Common use of Determination of Loss Amount Clause in Contracts

Determination of Loss Amount. 9.8.1. The amount of any and all Losses under this Article 9 will be determined net of (i) the net present value of any Tax benefits actually realizable by any Person seeking indemnification hereunder arising from the deductibility (or amortization or capitalization or other Tax benefit) of any such Losses and (ii) any amounts recovered (net of the costs of recovery) by any Claiming Party or any of such Claiming Party’s Affiliates under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract (other than self-insurance or retrospective insurance arrangements) pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rights. 9.8.2. A Claiming Party shall not be entitled to recover Losses hereunder to the extent such Losses (i) are not the reasonably foreseeable result of any breach by the Defending Party of a representation, warranty, covenant or agreement contained in this Agreement or arise from special circumstances of the Claiming Party that were not communicated prior to the date of this Agreement by the Claiming Party to the Defending Party, or (ii) constitute punitive or exemplary damages; provided, however, that a Claiming Party shall be entitled to recover any such Losses recovered by third parties in connection with a Third Party Claim against the Claiming Party. No Defending Party will be liable hereunder in respect of any claim if such claim would not have arisen but for a post-Closing change in legislation or GAAP or a change in interpretation of applicable Legal Requirements as determined by a court or pursuant to an administration rule-making decision. 9.8.3. No Buyer Indemnitee will be entitled to any indemnification under this Article 9 to the extent such matter (i) was taken into account in determining the Final Working Capital Amount pursuant to Section 2.5, or (ii) was specifically reserved for in the Interim Financial Statements.

Determination of Loss Amount. 9.8.1. The amount of any and all Losses under subject to indemnification pursuant to this Article 9 will 10 shall be determined net of (i) reduced or reimbursed, as the net present value of any Tax benefits actually realizable case may be, by any Person seeking indemnification hereunder arising amount actually received by any Buyer Indemnified Party or any Seller Indemnified Party, as applicable, with respect thereto under any insurance coverage provided by any third party that is not an Affiliate of such Buyer Indemnified Party or Seller Indemnified Party, as applicable, or from the deductibility (or amortization or capitalization or any other Tax benefit) of any such Losses and (ii) any amounts recovered party alleged to be responsible therefor (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 out-of-pocket costs related to such recovery). The Buyer Indemnified Parties and the Seller Indemnified Parties, as applicable, shall 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 out-of-pocket costs related to such recovery) by any Claiming the Buyer Indemnified Party or any of such Claiming Party’s Affiliates under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract (other than self-insurance or retrospective insurance arrangements) pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rights. 9.8.2. A Claiming Party shall not be entitled to recover Losses hereunder to the extent such Losses (i) are not the reasonably foreseeable result of any breach by the Defending Party of a representation, warranty, covenant or agreement contained in this Agreement or arise from special circumstances of the Claiming Party that were not communicated prior to the date of this Agreement by the Claiming Party to the Defending Seller Indemnified Party, or (ii) constitute punitive or exemplary damagesas applicable; provided, howeverthat in no event shall any Buyer Indemnified Party or Seller Indemnified Party, that a Claiming Party shall be entitled as applicable, have any obligation hereunder to recover remit to Buyer, Buyer, Guarantor, Seller Guarantor or Sellers, as applicable, any portion of such Losses recovered by third parties insurance or other recoveries in connection excess of the indemnification payment or payments actually received from Buyer, Buyer Guarantor, Seller Guarantor or Sellers, as applicable, with a Third Party Claim against the Claiming Party. No Defending Party will be liable hereunder in respect of any claim if to such claim would not have arisen but for a post-Closing change in legislation or GAAP or a change in interpretation of applicable Legal Requirements as determined by a court or pursuant to an administration rule-making decisionLosses. 9.8.3. No Buyer Indemnitee will be entitled to any indemnification under this Article 9 to the extent such matter (i) was taken into account in determining the Final Working Capital Amount pursuant to Section 2.5, or (ii) was specifically reserved for in the Interim Financial Statements.

Determination of Loss Amount. 9.8.1. The amount (a) For purposes of determining (i) whether there has been a breach of any representation and warranty of Seller set forth in Article II or Article III and (ii) the Losses for any such breach, all materiality qualifications contained in such representations and warranties (however they may be phrased and including the word “material”, the term “Material Adverse Effect” and words or terms of similar import) shall be ignored and not given any effect; provided, however, that materiality qualifications shall not be ignored, and they shall be given effect, for purposes of the definition of Permitted Liens or Material Contracts and any use of such terms in this Agreement. (b) Purchaser shall, and shall cause the Company to, in good faith, diligently seek recovery, at its or their own expense, of all insurance proceeds from insurers with respect to all Losses with respect to which any Purchaser Indemnified Party makes a claim for indemnification under this Article 9 will be determined net of VIII; provided that (i) the expenses incurred by Purchaser or the Company in connection with such recovery and the net present value of any Tax benefits actually realizable by any Person seeking increase in premiums of the applicable insurance policies relating to the claims so made shall be a Loss related to such claim for indemnification hereunder arising from the deductibility (or amortization or capitalization or other Tax benefit) of any such Losses and (ii) any amounts recovered (net of the costs of recovery) by any Claiming Party or any of such Claiming Party’s Affiliates under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract (other than self-insurance or retrospective insurance arrangements) pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rights. 9.8.2. A Claiming no Indemnifying Party shall not be entitled to recover Losses hereunder to delay making any payment under this Article VIII pending resolution of any such insurance claim. To the extent such Losses (i) are not that Purchaser or the reasonably foreseeable result of Company receives any breach by the Defending amount under insurance coverage with respect to a matter for which a Purchaser Indemnified Party of a representation, warranty, covenant or agreement contained has previously obtained payment in this Agreement or arise from special circumstances of the Claiming Party that were not communicated prior to the date of this Agreement by the Claiming Party to the Defending Party, or (ii) constitute punitive or exemplary damages; provided, however, that a Claiming Party shall be entitled to recover any such Losses recovered by third parties in connection with a Third Party Claim against the Claiming Party. No Defending Party will be liable hereunder in respect of any claim if such claim would not have arisen but for a post-Closing change in legislation or GAAP or a change in interpretation of applicable Legal Requirements as determined by a court or pursuant to an administration rule-making decision. 9.8.3. No Buyer Indemnitee will be entitled to any indemnification under this Article 9 VIII from Seller, Purchaser shall, as soon as reasonably practicable after receipt of such insurance proceeds, pay and reimburse to Seller for any prior indemnification payment (up to the extent amount of the insurance proceeds) by deliver of cash in such matter amount. (ic) was taken into account The representations and warranties made by the Company and Seller, on the one hand, and Purchaser and Parent, on the other hand, in determining this Agreement are made with the Final Working Capital Amount pursuant to Section 2.5, or knowledge and expectation that Seller is (ii) was specifically reserved for in the Interim Financial Statementscase of representations and warranties made by Purchaser and Parent) and Purchaser is (in the case of representations and warranties made by the Company and Seller) placing reliance thereon in entering into, and performing its obligations under, this Agreement.

Determination of Loss Amount. 9.8.1. (a) The amount of any Losses subject to indemnification under Section 9.02 and all Losses under this Article 9 Section 9.03 will be determined calculated net of (i) the net present value of any Tax benefits amounts actually realizable recovered in cash by any Person seeking indemnification hereunder arising from the deductibility (or amortization or capitalization or other Tax benefit) of any such Losses and (ii) any amounts recovered (net of the costs of recovery) by any Claiming Indemnified Party or any of such Claiming Indemnified Party’s Affiliates under or pursuant to any insurance policypolicy (excluding any recovery received under the R&W Insurance Policy), title insurance policy, indemnity, reimbursement arrangement or contract (other than self-insurance or retrospective insurance arrangements) pursuant to which or under which such Claiming Indemnified Party or such Claiming Indemnified Party’s Affiliates is a party or has rights. 9.8.2, net of any deductible amounts, costs of collection or recovery, increases in premiums and reasonable and documented out-of-pocket expenses related thereto (collectively, “Alternative Arrangements”). A Claiming Party shall 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 recover indemnification, with respect to any Losses hereunder to that are covered by an Alternative Arrangement or would have been covered by an Alternative Arrangement had the extent such Losses (i) are not Buyer Related Parties maintained for their benefit and the reasonably foreseeable result of any breach by the Defending Party of a representation, warranty, covenant or agreement contained in this Agreement or arise from special circumstances benefit of the Claiming Party Target Companies the same rights or coverage under an Alternative Arrangement following the Closing that were not communicated was in effect for the Target Companies immediately prior to the date Closing. The Indemnified Party will use its commercially reasonable efforts to 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 a recovery is made under an Alternative Arrangement (excluding the R&W Insurance Policy) by any Indemnified Party with respect to any Loss for which such Indemnified Party has been indemnified hereunder, then a refund equal to the aggregate amount of this Agreement the recovery net of collection costs and net of any portion of the Loss borne by the Claiming Party to the Defending Party, or 57 LEGAL02/39540989v11 (iib) constitute punitive or exemplary damages; provided, however, that a Claiming Party shall be entitled to recover any such Losses recovered by third parties in connection with a Third Party Claim against the Claiming Party. No Defending Party will be liable hereunder in respect of any claim if such claim would not have arisen but for a post-Closing change in legislation or GAAP or a change in interpretation of applicable Legal Requirements as determined by a court or pursuant to an administration rule-making decision. 9.8.3. No Buyer Indemnitee Related Party will be entitled to any indemnification under this Article 9 IX to the extent such matter (i) such matter was taken into account in determining the Final Working Capital Amount Purchase Price pursuant to Section 2.51.02, or (ii) was specifically reserved a Buyer Related Party has been otherwise compensated for in the Interim Financial Statementssuch matter pursuant to this Agreement.

Determination of Loss Amount. 9.8.1. The amount of any and all (a) Any Losses under this Article 9 claimed hereunder will be determined net of (i) calculated after taking into consideration the net present value proceeds (after taking into account the reasonable costs of collecting any Tax benefits such proceeds) of insurance or third party recoveries actually realizable received by any Person seeking entitled to indemnification hereunder arising or escrow recovery, as applicable. In the event that any such net proceeds of insurance or other third party recovery is made by any such Person with respect to any Loss for which any such Person already has been indemnified or otherwise recovered hereunder, then a refund equal to the aggregate net amount of the recovery from the deductibility (or amortization or capitalization insurance or other Tax benefitthird party recovery will be made promptly to the Person providing the indemnity or other recovery hereunder. Buyer will use commercially reasonable efforts, consistent with Buyer’s past practices, to submit claims to insurance companies for Losses covered by insurance policies of the Companies or of Buyer. Buyer will use commercially reasonable efforts, consistent with Buyer’s past practices, to submit claims and seek indemnification from any third party Person (except insurance companies as discussed in the previous sentence) who may have an obligation to indemnify Buyer, its Affiliates, or the Companies against any such Losses. (b) No Person will be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity hereunder more than once in respect of any such Losses and (ii) any amounts recovered (net one Loss or related group of the costs of recovery) by any Claiming Party or any of such Claiming Party’s Affiliates under or pursuant to any insurance policyLosses. For example, title insurance policy, indemnity, reimbursement arrangement or contract (other than self-insurance or retrospective insurance arrangements) pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rights. 9.8.2. A Claiming Party shall Buyer Indemnitees will not be entitled to recover Losses damages or obtain payment, reimbursement, restitution or indemnity hereunder with respect to any Loss arising from a breach of a representation or warranty set forth in Article 3 relating in any way to the Companies’ Indebtedness, Transaction Expenses, or Net Working Capital to the extent such Losses (i) are not Loss is factored into the reasonably foreseeable result amount of any breach by the Defending Party of a representationAssumed Indebtedness, warranty, covenant or agreement contained in this Agreement or arise from special circumstances of the Claiming Party that were not communicated prior to the date of this Agreement by the Claiming Party to the Defending PartyTransaction Expenses, or Net Working Capital. (iic) constitute punitive or exemplary damages; provided, however, that a Each Claiming Party shall be entitled take, and cause its Affiliates to recover take, commercially reasonable steps to mitigate any such Losses recovered by third parties in connection with a Third Party Claim against the Claiming Party. No Defending Party will be liable hereunder in respect Loss upon becoming aware of any claim if such claim would not have arisen but for a post-Closing change in legislation event or GAAP or a change in interpretation of applicable Legal Requirements as determined by a court or pursuant circumstance that is reasonable likely to an administration rule-making decisiongive rise thereto. 9.8.3. No Buyer Indemnitee will be entitled to any indemnification under this Article 9 to the extent such matter (i) was taken into account in determining the Final Working Capital Amount pursuant to Section 2.5, or (ii) was specifically reserved for in the Interim Financial Statements.

