Common use of Determination of Loss Amount Clause in Contracts

Determination of Loss Amount. The amount of any Losses subject to indemnification under this Article VIII shall (i) not include any punitive damages (except in each case to the extent such damages shall actually be awarded to a third party and be payable by an Acquiror Indemnified Party) and (ii) be calculated net of any insurance proceeds other than from the RWI Policy (net of any costs of such recovery such as increased premiums, deductibles and self-insured amounts) or any indemnity, contribution or other similar payment actually recovered by Acquiror Indemnified Party from any third party with respect thereto. In the event that an insurance or other recovery from a third party is made by any Acquiror Indemnified Party with respect to the specific Losses for which any such Person has received an indemnification payment hereunder, then a refund equal to the aggregate amount of the recovery (net of any costs of such recovery such as legal fees, as well as increased premiums, deductibles, and self-insured amounts) shall be made promptly to (a) the Escrow Agent for replenishment of the Indemnity Escrow Fund, if during the Survival Period, or (b) the Paying Agent if after the expiration of the Survival Period, for distribution to the Selling Equityholders, and the portion of such amount owed to each Selling Equityholder will be determined in accordance with its respective Percentage (less Taxes withheld, if any, pursuant to Section 1.16). Notwithstanding the foregoing, an Acquiror Indemnified Party shall not be required to refund amounts actually received from an insurer to the extent such indemnified Person's total Losses exceed the limits in the applicable insurance policy (including the RWI Policy).

Determination of Loss Amount. The amount of any Losses Loss subject to indemnification under this Article VIII Section 9.02 or Section 9.03 shall be calculated net of (i) not include any punitive damages (except Tax benefit actually realized by the Indemnitee or its Affiliates on account of such Loss on or before the second anniversary of the end of the taxable year in each case to which the extent such damages shall actually be awarded to a third party and be payable by an Acquiror Indemnified Party) Loss occurs and (ii) be calculated net of any insurance proceeds other than from the RWI Policy (net of any costs of such recovery such as increased premiums, deductibles and self-insured amounts) or any indemnity, contribution or other similar payment actually recovered (net of any deductible payable with respect to the applicable insurance policy, indemnity contribution or similar payment borne and any related cost of collection, in each case by Acquiror Indemnified a Purchaser Party or Equityholder Party) by the Indemnitee from any third party with respect theretothereto (including pursuant to any contractual rights to third party indemnification in favor of the Company existing as of the Closing Date). A Tax benefit shall be realized upon the receipt of a refund of Taxes paid (or credit in lieu of refund) or the filing of a Tax Return, including an estimated Tax Return, showing a Tax benefit, including any increase in Tax attributes (or, if earlier, the date when such a Tax Return should have been timely filed, including properly obtained extensions) calculated on a “with and without” basis with respect to Tax benefits arising as a result of such Loss. In the event that an insurance insurance, Tax benefit or other recovery from a third party specified in the first or next sentence of this Section 9.05 is made by any Acquiror Indemnified Party Indemnitee with respect to the specific Losses any Loss for which any such Person has received an indemnification payment been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (net less the cost of any costs collection of such recovery and any portion of the Loss paid by the Indemnitee or any Affiliate thereof (and not indemnified hereunder) due to the limitation on liability provisions (including the Deductible) that may be applicable to such as legal fees, as well as increased premiums, deductibles, and self-insured amountsrecovery) shall be made promptly to the Indemnitor. The Purchaser Parties shall use reasonable best efforts to collect or recover from their subcontractors (aincluding by direct collection, withholding of other payments owed, seeking indemnification and reimbursement or otherwise) with respect to any Losses actually suffered by the Escrow Agent for replenishment Purchaser Parties arising out of the Indemnity Escrow FundSpecial Tax Matter, if during whether or not such Losses are indemnifiable hereunder. If the Survival PeriodPurchaser Parties recover or receive any proceeds (e.g., an award of damages or (bamount paid in settlement) the Paying Agent if after the expiration of the Survival Period, for distribution related to the Selling matters set forth on the Specific Indemnity Schedule, such proceeds shall belong to the Equityholders, and the portion Purchaser shall promptly pay the amount of such amount owed proceeds to each Selling Equityholder will be determined the Stockholder Representative, for the benefit of the Equityholders, within fifteen (15) days after such recovery or receipt, and the Stockholder Representative shall distribute such proceeds in accordance with its respective Percentage (less Taxes withheld, if any, pursuant to Section 1.16). Notwithstanding the foregoing, an Acquiror Indemnified Party shall not be required to refund amounts actually received from an insurer 1.05(b) with respect to the extent such indemnified Person's total Losses exceed the limits in the applicable insurance policy (including the RWI Policy)Optionholders.

