Common use of Determination of Loss Amount Clause in Contracts

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 13.2.1 or 13.4.1 shall be calculated net of (a) any Tax Benefit inuring to Buyer or Shareholder, as applicable, and/or any of their respective Affiliates on account of such Loss, and (b) any insurance proceeds or other third party indemnification or reimbursement proceeds actually recovered on account of such Loss. If Buyer or Shareholder and/or any of their respective Affiliates realizes a Tax Benefit on account of such Loss and such Tax Benefit was not included in the computation of the Loss, Buyer or Shareholder, as applicable, shall within ten (10) days of filing the Tax Return claiming the Tax Benefit (or, to the extent the Tax Benefit is in the form of a refund, within ten (10) days of receiving the refund from the Governmental Entity) pay to the other party the amount of such Tax Benefit. Each party shall take all commercially reasonable actions (and shall cause its Affiliates to take all commercially reasonable actions) to timely claim any Tax Benefit that shall reduce the amount of a Loss, or give rise to a payment to or for the benefit of the other party, under this Section 13.7. Buyer and Shareholder shall, and shall cause their respective Affiliates to, seek full recovery under all insurance policies and other third-party agreements covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In the event that an insurance recovery or a recovery under any other third-party agreement is made by Buyer or the Shareholder and/or any of their respective Affiliates with respect to any Loss for which any Buyer Indemnified Party or any Shareholder Indemnified Party, as applicable, has been indemnified hereunder, then a payment equal to the aggregate amount of the recovery shall be made promptly by Buyer or the Shareholder, as applicable to the other party for the benefit of the other party. The Shareholder shall be subrogated to all rights of Buyer, the Companies and the Companies’ Subsidiaries in respect of any Losses indemnified by the Shareholder. The Buyer shall be subrogated to all rights of the Shareholder in respect of any Losses indemnified by the Buyer.

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 13.2.1 9.02 or 13.4.1 Section 9.03 shall be calculated net of (ai) any Tax Benefit inuring to Buyer actually received by the Indemnitee or Shareholder, as applicable, and/or any of their respective its Affiliates on account of such Loss, Loss within one (1) year of such Loss and (bii) any insurance proceeds or any indemnity, contribution or other similar payment received by the Indemnitee from any third party indemnification with respect thereto (including under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement proceeds actually recovered on account arrangement or contract pursuant to which or under which such Indemnitee or any of its Affiliates is a party or has rights) (the “Alternative Arrangements”), in each case net of the costs of collection and any increases in premiums or Taxes with respect to such Lossproceeds. If Buyer or Shareholder and/or any of their respective Affiliates realizes the Indemnitee receives a Tax Benefit on account of such Loss and such Tax Benefit was not included in within one (1) year after an indemnification payment is made to it, the computation of the Loss, Buyer or Shareholder, as applicable, Indemnitee shall within ten (10) days of filing the Tax Return claiming the Tax Benefit (or, to the extent the Tax Benefit is in the form of a refund, within ten (10) days of receiving the refund from the Governmental Entity) promptly pay to the other party Indemnitor the amount of such Tax Benefit. Each party shall take all commercially reasonable actions Benefit (and shall cause its Affiliates up to take all commercially reasonable actions) to timely claim any Tax Benefit that shall reduce the amount of a the indemnification payments previously made in respect of such Loss) at such time or times as and to the extent that such Tax Benefit is actually realized by the Indemnitee. For purposes hereof, “Tax Benefit” shall mean any refund of Taxes paid or give rise reduction in the amount of Taxes which otherwise would have been paid, in either case realized in cash, net of any related Tax Losses. The Indemnitee shall use commercially reasonable efforts to a payment to or for the benefit of the other party, under this Section 13.7. Buyer and Shareholder shall, and shall cause their respective Affiliates to, seek full recovery under all insurance policies and other third-party agreements Alternative Arrangements covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other recovery or a recovery under any other third-party agreement is made by Buyer or the Shareholder and/or any of their respective Affiliates Indemnitee with respect to any Loss for which any Buyer Indemnified Party or any Shareholder Indemnified Party, as applicable, such Person has been indemnified hereunder, then a payment refund equal to the aggregate amount of the recovery (up to the amount of the indemnification payments previously made in respect of such Loss) shall be made promptly by Buyer or the Shareholder, as applicable to the other party for the benefit of the other party. The Shareholder shall be subrogated to all rights of Buyer, the Companies and the Companies’ Subsidiaries in respect of any Losses indemnified by the Shareholder. The Buyer shall be subrogated to all rights of the Shareholder in respect of any Losses indemnified by the BuyerIndemnitor.

Determination of Loss Amount. (a) The amount of any Loss Losses subject to indemnification under pursuant to Section 13.2.1 or 13.4.1 8.2(a), shall be calculated net of reduced by (a) any Tax Benefit inuring to Buyer or Shareholder, as applicable, and/or any of their respective Affiliates on account of such Loss, and (bi) any insurance proceeds previously received by the Acquired Entities with respect to such Losses (net of any deductible or other third party indemnification or reimbursement proceeds actually recovered on account co-payment, the Buyer’s reasonable estimate of any increase in insurance premiums attributable to such Loss. If Buyer or Shareholder and/or recovery and all out of pocket costs related to such recovery) from any of their respective Affiliates realizes a Tax Benefit on account of such Loss and such Tax Benefit was not included insurance carrier pursuant to any insurance coverage in the computation place as of the Lossdate of this Agreement and (ii) the amount of any Tax benefit recognized by the Acquired Entities, Buyer or Shareholderany of Buyer’s Affiliates in, as applicableor prior to, shall or within ten the first two (102) days of filing Tax years following the Tax Return claiming year in which the indemnification payment related to such Losses is first required to be made (but, for the avoidance of doubt, future Tax Benefit (orbenefit shall not delay any indemnification payment). For purposes of this Section 8.8(a), Buyer or any of Buyer’s Affiliates shall be deemed to recognize a Tax benefit in a Tax year related to Losses to the extent that (A) their actual Tax liability for such Tax year determined without taking such Losses and all Tax consequences of the related indemnification payment into account is greater than (B) their actual Tax Benefit is in liability for such Tax year. If any insurance proceeds are subsequently recovered by the form of a refund, within ten (10) days of receiving Acquired Entities from an insurance carrier after payment has been made by the refund from the Governmental Entity) pay Seller Parties to the other party the amount of such Tax Benefit. Each party shall take all commercially reasonable actions (and shall cause its Affiliates to take all commercially reasonable actions) to timely claim any Tax Benefit that shall reduce the amount of a Loss, or give rise to a payment to or for the benefit of the other party, under Buyer Indemnified Parties in accordance with this Section 13.7. Buyer and Shareholder shall, and shall cause their respective Affiliates to, seek full recovery under all insurance policies and other third-party agreements covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In the event that an insurance recovery or a recovery under any other third-party agreement is made by Buyer or the Shareholder and/or any of their respective Affiliates ARTICLE VIII with respect to any Loss for the Losses to which any Buyer Indemnified Party or any Shareholder Indemnified Party, as applicable, has been indemnified hereundersuch insurance recoveries relate, then a payment equal the Buyer shall promptly cause the Acquired Entities to remit to the aggregate amount Seller Parties such insurance recoveries (net of any deductible or co-payment, Buyer’s reasonable estimate of any increase in insurance premiums attributable to such recovery and all out of pocket costs related to such recovery); provided that in no event shall the Buyer have any obligation hereunder to cause the Acquired Entities to remit to the Seller Parties any portion of such insurance recoveries in excess of the recovery shall be made promptly by Buyer indemnification payment or payments actually received from the Shareholder, as applicable Seller Parties with respect to the other party for the benefit of the other party. The Shareholder shall be subrogated to all rights of Buyer, the Companies and the Companies’ Subsidiaries in respect of any Losses indemnified by the Shareholder. The Buyer shall be subrogated to all rights of the Shareholder in respect of any Losses indemnified by the Buyersuch Losses.