Determination of Loss Amount. 9.8.1(a) Losses for breaches of representations and warranties contained in this Agreement shall be net of any insurance proceeds or third-party payments (after deduction for any actual increased insurance costs (including future premium increases directly related thereto) as a result of such payment or proceeds and any reasonable out-of-pocket fees, costs or expenses incurred by such Claiming Party in connection with obtaining such proceeds) actually realized by and paid to the Claiming Party. The amount of Claiming Party shall seek full recovery under all insurance policies and third-party payments covering any and all Losses under this Article 9 will be determined net of (i) Loss to the net present value of any Tax benefits actually realizable by any Person seeking same extent as it would if such Loss were not subject to indemnification hereunder arising from hereunder. In the deductibility (or amortization or capitalization event that an insurance or other Tax benefit) of any such Losses and (ii) any amounts recovered (net of the costs of recovery) recovery is made by any Claiming Party or any of such Claiming Party’s Affiliates under or pursuant with respect to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract (other than self-insurance or retrospective insurance arrangements) pursuant to Loss for which or under which any such Claiming Party or such Claiming Party’s Affiliates is a party or has rights. 9.8.2. A been indemnified hereunder, then the Claiming Party shall not refund promptly to the Defending Party the aggregate amount of the recovery (after deduction of the amounts listed above, if any). (b) In no event shall the Buyer Indemnitees or Seller Indemnitees be entitled to recover Losses hereunder to the extent such Losses (i) are not the reasonably foreseeable result or make a claim for any amounts in respect of any breach by the Defending Party of a representationindirect damages, warrantyincluding consequential, covenant or agreement contained in this Agreement or arise from special circumstances of the Claiming Party that were not communicated prior to the date of this Agreement by the Claiming Party to the Defending Partylost profits, punitive, or speculative damages (ii) constitute punitive or exemplary damages; provided, however, that a Claiming Party shall be entitled to recover other than any such Losses recovered by third parties damages actually awarded in connection with any Third-Party Claim). In addition, in no event shall a Third Party Claim against the Claiming Party. No Defending Party will be liable hereunder in respect of any claim if such claim would not have arisen but for a post-Closing change in legislation or GAAP accounting policies or a change in interpretation of applicable Legal Requirements Law as determined by a court or pursuant to an administration rule-making decision. 9.8.3. (c) No Buyer Indemnitee will shall be entitled to any indemnification for any losses under this Article 9 to the extent such matter (i) such amount of Losses was taken into account in determining the Final Closing Consideration or the Net Working Capital Amount pursuant to Section 2.5, 1.02 or (ii) was specifically reserved for in the Interim Financial Statementssuch matter is a Knowledge Event with respect to which Buyer is not entitled to indemnification pursuant to Section 5.08.

Determination of Loss Amount. 9.8.1. The amount of any Loss subject to indemnification under Section 9.02 shall be calculated net of any insurance proceeds or any indemnity, contribution or other similar payment actually recovered by the Indemnified Party from any Third Party with respect thereto (net of any expenses incurred by the Indemnified Party in obtaining such recovery, including collection costs and all Losses under 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 9 will 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 determined net 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 is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the lesser of (i) the amount of the recovery (net present value of any Tax benefits actually realizable expenses incurred by any Person seeking indemnification hereunder arising from the deductibility (or amortization or capitalization or other Tax benefitIndemnified Party in obtaining such recovery, including collection costs and reserves, deductibles, premium adjustments and retrospectively rated premiums) of any such Losses and (ii) any amounts recovered (net the amount of the costs of recovery) by any Claiming Loss for which the Indemnified Party or any of such Claiming was indemnified shall be made promptly to the Indemnifying Party’s Affiliates under or pursuant to any insurance policy. Each party hereby waives, title insurance policy, indemnity, reimbursement arrangement or contract (other than self-insurance or retrospective insurance arrangements) pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rights. 9.8.2. A Claiming Party shall not be entitled to recover Losses hereunder to the extent such Losses (i) are not the reasonably foreseeable result of permitted under its applicable insurance policies, any breach by the Defending Party of a representation, warranty, covenant or agreement contained in this Agreement or arise from special circumstances of the Claiming Party subrogation rights that were not communicated prior to the date of this Agreement by the Claiming Party to the Defending Party, or (ii) constitute punitive or exemplary damages; provided, however, that a Claiming Party shall be entitled to recover any such Losses recovered by third parties in connection its insurer may have with a Third Party Claim against the Claiming Party. No Defending Party will be liable hereunder in respect of any claim if such claim would not have arisen but for a post-Closing change in legislation or GAAP or a change in interpretation of applicable Legal Requirements as determined by a court or pursuant to an administration rule-making decision. 9.8.3. No Buyer Indemnitee will be entitled to any indemnification under this Article 9 to the extent such matter (i) was taken into account in determining the Final Working Capital Amount pursuant to Section 2.5, or (ii) was specifically reserved for in the Interim Financial Statementsindemnifiable Losses.

Determination of Loss Amount. 9.8.1(a) Losses for breaches of representations and warranties contained in this Agreement shall be net of any insurance proceeds or third party payments realized by and paid to any party entitled to indemnification under this Agreement. The amount of Claiming Party shall seek full recovery under all insurance policies and third party payments covering any and all Losses Loss to the same extent as it would if such Loss were not subject to indemnification under this Article 9 will be determined net of (i) Agreement and shall use commercially reasonable efforts to collect any amounts available under such insurance policies or from such other party alleged to have responsibility for such Loss. In the net present value of any Tax benefits actually realizable by any Person seeking indemnification hereunder arising from the deductibility (or amortization or capitalization event that an insurance or other Tax benefit) of any such Losses and (ii) any amounts recovered (net of the costs of recovery) recovery is made by any Claiming Party or any of such Claiming Party’s Affiliates under or pursuant with respect to any Loss for which any such Person has been indemnified under this Agreement, then a refund equal to the aggregate amount of the recovery shall be made promptly to the Seller Representative (on behalf of the Sellers) or Purchaser, as applicable. Purchaser agrees that it will maintain levels of insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract (other than self-insurance or retrospective insurance arrangements) pursuant on the Company and its Subsidiaries during the period beginning immediately after the Closing and ending on the General Survival Date comparable to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rightsthe levels maintained by the Company and its Subsidiaries immediately prior to the Closing. 9.8.2. A Claiming Party (b) In no event shall not an indemnified party be entitled to recover Losses hereunder to or make a claim for any amounts in respect of consequential, incidental or indirect damages, lost profits or punitive damages and, in particular, no “multiple of profits” or “multiple of cash flow” or other valuation methodology shall be used in calculating the extent such Losses (i) are not the reasonably foreseeable result amount of any breach by the Defending Party of a representationLosses. In addition, warranty, covenant or agreement contained in this Agreement or arise from special circumstances of the Claiming Party that were not communicated prior to the date of this Agreement by the Claiming Party to the Defending Party, or (ii) constitute punitive or exemplary damages; provided, however, that a Claiming Party no event shall an indemnified party be entitled to recover for any such Losses recovered by that are not paid to a third parties in connection with a Third Party Claim against the Claiming Party. No Defending Party will party (e.g., general and administrative time or other overhead expenses) and no indemnifying party shall be liable hereunder under this Agreement in respect of any claim if such claim would not have arisen but for a post-Closing change in legislation or GAAP accounting policies or a change in interpretation of applicable Legal Requirements law as determined by a court or pursuant to an administration rule-making decision. Furthermore, the indemnifying party shall have no right to make a claim for any Loss to the extent it is primarily a possible or potential Loss that the indemnifying party believe may be asserted rather than a Loss that has, in fact, been paid or incurred by the indemnifying party. 9.8.3. (c) No Buyer Purchaser Indemnitee will shall be entitled to any indemnification under this Article 9 Section 10 with respect to any matter reflected in the extent such matter (i) was taken into account in determining calculation of the Final Working Capital Amount Aggregate Closing Consideration pursuant to Section 2.5, or (ii) was specifically reserved for in the Interim Financial Statements1.2.

Determination of Loss Amount. 9.8.1. (a) Notwithstanding anything herein to the contrary, the Sellers shall not be required to indemnify the Purchaser for any Losses pursuant to Section 12.03(a) to the extent that such Losses do not exceed the amount of the reserves established on the Final Closing Statement with respect to the matters giving rise to such Losses. (b) The amount of any and all Losses Loss subject to indemnification under this Article 9 will Section 12.02 or Section 12.03 shall be determined calculated net of any insurance proceeds or any indemnity, contribution or other similar payment actually paid to an Indemnitee from any third party with respect thereto, it being acknowledged and agreed that (i) the net present value amount of insurance actually paid shall be reduced by the amount of any Tax benefits actually realizable actual increase in the premiums payable by any Person seeking indemnification hereunder arising such Indemnitee which directly results from the deductibility (or amortization or capitalization or other Tax benefit) of any matter giving rise to such Losses indemnification claim and (ii) any amounts recovered (net of the costs of recovery) by any Claiming Party or any of such Claiming Party’s Affiliates Indemnitee shall use commercially reasonable efforts to make and pursue all applicable claims under or pursuant to any applicable insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract (policies other than self-insurance policies but shall have no obligation to engage in litigation in connection therewith. In the event that an insurance or retrospective other recovery is made by any Indemnitee with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the lesser of (x) the amount of the recovery (net of any expenses incurred by such Indemnitee in obtaining such recovery, and net of any insurance arrangementspolicy premium increases and deductible expenses, in each case attributable solely to such recovery) and (y) the amount of the Loss for which such Indemnitee was indemnified shall be made promptly to the Indemnitor. (c) In calculating any Loss, there shall be deducted any Tax benefits, credits or refunds to which the applicable Indemnitee and/or any Affiliate thereof actually realizes or receives as a result of such Loss in the form of reduced cash Taxes or an increase in Tax refunds with respect to the year in which the Loss is incurred or any earlier year. (d) To the extent required by applicable Law, each of the parties agrees to take all commercially reasonable steps to mitigate their respective Losses upon and after becoming aware of any event or condition which would reasonably be expected to give rise to any Losses that are indemnifiable hereunder. (e) Upon making any payment to an Indemnitee pursuant to this Article XII, the Indemnitor shall be subrogated, to the extent of such payment, to any rights which or under which the Indemnitee may have against any third parties with respect to the specific matter underlying such Claiming Party or indemnification claim and the Indemnitee shall assign any such Claiming Party’s Affiliates rights to the Indemnitor; provided that, if the Indemnitee is a Purchaser Indemnified Party, such Purchaser Indemnified Party shall be permitted to waive the Indemnitor’s right of subrogation and, in such event (but only if the applicable third party or has rights. 9.8.2. A Claiming Party is not a GSSMME), the amount of such payment shall not be entitled subject to recover Losses hereunder to the extent indemnification by such Losses (i) are not the reasonably foreseeable result of any breach by the Defending Party of a representation, warranty, covenant or agreement contained in Indemnitor under this Agreement or arise from special circumstances and, in lieu thereof, shall be charged as an expenses of the Claiming Party that were not communicated prior to Earnout Business in accordance with the date of this Agreement by the Claiming Party to the Defending Party, or (ii) constitute punitive or exemplary damages; provided, however, that a Claiming Party shall be entitled to recover any such Losses recovered by third parties in connection with a Third Party Claim against the Claiming Party. No Defending Party will be liable hereunder in respect of any claim if such claim would not have arisen but for a post-Closing change in legislation or GAAP or a change in interpretation of applicable Legal Requirements as determined by a court or pursuant to an administration rule-making decision. 9.8.3. No Buyer Indemnitee will be entitled to any indemnification under this Article 9 to the extent such matter (i) was taken into account in determining the Final Working Capital Amount pursuant to Section 2.5, or (ii) was specifically reserved for in the Interim Financial Statements.terms and conditions set forth on Schedule A.