Determination of Loss Amount. The amount of any Losses Loss subject to indemnification under this Article VIII Section 9.02 or Section 9.03 shall be calculated net of (i) not include any punitive damages (except in each case Tax Benefit inuring to the extent Indemnitee on account of such damages shall actually be awarded to a third party and be payable by an Acquiror Indemnified Party) Loss and (ii) be calculated net of any insurance proceeds other than from received or receivable by the RWI Policy (net of any costs Indemnitee on account of such Loss. If the Indemnitee receives a Tax Benefit on account of such Loss after an indemnification payment is made to it, the Indemnitee shall promptly pay to the Person or Persons that made such indemnification payment the amount of such Tax Benefit at such time or times as and to the extent that such Tax Benefit is realized by the Indemnitee. For purposes hereof, "Tax Benefit" shall mean any refund of Taxes paid or reduction in the amount of Taxes which are paid or otherwise would have been paid, in each case computed at the highest marginal tax rates applicable to the recipient of such benefit; for the avoidance of doubt, "Tax Benefit" shall not include any such benefit available only as a result of a timing adjustment moving a tax attribute from a Pre-Closing Tax Period to a Post-Closing Tax Period. The Indemnitee shall seek full recovery under all insurance policies covering any Loss to the same extent as they would if such as increased premiums, deductibles and self-insured amounts) or any indemnity, contribution or other similar payment actually recovered by Acquiror Indemnified Party from any third party with respect theretoLoss were not subject to indemnification hereunder. In the event that an insurance or other recovery from a third party is made by any Acquiror Indemnified Party Indemnitee with respect to the specific Losses any Loss for which any such Person has received an indemnification payment been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (net of any costs of such recovery such as legal fees, as well as increased premiums, deductibles, and self-insured amounts) shall be made promptly to (a) the Escrow Agent for replenishment of Person or Persons that provided such indemnity payments to such Indemnitee. For Tax purposes, the Indemnity Escrow Fund, if during the Survival Period, or (b) the Paying Agent if after the expiration of the Survival Period, for distribution parties agree to treat all payments made under this Article IX as adjustments to the Selling Equityholders, and the portion of such amount owed to each Selling Equityholder will be determined in accordance with its respective Percentage (less Taxes withheld, if any, pursuant to Section 1.16). Notwithstanding the foregoing, an Acquiror Indemnified Party shall not be required to refund amounts actually received from an insurer to the extent such indemnified Person's total Losses exceed the limits in the applicable insurance policy (including the RWI Policy)Purchase Price.

Determination of Loss Amount. The amount of any Losses Loss subject to indemnification under this Article VIII Section 7.02 or 7.03 shall be calculated net of (i) not include any punitive damages (except Tax benefit actually realized by the Indemnitee or its Affiliates on account of such Loss on or before the second anniversary of the end of the taxable year in each case to which the extent such damages shall actually be awarded to a third party and be payable by an Acquiror Indemnified Party) Loss occurs and (ii) be calculated net of any insurance proceeds other than from the RWI Policy (net of any costs of such recovery such as increased premiums, deductibles and self-insured amounts) or any indemnity, contribution or other similar payment actually recovered (net of any deductible payable with respect to the applicable insurance policy, indemnity contribution or similar payment borne and any related cost of collection, in each case by Acquiror Indemnified a Purchaser Party or Seller Party) by the Indemnitee from any third party with respect theretothereto (including pursuant to any indemnities from prior acquisitions by the Surviving Company and its Subsidiaries and to any representation and warranty insurance policies). A Tax benefit shall be realized upon the receipt of a refund of Taxes paid or the filing of a Tax Return, including an estimated Tax Return, showing a Tax benefit (or, if earlier, the date when such a Tax Return should have been timely filed, including properly obtained extensions) calculated on a “with and without” basis with respect to Tax benefits arising as a result of such Loss. The Indemnitee shall seek, as its first recourse, full recovery under all indemnities (other than this Agreement) and insurance policies (including pursuant to any indemnities from prior acquisitions by the Surviving Company and its Subsidiaries and to any representation and warranty insurance policies) covering any Loss to the same extent as it would if such Loss were not subject to indemnification hereunder; provided, that the Indemnitee shall be permitted to make a claim for indemnification following the submission of any claim under any other indemnity or insurance policy (including any representation and warranty insurance policy); provided, further, that, for the avoidance of doubt, the preceding proviso shall not change the priority of recourse set forth in this sentence. In the event that an insurance or other recovery from a third party specified in the first sentence of this Section 7.05 is made by any Acquiror Indemnified Party Indemnitee with respect to the specific Losses any Loss for which any such Person has received an indemnification payment been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (net less the cost of any costs collection of such recovery and any portion of the Loss paid by the Indemnitee or any Affiliate thereof (and not indemnified hereunder) due to the limitation on liability provisions (including the Deductible or any deductible under any representation or warranty insurance policy) that may be applicable to such as legal fees, as well as increased premiums, deductibles, and self-insured amountsrecovery) shall be made promptly to (a) the Escrow Agent for replenishment of the Indemnity Escrow FundIndemnitor. Each party hereby waives, if during the Survival Period, or (b) the Paying Agent if after the expiration of the Survival Period, for distribution to the Selling Equityholders, and the portion of such amount owed to each Selling Equityholder will be determined in accordance with its respective Percentage (less Taxes withheld, if any, pursuant to Section 1.16). Notwithstanding the foregoing, an Acquiror Indemnified Party shall not be required to refund amounts actually received from an insurer to the extent such indemnified Person's total Losses exceed the limits in the permitted under its applicable insurance policy (including the RWI Policy)policies, any subrogation rights that its insurer may have with respect to any indemnifiable Losses.

