to any representation or warranty contained in this Agreement or any Other Transaction Document 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 the purposes of (i) determining whether there has been a breach or inaccuracy of such representation, warranty or certificate for purposes of this ARTICLE 11 (Indemnification; Remedies) and (ii) calculating any Damages with respect to such breach or inaccuracy for purposes of this ARTICLE 11 (Indemnification; Remedies). (b) In calculating ----------------------- any Damages Loss or Expense there shall be deducted any insurance recovery (excluding recoveries to the extent they are self-insured) in respect thereof (and no right of subrogation shall accrue hereunder to any insurer). Buyer and Sellers agree that, for purposes of computing the amount of any indemnification payment under this Article XI, any such ---------- indemnification payment shall be treated as an adjustment to the Final Purchase Price for all Tax purposes. Any such indemnification payment hereunder with respect to any Loss or Expense shall be an amount which is sufficient to compensate the Indemnified Party for the amount of such Loss or Expense, after taking into account (i) and the any Tax benefit which has been, or will be, provided to such Indemnified Party seeking indemnification hereunder as a result of such Loss or Expense (such Indemnified Party shall use commercially reasonable efforts to seek an insurance recovery to obtain such Tax benefit, including filing amended Tax Returns if necessary) and (ii) all increases in federal, state, local, foreign or other Taxes payable by the extent available. If any Party is required to indemnify an Indemnified Party pursuant to the provisions hereof, and the cost, expense or liability for which the indemnification is sought has actually provided the Indemnifying Party with a Tax benefit that is actually recognized by such Indemnified Party as a cash Tax savings in or before result of the taxable year in which the applicable indemnity payment is made, the amount receipt of such Tax benefit shall reduce the Indemnifying Party’s liability to indemnify payment (by reason of such payment being included in income, resulting in a reduction of tax basis, or otherwise increasing such Taxes payable by the Indemnified Party hereunderat any time). (cb) After the giving of any Claim Notice pursuant to Section 11.5 (Notice of Claims)11.3, (A) the amount of indemnification to which an Indemnified ------------ Party shall be entitled under this ARTICLE 11 (Indemnification; Remedies) and (B) if the Cap as then in effect does not include the Additional Cap Amount, (x) the amount of Damages, if any, for which a Buyer Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Buyer Contingent Damages Amount”) or (y) the amount of Damages, if any, for which a Seller Indemnified Party would have been entitled to indemnification under this ARTICLE 11 in respect of such Claim Notice if the Cap, as then in effect, had not been exceeded (each such amount of Damages, a “Seller Contingent Damages Amount”), to the extent applicable, Article XI shall be determined: (i) ---------- by the written agreement between the Indemnified Party and the Indemnifying PartyIndemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnifying Party Indemnitor shall agree. (d) No Buyer . The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined. The Indemnified Party shall have any right the burden of set-off or recoupment against any payment or other obligation that such Buyer Indemnified Party or its Affiliates may have to Seller Parties or their Affiliates under this Agreement, proof in establishing the Other Transaction Documents or otherwiseamount of Losses and Expenses suffered by it.