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 13.2.1 or 13.4.1 11.2.1 shall be calculated net of (a) any Tax Benefit inuring to Buyer or Shareholder, as applicable, and/or any of their respective its Affiliates on account of such Loss, and (b) any insurance proceeds or other third party indemnification or reimbursement proceeds actually recovered to which any of them are entitled (regardless of whether claimed and received) on account of such Loss. If Buyer or Shareholder and/or any of their respective its Affiliates realizes a Tax Benefit on account of such Loss and such Tax Benefit was not included in the computation of the Loss, Buyer or Shareholder, as applicable, shall within ten (10) days of filing the Tax Return claiming the Tax Benefit (or, to the extent the Tax Benefit is in the form of a refund, within ten (10) days of receiving the refund from the Governmental Entity) pay to the other party Company the amount of such Tax Benefit. Each party Buyer shall take all commercially reasonable actions (and shall cause its Affiliates to take all commercially reasonable actions) to timely claim any Tax Benefit that shall reduce the amount of a Loss, or give rise to a payment to or for the benefit of the other partyCompany, under this Section 13.711.7. Buyer and Shareholder shall, and shall cause their respective its Affiliates to, seek full recovery under all insurance policies and other third-party agreements covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In the event that an insurance recovery or a recovery under any other third-party agreement is made by Buyer or the Shareholder and/or any of their respective its Affiliates with respect to any Loss for which any Buyer Indemnified Party or any Shareholder Indemnified Party, as applicable, has been indemnified by the Company hereunder, then a payment equal to the aggregate amount of the recovery shall be made promptly by Buyer or the Shareholder, as applicable to the other party for Company. In all events, the benefit of the other party. The Shareholder Company shall be subrogated to all rights of Buyer, the Companies and the Companies’ Subsidiaries Buyer in respect of any Losses indemnified by the ShareholderCompany. The Buyer shall be subrogated to all rights of the Shareholder in respect of any Losses indemnified by the Buyer.EXECUTION COPY

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 13.2.1 7.02 or 13.4.1 Section 7.03 shall be calculated net of (a) any Tax Benefit inuring to Buyer or Shareholder, benefit actually realized by the Indemnitee as applicable, and/or any of their respective Affiliates on account a result of such Loss, loss or receipt of indemnification payment and net of (i) the amount of any Loss reflected as a current liability on the Conclusive Closing Statement and (bii) any insurance proceeds or other third party amounts under indemnification or reimbursement proceeds agreements actually recovered on account of such Loss. If Buyer or Shareholder and/or any of their respective Affiliates realizes a Tax Benefit received by the Indemnitee on account of such Loss and (net of any increase in premiums or retroactive premium adjustment that the Indemnitee can reasonably demonstrate through written records is directly attributable to such Tax Benefit was not included in the computation recovery). For purposes of the Lossforegoing, Buyer or Shareholder, as applicable, the Indemnitee shall within ten (10) days of filing the be deemed to have “actually realized” a Tax Return claiming the Tax Benefit (or, benefit to the extent the Tax Benefit is in the form of a refund, within ten (10) days of receiving the refund from the Governmental Entity) pay to the other party that the amount of Taxes payable by the Indemnitee as shown on the Indemnitee’s Tax Return for the year in which the Loss is incurred or indemnification payment is made, the succeeding tax year, or any year to which a deduction or loss attributable to such Tax Benefit. Each party shall take all commercially reasonable actions (and shall cause its Affiliates to take all commercially reasonable actions) to timely claim any Tax Benefit that shall reduce Loss or payment is carried back, is reduced below the amount of a Loss, or give rise Taxes that the Indemnitee would have been required to a payment to or pay but for the benefit of deduction attributable to the other party, under this Section 13.7indemnifiable Loss or payment. Buyer and Shareholder shall, and The Indemnitee shall cause their respective Affiliates to, use its commercially reasonable efforts to seek full recovery under all insurance policies and other third-party and/or indemnification agreements covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other recovery or a recovery under any other third-party agreement is made by Buyer or the Shareholder and/or any of their respective Affiliates Indemnitee with respect to any Loss for which any Buyer Indemnified Party or any Shareholder Indemnified Party, as applicable, such Person has been indemnified received indemnity payments hereunder, then a payment refund equal to the aggregate amount of the actual recovery shall be made promptly by Buyer or the Shareholder, as applicable to the other party for Person or Persons that provided such indemnity payments to such Indemnitee (net of any increase in premiums or retroactive premium adjustment that the benefit of the other partyIndemnitee can reasonably demonstrate through written records is directly attributable to such recovery). The Shareholder Indemnitor shall be subrogated to all rights of Buyer, the Companies and the Companies’ Subsidiaries Indemnitees in respect of any Losses indemnified by the ShareholderIndemnitor. The Buyer For Tax purposes, the Parties agree to treat all payments made under this Article VII as adjustments to the aggregate consideration contemplated under this Agreement. Subject to the other provisions of this Article VII, if the Disclosure Schedules shall disclose an estimated loss amount, the Indemnitee shall be subrogated entitled to all rights collect any Loss in excess of the Shareholder in respect of any Losses indemnified by the Buyersuch amount.

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 13.2.1 8.02 or 13.4.1 Section 8.03 shall be calculated net of (ai) any Tax Benefit inuring to Buyer actually realized by the Indemnitee or Shareholder, as applicable, and/or any of their respective its Affiliates on account of in the taxable year in which such Loss, and (b) any insurance proceeds or other third party indemnification or reimbursement proceeds actually recovered on account of such Loss. If Buyer or Shareholder and/or any of their respective Affiliates realizes a Tax Benefit Loss occurs on account of such Loss and such (ii) any insurance proceeds or any indemnity, contribution or other similar payment recovered by the Indemnitee from any third party with respect thereto. If the Indemnitee receives a Tax Benefit was not included in after an indemnification payment is made to it, the computation of the Loss, Buyer or Shareholder, as applicable, Indemnitee shall within ten (10) days of filing the Tax Return claiming the Tax Benefit (or, to the extent the Tax Benefit is in the form of a refund, within ten (10) days of receiving the refund from the Governmental Entity) promptly pay to the other party Representative, on behalf of the Preferred Stockholders, the amount of such Tax Benefit. Each party shall take all commercially reasonable actions (Benefit at such time or times as and shall cause its Affiliates to take all commercially reasonable actions) to timely claim any the extent that such Tax Benefit that is realized by the Indemnitee. For purposes hereof, “Tax Benefit” shall reduce mean any refund of Taxes paid or reduction in the amount of a LossTaxes which otherwise would have been paid, or give rise in each case computed at the effective tax rates applicable to a payment to or for the recipient of such benefit of in the other party, under this Section 13.7taxable year in which such Loss occurs. Buyer and Shareholder shall, and The Indemnitee shall cause their respective Affiliates to, seek full recovery under all insurance policies and other third-party agreements covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other recovery or a recovery under any other third-party agreement is made by Buyer or the Shareholder and/or any of their respective Affiliates Indemnitee with respect to any Loss for which any Buyer Indemnified Party or any Shareholder Indemnified Party, as applicable, such Person has been indemnified hereunder, then a payment refund equal to the aggregate amount of the recovery shall be made promptly by Buyer or the Shareholder, as applicable to the other party for the benefit Representative, on behalf of the other partyPreferred Stockholders. The Shareholder In no event shall any party hereto be subrogated entitled to all rights of Buyer, the Companies and the Companies’ Subsidiaries recover or make a claim for any amounts in respect of speculative, diminution in value, incidental or indirect damages or punitive damages; in each case, except to the extent any Losses indemnified by such damages are awarded to a third party as damages against the Shareholder. The Buyer shall be subrogated to all rights of the Shareholder in respect of any Losses indemnified by the BuyerPerson seeking indemnification hereunder.