Determination of Loss Amount. 9.8.1. (a) The amount of any and all Losses Loss subject to indemnification under this Article 9 Section 8.02 or Section 8.03 will be determined calculated net of (i) the net present value of any Tax benefits amounts actually realizable recovered by any Person seeking indemnification hereunder arising from the deductibility (or amortization or capitalization or other Tax benefit) of any such Losses and (ii) any amounts recovered (net of the costs of recovery) by any Claiming Party Indemnitee or any of such Claiming PartyIndemnitee’s Affiliates under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract (other than self-insurance or retrospective insurance arrangements) pursuant to which or under which such Claiming Party Indemnitee or such Claiming PartyIndemnitee’s Affiliates is a party or has rightsrights (collectively, “Alternative Arrangements”). The Parent Indemnified Parties will have no right to assert any claims against the Stockholders or Optionholders with respect to any Losses that would have been covered by an Alternative Arrangement had Parent maintained for its benefit and the benefit of the Surviving Corporation and its Subsidiaries the same rights or coverage under an Alternative Arrangement following the Closing that was in effect for the Company immediately prior to the Closing. In the event that a recovery is made under an Alternative Arrangement by any Parent Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery will be made promptly to the Representative (on behalf of the Stockholders and the Optionholders). 9.8.2. A Claiming Party shall not (b) In no event will any Indemnitee be entitled to recover Losses hereunder or make a claim for any amounts in respect of punitive damages, unless such punitive damages were actually paid to the extent such Losses (i) are not the reasonably foreseeable result of a third party. In addition, in no event will any breach by the Defending Party of a representation, warranty, covenant or agreement contained in this Agreement or arise from special circumstances of the Claiming Party that were not communicated prior to the date of this Agreement by the Claiming Party to the Defending Party, or (ii) constitute punitive or exemplary damages; provided, however, that a Claiming Party shall Parent Indemnified Parties be entitled to recover for any such Losses recovered by third parties in connection with a Third Party Claim against that are attributable to the Claiming Party. No Defending Party will be liable hereunder in respect unavailability of any claim if such claim would not have arisen but for Tax attribute from a postPre-Closing change in legislation or GAAP or a change in interpretation of applicable Legal Requirements as determined by a court or pursuant to an administration rule-making decision. 9.8.3Tax Period. No Buyer Indemnitee The Parent Indemnified Parties will not be entitled to any indemnification under this Article 9 VIII to the extent such matter (i) such matter was taken into account in determining the Final Working Capital Amount pursuant to Section 2.5, Residual Cash Consideration or (ii) such matter was specifically sufficiently reserved for in the Interim Financial Statements.

Determination of Loss Amount. 9.8.1. The amount of any and all (a) Any Losses under this Article 9 claimed hereunder will be determined net of (i) calculated after taking into consideration the net present value proceeds (after taking into account the costs of collecting any Tax benefits such proceeds) of insurance or third party recoveries actually realizable received by any Person seeking entitled to indemnification hereunder arising or escrow recovery, as applicable. In the event that any such net proceeds of insurance or other third party recovery is made by any such Person with respect to any Loss for which any such Person already has been indemnified or otherwise recovered hereunder, then a refund equal to the aggregate net amount of the recovery from the deductibility (or amortization or capitalization insurance or other Tax benefitthird party recovery will be made promptly to the Person providing the indemnity or other recovery hereunder. Buyer will use commercially reasonable efforts, consistent with Buyer’s past practices, to submit claims to insurance companies for Losses covered by insurance policies of the Companies or of Buyer. Buyer will use commercially reasonable efforts, consistent with Buyer’s past practices, to submit claims and seek indemnification from any third party Person (except insurance companies as discussed in the previous sentence) of who may have an obligation to indemnify Buyer, its Affiliates, or the Companies against any such Losses and (ii) any amounts recovered (net of the costs of recovery) by any Claiming Party or any of such Claiming Party’s Affiliates under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract (other than self-insurance or retrospective insurance arrangements) pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rightsLosses. 9.8.2. A Claiming Party shall not (b) In no event will any Person be entitled to recover Losses hereunder or make a claim for any amounts in respect of consequential, punitive or exemplary damages (except to the extent such Losses (i) are not the reasonably foreseeable result of any breach by the Defending Party of a representation, warranty, covenant or agreement contained in this Agreement or arise from special circumstances of the Claiming Party that were not communicated prior to the date of this Agreement by the Claiming Party to the Defending Party, or (ii) constitute punitive or exemplary damages; provided, however, that a Claiming Party shall be entitled to recover any such Losses recovered by third parties payable in connection with a Third Party Claim against the Claiming Party. Claim). (c) No Defending Party Person will be liable entitled to recover damages or obtain payment, reimbursement, restitution or indemnity hereunder more than once in respect of any claim if such claim would one Loss or related group of Losses. For example, Buyer Indemnitees will not have arisen but for a post-Closing change in legislation or GAAP or a change in interpretation of applicable Legal Requirements as determined by a court or pursuant to an administration rule-making decision. 9.8.3. No Buyer Indemnitee will be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity hereunder with respect to any indemnification under this Loss arising from a breach of a representation or warranty set forth in Article 9 2 relating in any way to the Companies’ Indebtedness, Transaction Expenses, Cash on Hand or Net Working Capital to the extent such matter Loss is factored into the amount of Indebtedness, Transaction Expenses, Cash on Hand or Net Working Capital that are included in the Final Aggregate Closing Consideration. (id) was taken All Losses for which the Companies had, prior to Closing, established a specific reserve on the Latest Balance Sheet will be determined after taking into account in determining the Final Working Capital Amount pursuant to Section 2.5, or (ii) was specifically reserved for in the Interim Financial Statementsamount of such reserve.

Determination of Loss Amount. 9.8.1. The amount (a) Losses for breaches of representations and warranties contained in this Agreement shall be net of any insurance proceeds or third-party payments actually received by and all Losses under this Article 9 will be determined paid to the Claiming Party in each case net of (i) the net present value of costs and expenses incurred in procuring such recovery and any Tax benefits actually realizable by any Person seeking indemnification hereunder arising from the deductibility (or amortization or capitalization retro premium adjustments, increases in premium, deductibles or other Tax benefit) of costs directly related thereto. In the event that any such Losses and (ii) any amounts recovered (net of the costs of recovery) insurance or other recovery is actually received by any Claiming Party or any of such Claiming Party’s Affiliates under or pursuant with respect to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract (other than self-insurance or retrospective insurance arrangements) pursuant to Loss for which or under which any such Claiming Party has been indemnified hereunder, then a refund equal to the aggregate net amount of such recovery or such Claiming the indemnification payment, whichever is less, shall be made promptly to the Defending Party’s Affiliates is a party or has rights. 9.8.2. A Claiming (b) Absent actual fraud, in no event shall any Party shall not be entitled to recover Losses hereunder or make a claim for any amounts in respect of consequential, incidental or indirect damages or punitive damages, except to the extent such Losses (i) damages are not awarded against the reasonably foreseeable result indemnified party in a Third-Party Claim, and, in particular, no “multiple of profits” or “multiple of cash flow” or other valuation methodology shall be used in calculating the amount of any breach by the Losses. In addition, in no event shall a Defending Party of a representation, warranty, covenant or agreement contained in this Agreement or arise from special circumstances of the Claiming Party that were not communicated prior to the date of this Agreement by the Claiming Party to the Defending Party, or (ii) constitute punitive or exemplary damages; provided, however, that a Claiming Party shall be entitled to recover any such Losses recovered by third parties in connection with a Third Party Claim against the Claiming Party. No Defending Party will be liable hereunder in respect of any claim if such claim would not have arisen but for a post-Closing change in legislation or GAAP accounting policies or a change in interpretation of applicable Legal Requirements Law as determined by a court or pursuant to an administration rule-making decision. Furthermore, the Buyer Indemnitees shall have no right to make a claim for any Loss to the extent it is primarily a possible or potential Loss that the Buyer Indemnitees believes may be asserted rather than a Loss that has, in fact, been paid or incurred by or asserted against the Buyer Indemnitees. 9.8.3. (c) No Buyer Indemnitee will shall be entitled to any indemnification under this Article ARTICLE 9 to the extent such matter extent: (i) such matter was specifically taken into account in determining the Final Closing Consideration or the Net Working Capital Amount pursuant to Section 2.51.02, or (ii) was specifically reserved for that there is included in the Interim Financial StatementsClosing Statement a specific liability relating to such matter, (iii) such matter would not have arisen but for any act, omission, transaction or election on the part of or carried out by any Buyer Indemnitee or its Affiliates or (iv) to the extent that Buyer is determined to not be entitled to indemnification based on a breach of Section 5.12. Without limiting the generality of the foregoing, and notwithstanding anything herein to the contrary, indemnification for breach of any representation or warranty contained in Section 4.09 (Tax Matters) shall be limited to Losses incurred with respect to Pre-Closing Periods and any portion of the Straddle Periods ending on the Closing Date (determined in accordance with Section 9.11(d)).

Determination of Loss Amount. 9.8.1. The amount of any and all Losses Loss subject to indemnification under this Article 9 will Section 8.02 or Section 8.03 shall be determined calculated net of (ia) the net present value of any Tax benefits Benefit that an Indemnified Party actually realizable by any Person seeking indemnification hereunder arising from recognizes in the deductibility (year of the indemnity payment or amortization or capitalization or other Tax benefit) earlier on account of any such Losses Loss and (iib) any amounts recovered insurance proceeds (net of the costs of recoverydirect collection expenses) by any Claiming Party or any of such Claiming Party’s Affiliates under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement contribution or contract other similar payment actually received by the Indemnified Party from any third party with respect thereto; provided, that for a period of three (other than self-insurance or retrospective insurance arrangements3) pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rights. 9.8.2. A Claiming Party shall not be entitled to recover Losses hereunder years after the incurrence of the relevant Loss, to the extent such Losses (i) are not the reasonably foreseeable result of any breach Loss gives rise to a Tax Benefit that is realized by the Defending Indemnified Party of a representation, warranty, covenant or agreement contained in this Agreement or arise from special circumstances after the year of the Claiming indemnity payment, then the Indemnified Party that 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 communicated prior subject to indemnification hereunder. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the date aggregate amount of this Agreement by the Claiming Party recovery (less any costs or expenses to obtain such recovery) shall be made promptly to the Defending Indemnifying Party, or (ii) constitute punitive or exemplary damages; provided, however, that a Claiming . The Indemnifying Party shall be entitled subrogated to recover any such Losses recovered by third parties in connection with a Third Party Claim against all rights of the Claiming Party. No Defending Party will be liable hereunder Indemnified Parties and their Affiliates in respect of any claim if such claim would not Losses indemnified by Indemnifying Party. Notwithstanding anything to the contrary contained in this Agreement, Buyer shall have arisen but for a post-Closing change in legislation or GAAP or a change in interpretation of applicable Legal Requirements as determined by a court or pursuant no right to an administration rule-making decision. 9.8.3. No Buyer Indemnitee will be entitled indemnification hereunder with respect to any indemnification under this Article 9 Loss or alleged Loss to the extent the amount of such matter (i) was taken into account Loss or alleged Loss is included in determining the Final calculation of the Net Working Capital Amount pursuant to Section 2.5, or (ii) was specifically reserved for in the Interim Financial StatementsIndebtedness.