Determination of Loss Amount. (i) The amount of any Losses Loss subject to indemnification under this Article VIII Section 10.3 shall (i) not include any punitive damages (except in each case to the extent such damages shall actually be awarded to a third party and be payable by an Acquiror Indemnified Party) and (ii) be calculated net of any insurance proceeds other than from the RWI Policy (net of any costs of such recovery such as increased premiums, deductibles and self-insured amounts) or any indemnity, contribution or other similar payment actually recovered by Acquiror the Indemnified Party (or its Affiliates) from any third party with respect thereto, net of any retropremiums, out-of-pocket expenses and costs of recovery, if any (“Third-Party Proceeds”). The Indemnified Party shall take all commercially reasonable actions to seek full and prompt recovery from any Third-Party Proceeds covering any Loss to the same extent as it would if such Loss were not subject to indemnification hereunder; provided, that the Indemnified Party’s inability to collect or recover any such Third-Party Proceeds shall not limit or otherwise delay the Indemnifying Party’s obligation hereunder. In the event that an insurance or other recovery from a third party is made by any Acquiror Indemnified Party with respect to the specific Losses any Loss for which any such Person has received an indemnification payment been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (net of any retropremiums, out-pocket-expenses and costs of such recovery such as legal fees, as well as increased premiums, deductibles, and self-insured amountsrecovery) shall be made promptly to (a) the Escrow Agent for replenishment of the Indemnity Escrow FundIndemnifying Party. Each party hereby waives, if during the Survival Period, or (b) the Paying Agent if after the expiration of the Survival Period, for distribution to the Selling Equityholdersextent permitted under its applicable insurance policies, and any subrogation rights that its insurer may have with respect to any indemnifiable Losses. If the portion Indemnifying Party elects to control the defense of such amount owed to each Selling Equityholder will be determined in accordance with its respective Percentage (less Taxes withheld, if any, any claim pursuant to Section 1.1610.3(d), then the Indemnifying Party shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstance in respect of which the Indemnified Party may have any right, defense or claim pursuant to the applicable insurance policies. Notwithstanding the foregoing, an Acquiror The Indemnified Party shall not be required to refund amounts actually received from an insurer to cooperate with and take such actions as reasonably requested by the extent Indemnifying Party in a reasonable manner, and at the cost of the Indemnifying Party, in presenting any subrogated right, defense or claim and effecting any such indemnified Person's total Losses exceed the limits in the applicable insurance policy (including the RWI Policy)subrogation.

Determination of Loss Amount. The amount of any Losses Loss subject to indemnification under this Article VIII Section 9.02 shall (i) not include any punitive damages (except in each case to the extent such damages shall actually be awarded to a third party and be payable by an Acquiror Indemnified Party) and (ii) be calculated net of any insurance proceeds other than from the RWI Policy (net of any costs of such recovery such as increased premiums, deductibles and self-insured amounts) or any indemnity, contribution or other similar payment actually recovered by Acquiror the Indemnified Party from any third party Third Party with respect theretothereto (net of any expenses incurred by the Indemnified Party in obtaining such recovery, including collection costs and reserves, deductibles, premium adjustments and retrospectively rated premiums), except to the extent any such insurance proceeds are required to be paid pursuant to Sections 8.03(e) or 9.02(c). If the Indemnified Party actually realizes a Tax Benefit on account of a Loss by reason of the deductibility of such Loss in the taxable year of the Loss or in the subsequent taxable year, and the Indemnified Party (or the Purchaser) is entitled to be, and is in fact, indemnified against such Loss pursuant to this Article IX, the Indemnified Party shall promptly pay to the Indemnifying Party the amount of such Tax Benefit to the extent of the portion of such Loss for which the Indemnified Party received an indemnification payment pursuant to this Article IX. For purposes of this Section 9.07, an Indemnified Party shall be deemed to recognize a tax benefit (a “Tax Benefit”) with respect to a taxable period if, and to the extent that, the Indemnified Party’s cumulative liability for Taxes through the end of such taxable year, calculated by excluding any Tax items attributable to