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 13.2.1 7.02 or 13.4.1 Section 7.03 or Section 8.03 shall be calculated net of (ai) any Tax Benefit inuring to Buyer or Shareholder, as applicable, and/or any of their respective Affiliates actually (and not potentially) realized by the Indemnitee on account of such Loss, (ii) any reserves set forth in the Latest Balance Sheet relating specifically to such Loss and (biii) any insurance proceeds or other third party amounts under indemnification or reimbursement proceeds agreements actually recovered (and not potentially) received by the Indemnitee on account of such Loss. If Buyer or Shareholder and/or any of their respective Affiliates the Indemnitee actually realizes a Tax Benefit on account of such Loss and such Tax Benefit was not included in after an indemnification payment is made to it, the computation of the Loss, Buyer or Shareholder, as applicable, Indemnitee shall within ten (10) days of filing the Tax Return claiming the Tax Benefit (or, to the extent the Tax Benefit is in the form of a refund, within ten (10) days of receiving the refund from the Governmental Entity) promptly pay to the other party Person or Persons that made such indemnification payment the amount of such Tax Benefit. Each party shall take all commercially reasonable actions (Benefit at such time or times as and shall cause its Affiliates to take all commercially reasonable actions) to timely claim any the extent that such Tax Benefit that is realized by the Indemnitee. For purposes hereof, “Tax Benefit” shall reduce mean any refund of Taxes to be paid or reduction in the amount of a LossTaxes which otherwise would be owed by the Indemnitee, or give rise in each case computed at the highest marginal tax rates applicable to a payment the recipient of such benefit. The Indemnitee shall use commercially reasonable efforts to or for the benefit of the other party, under this Section 13.7. Buyer and Shareholder shall, and shall cause their respective Affiliates to, seek full recovery under all any insurance policies and other third-party and/or indemnification agreements potentially covering any Loss Loss. For the purposes of this Section 7.06 only, “commercially reasonable” means the Indemnitee’s actions must be commercially reasonable taking into account all relevant considerations, including the risk of increased insurance premiums, the impact on insurance claims history, the risk of insurance non-renewal, other insurance policy risks and consequences and all other foreseeable consequences related to the same extent as they would if such Loss were not subject to indemnification hereunderthird parties, including foreseeable impacts on customer, reseller, vendor, distributor, supplier, strategic alliance, partner or other relationships. In the event that an insurance or other recovery or a recovery under any other third-party agreement is made by Buyer or the Shareholder and/or any of their respective Affiliates Indemnitee with respect to any Loss for which any Buyer Indemnified Party or any Shareholder Indemnified Party, as applicable, such Person has been indemnified hereunder, then a payment refund equal to the aggregate amount of the recovery (after deducting related costs and Expenses and any resulting increased premium costs) shall be made promptly by Buyer or the Shareholder, as applicable to the other party for the benefit of the other partyPerson or Persons that provided such indemnity payments to such Indemnitee. The Shareholder Indemnitors shall be subrogated to all rights of Buyer, the Companies and the Companies’ Subsidiaries Indemnitees in respect of any Losses indemnified by the ShareholderIndemnitors. The Buyer For Tax purposes, the parties agree that all payments made under this Article VII and Section 8.03 constitute adjustments to the Purchase Price and shall be subrogated to all rights of the Shareholder in respect of report any Losses indemnified payments as such on their Tax Returns, unless otherwise required by the Buyerapplicable Law.

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 13.2.1 or 13.4.1 10.02(a) shall be calculated net of (a) any Tax Benefit inuring to Buyer or Shareholderrealized by Parent, as applicablethe Surviving Corporation, the Company Subsidiaries and/or any of their respective Affiliates on account of such LossLoss with respect to the Tax year of such Loss or either of the two (2) Tax years immediately following such Tax year, and (b) any insurance proceeds or other third party indemnification or reimbursement proceeds actually recovered received by any of them on account of such LossLoss (net of any expense incurred in connection with obtaining such proceeds). If Buyer or Shareholder Parent, the Surviving Corporation, the Company Subsidiaries and/or any of their respective Affiliates realizes realize a Tax Benefit on account with respect to the Tax year of such the Loss or either of the two (2) immediately succeeding Tax years and such Tax Benefit was not included in the computation of the Loss, Buyer or Shareholder, as applicable, Parent shall within ten (10) days of after filing the Tax Return claiming the Tax Benefit (or, to the extent the Tax Benefit is in the form of a refund, within ten (10) days of after receiving the refund from the Governmental EntityAuthority) pay to the other party Representative for distribution to the Holders the amount of such Tax Benefit. Each party Parent shall take all use commercially reasonable actions (and shall cause its Affiliates the Surviving Corporation and the Company Subsidiaries to take all use commercially reasonable actions) to timely claim any Tax Benefit that shall reduce the amount of a Loss, or give rise to a payment to or for the benefit of the other partyHolders, under this Section 13.710.07. Buyer and Shareholder shallParent shall use commercially reasonable efforts, and shall cause the Surviving Corporation, the Company Subsidiaries and their respective Affiliates to use commercially reasonable efforts to, seek full recovery under all insurance policies and other third-party agreements covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder; provided, that such commercially reasonable efforts shall not include the commencement of litigation. In the event that an insurance recovery or a recovery under any other third-party agreement is made by Buyer or Parent, the Shareholder Surviving Corporation, the Company Subsidiaries and/or any of their respective Affiliates with respect to any Loss for which any Buyer Parent Indemnified Party or any Shareholder Indemnified Party, as applicable, has been indemnified hereunder, then a payment equal to the aggregate amount of the recovery shall be made promptly by Buyer or the Shareholder, as applicable Parent to the other party Representative for the benefit of the other partyHolders pursuant to the Distribution Waterfall. The Shareholder Holders shall be subrogated to all rights of BuyerParent, the Companies Surviving Corporation and the Companies’ Company Subsidiaries in respect against their respective applicable insurers to the extent (but only to the extent) of any Losses indemnified by the Shareholder. The Buyer shall be subrogated to all rights of the Shareholder in respect of any Losses indemnified by the BuyerHolders.

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 13.2.1 8.02 or 13.4.1 Section 8.03 shall be calculated net of (ai) any Tax Benefit inuring to Buyer or Shareholder, as applicable, and/or any of their respective Affiliates actually received by an Indemnitee on account of such Loss, Loss and (bii) any insurance proceeds or any indemnity, contribution or other similar payment actually recovered by an Indemnitee from any third party indemnification or reimbursement proceeds actually recovered on account of such Losswith respect thereto. If Buyer or Shareholder and/or any of their respective Affiliates realizes an Indemnitee receives a Tax Benefit on account of a Loss after an indemnification payment is made to it with respect to such Loss and Loss, such Indemnitee shall promptly, but in no event later than 30 calendar days after such time that such Tax Benefit was not included in the computation of the Loss, Buyer or Shareholderis actually realized by such Indemnitee, as applicable, shall within ten (10) days of filing and to the Tax Return claiming the extent that such Tax Benefit is realized by such Indemnitee, pay to the Indemnitor (or, if the Indemnitee is a Purchaser Indemnified Party, to the extent Representative (on behalf of the Tax Benefit is in the form of a refund, within ten (10Unitholders)) days of receiving the refund from the Governmental Entity) pay to the other party the amount of such Tax Benefit. Each party shall take all commercially reasonable actions For purposes hereof, “Tax Benefit” for any Indemnitee means (and shall cause its Affiliates i) any refund of Taxes paid or (ii) the amount such Indemnitee’s liability for Taxes for the taxable period, calculated by excluding the relevant amount of credit, deduction, or Loss, would exceed such Indemnitee’s actual liability for Taxes for such period, calculated by taking into account the relevant amount of credit, deduction, or Loss, in each case computed at the highest marginal Tax rates applicable to take all commercially reasonable actions) to timely claim any the recipient of such benefit. A Tax Benefit that shall reduce be actually received, in the case of any refund of Taxes paid, upon the later of the receipt of the refund and the filing of the final Tax Return required to be filed and showing entitlement to such refunds, and in the case of a reduction of a liability for Taxes, upon the filing of a Tax Return showing such reduction in Tax liability. The amount of a Loss, any increase or give rise reduction hereunder shall be adjusted to a payment reflect any final determination with respect to or the Indemnitee’s liability for the benefit of the other party, under this Section 13.7. Buyer and Shareholder shallTaxes, and payments between the parties to this Agreement to reflect such adjustment shall cause their respective Affiliates to, be made if necessary. Each Indemnitee shall seek full recovery under all insurance policies and other third-party agreements covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other recovery or from a recovery under third party is received by any other third-party agreement is made by Buyer or the Shareholder and/or any of their respective Affiliates Indemnitee with respect to any Loss for which any Buyer Indemnified Party or any Shareholder Indemnified Party, as applicable, such Indemnitee has been indemnified hereunder, then a payment refund equal to the aggregate amount of the recovery (net of any expenses (consisting of collection costs and increased premiums directly related to such recovery) incurred by the Indemnitor in collecting such amount) shall promptly, but in no event later than 30 calendar days after receipt thereof, be made promptly by Buyer or the Shareholder, as applicable paid to the other party for Indemnitor (or, if the benefit Indemnitee is a Purchaser Indemnified Party, to the Representative (on behalf of the other partyUnitholders)). The Shareholder In no event shall the Purchaser Indemnified Parties be subrogated entitled to all rights of Buyer, the Companies and the Companies’ Subsidiaries recover or make a claim for any amounts in respect of any Losses indemnified consequential, punitive or exemplary damages, except to the extent awarded or imposed by the Shareholder. The Buyer shall be subrogated a court or other Governmental Authority pursuant to all rights of the Shareholder in respect of any Losses indemnified by the Buyera third party claim.