Determination of Loss Amount. 9.8.1. (a) The amount of any and all Losses under this Article 9 will be determined net of (i) the net present value of any Tax benefits actually realizable by any Person seeking indemnification hereunder arising from the deductibility (or amortization or capitalization or other Tax benefit) of any such Losses and (ii) any amounts actually recovered (net of the costs of recovery) by any Claiming Party or any of such Claiming Party’s Affiliates under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract (other than self-insurance or retrospective insurance arrangements) pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rights. 9.8.2. A Claiming Party shall not be entitled rights (collectively, “Alternative Arrangements”), after giving effect to recover Losses hereunder to the extent such Losses any applicable deductible or retention, premium increases, and any out of pocket costs (iincluding costs of collection) are not the reasonably foreseeable result of any breach by the Defending Party of a representation, warranty, covenant or agreement contained in this Agreement or arise from special circumstances of the Claiming Party that were not communicated prior to the date of this Agreement incurred by the Claiming Party in connection therewith. In the event any recovery from an Alternative Arrangement is received after the Defending Party has paid in full any indemnification obligation under this Agreement that did not take into account such recovery, then such Claiming Party shall pay to the such Defending Party, as promptly as reasonably practicable after receipt, a sum equal to the amount of such insurance proceeds or other amounts received (iinet of deductibles, premium increases, costs of collection or similar costs in respect of such claim), up to the aggregate amount of any indemnification payments received from such Defending Party pursuant to this Agreement in respect of such Losses. (b) constitute punitive or exemplary damages; provided[Intentionally Omitted] (c) Notwithstanding anything to the contrary contained herein, however, that a Claiming Party no party shall be entitled liable or otherwise responsible to recover any such Losses recovered by other party hereto or any Affiliate of any other party hereto for exemplary or punitive damages, other than exemplary or punitive damages payable to a third parties in connection with party pursuant to a Third Party Claim against the Claiming PartyClaim. No Defending Party will information obtained by Buyer pursuant to Section 6.05 hereof or otherwise shall be liable hereunder in respect deemed to amend or supplement the Disclosure Schedule, to prevent or cure any breach of any claim if such claim would not have arisen but for a post-Closing change in legislation representation nor warranty, or GAAP breach of covenant, or a change in interpretation to otherwise limit or affect any rights of applicable Legal Requirements as determined by a court or pursuant to an administration rule-making decisionthe Buyer Indemnitees under Article 9. 9.8.3. (d) No Buyer Indemnitee will be entitled to any indemnification under this Article 9 for any Losses to the extent such matter (i) was Losses were fully taken into account in determining the Final Working Capital Amount Aggregate Closing Consideration pursuant to Section 2.51.03. (e) Each Party shall take all commercially reasonable steps to mitigate any of its Losses upon becoming aware of any event which would reasonably be expected to, or does, give rise thereto. Each of the Parties hereto shall cooperate with the others with respect to resolving any claim or liability with respect to which one Party is obligated to indemnify another Party hereunder, including by using commercially reasonable efforts to mitigate or resolve any such claim or liability. Except pursuant to a settlement agreement permitted in accordance with Section 9.05, the Claiming Party will not waive or release any contractual right to recover from a third party any Loss subject to indemnification hereunder without the prior written consent of the Defending Party (ii) was specifically reserved for in the Interim Financial Statementssuch consent not to be unreasonably withheld).

Determination of Loss Amount. 9.8.1. (a) The amount of any and all Losses Loss subject to indemnification under this Article 9 Section 8.02 or Section 8.03 will be determined calculated net of (i) the net present value of any reduction in Tax benefits liability as a deduction, refund, credit or otherwise actually realizable realized in the taxable year the Loss occurred or any prior taxable year, as determined by any Person seeking indemnification hereunder arising from the deductibility (or amortization or capitalization or other Tax benefit) of any such Losses Parent in its reasonable discretion, and (ii) any amounts actually recovered (net of the costs of recovery) by any Claiming Party Indemnitee or any of such Claiming PartyIndemnitee’s Affiliates under or pursuant to any insurance policy, policy or title insurance policy, indemnity, reimbursement arrangement or contract (other than self-insurance or retrospective insurance arrangements) policy pursuant to which or under which such Claiming Party Indemnitee or such Claiming PartyIndemnitee’s Affiliates is a party or has rights, less any related costs and expenses, including the aggregate cost of pursuing any related insurance claims and any related increases in insurance premiums or other chargebacks (collectively, “Alternative Arrangements”). In the event that a recovery is made under an Alternative Arrangement by any Parent Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery will be made promptly to the Securityholders in accordance with their respective Pro Rata Percentage. 9.8.2. A Claiming Party shall not (b) In no event will any Indemnitee be entitled to recover Losses hereunder to the extent such Losses (i) are not the reasonably foreseeable result of or make a claim for any breach by the Defending Party of a representation, warranty, covenant or agreement contained in this Agreement or arise from special circumstances of the Claiming Party that were not communicated prior to the date of this Agreement by the Claiming Party to the Defending Party, or (ii) constitute punitive or exemplary damages; provided, however, that a Claiming Party shall be entitled to recover any such Losses recovered by third parties in connection with a Third Party Claim against the Claiming Party. No Defending Party will be liable hereunder amounts in respect of any claim if punitive damages unless such claim would amounts are paid to a third party. The Parent Indemnified Parties will not have arisen but for a post-Closing change in legislation or GAAP or a change in interpretation of applicable Legal Requirements as determined by a court or pursuant to an administration rule-making decision. 9.8.3. No Buyer Indemnitee will be entitled to any indemnification under this Article 9 VIII to the extent such matter (i) was taken into account in determining the Merger Consideration or Final Working Capital Amount pursuant to Section 2.5, or (ii) was specifically reserved for in the Interim Financial StatementsAdjustment Amount.

Determination of Loss Amount. 9.8.1. (a) The amount of any and all Losses under this Article 9 will subject to indemnification pursuant to Section 8.2(a), shall be determined net of reduced by (i) any insurance proceeds previously received by the net present value of any Tax benefits actually realizable by any Person seeking indemnification hereunder arising from the deductibility (or amortization or capitalization or other Tax benefit) of any Acquired Entities with respect to such Losses and (ii) any amounts recovered (net of any deductible or co-payment, the Buyer’s reasonable estimate of any increase in insurance premiums attributable to such recovery and all out of pocket costs of related to such recovery) by from any Claiming Party or any of such Claiming Party’s Affiliates under or insurance carrier pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract (other than self-insurance or retrospective insurance arrangements) pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rights. 9.8.2. A Claiming Party shall not be entitled to recover Losses hereunder to the extent such Losses (i) are not the reasonably foreseeable result coverage in place as of any breach by the Defending Party of a representation, warranty, covenant or agreement contained in this Agreement or arise from special circumstances of the Claiming Party that were not communicated prior to the date of this Agreement by the Claiming Party to the Defending Party, or and (ii) constitute punitive the amount of any Tax benefit recognized by the Acquired Entities, Buyer or exemplary damages; providedany of Buyer’s Affiliates in, howeveror prior to, that a Claiming Party or within the first two (2) Tax years following the Tax 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 shall not delay any indemnification payment). For purposes of this Section 8.8(a), Buyer or any of Buyer’s Affiliates shall be entitled deemed to recover any 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 liability for such Tax year. If any insurance proceeds are subsequently recovered by third parties the Acquired Entities from an insurance carrier after payment has been made by the Seller Parties to the Buyer Indemnified Parties in connection accordance with a Third this ARTICLE VIII with respect to the Losses to which such insurance recoveries relate, then the Buyer shall promptly cause the Acquired Entities to remit to the 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 indemnification payment or payments actually received from the Seller Parties with respect to such Losses. (b) To the extent that any Seller Party Claim has an indemnification obligation pursuant to this ARTICLE VIII which is not paid within five (5) Business Days pursuant to the terms of Section 8.7(a), any of the Buyer Indemnified Parties may, in its sole discretion, elect to set off the amount of such indemnification against any or all amounts then due and unpaid to the Claiming Seller Parties by any of the Buyer Indemnified Parties within the time period allowed for payment to the Seller Parties. For clarity, the right of setoff provided for above is only security for the Seller Parties’ indemnification obligations hereunder and such indemnification obligations are not in any way limited to such security. If at any time the Buyer Indemnified Parties elect to set off pursuant to the terms above, the Buyer Indemnified Parties shall provide the Seller Parties with written notice of such election. (c) To the extent that Buyer has an indemnification obligation pursuant to this ARTICLE VIII which is not paid within five (5) Business Days pursuant to the terms of Section 8.7(a), the Seller Parties may set off the amount of such indemnification against any amounts then due and unpaid to any of the Buyer Indemnified Parties by the Seller Parties within the time period allowed for payment to such Buyer Indemnified Party. No Defending Party . (d) In the event that the Closing occurs, the Seller Parties will not seek, nor will the Seller Parties be liable hereunder entitled to, reimbursement or contribution from, subrogation to, or indemnification by the Acquired Entities, under their organizational documents, this Agreement, applicable corporate Laws or otherwise, in respect of any claim if such claim would not have arisen but for a post-Closing change amounts due from the Seller Parties to any Buyer Indemnified Party under this ARTICLE VIII or otherwise in legislation or GAAP or a change in interpretation connection with this Agreement. (e) The right to indemnification and the payment of applicable Legal Requirements as determined by a court or Losses of any Buyer Indemnified Party pursuant to an administration rulethis ARTICLE VIII, or the availability of any other remedies contemplated hereby or otherwise available to the Buyer Indemnified Parties at law or in equity, based upon any representation, warranty, covenant, agreement or obligation of the Seller Parties contained in or made pursuant to this Agreement will not be affected by any investigation made by or on behalf of any Buyer Indemnified Party or its Affiliates, or the knowledge of any such Buyer Indemnified Party’s (or its Affiliates’) officers, directors, stockholders, managers, members, partners, employees or agents, with respect to the accuracy or inaccuracy of, or compliance or non-making decisioncompliance with, any such representation, warranty, covenant, agreement or obligation at any time prior to or following the Party’s entrance into this Agreement. 9.8.3. No Buyer Indemnitee will (f) In no event shall any Indemnifying Party be entitled liable to any indemnification under this Article 9 Indemnified Party for punitive damages, except to the extent such matter (i) was taken into account in determining that the Final Working Capital Amount pursuant Indemnified Party must pay punitive damages to Section 2.5, or (ii) was specifically reserved for in the Interim Financial Statementsa third party.

Determination of Loss Amount. 9.8.1. (a) The amount of any Losses subject to indemnification pursuant to this Article 10 shall be reduced or reimbursed, as the case may be, by any amount actually received by any Buyer Indemnified Party or any Seller Indemnified Party, as applicable, with 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, 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 out of pocket costs related to such recovery). The Buyer Indemnified Parties and the Seller Indemnified Parties, as applicable, shall 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 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 indemnification payment or payments actually received from Buyer or Seller and the Unitholders, as applicable, with respect to such Losses. For the avoidance of doubt, the Parties agree that a Party may still make a claim for indemnification under this Article 9 will be determined net 10 while separately pursuing insurance proceeds related to the same claim. (b) For purposes of (i) determining whether a representation or warranty made by Seller, the net present value of Unitholders, Parent or Buyer in this Agreement or in any Tax benefits actually realizable by any Person seeking indemnification hereunder arising from the deductibility (other Transaction Document has been breached or amortization or capitalization or other Tax benefit) of any such Losses whether an inaccuracy exists with respect thereto; and (ii) calculating the amount of Losses resulting therefrom, the terms “material,” “materiality,” and similar qualifiers, modifiers, or limitations shall be disregarded. (c) The right to indemnification of any amounts recovered (net of the costs of recovery) by any Claiming Buyer Indemnified Party or any of such Claiming Party’s Affiliates under or pursuant to this Article 10, or the availability of any insurance policy, title insurance policy, indemnity, reimbursement arrangement other remedies contemplated hereby or contract (other than self-insurance or retrospective insurance arrangements) pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rights. 9.8.2. A Claiming Party shall not be entitled to recover Losses hereunder otherwise available to the extent such Losses (i) are not the reasonably foreseeable result of Buyer Indemnified Parties at law or in equity, based upon any breach by the Defending Party of a representation, warranty, covenant covenant, agreement or obligation of Seller or the Unitholders contained in or made pursuant to this Agreement or any other Transaction Document will not be affected by any investigation made by or on behalf of any Buyer Indemnified Party or its Affiliates, or the knowledge of any such Buyer Indemnified Party’s (or its Affiliates’) Representatives with respect to the accuracy or inaccuracy of, or compliance or non-compliance with, any such representation, warranty, covenant, agreement contained or obligation at any time prior to or following the date hereof. (d) If an Indemnified Party incurs or becomes subject to Losses resulting from, arising out of, relating to or in connection with both (i) a breach of, or inaccuracy in, any of the representations or warranties made by Seller, the Unitholders, Parent or Buyer, as applicable, in this Agreement or arise from special circumstances in any other Transaction Document (or any other event or occurrence in respect of which the Claiming Party that were not communicated prior Buyer Indemnified Parties are entitled to indemnification under Section 10.1(a) or the date of this Agreement by the Claiming Party Seller Indemnified Parties are entitled to the Defending Party, or indemnification under Section 10.2(a)) and (ii) constitute punitive an Excluded Liability or exemplary damages; providedAssumed Liability, howeveras applicable, that a Claiming then such Buyer Indemnified Party or Seller Indemnified Party, as applicable, in its sole discretion, subject to the other limitations set forth in this Article 10, shall be entitled to recover any such Losses recovered by third parties in connection with a Third Party Claim against the Claiming Party. No Defending Party will be liable hereunder seek indemnification in respect of any claim if such claim would not have arisen but for a post-Closing change in legislation or GAAP or a change in interpretation of applicable Legal Requirements as determined by a court or Losses pursuant to an administration rule-making decision. 9.8.3. No Buyer Indemnitee will be entitled to any indemnification under this Article 9 to the extent such matter (ieither Section 10.1(a)(i) was taken into account in determining the Final Working Capital Amount pursuant to or Section 2.510.2(a)(i), as applicable, or (iiany other applicable provision of Section 10.1(a) was specifically reserved for in the Interim Financial Statementsor Section 10.2(a), including Section 10.1(a)(iii) or Section 10.2(a)(iii), as applicable.