the Loss, exceeds the Indemnified Party’s actual cumulative liability for Taxes through the end of such taxable year, calculated by taking into account any Tax items attributable to the Loss (to the extent permitted by applicable Law and treating the Tax items attributable to the Loss as the last items claimed for any taxable year). The Indemnified Party shall use commercially reasonable efforts to seek full recovery under all insurance policies covering any Loss or right of a current or former director or officer to contribution, indemnification, advancement or reimbursement to the same extent as it would if such Loss were not subject to indemnification hereunder or the Indemnified Party were responsible for such contribution, indemnification, advancement or reimbursement. In the event that an insurance or other recovery from a third party is made by any Acquiror Indemnified Party with respect to the specific Losses any Loss for which any such Person has received an indemnification payment been indemnified hereunder, then a refund equal to the aggregate lesser of (i) the amount of the recovery (net of any expenses incurred by the Indemnified Party in obtaining such recovery, including collection costs of such recovery such as legal fees, as well as increased premiumsand reserves, deductibles, premium adjustments and self-insured amountsretrospectively rated premiums) and (ii) the amount of the Loss for which the Indemnified Party was indemnified shall be made promptly to (a) the Escrow Agent for replenishment of the Indemnity Escrow FundIndemnifying Party. Each party hereby waives, if during the Survival Period, or (b) the Paying Agent if after the expiration of the Survival Period, for distribution to the Selling Equityholders, and the portion of such amount owed to each Selling Equityholder will be determined in accordance with its respective Percentage (less Taxes withheld, if any, pursuant to Section 1.16). Notwithstanding the foregoing, an Acquiror Indemnified Party shall not be required to refund amounts actually received from an insurer to the extent such indemnified Person's total Losses exceed the limits in the permitted under its applicable insurance policy (including the RWI Policy)policies, any subrogation rights that its insurer may have with respect to any indemnifiable Losses.

Determination of Loss Amount. The amount of any Losses Loss subject to indemnification under this Article VIII Sections 11.1 and 11.2 shall (i) not include any punitive damages (except in each case to the extent such damages shall actually be awarded to a third party and be payable by an Acquiror Indemnified Party) and (ii) be calculated net of (i) any Tax Benefit inuring to the Indemnified Party on account of such Loss, (ii) any insurance proceeds other than from received by the RWI Policy (net of any costs Indemnified Party on account of such recovery such as increased premiums, deductibles Loss and self-insured amounts(iii) any accrual with respect thereto on the Financial Statements or any indemnity, contribution or other similar payment actually recovered by Acquiror the Balance Sheet. If the Indemnified Party from receives a Tax Benefit after an indemnification payment is made to it, the Indemnified Party shall promptly pay to the Person or Persons that made such indemnification payment the amount of such Tax Benefit at such time or times as and to the extent that such Tax Benefit is realized by the Indemnified Party. For purposes hereof, “Tax Benefit” shall mean any third party with respect theretorefund of Taxes paid or reduction in 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 benefit. The Indemnified Party shall seek full recovery under all insurance policies covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other recovery from a third party is made by any Acquiror Indemnified Party with respect to the specific Losses any Loss for which any such Person has received an indemnification payment been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (net of any costs of such recovery such as legal fees, as well as increased premiums, deductibles, and self-insured amounts) shall be made promptly to (a) the Escrow Agent for replenishment of the Indemnity Escrow Fund, if during the Survival Period, Person or (b) the Paying Agent if after the expiration of the Survival Period, for distribution Persons that provided such indemnity payments to the Selling Equityholders, and the portion of such amount owed to each Selling Equityholder will be determined in accordance with its respective Percentage (less Taxes withheld, if any, pursuant to Section 1.16). Notwithstanding the foregoing, an Acquiror Indemnified Party shall not be required to refund amounts actually received from an insurer to the extent such indemnified Person's total Losses exceed the limits in the applicable insurance policy (including the RWI Policy)Party.