Determination of Loss Amount. (a) The amount of any Loss Losses subject to indemnification under Section 13.2.1 or 13.4.1 pursuant to this Article 10 shall be calculated net of (a) any Tax Benefit inuring to Buyer reduced or Shareholderreimbursed, as applicablethe case may be, and/or by any of their respective Affiliates on account of such Loss, and (b) any insurance proceeds or other third party indemnification or reimbursement proceeds amount actually recovered on account of such Loss. If Buyer or Shareholder and/or any of their respective Affiliates realizes a Tax Benefit on account of such Loss and such Tax Benefit was not included in the computation of the Loss, Buyer or Shareholder, as applicable, shall within ten (10) days of filing the Tax Return claiming the Tax Benefit (or, to the extent the Tax Benefit is in the form of a refund, within ten (10) days of receiving the refund from the Governmental Entity) pay to the other party the amount of such Tax Benefit. Each party shall take all commercially reasonable actions (and shall cause its Affiliates to take all commercially reasonable actions) to timely claim any Tax Benefit that shall reduce the amount of a Loss, or give rise to a payment to or for the benefit of the other party, under this Section 13.7. Buyer and Shareholder shall, and shall cause their respective Affiliates to, seek full recovery under all insurance policies and other third-party agreements covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In the event that an insurance recovery or a recovery under any other third-party agreement is made received by Buyer or the Shareholder and/or any of their respective Affiliates with respect to any Loss for which any Buyer Indemnified Party or any Shareholder Seller Indemnified Party, as applicable, has been indemnified hereunderwith respect thereto under any insurance coverage provided by any third party or from any other party alleged to be responsible therefor (net of any deductible or co-payment, then a payment equal to the aggregate amount of the recovery shall be made promptly by Buyer Indemnified Parties’ or the ShareholderSeller Indemnified Parties’, as applicable to the other party for the benefit of the other party. The Shareholder shall be subrogated to all rights of Buyerapplicable, the Companies and the Companies’ Subsidiaries in respect good faith estimate of any Losses indemnified by the Shareholderincrease in insurance premiums attributable to such recovery and all out of pocket costs related to such recovery). The Buyer Indemnified Parties and the Seller Indemnified Parties, as applicable, shall be subrogated use commercially reasonable efforts to collect any amounts available under such insurance coverage or from such other party alleged to have responsibility therefor; provided, that in no event shall the Buyer Indemnified Parties or the Seller Indemnified Parties have any obligation to file or commence any Proceeding to collect any such amounts. If a Buyer Indemnified Party or Seller Indemnified Party, as applicable, receives and is entitled to retain an amount under insurance coverage or from such other party with respect to Losses at any time subsequent to any indemnification provided by Seller or the Unitholders pursuant to Section 10.1 or by Buyer pursuant to Section 10.2, then such Buyer Indemnified Party or Seller Indemnified Party, as applicable, shall promptly reimburse Seller and the Unitholders or Buyer, as applicable, for any payment made by such Person in connection with providing such indemnification up to the amount received (net of any deductible or co-payment, the Buyer Indemnified Parties’ or Seller Indemnified Parties’, as applicable, good faith estimate of any increase in insurance premiums attributable to such recovery and all rights out of pocket costs related to such recovery) by the Buyer Indemnified Party or Seller Indemnified Party, as applicable; provided, that in no event shall any Buyer Indemnified Party or Seller Indemnified Party, as applicable, have any obligation hereunder to remit to Buyer or Seller and the Unitholders, as applicable, any portion of such insurance or other recoveries in excess of the Shareholder in indemnification payment or payments actually received from Buyer or Seller and the Unitholders, as applicable, with respect to such Losses. For the avoidance of any Losses indemnified by doubt, the BuyerParties agree that a Party may still make a claim for indemnification under this Article 10 while separately pursuing insurance proceeds related to the same claim.

Determination of Loss Amount. The (a) For purposes of determining the amount of any Loss subject indemnification obligation to indemnification under Section 13.2.1 or 13.4.1 any Indemnified Party for any Losses, appropriate reductions shall be calculated made to reflect (i) the actual recovery pursuant to any insurance policy (other than insurance proceeds received pursuant to the R&W Insurance Policy) received by any Indemnified Party in respect of such Losses (net of any deductibles or other expenses and any increase in the applicable premium/retro-premiums related to the recovery of such proceeds) and (aii) any Tax Benefit inuring other recovery actually received by any Indemnified Party from a third party pursuant to Buyer any reimbursement arrangements, indemnification rights, contribution agreements, holdback, offset or Shareholder, as applicable, and/or any of their respective Affiliates on account of such Loss, and set-off agreements or similar arrangements (b) any other than insurance proceeds received pursuant to the R&W Insurance Policy); provided, however, that the foregoing shall not be deemed to require an Indemnified Party to seek recovery under any applicable insurance policies or other third party otherwise prior to making a claim for indemnification or reimbursement proceeds actually recovered on account of such Loss. If Buyer or Shareholder and/or any of their respective Affiliates realizes a Tax Benefit on account of such Loss and such Tax Benefit was not included in the computation of the Losshereunder, Buyer or Shareholder, as applicable, shall within ten (10) days of filing the Tax Return claiming the Tax Benefit (or, except to the extent such claim would be covered by the Tax Benefit D&O Tail Policy. If an indemnification payment pursuant to this Article X is received by any Indemnified Party, and such Indemnified Party later receives proceeds of an insurance policy or other such third party payments (other than insurance proceeds received pursuant to the R&W Insurance Policy), in each case as described in the form immediately preceding sentence, in respect of a refundsuch Losses, within ten such Indemnified Party shall promptly notify the Holder Representative, and promptly, but in any event no later than five (105) days Business Days after delivery of receiving the refund from the Governmental Entity) such proceeds, such Indemnified Party shall pay to the other party the amount of such Tax Benefit. Each party shall take all commercially reasonable actions (and shall cause its Affiliates to take all commercially reasonable actions) to timely claim any Tax Benefit that shall reduce the amount of a Loss, or give rise to a payment to or Paying Agent for the benefit accounts of the other party, under this Section 13.7. Buyer and Shareholder shall, and shall cause their respective Affiliates to, seek full recovery under all insurance policies and other third-party agreements covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In the event that holder of Units an insurance recovery or a recovery under any other third-party agreement is made by Buyer or the Shareholder and/or any of their respective Affiliates with respect to any Loss for which any Buyer Indemnified Party or any Shareholder Indemnified Party, as applicable, has been indemnified hereunder, then a payment amount equal to the aggregate amount of the insurance recovery shall be made promptly by Buyer (net of any deductibles or other expenses and any increase in the Shareholder, as applicable premiums/retro-premiums related to the recovery of such proceeds) or such other third party payments so as to avoid a duplication of recovery (but not to exceed the amount for the benefit of the other party. The Shareholder shall be subrogated to all rights of Buyer, the Companies and the Companies’ Subsidiaries which such Indemnified Party was previously indemnified for hereunder in respect of any Losses indemnified by such Losses) (other than insurance proceeds received pursuant to the ShareholderR&W Insurance Policy). The Buyer Notwithstanding the foregoing, for an avoidance of doubt, nothing in this Section 10.6(a) shall be subrogated deemed to all rights of permit any Indemnified Party to recover for Losses from any Company Indemnifying Party to the Shareholder in respect of any extent such Losses indemnified by are recovered from insurance proceeds received pursuant to the BuyerR&W Insurance Policy.