Determination of Loss Amount. 9.8.1. (a) The amount of any and all Covered Losses under this Article 9 IX will be determined net of (i) the net present value of any Tax benefits actually realizable realized by any Person party seeking indemnification hereunder arising from the deductibility (or amortization or capitalization or other Tax tax benefit, etc.) of any such Covered Losses and (ii) any amounts recovered (net of the costs of recovery) or recoverable by any Claiming Party party or any affiliate of such Claiming Party’s Affiliates a party under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract (other than self-insurance or retrospective insurance arrangements) Contract pursuant to which or under which such Claiming Party party or such Claiming Partyparty’s Affiliates affiliates is a party or has rights. 9.8.2. A Claiming Party shall not (b) In no event will the Purchaser Indemnitees be entitled to recover or make a claim for any amounts in respect of consequential, incidental or indirect damages, lost profits, diminutions in value or punitive damages and, in particular, no “multiple of profits” or “multiple of cash flow” or other valuation methodology will be used in calculating the amount of any Covered Losses hereunder to the extent such (other than for Covered Losses (i) are not the reasonably foreseeable result of incurred by a Purchaser Indemnitee in connection with any breach by the Defending Third Party of a representation, warranty, covenant or agreement contained in this Agreement or arise from special circumstances of the Claiming Party that were not communicated prior to the date of this Agreement by the Claiming Party to the Defending Party, Claim or (ii) constitute punitive with respect to any misrepresentation of or exemplary damages; providedinaccuracy in Section 3.15(g)). Attorney, howeverconsultant, that a Claiming Party shall be entitled to recover any such Losses recovered and other professional fees and disbursements incurred by third parties an indemnifying party in connection with a Third Party Claim against the Claiming Party. No Defending Party this Article IX will be liable reasonable and based only on time actually spent, which will be charged at no more than such professional’s standard hourly rate. Notwithstanding any other provision of this Agreement to the contrary, any Covered Loss claimed hereunder will be in respect good faith in light of the facts then known regarding such Covered Loss. Purchaser shall have no right to assert any claim if such claim would not have arisen but for a post-Closing change in legislation or GAAP or a change in interpretation of applicable Legal Requirements as determined by a court or pursuant to an administration rule-making decision.this Article IX with respect to any Covered Loss, cause of action or other claim to the extent it is a Covered Loss, cause of action or claim with respect to which Purchaser or any of its affiliates has taken action (or caused action to be taken) to accelerate the time period in which such matter is asserted or payable for the purpose of asserting a claim for indemnification hereunder. CLI-2060753v12 9.8.3. (c) No Buyer Purchaser Indemnitee will be entitled to any indemnification under this Article 9 IX to the extent such matter (i) was is taken into account in determining the calculation of Final Working Capital Amount pursuant to Section 2.5, or (ii) was specifically reserved for is reasonably described in the Interim Financial StatementsSeller Disclosure Letter; provided that this Section 9.06(c) shall in no way limit any indemnification pursuant to Section 9.02(a)(i)(D).

Determination of Loss Amount. 9.8.1. (i) The amount of any and all Losses Loss subject to indemnification under this Article 9 will Section 10.3 shall be determined calculated net of any insurance proceeds or any indemnity, contribution or other similar payment recovered by the Indemnified Party (ior its Affiliates) the from any third party with respect thereto, net present value of any Tax benefits actually realizable 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 is made by any Person seeking indemnification hereunder arising from the deductibility (or amortization or capitalization or other Tax benefit) of Indemnified Party with respect to any Loss for which any such Losses and (ii) any amounts recovered Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (net of the any retropremiums, out-pocket-expenses and costs of recovery) by shall be made promptly to the Indemnifying Party. Each party hereby waives, to the extent permitted under its applicable insurance policies, any Claiming subrogation rights that its insurer may have with respect to any indemnifiable Losses. If the Indemnifying Party or elects to control the defense of any of such Claiming Party’s Affiliates under or claim pursuant to Section 10.3(d), then the Indemnifying Party shall be subrogated to and shall stand in the place of the Indemnified Party as to any insurance policyevents or circumstance in respect of which the Indemnified Party may have any right, title insurance policy, indemnity, reimbursement arrangement defense or contract (other than self-insurance or retrospective insurance arrangements) claim pursuant to which the applicable insurance policies. The Indemnified Party shall cooperate with and take such actions as reasonably requested by the Indemnifying Party in a reasonable manner, and at the cost of the Indemnifying Party, in presenting any subrogated right, defense or under which claim and effecting any such Claiming Party or such Claiming Party’s Affiliates is a party or has rightssubrogation. 9.8.2. A Claiming (ii) An Indemnified Party shall not be entitled to recover Losses damages or obtain payment, reimbursement, restitution or indemnity more than once in respect of any one Loss. (iii) Notwithstanding anything to the contrary contained in this Agreement, no Indemnified Party shall have any right to indemnification hereunder with respect to any Loss or alleged Loss to the extent such Losses Loss or alleged Loss (i) are not is included in the reasonably foreseeable result final calculation of any breach by the Defending Party of a representationCash, warrantyIndebtedness, covenant Transaction Expenses, or agreement contained in this Agreement or arise from special circumstances of the Claiming Party that were not communicated prior to the date of this Agreement by the Claiming Party to the Defending Party, Net Working Capital or (ii) constitute punitive is a possible or exemplary damages; providedpotential Loss that an Indemnified Party believes may be incurred rather than an actual Loss that has, howeverin fact, that been incurred by an Indemnified Party (which shall not limit the ability of any Indemnified Party to submit a Claiming Party notice of a Claim in accordance with Section 10.3(d)). (iv) Neither the Purchaser Group nor the Seller Group shall be entitled required to recover indemnify, defend or hold harmless the Seller Group or the Purchaser Group, as applicable, for any such Losses recovered by third parties in connection with a Third Party Claim against the Claiming Party. No Defending Party will be liable hereunder in respect of any claim if such claim would not have arisen but for a post-Closing change in legislation or GAAP or a change in interpretation of applicable Legal Requirements as determined by a court or pursuant to an administration rule-making decision. 9.8.3. No Buyer Indemnitee will be entitled to any indemnification under this Article 9 to the extent such matter cumulative aggregate basis (i) was taken taking into account in determining all amounts paid hereunder) exceeding the Final Working Capital Amount pursuant to Section 2.5, or (ii) was specifically reserved for in the Interim Financial StatementsBase Amount.

Determination of Loss Amount. 9.8.1. The amount of any and all (a) Any Losses under this Article 9 claimed hereunder will be determined net of (i) calculated after taking into consideration the net present value proceeds (after taking into account the costs of collecting any Tax benefits such proceeds) of insurance or third party recoveries actually realizable received by any Person seeking entitled to indemnification hereunder arising or escrow recovery, as applicable. In the event that any such net proceeds of insurance or other third party recovery is made by any such Person with respect to any Loss for which any such Person already has been indemnified or otherwise recovered hereunder, then a refund equal to the aggregate net amount of the recovery from the deductibility (or amortization or capitalization insurance or other Tax benefitthird party recovery will be made promptly to the Person providing the indemnity or other recovery hereunder. Buyer will use commercially reasonable efforts, consistent with Buyer’s past practices, to submit claims to insurance companies for Losses covered by insurance policies of the Companies or of Buyer. Buyer will use commercially reasonable efforts, consistent with Buyer’s past practices, to submit claims and seek indemnification from any third party Person (except insurance companies as discussed in the previous sentence) of who may have an obligation to indemnify Buyer, its Affiliates (including the Companies after the Closing), or the Companies against any such Losses and (ii) any amounts recovered (net of the costs of recovery) by any Claiming Party or any of such Claiming Party’s Affiliates under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract (other than self-insurance or retrospective insurance arrangements) pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rightsLosses. 9.8.2. A Claiming Party shall not (b) In no event will any Person be entitled to recover Losses hereunder or make a claim for any amounts in respect of consequential, punitive or exemplary damages (except to the extent such Losses (i) are not the reasonably foreseeable result of any breach by the Defending Party of a representation, warranty, covenant or agreement contained in this Agreement or arise from special circumstances of the Claiming Party that were not communicated prior to the date of this Agreement by the Claiming Party to the Defending Party, or (ii) constitute punitive or exemplary damages; provided, however, that a Claiming Party shall be entitled to recover any such Losses recovered by third parties payable in connection with a Third Party Claim against the Claiming Party. Claim). (c) No Defending Party Person will be liable entitled to recover damages or obtain payment, reimbursement, restitution or indemnity hereunder more than once in respect of any claim if such claim would one Loss or related group of Losses. For example, Buyer Indemnitees will not have arisen but for a post-Closing change in legislation or GAAP or a change in interpretation of applicable Legal Requirements as determined by a court or pursuant to an administration rule-making decision. 9.8.3. No Buyer Indemnitee will be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity hereunder with respect to any indemnification under this Loss arising from a breach of a representation or warranty set forth in Article 9 2 relating in any way to the Companies’ Indebtedness, Transaction Expenses, Cash on Hand or Net Working Capital to the extent such matter Loss is factored into the amount of Indebtedness, Transaction Expenses, Cash on Hand or Net Working Capital that are included in the Final Aggregate Closing Consideration. (id) was taken All Losses for which the Companies had, prior to Closing, established a specific reserve on the Latest Balance Sheet will be determined after taking into account in determining the Final Working Capital Amount pursuant to Section 2.5, or (ii) was specifically reserved for in the Interim Financial Statementsamount of such reserve.

Determination of Loss Amount. 9.8.1. (a) The amount of any and all Losses under this Article 9 8 will be determined net of (i) the net present value of any Tax benefits actually realizable recognized by any Person the party seeking indemnification hereunder arising from the deductibility (or amortization or capitalization or other Tax tax benefit, etc.) of any such Losses in the taxable period including the Loss and the two taxable periods thereafter, treating any Tax attribute resulting from such Loss as the last such attribute included on any Tax Return and (ii) any amounts that are actually recovered (net of the costs of recovery) by any such Claiming Party or any of such Claiming Party’s Affiliates under or pursuant to any third-party (i.e., non-captive) insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract (other than self-insurance or retrospective insurance arrangements) pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rightsrights Losses (net of any expenses incurred in connection with such recovery and increased premiums); provided, that in no event will any Parent Indemnitee be required to seek recovery against any captive insurance program, self-insurance set-aside or similar arrangement. 9.8.2. A Claiming Party shall not be entitled to recover Losses hereunder (b) Other than to the extent such Losses (i) are not the reasonably foreseeable result of any breach by the Defending Party awarded to a third-party as part of a representationThird Party Claim, warranty, covenant or agreement contained in this Agreement or arise from special circumstances of the Claiming Party that were not communicated prior to the date of this Agreement by the Claiming Party to the Defending Party, or (ii) constitute punitive or exemplary damages; provided, however, that a Claiming Party shall no event will any Parent Indemnitee be entitled to recover any such Losses recovered amounts in respect of punitive damages. Attorney, consultant, and other professional fees and disbursements incurred by third parties an indemnifying party in connection with a Third Party Claim against the Claiming Party. No Defending Party this Article 8 will be liable reasonable and based only on time actually spent, which will be charged at no more than such professional’s standard hourly rate. Notwithstanding any other provision of this Agreement to the contrary, any Loss claimed hereunder will be reasonable and in respect good faith in light of any claim if the facts then known regarding such claim would not have arisen but for a post-Closing change in legislation or GAAP or a change in interpretation of applicable Legal Requirements as determined by a court or pursuant to an administration rule-making decisionLoss. 9.8.3. (c) No Buyer Parent Indemnitee will be entitled to any indemnification under this Article 9 8 to the extent such matter (i) was taken into account in determining the Final Working Capital Amount Aggregate Merger Consideration pursuant to Section 2.51.06, or (ii) was specifically reserved for in the Interim Financial StatementsStatements or (iii) was included in the calculation of the Aggregate Merger Consideration set forth in the Closing Statement.