Determination of Loss Amount. (a) The amount of any Losses subject to indemnification under this Article VIII shall (i) not include any punitive damages (except in each case to the extent such damages shall actually be awarded to a third party Section 9.02 and be payable by an Acquiror Indemnified Party) and (ii) Section 9.03 will be calculated net of any amounts actually recovered in cash by any Indemnified Party or any of such Indemnified Party’s Affiliates under or pursuant to any insurance proceeds other than from policy (excluding any recovery received under the RWI Policy (R&W Insurance Policy), title insurance policy, indemnity, reimbursement arrangement or contract pursuant to or under which such Indemnified Party or such Indemnified Party’s Affiliates is a party or has rights, net of any deductible amounts, costs of such recovery such as increased premiumscollection or recovery, deductibles increases in premiums and selfreasonable and documented out-insured amounts) of-pocket expenses related thereto (collectively, “Alternative Arrangements”). Without limiting the foregoing, the Buyer Related Parties will have no right to assert any claims, and the Buyer Related Parties will not be entitled to indemnification, with respect to any Losses that are covered by an Alternative Arrangement or any indemnity, contribution would have been covered by an Alternative Arrangement had the Buyer Related Parties maintained for their benefit and the benefit of the Target Companies the same rights or other similar payment actually recovered by Acquiror coverage under an Alternative Arrangement following the Closing that was in effect for the Target Companies immediately prior to the Closing. The Indemnified Party from will use its commercially reasonable efforts to seek full recovery under all Alternative Arrangements covering any third party with respect theretoLoss to the same extent as such Indemnified Party would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other a recovery from a third party is made under an Alternative Arrangement (excluding the R&W Insurance Policy) by any Acquiror Indemnified Party with respect to the specific Losses any Loss for which any such Person Indemnified Party has received an indemnification payment been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (net of collection costs and net of any costs of such recovery such as legal fees, as well as increased premiums, deductibles, and self-insured amounts) shall be made promptly to (a) the Escrow Agent for replenishment portion of the Indemnity Escrow Fund, if during Loss borne by the Survival Period, or (b) the Paying Agent if after the expiration of the Survival Period, for distribution to the Selling Equityholders, and the portion of such amount owed to each Selling Equityholder will be determined in accordance with its respective Percentage (less Taxes withheld, if any, pursuant to Section 1.16). Notwithstanding the foregoing, an Acquiror Indemnified Party shall not be required to refund amounts actually received from an insurer to the extent such indemnified Person's total Losses exceed the limits in the applicable insurance policy (including the RWI Policy).57 LEGAL02/39540989v11

Determination of Loss Amount. The amount of any Losses Loss subject to indemnification under this Article VIII Section 10.2 and Section 10.3 shall be calculated net of (i) not include any punitive damages insurance proceeds (except including under the Parent RWI Policy) actually received or paid on behalf of the prospective Indemnitee covering any of the Loss that is the subject to the claim for indemnity (in each case case, net of any costs and expenses incurred in connection with the investigation or collection of such amounts by or on behalf of such Indemnitee and net of any experience based premium adjustments) actually and directly caused by Losses paid under such policies of insurance for claims based upon facts and circumstances otherwise giving rise to indemnifiable Losses hereunder, (ii) any net amounts recovered from other collateral sources (such as contractual indemnities of any Person which are contained outside of this Agreement) (in each case, net of any costs and expenses incurred in connection with the investigation or collection of such amounts by or on behalf of such Indemnitee); and (iii) any Tax benefits actually realized (calculated on a “with and without” basis) by the party being indemnified on account of such Loss, but only to the extent such damages Tax benefit is realized in the year that such Loss was incurred. In the event any Losses are recoverable under insurance policies or other collateral sources, Parent Indemnified Parties shall actually be awarded use commercially reasonable efforts and proceed in good faith to a third party and be payable by an Acquiror Indemnified Party) and (ii) be calculated net of any insurance proceeds other than from the RWI Policy (net of any costs pursue recovery of such recovery Losses under such as increased premiums, deductibles and self-insured amounts) or any indemnity, contribution insurance policies or other similar payment actually recovered by Acquiror Indemnified Party from any third party with respect theretocollateral sources. In the event that an insurance or other recovery from a third party is made received by any Acquiror Indemnified Party Indemnitee or a Tax benefit is realized by an Indemnitee in the year the Loss is incurred, in each case with respect to the specific Losses a Loss for which any such Person has received an indemnification payment been indemnified hereunder, then a refund equal to the aggregate amount of the insurance or other recovery (net of any costs of such recovery such as legal fees, as well as increased premiums, deductibles, and self-insured amounts) or Tax benefit shall be made promptly to (a) the Escrow Agent for replenishment of the Indemnity Escrow FundAdministrator that made or directed such indemnification payments to such Indemnitee; provided, if during that the Survival Period, or (b) the Paying Agent if after the expiration of the Survival Period, for distribution to the Selling Equityholders, and the portion of such amount owed to each Selling Equityholder will be determined in accordance with its respective Percentage (less Taxes withheld, if any, pursuant to Section 1.16). Notwithstanding the foregoing, an Acquiror Indemnified Party Indemnitee shall not be required obligated to refund amounts pay over any such amount or benefit in excess of the amount actually received from an insurer the indemnifying Party with respect to the extent such indemnified Person's total Losses exceed the limits in the applicable insurance policy (including the RWI Policy).claim. 10.8