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 13.2.1 7.02 or 13.4.1 Section 7.03 shall be calculated net of (a) any Tax Benefit inuring to Buyer or Shareholder, as applicable, and/or any of their respective Affiliates on account of such Loss, and (bi) any insurance proceeds or any cash indemnity, contribution or other similar payment recovered by an Indemnitee from any third party indemnification or reimbursement proceeds actually recovered on account of such Loss. If Buyer or Shareholder and/or with respect thereto and (ii) any of their respective Affiliates realizes a cash Tax Benefit that is actually realized by an Indemnitee on account of such Loss prior to the time the applicable indemnity payment is made. A “Tax Benefit” for any Indemnitee means (x) any actual cash refund of Taxes paid or (y) the amount by which such Indemnitee’s cumulative liability for Taxes through a taxable period (and for purposes of this Section 7.06, taking into account as the Indemnitee’s liability the cumulative liability for Taxes through the end of such period of any consolidated, combined or other similar group of which the Indemnitee is a member), calculated by excluding the relevant amount of credit, deduction, or Loss, would exceed such Indemnitee’s actual liability for Taxes through such period, calculated by taking into account the relevant amount of credit, deduction, or Loss, in each case computed at the highest marginal Tax Benefit was not included rates applicable to the recipient of such benefit; provided, however, that in the computation case of a Purchaser Indemnified Party, the relevant Tax Benefit, if any, shall be determined at the level of the Loss, Buyer Purchaser and shall take into account the reduction in the Purchaser’s ability to claim a credit for any foreign taxes paid or Shareholder, accrued by the Company and its Subsidiaries (treating any such reduction as applicable, shall a cash tax payment) and any reduction in the “adjusted grossed up basis” (within ten (10the meaning of Section 1.338-5(a) days of filing the Tax Return claiming Treasury Regulations) in the Tax Benefit (or, assets of Company and its Subsidiaries as a consequence of any deemed adjustment to the extent Purchase Price arising in connection with the Loss and the indemnification therefore (25% of which reduction shall be deemed to be a Tax paid by the Purchaser as of the end of the taxable period for which the determination of Tax Benefit is in the form of a refund, within ten (10) days of receiving the refund from the Governmental Entity) pay to the other party the amount of such Tax Benefit. Each party shall take all commercially reasonable actions (and shall cause its Affiliates to take all commercially reasonable actions) to timely claim any Tax Benefit that shall reduce the amount of a Loss, or give rise to a payment to or for the benefit of the other party, under this Section 13.7. Buyer and Shareholder shall, and shall cause their respective Affiliates to, seek full recovery under all insurance policies and other third-party agreements covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunderbeing made). In the event that an insurance or other recovery or from a recovery under third party is received by any other third-party agreement is made by Buyer or the Shareholder and/or any of their respective Affiliates Indemnitee with respect to any Loss for which any Buyer Indemnified Party or any Shareholder Indemnified Party, as applicable, such Indemnitee has been indemnified hereunder, then a payment refund equal to the aggregate amount of the recovery shall promptly, but in no event later than thirty (30) days after receipt thereof, be made promptly by Buyer or the Shareholder, as applicable paid to the other party Indemnitor (or, if the Indemnitee is a Purchaser Indemnified Party, to the Seller). In no event shall the Purchaser Indemnified Parties be entitled to recover or make a claim for the benefit of the other punitive or exemplary damages unless actually paid to a third party. The Shareholder shall be subrogated to all rights of Buyer, the Companies and the Companies’ Subsidiaries in respect of any Losses indemnified by the Shareholder. The Buyer shall be subrogated to all rights of the Shareholder in respect of any Losses indemnified by the Buyer.

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 13.2.1 8.02 or 13.4.1 Section 8.03 shall be calculated net of (ai) any Tax Benefit inuring to Buyer or Shareholder, as applicable, and/or any of their respective Affiliates actually received by an Indemnitee on account of such Loss, Loss and (bii) any insurance proceeds or any indemnity, contribution or other similar payment actually recovered by an Indemnitee from any third party indemnification or reimbursement proceeds actually recovered on account of such Losswith respect thereto. If Buyer or Shareholder and/or any of their respective Affiliates realizes an Indemnitee receives a Tax Benefit on account of a Loss after an indemnification payment is made to it with respect to such Loss and Loss, such Indemnitee shall promptly, but in no event later than 30 calendar days after such time that such Tax Benefit was not included in the computation of the Loss, Buyer or Shareholderis actually realized by such Indemnitee, as applicable, shall within ten (10) days of filing and to the Tax Return claiming the extent that such Tax Benefit is realized by such Indemnitee, pay to the Indemnitor (or, if the Indemnitee is a Purchaser Indemnified Party, to the extent Representative (on behalf of the Tax Benefit is in the form of a refund, within ten (10Unitholders)) days of receiving the refund from the Governmental Entity) pay to the other party the amount of such Tax Benefit. Each party shall take all commercially reasonable actions For purposes hereof, “Tax Benefit” for any Indemnitee means (and shall cause its Affiliates i) any refund of Taxes paid or (ii) the amount such Indemnitee’s liability for Taxes for the taxable period, calculated by excluding the relevant amount of credit, deduction, or Loss, would exceed such Indemnitee’s actual liability for Taxes for such period, calculated by taking into account the relevant amount of credit, deduction, or Loss, in each case computed at the highest marginal Tax rates applicable to take all commercially reasonable actions) to timely claim any the recipient of such benefit. A Tax Benefit that shall reduce be actually received, in the case of any refund of Taxes paid, upon the later of the receipt of the refund and the filing of the final Tax Return required to be filed and showing entitlement to such refunds, and in the case of a reduction of a liability for Taxes, upon the filing of a Tax Return showing such reduction in Tax liability. The amount of a Loss, any increase or give rise reduction hereunder shall be adjusted to a payment reflect any final determination with respect to or the Indemnitee’s liability for the benefit of the other party, under this Section 13.7. Buyer and Shareholder shallTaxes, and payments between the parties to this 42 Agreement to reflect such adjustment shall cause their respective Affiliates to, be made if necessary. Each Indemnitee shall seek full recovery under all insurance policies and other third-party agreements covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other recovery or from a recovery under third party is received by any other third-party agreement is made by Buyer or the Shareholder and/or any of their respective Affiliates Indemnitee with respect to any Loss for which any Buyer Indemnified Party or any Shareholder Indemnified Party, as applicable, such Indemnitee has been indemnified hereunder, then a payment refund equal to the aggregate amount of the recovery (net of any expenses (consisting of collection costs and increased premiums directly related to such recovery) incurred by the Indemnitor in collecting such amount) shall promptly, but in no event later than 30 calendar days after receipt thereof, be made promptly by Buyer or the Shareholder, as applicable paid to the other party for Indemnitor (or, if the benefit Indemnitee is a Purchaser Indemnified Party, to the Representative (on behalf of the other partyUnitholders)). The Shareholder In no event shall the Purchaser Indemnified Parties be subrogated entitled to all rights of Buyer, the Companies and the Companies’ Subsidiaries recover or make a claim for any amounts in respect of any Losses indemnified consequential, punitive or exemplary damages, except to the extent awarded or imposed by a court or other Governmental Authority pursuant to a third party claim. 8.07 Acknowledgment of the Purchaser. Each of the Purchaser and the Merger Sub acknowledges that in making its determination to proceed with the transactions contemplated by this Agreement it has conducted to its satisfaction an independent investigation of the financial condition, results of operations, assets, liabilities, properties and projected operations of the Company and its Subsidiaries, and the Purchaser and the Merger Sub have relied on the results of their own independent investigation and the representations and warranties of the Company expressly and specifically set forth in this Agreement, including the Disclosure Schedules hereto. Such representations and warranties by the ShareholderCompany constitute the sole and exclusive representations and warranties of the Company, its Subsidiaries and (except as expressly set forth in the Letters of Transmittal) the Unitholders to the Purchaser and the Merger Sub in connection with the transactions contemplated hereby, and the Purchaser and the Merger Sub understand, acknowledge and agree that all other representations and warranties of any kind or nature expressed or implied (including, but not limited to, any relating to the future or historical financial condition, results of operations, assets or liabilities of the Company or its Subsidiaries, or the quality, quantity or condition of the Company’s or its Subsidiaries’ assets) are specifically disclaimed by the Company, its Subsidiaries and (except as expressly set forth in the Letters of Transmittal) the Unitholders. Except as expressly provided in this Agreement, the Company, its Subsidiaries and the Unitholders do not make or provide, and the Purchaser and the Merger Sub hereby waive, any warranty or representation, express or implied, as to the quality, merchantability, as for a particular purpose, or condition of the Company’s and its Subsidiaries’ assets or any part thereto. In connection with the Purchaser’s investigation of the Company and its Subsidiaries, the Purchaser has received certain projections, including projected statements of operating revenues and income from operations of the Company and its Subsidiaries and certain business plan information. The Buyer shall be subrogated Purchaser acknowledges that there are uncertainties inherent in attempting to all rights make such estimates, projections and other forecasts and plans, that the Purchaser is familiar with such uncertainties and that the Purchaser is taking full responsibility for making its own evaluation of the Shareholder in adequacy and accuracy of all estimates, projections and other forecasts and plans so furnished to it, including, without limitation, the reasonableness of the assumptions underlying such estimates, projections and forecasts. Accordingly, the Purchaser hereby acknowledges that none of the Company, its Subsidiaries or the Unitholders is making any representation or warranty with respect to such estimates, projections and other forecasts and plans, including, without limitation, the reasonableness of any Losses indemnified by the Buyer.assumptions underlying such estimates, projections and forecasts. 43 8.08