Determination of Loss Amount. 9.8.1. The amount of any and (a) Notwithstanding anything in this Agreement to the contrary, all Losses under payments to each Indemnified Party pursuant to this Article 9 will IX shall be determined net reduced or reimbursed by the amount of (i) any recovery actually received by counterclaim or otherwise from any third party based on any claim that the net present value of Indemnified Party has against any Tax benefits actually realizable by any Person seeking indemnification hereunder arising from third party that reduces the deductibility (or amortization or capitalization or other Tax benefit) of any such Covered Losses that would otherwise be sustained, and (ii) any amounts recovered (net proceeds actually received of the costs of recovery) by any Claiming Party or any of such Claiming Party’s Affiliates claims under or pursuant to any insurance policy, title policy received by the Indemnified Party that reduces the Covered Losses that would otherwise be sustained. Nothing in this Section 9.06 is intended to delay payment by the indemnifying party until claims with third parties or insurance policy, indemnity, reimbursement arrangement or contract (other than self-insurance or retrospective insurance arrangements) pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rightscompanies are resolved. 9.8.2. A Claiming Party shall not (b) In no event will the Purchaser Indemnitees be entitled to recover Losses hereunder to or make a claim for any amounts in respect of punitive damages nor will any “multiple of profits” or “multiple of cash flow” or other valuation methodology be used in calculating the extent such Losses (i) are not the reasonably foreseeable result amount of any breach by the Defending Party of a representation, warranty, covenant or agreement contained in this Agreement or arise from special circumstances of the Claiming Party that were not communicated prior to the date of this Agreement by the Claiming Party to the Defending Party, or (ii) constitute punitive or exemplary damagesCovered Losses; provided, howeverhowever that the parties acknowledge and agree that for purposes of this Article IX, that any damages actually paid to a Claiming Party third party (other than an Affiliate) shall be considered direct damages for which recovery may be sought in accordance with the terms hereof. In addition, in no event will the Purchaser Indemnitees be entitled to recover for any such Losses recovered general and administrative time or other overhead expenses not paid to a third party in calculating Covered Losses. Amounts recoverable for attorney, consultant, and other professional fees and disbursements incurred by third parties an indemnifying party in connection with a Third Party Claim against the Claiming Party. No Defending Party this Article IX must be reasonable and based only on time actually spent, which will be liable hereunder in respect of charged at no more than such professional’s standard hourly rate. Purchaser shall have no right to assert any claim if such claim would not have arisen but for a post-Closing change in legislation or GAAP or a change in interpretation of applicable Legal Requirements as determined by a court or pursuant to an administration rule-making decisionthis Article IX with respect to any Covered Loss, cause of action or other claim to the extent it is a Covered Loss, cause of action or claim with respect to which Purchaser or any of its Affiliates has requested any third party to accelerate the time period in which such third party asserts or takes action with respect to such Covered Loss, cause of action or claim. 9.8.3. (c) No Buyer Purchaser Indemnitee will be entitled to any indemnification under this Article 9 IX to the extent such matter Covered Loss (i) was taken into account reserved for in determining the Financial Statements and specifically identified in Section 3.04 of the Seller Disclosure Letter as to the amount reserved and described in reasonable detail or (ii) is included in the Final Working Capital Amount pursuant to Section 2.5, or (ii) was specifically reserved for in the Interim Financial StatementsStatement.

Determination of Loss Amount. 9.8.1. The amount of any and all (a) Any Losses under this Article 9 claimed hereunder will be determined net of (i) calculated after taking into consideration the net present value proceeds (after taking into account the costs of collecting any Tax benefits such proceeds) of insurance or third party recoveries (such as indemnity, contribution, or other similar payments) (collectively, “Contributions”) actually realizable received by any Person seeking indemnification hereunder arising entitled to indemnification, as applicable. In the event that any such net proceeds of any Contributions is made by any such Person with respect to any Loss for which any such Person already has been indemnified or otherwise recovered hereunder, then a refund equal to the aggregate net amount of the recovery from the deductibility any Contributions will be made promptly to the Person providing the indemnity hereunder. Buyer will use reasonable best efforts, consistent with Buyer’s past practices, to submit claims to insurance companies for Losses covered by insurance policies of the Company or of Buyer. Buyer will use reasonable best efforts, consistent with Buyer’s past practices, to submit claims and seek indemnification from any third party Person (except insurance companies as discussed in the previous sentence) who may have an obligation to indemnify Buyer, its Affiliates, or amortization or capitalization or other Tax benefit) of the Company against any such Losses and (ii) any amounts recovered (net of the costs of recovery) by any Claiming Party or any of such Claiming Party’s Affiliates under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract (other than self-insurance or retrospective insurance arrangements) pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rightsLosses. 9.8.2. A Claiming Party shall not (b) In no event will any Person be entitled to recover or make a claim for any Losses hereunder or other amounts in respect of consequential, punitive, incidental, special, indirect, or exemplary damages, including loss of future revenue or income, loss of business reputation or opportunity, diminution of value, or any damages based on any type of multiple (except, in each case, to the extent such Losses (i) are not the reasonably foreseeable result of any breach by the Defending Party of a representation, warranty, covenant or agreement contained in this Agreement or arise from special circumstances of the Claiming Party that were not communicated prior to the date of this Agreement by the Claiming Party to the Defending Party, or (ii) constitute punitive or exemplary damages; provided, however, that a Claiming Party shall be entitled to recover any such Losses recovered by third parties payable in connection with a Third Party Claim against the Claiming Party. Claim). (c) No Defending Party Person will be liable entitled to recover damages or obtain payment, reimbursement, restitution, or indemnity hereunder more than once in respect of any claim if such claim would one Loss or related group of Losses. For example, Buyer Indemnitees will not have arisen but for a post-Closing change in legislation or GAAP or a change in interpretation of applicable Legal Requirements as determined by a court or pursuant to an administration rule-making decision. 9.8.3. No Buyer Indemnitee will be entitled to recover damages or obtain payment, reimbursement, restitution, or indemnity hereunder with respect to any indemnification under this Loss arising from a breach of a representation or warranty set forth in Article 9 2 relating in any way to the Company’s Indebtedness or Invested Capital to the extent such matter (i) was taken Loss is factored into account the amount of Closing Indebtedness or Closing Invested Capital that are included in determining the Final Working Capital Amount pursuant to Section 2.5, or (ii) was specifically reserved for in the Interim Financial StatementsAggregate Closing Consideration.

Determination of Loss Amount. 9.8.1. The amount of any and all Losses subject to indemnification under this Article 9 will be determined net of VIII shall (i) not include any punitive damages (except in each case to the net present value of any Tax benefits extent such damages shall actually realizable be awarded to a third party and be payable by any Person seeking indemnification hereunder arising from the deductibility (or amortization or capitalization or other Tax benefitan Acquiror Indemnified Party) of any such Losses and (ii) be calculated net of any amounts recovered insurance proceeds other than from the RWI Policy (net of the any costs of recoverysuch 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 Claiming Acquiror Indemnified Party or 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 Claiming Party’s Affiliates under 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 any insurance policySection 1.16). Notwithstanding the foregoing, title insurance policy, indemnity, reimbursement arrangement or contract (other than self-insurance or retrospective insurance arrangements) pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rights. 9.8.2. A Claiming an Acquiror Indemnified Party shall not be entitled required to recover Losses hereunder refund amounts actually received from an insurer to the extent such indemnified Person's total Losses (i) are not exceed the reasonably foreseeable result of any breach by the Defending Party of a representation, warranty, covenant or agreement contained in this Agreement or arise from special circumstances of the Claiming Party that were not communicated prior to the date of this Agreement by the Claiming Party to the Defending Party, or (ii) constitute punitive or exemplary damages; provided, however, that a Claiming Party shall be entitled to recover any such Losses recovered by third parties in connection with a Third Party Claim against the Claiming Party. No Defending Party will be liable hereunder in respect of any claim if such claim would not have arisen but for a post-Closing change in legislation or GAAP or a change in interpretation of applicable Legal Requirements as determined by a court or pursuant to an administration rule-making decision. 9.8.3. No Buyer Indemnitee will be entitled to any indemnification under this Article 9 to the extent such matter (i) was taken into account in determining the Final Working Capital Amount pursuant to Section 2.5, or (ii) was specifically reserved for limits in the Interim Financial Statementsapplicable insurance policy (including the RWI Policy).

Determination of Loss Amount. 9.8.1. (a) The amount of any and all Losses Loss subject to indemnification under this Article 9 will 7 (except as provided in Section 7.1(a)(iii)) or Section 8.2 shall be determined calculated net of (i) any cash tax benefit that an Indemnified Party actually realizes on account of such Loss (but only to the net present value extent such benefit is actually realized by such party on or before the end of any Tax benefits actually realizable by any Person seeking indemnification hereunder arising from the deductibility (or amortization or capitalization or other Tax benefittaxable year in which such indemnity payment is made) of any such Losses and (ii) any amounts recovered insurance proceeds (net of direct collection expenses) or any indemnity, contribution or other similar payment actually received by the Indemnified Party from any third party with respect thereto. 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 is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (less any costs of or expenses to obtain such recovery) by any Claiming Party or any of such Claiming Party’s Affiliates under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract (other than self-insurance or retrospective insurance arrangements) pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rights. 9.8.2. A Claiming Party shall not be entitled to recover Losses hereunder made promptly to the extent such Losses (i) are not the reasonably foreseeable result of any breach by the Defending Indemnifying Party of a representation, warranty, covenant or agreement contained in this Agreement or arise from special circumstances of the Claiming Party that were not communicated prior to the date of this Agreement by the Claiming Party to the Defending Party, or (ii) constitute punitive or exemplary damages; provided, however, that a Claiming hereunder. The Indemnifying Party shall be entitled subrogated to recover any such Losses recovered by third parties in connection with a Third Party Claim against all rights of the Claiming Party. No Defending Party will be liable hereunder Indemnified Parties and their Affiliates in respect of any claim if such claim would not have arisen but for a post-Closing change in legislation or GAAP or a change in interpretation of applicable Legal Requirements as determined Losses indemnified by a court or pursuant to an administration rule-making decisionthe Indemnifying Party. 9.8.3. No Buyer Indemnitee will be entitled to any indemnification under this Article 9 (b) Notwithstanding anything herein to the extent such matter contrary, (i) was taken into account in determining the Final Working Capital Amount aggregate amount of all Losses for which the Parent Indemnified Parties are entitled to indemnification pursuant to Section 2.5, or 8.2(a) shall not exceed the sum of (A) the Cash Consideration actually paid hereunder and (B) $50,000,000 (the “Cap”) and (ii) was specifically reserved the aggregate amount of all Losses for in which the Interim Financial StatementsCompany Stockholder Indemnified Parties are entitled to indemnification pursuant to Section 8.2(b) shall not exceed the Cap. For the avoidance of doubt, the Cap shall not apply to the indemnification obligations of the Parties under Article 7.

Determination of Loss Amount. 9.8.1. (a) The amount of any and all Losses under this Article 9 will be determined net of (i) the net present value of any Tax benefits actually realizable by any Person seeking indemnification hereunder arising from the deductibility (or amortization or capitalization or other Tax benefit) of any such Losses and (ii) any amounts actually recovered (net of the costs of recovery) by any Claiming Party or any of such Claiming Party’s Affiliates under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract (other than self-insurance or retrospective insurance arrangements) pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rights. 9.8.2. A Claiming Party shall not be entitled rights (collectively, “Alternative Arrangements”), after giving effect to recover Losses hereunder to the extent such Losses (i) are not the reasonably foreseeable result any applicable deductible or retention and any out of any breach by the Defending Party of a representation, warranty, covenant or agreement contained in this Agreement or arise from special circumstances of the Claiming Party that were not communicated prior to the date of this Agreement pocket costs incurred by the Claiming Party in connection therewith. In the event any recovery from an Alternative Arrangement is received after the Defending Party has made an indemnification payment under this Agreement that did not take into account recovery, the Claiming Party shall promptly pay the Defending Payment an amount equal to the Defending Partylesser of such recovery and the amount of the related indemnification payment. (b) Notwithstanding anything to the contrary contained herein, no party shall be liable or otherwise responsible to any other party hereto or any Affiliate of any other party hereto for consequential, special, indirect, exemplary or punitive damages, other than (i) consequential, special, indirect, exemplary or punitive damages payable to a third party pursuant to a Third Party Claim or (ii) constitute punitive consequential, indirect or exemplary damages; providedspecial damages that were reasonably foreseeable on the date hereof or on the Closing Date and are a direct consequence of or direct result of, howeveror directly arise from, that a Claiming Party breach of this Agreement. In no event will any “multiple of profits,” “multiple of cash flow” or “multiple of revenue” or other valuation methodology be used in calculating the amount of any Losses. Except as otherwise expressly provided by Section 6.05(a), no information obtained by Buyer pursuant to Section 6.02 hereof or otherwise shall be entitled deemed to recover amend or supplement the Disclosure Schedule, to prevent or cure any such Losses recovered by third parties in connection with a Third Party Claim against the Claiming Party. No Defending Party will be liable hereunder in respect breach of any claim if such claim would not have arisen but for a post-Closing change in legislation representation nor warranty, or GAAP breach of covenant, or a change in interpretation to otherwise limit or affect any rights of applicable Legal Requirements as determined by a court or pursuant to an administration rule-making decisionthe Buyer Indemnitees under Article 9. 9.8.3. (c) No Buyer Indemnitee will be entitled to any indemnification under this Article 9 to the extent such matter (i) was taken into account in determining the Final Working Capital Amount Aggregate Closing Consideration pursuant to Section 2.51.02, or (ii) was specifically expressly reserved for in the Interim Financial Statements.