Determination of Loss Amount. The amount of any Losses Loss subject to indemnification under this Article VIII Section 9.02 shall (i) not include any punitive damages (except in each case to the extent such damages shall actually be awarded to a third party and be payable by an Acquiror Indemnified Party) and (ii) be calculated net of any insurance proceeds other than from the RWI Policy (net of any costs of such recovery such as increased premiums, deductibles and self-insured amounts) or any indemnity, contribution or other similar payment actually recovered by Acquiror the Indemnified Party from any third party Third Party with respect theretothereto (net of any expenses incurred by the Indemnified Party in obtaining such recovery, including collection costs and reserves, deductibles, premium adjustments and retrospectively rated premiums), except to the extent any such insurance proceeds are required to be paid pursuant to Sections 8.03(e) or 9.02(c). If the Indemnified Party actually realizes a Tax Benefit on account of a Loss by reason of the deductibility of such Loss in the taxable year of the Loss or in the subsequent taxable year, and the Indemnified Party (or the Purchaser) is entitled to be, and is in fact, indemnified against such Loss pursuant to this Article IX, the Indemnified Party shall promptly pay to the Indemnifying Party the amount of such Tax Benefit to the extent of the portion of such Loss for which the Indemnified Party received an indemnification payment pursuant to this Article IX. For purposes of this Section 9.07, an Indemnified Party shall be deemed to recognize a tax benefit (a “Tax Benefit”) with respect to a taxable period if, and to the extent that, the Indemnified Party’s cumulative liability for Taxes through the end of such taxable year, calculated by excluding any Tax items attributable to the Loss, exceeds the Indemnified Party’s actual cumulative liability for Taxes through the end of such taxable year, calculated by taking into account any Tax items attributable to the Loss (to the extent permitted by applicable Law and treating the Tax items attributable to the Loss as the last items claimed for any taxable year). The Indemnified Party shall use commercially reasonable efforts to seek full recovery under all insurance policies covering any Loss or right of a current or former director or officer to contribution, indemnification, advancement or reimbursement to the same extent as it would if such Loss were not subject to indemnification hereunder or the Indemnified Party were responsible for such contribution, indemnification, advancement or reimbursement. In the event that an insurance or other recovery from a third party is made by any Acquiror Indemnified Party with respect to the specific Losses any Loss for which any such Person has received an indemnification payment been indemnified hereunder, then a refund equal to the aggregate lesser of (i) the amount of the recovery (net of any expenses incurred by the Indemnified Party in obtaining such recovery, including collection costs of such recovery such as legal fees, as well as increased premiumsand reserves, deductibles, premium adjustments and self-insured amountsretrospectively rated premiums) and (ii) the amount of the Loss for which the Indemnified Party was indemnified shall be made promptly to (a) the Escrow Agent for replenishment Indemnifying Party. Each party hereby waives, to the extent permitted under its applicable insurance policies, any subrogation rights that its insurer may have with respect to any indemnifiable Losses. 75 9.08 Acknowledgment of the Indemnity Escrow FundPurchaser and the Merger Sub. Each of the Purchaser and the Merger Sub acknowledges that it has conducted to its satisfaction an independent investigation and verification of the financial condition, if during results of operations, assets, liabilities, properties and projected operations of the Survival PeriodCompany and its Subsidiaries and, in making its determination to proceed with the transactions contemplated by this Agreement, each of the Purchaser and the Merger Sub has relied on the results of its own independent investigation and verification and the representations and warranties of the Company expressly and specifically set forth in Article IV, as modified by the Disclosure Schedules attached hereto. The representations and warranties of the Company in Article IV, as modified by the Disclosure Schedules, constitute the sole and exclusive representations and warranties of the Company and the Non‑Recourse Parties to the Purchaser and the Merger Sub in connection with the transactions contemplated hereby, and each of the Purchaser and the Merger Sub understands, acknowledges and agrees that all other representations and warranties of any kind or nature expressed or implied (including any relating to the future or historical financial condition, results of operations, assets or liabilities of the Company or its Subsidiaries, or (b) the Paying Agent if after the expiration quality, quantity or condition of the Survival PeriodCompany’s or its Subsidiaries’ assets or relating to any other information provided to Purchaser) are specifically disclaimed by the Company and the Stockholders. Except as expressly provided in this Agreement, none of the Stockholder Representative, the Stockholder Parties, the Company or its Subsidiaries makes or provides, and each of the Purchaser and the Merger Sub hereby waives, any warranty or representation, express or implied, as to the quality, merchantability, fitness for a particular purpose, conformity to samples, or condition of the Company’s and its Subsidiaries’ assets or any part thereof. In connection with the Purchaser’s and the Merger Sub’s investigation of the