Determination of Loss Amount. (a) The amount of any Loss Losses subject to indemnification under Section 13.2.1 or 13.4.1 pursuant to this Article 10 shall be calculated net of (a) any Tax Benefit inuring to Buyer reduced or Shareholderreimbursed, as applicablethe case may be, and/or by any of their respective Affiliates on account of such Loss, and (b) any insurance proceeds or other third party indemnification or reimbursement proceeds amount actually recovered on account of such Loss. If Buyer or Shareholder and/or any of their respective Affiliates realizes a Tax Benefit on account of such Loss and such Tax Benefit was not included in the computation of the Loss, Buyer or Shareholder, as applicable, shall within ten (10) days of filing the Tax Return claiming the Tax Benefit (or, to the extent the Tax Benefit is in the form of a refund, within ten (10) days of receiving the refund from the Governmental Entity) pay to the other party the amount of such Tax Benefit. Each party shall take all commercially reasonable actions (and shall cause its Affiliates to take all commercially reasonable actions) to timely claim any Tax Benefit that shall reduce the amount of a Loss, or give rise to a payment to or for the benefit of the other party, under this Section 13.7. Buyer and Shareholder shall, and shall cause their respective Affiliates to, seek full recovery under all insurance policies and other third-party agreements covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In the event that an insurance recovery or a recovery under any other third-party agreement is made received by Buyer or the Shareholder and/or any of their respective Affiliates with respect to any Loss for which any Buyer Indemnified Party or any Shareholder Seller Indemnified Party, as applicable, has been indemnified hereunder, then a payment equal to the aggregate amount with respect thereto under any insurance coverage provided by any third party that is not an Affiliate of the recovery shall be made promptly by such Buyer Indemnified Party or the ShareholderSeller Indemnified Party, as applicable to the applicable, or from any other party for the benefit alleged to be responsible therefor (net of the other party. The Shareholder shall be subrogated to all rights of Buyerany deductible or co-payment, the Companies and the CompaniesBuyer Indemnified Parties’ Subsidiaries in respect or Seller Indemnified Parties’, as applicable, good faith estimate of any Losses indemnified by the Shareholderincrease in insurance premiums attributable to such recovery and all out-of-pocket costs related to such recovery). The Buyer Indemnified Parties and the Seller Indemnified Parties, as applicable, shall be subrogated use commercially reasonable efforts to collect any amounts available under such insurance coverage or from such other party alleged to have responsibility therefor. If a Buyer Indemnified Party or Seller Indemnified Party, as applicable, receives and is entitled to retain an amount under insurance coverage or from such other party with respect to Losses at any time subsequent to any indemnification provided by Sellers pursuant to Section 10.1 or by Buyer pursuant to Section 10.2, then such Buyer Indemnified Party or Seller Indemnified Party, as applicable, shall promptly reimburse Seller Representative or Buyer, as applicable, for any payment made by such Person in connection with providing such indemnification up to the amount received (net of any deductible or co-payment, the Buyer Indemnified Parties’ or Seller Indemnified Parties’, as applicable, good faith estimate of any increase in insurance premiums attributable to such recovery and all rights out-of-pocket costs related to such recovery) by the Buyer Indemnified Party or Seller Indemnified Party, as applicable; provided, that in no event shall any Buyer Indemnified Party or Seller Indemnified Party, as applicable, have any obligation hereunder to remit to Buyer, Buyer, Guarantor, Seller Guarantor or Sellers, as applicable, any portion of such insurance or other recoveries in excess of the Shareholder in indemnification payment or payments actually received from Buyer, Buyer Guarantor, Seller Guarantor or Sellers, as applicable, with respect of any Losses indemnified by the Buyerto such Losses.

Determination of Loss Amount. The (a) Notwithstanding anything to the contrary in this Agreement, the amount of any Loss subject to indemnification under Section 13.2.1 Sections 8.02 or 13.4.1 8.03 (i) shall be calculated net of (a) any Tax Benefit inuring to Buyer or Shareholder, as applicable, and/or any the net amount of their respective Affiliates on account of such Loss, and (b) any insurance proceeds or any indemnity, contribution or other similar payment (excluding recoveries under the Rep & Warranty Policy) actually recovered by the Indemnitee from any third party indemnification or reimbursement proceeds actually recovered on account of such Loss. If Buyer or Shareholder and/or any of their respective Affiliates realizes a Tax Benefit on account of such Loss with respect thereto and such Tax Benefit was not included in the computation of the Loss, Buyer or Shareholder, as applicable, shall within ten (10ii) days of filing the Tax Return claiming the Tax Benefit (or, to the extent such Loss relates to Eureka or any of its Subsidiaries, shall be reduced by the Tax Benefit is in percentage of the form of a refund, within ten (10) days of receiving the refund from the Governmental Entity) pay outstanding Eureka Common Units not held by Purchaser immediately after giving effect to the other party the amount of such Tax Benefittransactions contemplated by this Agreement. Each party of Purchaser and its Subsidiaries (including, following the Closing, the Acquired Entities) shall take all use its commercially reasonable actions (and shall cause its Affiliates efforts to take all commercially reasonable actions) to timely claim any Tax Benefit that shall reduce the amount of a Loss, or give rise to a payment to or for the benefit of the other party, under this Section 13.7. Buyer and Shareholder shall, and shall cause their respective Affiliates to, seek full recovery and collect any amounts available under all any insurance policies and or indemnity, contribution or other third-similar payment recoverable by Purchaser or the Acquired Entities from any third party agreements covering any Loss to the same extent as they it would if such Loss were not subject to indemnification hereunder; provided that none of Purchaser or any of its Subsidiaries shall have any obligation to seek recoveries under the Rep & Warranty Policy prior to the Survival Period Termination Date. In the event that an insurance or other recovery is received by Purchaser or a recovery under any other third-party agreement is made by Buyer or the Shareholder and/or any of their respective Affiliates its Subsidiaries with respect to any Loss for which any Buyer Indemnified Party or any Shareholder Indemnified Party, as applicable, such Person has been indemnified hereunderhereunder (but not including recoveries under the Rep & Warranty Policy), then a payment refund equal to the aggregate amount of the recovery shall be made promptly by Buyer or the Shareholder, as applicable to the other Indemnitor. Each party for hereby waives, to the benefit of the other party. The Shareholder shall be subrogated extent permitted under its applicable insurance policies, any subrogation rights that its insurer may have with respect to all rights of Buyer, the Companies and the Companies’ Subsidiaries in respect of any Losses indemnified by the Shareholder. The Buyer shall be subrogated to all rights of the Shareholder in respect of any Losses indemnified by the Buyerindemnifiable Losses.