Determination of Loss Amount. 9.8.1. The amount of any and all (a) Any Losses under this Article 9 claimed hereunder will be determined net of (i) calculated after taking into consideration the net present value proceeds (after taking into account the costs of collecting any Tax benefits such proceeds) of insurance or third party recoveries actually realizable received by any Person seeking entitled to indemnification hereunder arising or escrow recovery, as applicable. In the event that any such net proceeds of insurance or other third party recovery is made by any such Person with respect to any Loss for which any such Person already has been indemnified or otherwise recovered hereunder, then a refund equal to the aggregate net amount of the recovery from the deductibility (or amortization or capitalization insurance or other Tax benefitthird party recovery will be made promptly to the Person providing the indemnity or other recovery hereunder. Buyer will use commercially reasonable efforts, consistent with Buyer’s past practices, to submit claims to insurance companies for Losses covered by insurance policies of the Company or of Buyer. Buyer will use commercially reasonable efforts, consistent with the Buyer's past practices, to submit claims and seek indemnification from any third party Person (except insurance companies as discussed in the previous sentence) of who may have an obligation to indemnify Buyer, its Affiliates, or the Company against any such Losses and (ii) any amounts recovered (net of Losses. To the costs of recovery) by any Claiming Party or any of such Claiming Partyextent consistent with Buyer’s Affiliates under or past practices, Buyer’s obligation to use commercially reasonable efforts to seek recovery pursuant to any the preceding sentences of this Section 5.06(a) may include an obligation of Buyer to file suit or initiate litigation, mediation or other proceedings against an insurance policy, title insurance policy, indemnity, reimbursement arrangement company or contract (other than self-insurance or retrospective insurance arrangements) pursuant third party Person to which or under which secure such Claiming Party or such Claiming Party’s Affiliates is a party or has rightsrecovery. 9.8.2. A Claiming Party shall not (b) In no event will any Person be entitled to recover Losses hereunder or make a claim for any amounts in respect of consequential, punitive or exemplary damages (except to the extent such Losses (i) are not the reasonably foreseeable result of any breach by the Defending Party of a representation, warranty, covenant or agreement contained in this Agreement or arise from special circumstances of the Claiming Party that were not communicated prior to the date of this Agreement by the Claiming Party to the Defending Party, or (ii) constitute punitive or exemplary damages; provided, however, that a Claiming Party shall be entitled to recover any such Losses recovered by third parties payable in connection with a Third Party Claim against the Claiming PartyClaim). No Defending Party In addition, no Loss will be liable calculated as a multiple of lost revenues or profits of Buyer (or its Affiliates). (c) No Person will be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity hereunder more than once in respect of any claim if such claim would one Loss or related group of Losses. For example, Buyer Indemnitees will not have arisen but for a post-Closing change in legislation or GAAP or a change in interpretation of applicable Legal Requirements as determined by a court or pursuant to an administration rule-making decision. 9.8.3. No Buyer Indemnitee will be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity hereunder with respect to any indemnification under this Loss arising from a breach of a representation or warranty set forth in Article 9 3 relating in any way to the Company’s Indebtedness, Transaction Expenses, Cash on Hand or Net Working Capital to the extent such matter (i) was taken Loss is factored into account the amount of Indebtedness, Transaction Expenses, Cash on Hand or Net Working Capital that are included in determining the Final Working Capital Amount pursuant to Section 2.5, or (ii) was specifically reserved for in the Interim Financial StatementsAggregate Closing Consideration.

Determination of Loss Amount. 9.8.1. The amount of any and all (a) Any Losses under this Article 9 claimed hereunder will be determined net of (i) calculated after taking into consideration the net present value proceeds (after taking into account the costs of collecting any Tax benefits such proceeds) of insurance or third party recoveries actually realizable received by any Person seeking entitled to indemnification hereunder arising or escrow recovery or withholding of shares of Parent Common Stock pursuant to Section 5.04(d), as applicable. In the event that any such net proceeds of insurance or other third party recovery is made by any such Person with respect to any Loss for which any such Person already has been indemnified or otherwise recovered hereunder, then a refund equal to the aggregate net amount of the recovery from the deductibility (or amortization or capitalization insurance or other Tax benefitthird party recovery will be made promptly to the Person providing the indemnity or other recovery hereunder. Buyer will use commercially reasonable efforts, consistent with Buyer’s past practices, to submit claims to insurance companies for Losses covered by insurance policies of each Entity or of Buyer. Buyer will use commercially reasonable efforts, consistent with the Buyer's past practices, to submit claims and seek indemnification from any third party Person (except insurance companies as discussed in the previous sentence) of who may have an obligation to indemnify Buyer, its Affiliates, or each Entity against any such Losses and (ii) any amounts recovered (net of Losses. To the costs of recovery) by any Claiming Party or any of such Claiming Partyextent consistent with Buyer’s Affiliates under or past practices, Buyer’s obligation to use commercially reasonable efforts to seek recovery pursuant to the preceding sentences of this Section 5.06(a) may include an obligation of Buyer to file suit or initiate litigation, mediation or other proceedings against an insurance company or other third party Person to secure such recovery. Buyer will not be required to file suit or initiate litigation, mediation, or other proceeding against any insurance policy, title insurance policy, indemnity, reimbursement arrangement company or contract (other than self-insurance or retrospective insurance arrangements) pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rightsPerson. 9.8.2. A Claiming Party shall not (b) In no event will any Person be entitled to recover Losses hereunder or make a claim for any amounts in respect of consequential, punitive or exemplary damages (except to the extent such Losses (i) are not the reasonably foreseeable result of any breach by the Defending Party of a representation, warranty, covenant or agreement contained in this Agreement or arise from special circumstances of the Claiming Party that were not communicated prior to the date of this Agreement by the Claiming Party to the Defending Party, or (ii) constitute punitive or exemplary damages; provided, however, that a Claiming Party shall be entitled to recover any such Losses recovered by third parties payable in connection with a Third Party Claim against the Claiming PartyClaim). No Defending Party In addition, no Loss will be liable calculated as a multiple of lost revenues or profits of Buyer (or its Affiliates). (c) No Person will be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity hereunder more than once in respect of any claim if such claim would one Loss or related group of Losses. For example, Buyer Indemnitees will not have arisen but for a post-Closing change in legislation or GAAP or a change in interpretation of applicable Legal Requirements as determined by a court or pursuant to an administration rule-making decision. 9.8.3. No Buyer Indemnitee will be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity hereunder with respect to any indemnification under this Loss arising from a breach of a representation or warranty set forth in Article 9 3 relating in any way to each Entity’s Indebtedness, Transaction Expenses, Cash on Hand or Net Working Capital to the extent such matter (i) was taken Loss is factored into account the amount of Indebtedness, Transaction Expenses, Cash on Hand or Net Working Capital that are included in determining the Final Working Capital Amount pursuant to Section 2.5, or (ii) was specifically reserved for in the Interim Financial StatementsAggregate Closing Consideration.

Determination of Loss Amount. 9.8.1For purposes of this ARTICLE VII, the determination as to whether the breach of any representation or warranty has occurred and the amounts of such Losses suffered shall be made without regard to any materiality, Material Adverse Effect or similar materiality qualification contained in such representation or warranty giving rise to the claim for indemnity hereunder. The following shall apply to all Losses: (a) The amount of any and all Purchaser or Sellers Losses under this Article 9 will payable hereunder shall be determined reduced by any insurance proceeds which the Indemnified Party actually collects with respect to the event or occurrence giving rise to such Purchaser’s Losses or Sellers Losses net of any out-of-pocket costs and expenses paid to third parties (iincluding, without limitation, reasonable costs and expenses of outside legal counsel) incurred in connection with the net present value collection of such amounts. If the Indemnified Party both collects proceeds from any Tax benefits actually realizable by any Person seeking indemnification hereunder arising insurance company and receives a payment from the deductibility (Indemnifying Party or amortization or capitalization or other Tax benefit) the Escrow Account hereunder, and the sum of any such Losses and (ii) any amounts recovered (proceeds, net of out-of-pocket collection costs and expenses, is in excess of the costs Purchaser Losses or Sellers Losses with respect to the matter that is the subject of recovery) by any Claiming the indemnity, then the Indemnified Party shall promptly refund to the Indemnifying Party or any the Escrow Account, as the case may be, the amount of such Claiming Party’s Affiliates under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract (other than self-insurance or retrospective insurance arrangements) pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rightsexcess. 9.8.2. A Claiming Party (b) In no event shall not be entitled to recover Losses hereunder to the extent such Losses (i) are not the reasonably foreseeable result of any breach by the Defending Party of a representation, warranty, covenant or agreement contained in this Agreement or arise from special circumstances of the Claiming Party that were not communicated prior to the date of this Agreement by the Claiming Party to the Defending Party, or (ii) constitute punitive or exemplary damages; provided, however, that a Claiming Party shall Purchaser Indemnified Parties be entitled to recover any such Purchaser Losses recovered by third parties in connection with a Third Party Claim against the Claiming Party. No Defending Party will be liable hereunder in respect of any claim if such claim would not have arisen but for a post-Closing change in legislation or GAAP or a change in interpretation of applicable Legal Requirements as determined by a court or pursuant to an administration rule-making decision. 9.8.3. No Buyer Indemnitee will be entitled to any indemnification under this Article 9 matter to the extent such matter (iand only to the extent) it was taken into account included in determining the calculation of Final Purchase Price including the final determination of Net Working Capital, Indebtedness and Transaction Expenses (all as of the Closing Date) including the amount of any reserves or accruals reflected as a current liability on the balance sheet used in preparing the final Net Working Capital Amount pursuant which relate to Section 2.5, or (ii) was specifically reserved for in the Interim Financial Statementsfacts giving rise to such Purchaser Losses.

Determination of Loss Amount. 9.8.1. The amount of any and all Losses Loss subject to indemnification under this Article 9 will Section 11.2.1 shall be determined calculated net of (ia) the net present value of any Tax benefits actually realizable by Benefit inuring to Buyer or its Affiliates on account of such Loss, and (b) any Person seeking indemnification hereunder arising from the deductibility (or amortization or capitalization insurance proceeds or other third party indemnification or reimbursement proceeds to which any of them are entitled (regardless of whether claimed and received) on account of such Loss. If Buyer or its Affiliates realizes a Tax benefit) of any Benefit and such Losses and (ii) any amounts recovered (net Tax Benefit was not included in the computation of the costs Loss, Buyer shall within ten (10) days of recovery) by any Claiming Party or any of such Claiming Party’s Affiliates under or pursuant to any insurance policyfiling the Tax Return claiming the Tax Benefit (or, title insurance policy, indemnity, reimbursement arrangement or contract (other than self-insurance or retrospective insurance arrangements) pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rights. 9.8.2. A Claiming Party shall not be entitled to recover Losses hereunder 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 Company the amount of such Losses (i) are Tax Benefit. Buyer shall 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 Company, under this Section 11.7. Buyer shall, and shall cause 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 reasonably foreseeable result of event that an insurance recovery or a recovery under any breach other third-party agreement is made by Buyer or its Affiliates with respect to any Loss for which any Buyer Indemnified Party has been indemnified by the Defending Party of Company hereunder, then a representation, warranty, covenant or agreement contained in this Agreement or arise from special circumstances payment equal to the aggregate amount of the Claiming Party that were not communicated prior recovery shall be made promptly by Buyer to the date of this Agreement by Company. In all events, the Claiming Party to the Defending Party, or (ii) constitute punitive or exemplary damages; provided, however, that a Claiming Party Company shall be entitled subrogated to recover any such Losses recovered by third parties in connection with a Third Party Claim against the Claiming Party. No Defending Party will be liable hereunder all rights of Buyer in respect of any claim if such claim would not have arisen but for a post-Closing change in legislation or GAAP or a change in interpretation of applicable Legal Requirements as determined Losses indemnified by a court or pursuant to an administration rule-making decisionthe Company. 9.8.3. No Buyer Indemnitee will be entitled to any indemnification under this Article 9 to the extent such matter (i) was taken into account in determining the Final Working Capital Amount pursuant to Section 2.5, or (ii) was specifically reserved for in the Interim Financial Statements.