Company and its Subsidiaries, each of the Purchaser and the Merger Sub 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. Each of the Purchaser and the Merger Sub acknowledges that there are uncertainties inherent in attempting to make estimates, projections and other forecasts and plans, that the Purchaser and the Merger Sub are familiar with such uncertainties and that each of the Purchaser and the Merger Sub is taking full responsibility for making its own evaluation of the adequacy and accuracy of all estimates, projections and other forecasts and plans so furnished to it, including the reasonableness of the assumptions underlying such estimates, projections and forecasts. Accordingly, each of the Purchaser and the Merger Sub hereby acknowledges that none of the Stockholder Representative, the Stockholders or any of their Affiliates, or their respective officers, directors, partners, members, employees, agents, representatives, successors and permitted assigns (collectively, the “Stockholder Parties”) is making any representation or warranty with respect to such estimates, projections and other forecasts and plans, including the reasonableness of the assumptions underlying such estimates, projections and forecasts, and that neither of the Purchaser or the Merger Sub has relied on any such estimates, projections or other forecasts or plans, in each case except to the extent of the representations and warranties expressly and specifically set forth in Article IV, as modified by the Disclosure Schedules attached hereto. The Purchaser further agrees, for itself and its Affiliates and their respective officers, directors, partners, members, employees, agents, representatives, successors and permitted assigns (collectively, the “Purchaser Parties”), that none of the Stockholder Parties or any other Person will have or be subject to any liability to any Purchaser Party or any other Person resulting from the distribution to the Selling EquityholdersPurchaser or any other Purchaser Party, and or the portion of such amount owed to each Selling Equityholder will be determined in accordance with its respective Percentage (less Taxes withheldPurchaser’s use of, if any, pursuant to Section 1.16). Notwithstanding the foregoing, an Acquiror Indemnified Party shall not be required to refund amounts actually received from an insurer to the extent such indemnified Person's total Losses exceed the limits any information other than that contained in the applicable insurance policy representations and warranties contained in this Article IV (including the RWI Policycertificate of the Company delivered by the Company 76 with respect to the representations and warranties set forth in this Article IV)., including any information, document or material made available to the Purchaser or any other Purchaser Party in certain “data rooms,” management presentations or any other form in expectation of the transactions contemplated by this Agreement. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall limit the recovery of the Purchaser or the liability of the Company or any of its Affiliates or any Stockholder in the event of actual fraud, except as expressly set forth in Sections 9.03(c) and 9.03(d). 9.09

Determination of Loss Amount. (a) The amount of any Losses subject to indemnification under this Article VIII shall Section 10.02 and Section 10.03 will be calculated net of (i) not include the amount of any punitive damages Tax Benefit realized by an Indemnified Party by reason of such Loss or the circumstances or adjustments giving rise thereto with respect to any taxable period in which such Loss was incurred (except in each case or any earlier taxable period) but only to the extent that an Indemnified Party utilizes such damages shall actually be awarded to a third party and be payable by an Acquiror Indemnified Party) Tax Benefit and (ii) be calculated net any amounts recovered by any Indemnified Party or any of such Indemnified Party's Affiliates under or pursuant to any insurance proceeds other than from the RWI Policy (net of any costs of such recovery such as increased premiumspolicy, deductibles and self-insured amounts) or any title insurance policy, indemnity, contribution reimbursement arrangement or other similar payment actually recovered by Acquiror contract pursuant to or under which such Indemnified Party from or such Indemnified Party's Affiliates is a party or has rights ("Alternative Arrangements"). For purposes hereof, "Tax Benefit" means (x) any third party with respect theretorefund of Taxes paid, or (y) the amount the Indemnified Party's hypothetical liability for Taxes for the taxable period, calculated by excluding the relevant amount of credit, deduction, or Loss that would exceed the Indemnified Party's actual liability for Taxes for such period, calculated by taking into account the relevant amount of credit, deduction, or Loss. The Indemnified Party will seek full recovery under all Alternative Arrangements covering any Loss to the same extent as such Indemnified Party would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other a recovery from a third party is made under an Alternative Arrangement by any Acquiror Indemnified Party with respect to the specific Losses any Loss for which any such Person Indemnified Party has received an indemnification payment been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (net of any costs of such recovery such as legal fees, as well as increased premiums, deductibles, and self-insured amounts) shall will be made promptly to (a) the Escrow Agent for replenishment of the Indemnity Escrow Fund, if during the Survival Period, or (b) the Paying Agent if after the expiration of the Survival Period, for distribution to the Selling Equityholders, and the portion of such amount owed to each Selling Equityholder will be determined in accordance with its respective Percentage (less Taxes withheld, if any, pursuant to Section 1.16). Notwithstanding the foregoing, an Acquiror Indemnified Party shall not be required to refund amounts actually received from an insurer to the extent such indemnified Person's total Losses exceed the limits in the applicable insurance policy (including the RWI Policy)Indemnifying Party.