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 13.2.1 7.2 or 13.4.1 Section 7.3 shall be calculated net of taking into account (ai) any Tax Benefit inuring to Buyer or Shareholder, as applicable, and/or any of their respective Affiliates actually realized in cash by the Indemnitee on account of such Loss, (ii) any reserves or liabilities set forth in the Financial Statements and/or Closing Statement relating to such Loss and (biii) any insurance proceeds or other third party amounts under indemnification or reimbursement proceeds actually recovered agreements received by the Indemnitee on account of such Loss. If Buyer or Shareholder and/or any of their respective Affiliates realizes the Indemnitee receives a Tax Benefit (net of any tax detriment) on account of such Loss and such Tax Benefit was not included in after an indemnification payment is made to it, the computation of the Loss, Buyer or Shareholder, as applicable, Indemnitee shall within ten (10) days of filing the Tax Return claiming the Tax Benefit (or, to the extent the Tax Benefit is in the form of a refund, within ten (10) days of receiving the refund from the Governmental Entity) promptly pay to the other party Person or Persons that made such indemnification payment the amount of such Tax Benefit. Each party shall take all commercially reasonable actions (Benefit at such time or times as and shall cause its Affiliates to take all commercially reasonable actions) to timely claim any the extent that such Tax Benefit that is realized by the Indemnitee. For purposes hereof, “Tax Benefit” shall reduce mean any refund of Taxes actually received or reduction in the amount of a LossTaxes which otherwise would be paid by the Indemnitee, or give rise in each case computed at the highest marginal tax rates applicable to a payment the recipient of such benefit. The Indemnitee shall use its commercially reasonable efforts to or for the benefit of the other party, under this Section 13.7. Buyer and Shareholder shall, and shall cause their respective Affiliates to, seek full recovery under all insurance policies and other third-party and/or indemnification agreements covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other recovery or a recovery under is received by any other third-party agreement is made by Buyer or the Shareholder and/or any of their respective Affiliates Indemnitee with respect to any Loss for which any Buyer Indemnified Party or any Shareholder Indemnified Party, as applicable, such Person has been indemnified hereunder, then a payment refund equal to the lesser of (a) the aggregate amount of the recovery (net of any reasonable third-party costs actually incurred pursuing or obtaining such recovery, including increased insurance premiums (if any) directly resulting from such recovery) or (b) the amount of indemnification payments previously made by the Indemnitors shall be made promptly by Buyer or the Shareholder, as applicable to the other party for the benefit of the other partyIndemnitors that provided such indemnity payments to such Indemnitee. The Shareholder shall be subrogated to all rights of BuyerFor Tax purposes, the Companies and parties hereto agree to treat all payments made under this Article 7 as adjustments to the Companies’ Subsidiaries in respect of any Losses indemnified by the Shareholder. The Buyer shall be subrogated to all rights of the Shareholder in respect of any Losses indemnified by the Buyerfinal Purchase Price.

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 13.2.1 9.02 or 13.4.1 9.03 shall be calculated net of (ai) any Tax Benefit inuring to Buyer realized by the Indemnitee or Shareholder, as applicable, and/or any of their respective its Affiliates on account of such Loss, and (b) any insurance proceeds or other third party indemnification or reimbursement proceeds actually recovered on account of such Loss. If Buyer or Shareholder and/or any of their respective Affiliates realizes a Tax Benefit on account of such Loss and (ii) any insurance proceeds or any indemnity, contribution or other similar payment recovered by the Indemnitee from any third party with respect thereto; provided that the amount deemed to be so recovered under any insurance policy shall be net of (i) the applicable deductible for such policies and (ii) any increase in the premium for such policies directly attributable to such Losses. If a Purchaser Indemnitee receives a Tax Benefit was not included in the computation of the Lossafter an indemnification payment is made to it, Buyer or Shareholder, as applicable, such Purchaser Indemnitee shall within ten (10) days of filing the Tax Return claiming the Tax Benefit (or, to the extent the Tax Benefit is in the form of a refund, within ten (10) days of receiving the refund from the Governmental Entity) promptly pay to the other party Seller the amount of such Tax Benefit. Each party shall take all commercially reasonable actions (Benefit at such time or times as and shall cause its Affiliates to take all commercially reasonable actions) to timely claim any the extent that such Tax Benefit that is realized by the Indemnitee. For purposes of this Section 9.06, “Tax Benefit” shall reduce mean any refund of Taxes paid or reduction in the amount of a LossTaxes that otherwise would have been paid, or give rise in each case computed at the highest marginal tax rates applicable to a payment to or for the benefit recipient of the other party, under this Section 13.7such benefit. Buyer and Shareholder shall, and The Indemnitee shall cause their respective Affiliates to, seek full recovery under all insurance policies and other third-party agreements covering any Loss to the same extent as they it would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other recovery or a recovery under any other third-party agreement is made by Buyer or the Shareholder and/or any of their respective Affiliates Indemnitee with respect to any Loss for which any Buyer Indemnified Party or any Shareholder Indemnified Party, as applicable, such Person has been indemnified hereunder, then a payment refund equal to the aggregate amount of the recovery (after deducting therefrom the full amount of the expenses incurred by such Indemnitee in procuring such recovery) shall be made promptly by Buyer or the Shareholder, as applicable to the other party for the benefit Indemnitor; provided that (a) any such refund shall not be in excess of the other party. The Shareholder shall be subrogated amount previously so paid to all rights or on behalf of Buyer, such Indemnitee by the Companies and the Companies’ Subsidiaries Indemnitor in respect of such matter, and (b) prior to the termination of the Escrow Account, any Losses indemnified such amount recovered by a Purchaser Indemnitee shall be deposited into the Escrow Account to fund the indemnification obligations under Section 9.02(a) (rather than be paid over to the Seller) if the amount previously so paid to or on behalf of such Indemnitee by the Shareholder. The Buyer shall be subrogated to all rights of the Shareholder Indemnitor in respect of such matters was funded out of the Escrow Account. Each party hereby waives, to the extent permitted under its applicable insurance policies, any Losses indemnified by the Buyersubrogation rights that its insurer may have with respect to any indemnifiable Losses.

Determination of Loss Amount. The amount of any Loss loss subject to indemnification under Section 13.2.1 or 13.4.1 8.1 shall be calculated (i) net of (a) any Tax Benefit (as defined below) inuring to Buyer or Shareholder, as applicable, and/or any of their respective Affiliates the indemnitee on account of such Loss, loss and (bii) net of any insurance proceeds received or other third party indemnification or reimbursement proceeds actually recovered receivable by the indemnitee on account of such Lossloss (after deduction for any cost of collection, deductible, retroactive premium adjustment, reimbursement obligation or other cost directly related to such insurance claim, and excluding any insurance proceeds related to the Indemnity Insurance Policy which are payable in order to indemnify the loss amount calculated hereunder). If Buyer or Shareholder and/or any of their respective Affiliates realizes the indemnitee receives a Tax Benefit on account of such Loss and such Tax Benefit was not included in loss after an indemnification payment is made to it, the computation of the Loss, Buyer or Shareholder, as applicable, indemnitee shall within ten (10) days of filing the Tax Return claiming the Tax Benefit (or, to the extent the Tax Benefit is in the form of a refund, within ten (10) days of receiving the refund from the Governmental Entity) promptly pay to the other party Person or Persons that made such indemnification payment the amount of such Tax Benefit. Each party shall take all commercially reasonable actions (Benefit at such time or times as and shall cause its Affiliates to take all commercially reasonable actions) to timely claim any the extent that such Tax Benefit that is realized by the indemnitee. For purposes hereof, “Tax Benefit” shall reduce mean any refund of Taxes paid or reduction in the amount of a LossTaxes which are paid or otherwise would have been paid on account of such loss, or give rise to a payment to or for the benefit immediate tax year in which such loss occurs, in an aggregate amount of the other party, under this Section 13.7. Buyer and Shareholder shallrefund or reduction that exceeds $50,000, and in each case computed at the highest marginal tax rates applicable to the recipient of such benefit. The indemnitee shall cause their respective Affiliates to, seek full recovery under all insurance policies and other third-party agreements covering any Loss loss to the same extent as they would if such Loss loss were not subject to indemnification hereunder. In the event that an insurance or other recovery or a recovery under any other third-party agreement is made by Buyer or the Shareholder and/or any of their respective Affiliates indemnitee with respect to any Loss loss for which any Buyer Indemnified Party or any Shareholder Indemnified Party, as applicable, such Person has been indemnified hereunder, then a payment refund equal to the aggregate amount of the recovery shall be made promptly by Buyer or the Shareholder, as applicable to the other party for the benefit of the other partyPerson or Persons that provided such indemnity payments to such indemnitee. The Shareholder shall be subrogated to all rights of BuyerFor Tax purposes, the Companies and parties agree to treat all payments made under this Article 8 as adjustments to the Companies’ Subsidiaries in respect of any Losses indemnified by the Shareholder. The Buyer shall be subrogated to all rights of the Shareholder in respect of any Losses indemnified by the BuyerTotal Merger Consideration.