Determination of Loss Amount. 9.8.1. (a) The amount of any and all Losses under this Article 9 8 will be determined net of (i) the net present value of any Tax benefits actually realizable realized by any Person party seeking indemnification hereunder arising from the deductibility (or amortization or capitalization depreciation or other Tax tax benefit, etc.) of any such Losses and (ii) any amounts recovered (net recovered, actually recoverable or for which there is an actual right of the costs of recovery) recovery by any Claiming Party or any of such Claiming Party’s Affiliates under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract (other than self-insurance or retrospective insurance arrangements) pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rightsrights (collectively, “Alternative Arrangements”). 9.8.2. A Claiming Party shall not (b) In no event will Parent Indemnitees be entitled to recover Losses hereunder to or make a claim for any amounts in respect of consequential, incidental or indirect damages, lost profits, diminutions in value or punitive damages and, in particular, no “multiple of profits” or “multiple of cash flow” or other valuation methodology will be used in calculating the extent such Losses (i) are not the reasonably foreseeable result amount of any breach by the Defending Party of a representation, warranty, covenant or agreement contained in this Agreement or arise from special circumstances of the Claiming Party that were not communicated prior to the date of this Agreement by the Claiming Party to the Defending Party, or (ii) constitute punitive or exemplary damagesLosses; provided, however, that a Claiming Party that, notwithstanding the foregoing, Parent Indemnitees shall be entitled to make a claim for amounts in respect of diminutions in value as an element of “Losses” subject to indemnification hereunder in the case of a claim for breach of the representations and warranties contained in Section 3.14 (for which the term “Loss” shall also be deemed to include any diminution of value of the Company Patents that results from any matter that constitutes a breach of the representations and warranties contained in Section 3.14). In addition, except in cases where Parent Indemnitees are seeking indemnification as a result of a breach by the Company of the representations and warranties contained in Section 3.14, in no event will Parent Indemnitees be entitled to recover for any such Losses recovered by that are not paid to a third parties in connection with a Third Party Claim against the Claiming Partyparty. No Defending Party indemnifying party will be liable hereunder in respect of any claim if such claim would not have arisen but for a post-Closing change in legislation or GAAP accounting policies or a change in interpretation of applicable Legal Requirements Law as determined by a court or pursuant to an administration rule-making decision. Attorney, consultant, and other professional fees and disbursements incurred by an indemnifying party in connection with this Article 8 will be reasonable and based only on time actually spent, which will be charged at no more than such professional’s standard hourly rate. Notwithstanding any other provision of this Agreement to the contrary, if on the Closing Date the Parent Indemnitee has actual knowledge that one or more of the representations, warranties or covenants made by the Company is materially inaccurate as of the date made, the Parent Indemnitee will have no right or remedy after the Closing with respect to such material inaccuracy and will be deemed to have waived its rights to indemnification in respect thereof. The Representative will have the burden of proof in establishing that the Parent Indemnitee had actual knowledge that one or more of the representations, warranties or covenants made by the Company was materially inaccurate as of the date made. 9.8.3. (c) Notwithstanding anything herein to the contrary, in no event will the Parent Indemnitees be indemnified for any Losses pursuant to this Article 8 related to or arising from the amount, value or condition of any Tax asset or attribute (e.g., net operating loss carry-forward, tax credit carry-forward or tax basis) of the Company or any of its Subsidiaries or the ability of Parent or the Surviving Corporation to utilize any such Tax asset or attribute for any taxable period commencing after the Effective Time. (d) No Buyer Parent Indemnitee will be entitled to any indemnification under this Article 9 8 to the extent such matter (i) was taken into account in determining the Final Working Capital Amount final calculation of Aggregate Merger Consideration pursuant to Section 2.51.06, or (ii) was specifically reserved for in the Interim Financial Statements, or (iii) is set forth and specifically identified as a liability on the disclosure schedules to this Agreement.

Determination of Loss Amount. 9.8.1. The amount of any and all Losses Loss subject to indemnification under this Article 9 will Section 9.02 or Section 9.03 shall be determined calculated net of (i) the net present value of any Tax benefits actually realizable by any Person seeking indemnification hereunder arising from Benefit inuring to the deductibility (or amortization or capitalization or other Tax benefit) Indemnitee on account of any such Losses Loss and (ii) any amounts recovered (net of insurance proceeds received or receivable by the costs of recovery) by any Claiming Party or any Indemnitee on account of such Claiming Party’s Affiliates under 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 pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement Persons that made such indemnification payment the amount of such Tax Benefit at such time or contract (other than self-insurance or retrospective insurance arrangements) pursuant to which or under which such Claiming Party or such Claiming Party’s Affiliates is a party or has rights. 9.8.2. A Claiming Party shall not be entitled to recover Losses hereunder times as and to the extent that such Losses (i) 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 the reasonably foreseeable 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 breach 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 is made by any Indemnitee with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the Defending Party of a representation, warranty, covenant or agreement contained in this Agreement or arise from special circumstances aggregate amount of the Claiming Party that were not communicated prior recovery shall be made promptly to the date of this Agreement by Person or Persons that provided such indemnity payments to such Indemnitee. For Tax purposes, the Claiming Party parties agree to the Defending Party, or (ii) constitute punitive or exemplary damages; provided, however, that a Claiming Party shall be entitled to recover any such Losses recovered by third parties in connection with a Third Party Claim against the Claiming Party. No Defending Party will be liable hereunder in respect of any claim if such claim would not have arisen but for a post-Closing change in legislation or GAAP or a change in interpretation of applicable Legal Requirements as determined by a court or pursuant to an administration rule-making decision. 9.8.3. No Buyer Indemnitee will be entitled to any indemnification treat all payments made under this Article 9 IX as adjustments to the extent such matter (i) was taken into account in determining the Final Working Capital Amount pursuant to Section 2.5, or (ii) was specifically reserved for in the Interim Financial StatementsPurchase Price.

Determination of Loss Amount. 9.8.1. (a) The amount of any Losses subject to indemnification under Section 10.02 and all Losses under this Article 9 Section 10.03 will be determined calculated net of (i) the net present value amount of any Tax benefits actually realizable Benefit realized by an Indemnified Party by reason of such Loss or the circumstances or adjustments giving rise thereto with respect to any Person seeking indemnification hereunder arising from the deductibility taxable period in which such Loss was incurred (or amortization or capitalization or other any earlier taxable period) but only to the extent that an Indemnified Party utilizes such Tax benefit) of any such Losses Benefit and (ii) any amounts recovered (net of the costs of recovery) by any Claiming Indemnified Party or any of such Claiming Indemnified Party’s 's Affiliates under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract (other than self-insurance or retrospective insurance arrangements) pursuant to which or under which such Claiming Indemnified Party or such Claiming Indemnified Party’s 's Affiliates is a party or has rightsrights ("Alternative Arrangements"). For purposes hereof, "Tax Benefit" means (x) any refund 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 a recovery is made under an Alternative Arrangement by any Indemnified Party with respect to any Loss for which such Indemnified Party has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery will be made promptly to the Indemnifying Party. 9.8.2. A Claiming Party shall not (b) In no event will the Buyer Indemnitees or Seller Indemnitees, as applicable, be entitled to recover Losses hereunder or make a claim for any amounts in respect of consequential, incidental or indirect damages, lost profits, diminution in value or punitive damages (and, in particular, no "multiple of profits" or "multiple of cash flow" or other valuation methodology will be used in calculating the amount of any Losses), except to the extent the Buyer Indemnitees or Seller Indemnitees, as applicable, are liable for such Losses (i) are not the reasonably foreseeable result of any breach by the Defending under a Third-Party of a representation, warranty, covenant or agreement contained in this Agreement or arise from special circumstances of the Claiming Party that were not communicated prior to the date of this Agreement by the Claiming Party to the Defending Party, or (ii) constitute punitive or exemplary damages; provided, however, that a Claiming Party shall be entitled to recover any such Losses recovered by third parties in connection with a Third Party Claim against the Claiming Party. No Defending Party will be liable hereunder in respect of any claim if such claim would not have arisen but for a post-Closing change in legislation or GAAP or a change in interpretation of applicable Legal Requirements as determined by a court or pursuant to an administration rule-making decisionClaim. 9.8.3. (c) No Buyer Indemnitee will be entitled to any indemnification under this Article 9 X to the extent such matter (i) such matter was taken into account in determining the Final Working Capital Amount Purchase Price pursuant to Section 2.51.02, or (ii) such matter was specifically reserved for in the Interim Financial Statements.

Determination of Loss Amount. 9.8.1. (a) The amount of any and all Losses Loss subject to indemnification under this Article 9 Section 8.02 or Section 8.03 will be determined calculated net of (i) the net present value of any reduction in Tax benefits liability as a deduction, refund, credit or otherwise actually realizable realized in the taxable year the Loss occurred or any prior taxable year, as determined by any Person seeking indemnification hereunder arising from the deductibility (or amortization or capitalization or other Tax benefit) of any such Losses Parent in its reasonable discretion, and (ii) any amounts actually recovered (net of the costs of recovery) by any Claiming Party Indemnitee or any of such Claiming PartyIndemnitee’s Affiliates under or pursuant to any insurance policy, policy or title insurance policy, indemnity, reimbursement arrangement or contract (other than self-insurance or retrospective insurance arrangements) policy pursuant to which or under which such Claiming Party Indemnitee or such Claiming PartyIndemnitee’s Affiliates is a party or has rights, less any related costs and expenses, including the aggregate cost of pursuing any related insurance claims and any related increases in insurance premiums or other chargebacks (collectively, “Alternative Arrangements”). In the event that a recovery is made under an Alternative Arrangement by any Parent Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery will be made promptly to the Representative (on behalf of, and to be paid to, the Stockholders). The Parent Indemnified Parties will use commercially reasonable efforts to recover any Losses under any Alternative Arrangements, including promptly making claims thereunder. 9.8.2. A Claiming Party shall not (b) In no event will any Indemnitee be entitled to recover Losses hereunder to or make a claim for any amounts in respect of consequential, incidental or indirect damages, lost profits, diminution in value or punitive damages and, in particular, no “multiple of profits” or “multiple of cash flow” or other valuation methodology will be used in calculating the extent amount of any Losses, unless, in any such Losses (i) case, such amounts are not the reasonably foreseeable result of or are paid to a third party. In addition, in no event will any breach by the Defending Party of a representation, warranty, covenant or agreement contained in this Agreement or arise from special circumstances of the Claiming Party that were not communicated prior to the date of this Agreement by the Claiming Party to the Defending Party, or (ii) constitute punitive or exemplary damages; provided, however, that a Claiming Party shall Parent Indemnified Parties be entitled to recover for any such Losses recovered by third parties in connection with arising out of or relating to a Third Party Claim against the Claiming Partythat are not paid to a third party (e.g., general and administrative time or other overhead expenses). No Defending Party The Parent Indemnified Parties will be liable hereunder in respect of any claim if such claim would not have arisen but for a post-Closing change in legislation or GAAP or a change in interpretation of applicable Legal Requirements as determined by a court or pursuant to an administration rule-making decision. 9.8.3. No Buyer Indemnitee will be entitled to any indemnification under this Article 9 VIII to the extent such matter (i) was taken into account in determining the Closing Residual Cash Consideration or Final Working Capital Amount pursuant to Section 2.5, or (ii) was specifically reserved for in the Interim Financial StatementsAdjustment Amount.