Determination of Loss Amount. The amount of any Losses Loss subject to indemnification under this Article VIII 11 shall (i) not include any punitive damages (except in each case to the extent such damages shall actually be awarded to a third party and be payable by an Acquiror Indemnified Party) and (ii) be calculated net of (a) any net Tax Benefit actually realized by an Indemnified Party prior to the Survival Date as a result of incurrence or payment of such Loss and (b) any insurance proceeds other than from the RWI Policy (net of any costs of such recovery such as increased premiums, deductibles and self-insured amountsdeductibles) or any indemnity, contribution or other similar payment actually recovered by Acquiror the Indemnified Party from any third party with respect thereto. In computing the amount of any Tax Benefit, an Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the incurrence or payment of such Loss giving rise to indemnity under this Agreement. Any indemnification payment under this Article 11 shall be reduced to reflect any net Tax Benefit as set forth in (a), above, after the Indemnified Party has actually realized such Tax Benefit. For purposes of this Agreement, an Indemnified Party shall be deemed to have “actually realized” a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable by such Indemnified Party is actually reduced below the amount of Taxes that such Indemnified Party would be required to pay but for the incurrence or payment of such Loss or the Indemnified Party actually receives a refund of Taxes. The determination of whether the Indemnified Party has actually realized any net Tax Benefit shall be made in good faith by the Indemnified Party. If any Buyer Indemnitee actually realizes a net Tax Benefit after an indemnification payment is made to it but prior to the Survival Date, such Buyer Indemnitee shall increase the outstanding principal amount of the Buyer PIK Note by an amount equal to such net Tax Benefit (including net of costs to the Buyer to obtain such Tax Benefit). Buyer will, if the Sellers’ Representative so requests, cause the relevant Buyer Indemnitee to file for any tax benefit (including through the filing of any amended Tax Return) that the Sellers’ Representative reasonably believes such Buyer Indemnitee is entitled to receive after an indemnification payment is made to such Buyer Indemnitee. The Indemnified Party shall seek full recovery under all insurance policies purchased by the Company 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 from a third party is made by any Acquiror Indemnified Party with respect to the specific Losses any Loss for which any such Person has received an indemnification payment been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (net of any costs of such recovery such as legal fees, as well as increased premiums, deductibles, and self-insured amounts) shall be made promptly to (a) the Escrow Agent for replenishment Indemnifying Party. Except in the case of the Indemnity Escrow Fundfraud or intentional breach of any covenant or agreement set forth in this Agreement, if during the Survival Period, or (b) the Paying Agent if after the expiration of the Survival Period, for distribution to the Selling Equityholders, and the portion of such amount owed to each Selling Equityholder will be determined in accordance with its respective Percentage (less Taxes withheld, if any, pursuant to Section 1.16). Notwithstanding the foregoing, an Acquiror no event shall any Indemnified Party shall not be required entitled to refund recover or make a claim for any amounts actually received from an insurer in respect of lost revenues or profits (except that, with respect to Losses for lost revenues or profits, to the extent such indemnified Person's total a court of competent jurisdiction determines that lost revenues or profits is the appropriate measure of Losses exceed for the limits matter giving rise to the claim for Losses or if payable pursuant to a Third Party Claim) or punitive damages (except for Losses payable pursuant to a Third Party Claim). In no event shall any Buyer Indemnitee be entitled to recover or make a claim for any Taxes attributable to actions not contemplated by this Agreement and not taken in the applicable insurance policy (including Ordinary Course of Business, in either case, taken by any of the RWI Policy)Buyer or any of the Target Companies after the Closing on the Closing Date.

Determination of Loss Amount. The amount of any Losses Loss subject to indemnification under this Article VIII Section 8.02 or Section 8.03 shall (i) not include any punitive damages (except in each case to the extent such damages shall actually be awarded to a third party and be payable by an Acquiror Indemnified Party) and (ii) be calculated net of (a) any Tax Benefit that an Indemnified Party actually recognizes in the year of the indemnity payment or earlier on account of such Loss and (b) any insurance proceeds other than from the RWI Policy (net of any costs of such recovery such as increased premiums, deductibles and self-insured amountsdirect collection expenses) or any indemnity, contribution or other similar payment actually recovered received by Acquiror the Indemnified Party from any third party with respect thereto; provided, that for a period of three (3) years after the incurrence of the relevant Loss, to the extent such Loss gives rise to a Tax Benefit that is realized by the Indemnified Party after the year of the indemnity payment, then the Indemnified Party shall refund to the Indemnifying Party the amount of such Tax Benefit up to the amount of the indemnity payment when, as and if realized. The Indemnified Party shall seek full recovery under all insurance policies covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other recovery from a third party is 57 made by any Acquiror Indemnified Party with respect to the specific Losses any Loss for which any such Person has received an indemnification payment been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (net of less any costs of or expenses to obtain such recovery such as legal fees, as well as increased premiums, deductibles, and self-insured amountsrecovery) shall be made promptly to (a) the Escrow Agent for replenishment Indemnifying Party. The Indemnifying Party shall be subrogated to all rights of the Indemnity Escrow Fund, if during the Survival Period, or (b) the Paying Agent if after the expiration Indemnified Parties and their Affiliates in respect of the Survival Period, for distribution any Losses indemnified by Indemnifying Party. Notwithstanding anything to the Selling Equityholderscontrary contained in this Agreement, and the portion of such amount owed Buyer shall have no right to each Selling Equityholder will be determined in accordance indemnification hereunder with its respective Percentage (less Taxes withheld, if any, pursuant respect to Section 1.16). Notwithstanding the foregoing, an Acquiror Indemnified Party shall not be required to refund amounts actually received from an insurer any Loss or alleged Loss to the extent the amount of such indemnified Person's total Losses exceed the limits Loss or alleged Loss is included in the applicable insurance policy (including calculation of the RWI Policy)Net Working Capital or Indebtedness.