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 13.2.1 9.02, Section 9.03 or 13.4.1 Section 11.03 shall be calculated net of (ai) any Tax Benefit inuring to Buyer or Shareholder, as applicable, and/or any of their respective Affiliates actually received by the Indemnitee on account of such Loss, (ii) any reserves for current accounts set forth in the Closing Statement to the extent such reserves were increased since the Latest Balance Sheet (to the extent not already covered by Section 9.02(d)(iii)) and (biii) any insurance proceeds Net Insurance Proceeds or other third party amounts under indemnification or reimbursement proceeds agreements actually recovered received by the Indemnitee on account of such Loss, including without limitation that certain Stock Purchase Agreement dated November 1, 2004 by and among the Company, certain of its Subsidiaries and the sellers party thereto (the "Prior Acquisition Agreement"). If Buyer or Shareholder and/or any of their respective Affiliates realizes the Indemnitee receives a Tax Benefit on account of such Loss and such Tax Benefit was not included in after an indemnification payment is made to it, the computation of the Loss, Buyer or Shareholder, as applicable, Indemnitee shall within ten (10) days of filing the Tax Return claiming the Tax Benefit (or, to the extent the Tax Benefit is in the form of a refund, within ten (10) days of receiving the refund from the Governmental Entity) promptly pay to the other party Person or Persons that made such indemnification payment the amount of such Tax Benefit. Each party shall take all commercially reasonable actions (Benefit at such time or times as and shall cause its Affiliates to take all commercially reasonable actions) to timely claim any the extent that such Tax Benefit that is realized by the Indemnitee. For purposes hereof, "Tax Benefit" shall reduce mean any refund of Taxes actually paid or actual reduction in the amount of Taxes which otherwise would have been paid. To the extent that a Loss, or Tax Benefit could give rise to a payment refund of Taxes, the Indemnitee shall take all reasonable steps to or for the benefit of the other party, under this Section 13.7claim such a refund. Buyer and Shareholder shall, and The Indemnitee shall cause their respective Affiliates to, use commercially reasonable efforts to seek full recovery under all insurance policies and other third-party and/or indemnification agreements covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In hereunder (which may, to the event that an insurance recovery extent commercially reasonable, include commencing litigation against the insurer or indemnifying parties under such indemnification agreement); provided, however, (x) the Indemnitee shall obtain the prior written consent of the Indemnitor (not to be unreasonably withheld) before entering into any settlement of a recovery claim under any other third-party indemnity agreement is made by Buyer or provision (including, without limitation, under the Shareholder and/or any Prior Acquisition Agreement) if the amount of their respective Affiliates with respect such settlement does not fully satisfy all Losses relating to or arising from such claim, and (y) once indemnity for any Loss for which any is sought by a Buyer Indemnified Party under any applicable indemnification provision of the Prior Acquisition Agreement and such Loss remains unsatisfied for a period of not less than 180 days, the Buyer Indemnified Party shall be entitled to pursue indemnification under the provisions of this Agreement. The fees and expenses incurred by the Company or any Shareholder Indemnified PartySubsidiary in using commercially reasonable efforts to seek recovery under all insurance policies and/or indemnification agreements covering any Loss, as applicableincluding under the Prior Acquisition Agreement, has been indemnified hereunder, then a payment equal to the aggregate amount of the recovery shall be made promptly by Buyer or included in the Shareholder, as applicable to definition of Losses under this Agreement. To the other party for the benefit of the other party. The Shareholder shall be subrogated to all rights of Buyer, the Companies and the Companies’ Subsidiaries in respect of any Losses indemnified by the Shareholder. The Buyer shall be subrogated to all rights of the Shareholder in respect of any Losses indemnified by the Buyer.extent indemnity is not available under

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 13.2.1 9.2 or 13.4.1 Section 9.3 shall be calculated net of (ai) any Tax Benefit inuring to Buyer or Shareholder, as applicable, and/or any of their respective Affiliates the Indemnitee on account of such Loss, and (bii) any insurance proceeds or any indemnity, contribution or other similar payment received by the Indemnitee from any third party indemnification with respect thereto (a “Collateral Source”) and (iii) any specific accruals or reimbursement proceeds actually recovered on account reserves (or overstatement of such Loss. If Buyer or Shareholder and/or any liabilities in respect of their respective Affiliates realizes a Tax Benefit on account of such Loss and such Tax Benefit was not actual liability) included in the computation Financial Information. For purposes hereof, “Tax Benefit” shall mean any refund of the Loss, Buyer Taxes paid or Shareholder, as applicable, shall within ten (10) days of filing the Tax Return claiming the Tax Benefit (or, to the extent the Tax Benefit is reduction in the form of a refund, within ten (10) days of receiving the refund from the Governmental Entity) pay to the other party the amount of Taxes which otherwise would have been paid, in each case computed at the highest marginal tax rates applicable to the recipient of such Tax Benefitbenefit. Each party The parties shall take all commercially reasonable actions (and shall cause its their Affiliates to take all commercially reasonable actions) steps to timely claim mitigate any Tax Benefit Loss upon becoming aware of any event that shall reduce the amount of a Losswould reasonably be expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy a payment breach that gives rise to the Loss. Indemnification under this Article IX shall not be available to Buyer or for the Sellers, as the case may be, unless the party seeking indemnification under this Article IX first uses its reasonable best efforts to seek recovery from all Collateral Sources. The parties acknowledge and agree that no right of subrogation shall accrue or inure as a result of the provisions hereof to the benefit of any Collateral Source hereunder. The Indemnitor may require an Indemnitee to assign the other partyrights to seek recovery pursuant to the preceding sentence; provided, that the Indemnitee will then be responsible for pursuing such recovery at its own expense. If the amount to be netted hereunder from any payment required under Section 9.2 or Section 9.3 is not received until after payment by the Indemnitor of any amount otherwise required to be paid to an Indemnitee pursuant to this Article IX, the Indemnitee shall repay to the Indemnitor, promptly after such receipt, any amount that the Indemnitor would not have had to pay pursuant to this Article IX had such receipt been made at the time of such payment. Buyer shall not make any claim for indemnification under this Section 13.7. Buyer and Shareholder shall, and shall cause their respective Affiliates to, seek full recovery under all insurance policies and other third-party agreements covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In the event that an insurance recovery or a recovery under any other third-party agreement is made by Buyer or the Shareholder and/or any of their respective Affiliates with respect to any Loss for which any Buyer Indemnified Party or any Shareholder Indemnified Party, as applicable, has been indemnified hereunder, then a payment equal to the aggregate amount of the recovery shall be made promptly by Buyer or the Shareholder, as applicable to the other party for the benefit of the other party. The Shareholder shall be subrogated to all rights of Buyer, the Companies and the Companies’ Subsidiaries Article IX in respect of any Losses indemnified by matter that is fully taken into account in the Shareholder. The Buyer shall be subrogated to all rights of the Shareholder in respect calculation of any Losses indemnified by adjustment to the BuyerBase Purchase Price pursuant to Article II.