Common use of Determination of Loss Amount Clause in Contracts

Determination of Loss Amount. The amount of any Losses subject to indemnification under Section 7.02(a)(i) shall be calculated net of any insurance proceeds (including under the R&W Insurance Policy) or Third Party payments actually realized by the Indemnified Party. To the extent required by Section 7.02(a), the Indemnified Party shall use Commercially Reasonable Efforts to seek full recovery under all applicable insurance policies (including under the R&W Insurance Policy) and Third Party payments covering any Losses to the same extent as it would if such Losses were not subject to indemnification hereunder. In the event that an insurance recovery (including under the R&W Insurance Policy) or Third Party payment is received by the Indemnified Party with respect to any Losses for which any such Party has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (net of all direct collection costs and expenses) shall be made promptly to the Party or Parties that provided such indemnity payments to such Indemnified Party. The Purchaser Indemnified Group shall not be entitled to recover Losses from Sellers if such Losses would have been covered under the R&W Insurance Policy, if not for a failure by a Purchaser Indemnified Group to promptly make a claim thereunder or to otherwise comply with the terms thereof. No member of Purchaser Indemnified Group will be indemnified for any Loss solely to the extent that the amount of such Loss was reflected in the Final Purchase Price or the Net Working Capital Adjustment in accordance with this Agreement.

Determination of Loss Amount. The amount of any Losses subject to indemnification under Section 7.02(a)(ithis Article VIII shall (i) not include any punitive damages (except in each case to the extent such damages shall actually be awarded to a third party and be payable by an Acquiror Indemnified Party) and (ii) be calculated net of any insurance proceeds other than from the RWI Policy (including under the R&W Insurance Policynet of any costs of such recovery such as increased premiums, deductibles and self-insured amounts) or Third Party payments any indemnity, contribution or other similar payment actually realized recovered by the Indemnified Party. To the extent required by Section 7.02(a), the Acquiror Indemnified Party shall use Commercially Reasonable Efforts to seek full recovery under all applicable insurance policies (including under the R&W Insurance Policy) and Third Party payments covering from any Losses to the same extent as it would if such Losses were not subject to indemnification hereunderthird party with respect thereto. In the event that an insurance or other recovery (including under the R&W Insurance Policy) or Third Party payment from a third party is received made by the any Acquiror Indemnified Party with respect to any the specific Losses for which any such Party Person has been indemnified received an indemnification payment hereunder, then a refund equal to the aggregate amount of the recovery (net of all direct collection any costs of such recovery such as legal fees, as well as increased premiums, deductibles, and expensesself-insured amounts) shall be made promptly to (a) the Escrow Agent for replenishment of the Indemnity Escrow Fund, if during the Survival Period, or (b) the Paying Agent if after the expiration of the Survival Period, for distribution to the Selling Equityholders, and the portion of such amount owed to each Selling Equityholder will be determined in accordance with its respective Percentage (less Taxes withheld, if any, pursuant to Section 1.16). Notwithstanding the foregoing, an Acquiror Indemnified Party or Parties that provided such indemnity payments to such Indemnified Party. The Purchaser Indemnified Group shall not be entitled required to recover Losses refund amounts actually received from Sellers if such Losses would have been covered under the R&W Insurance Policy, if not for a failure by a Purchaser Indemnified Group to promptly make a claim thereunder or to otherwise comply with the terms thereof. No member of Purchaser Indemnified Group will be indemnified for any Loss solely an insurer to the extent that such indemnified Person's total Losses exceed the amount of such Loss was reflected limits in the Final Purchase Price or applicable insurance policy (including the Net Working Capital Adjustment in accordance with this AgreementRWI Policy).

Determination of Loss Amount. The amount of any Losses Loss subject to indemnification under Section 7.02(a)(i) 9.02 shall be calculated net of any insurance proceeds (including under the R&W Insurance Policy) or Third Party payments any indemnity, contribution or other similar payment actually realized recovered by the Indemnified Party. To 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 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 Section 7.02(a)reason of the deductibility of such Loss in the taxable year of the Loss or in the subsequent taxable year, and the Indemnified Party (or the Purchaser) is entitled to be, and is in fact, indemnified against such Loss pursuant to this Article IX, the Indemnified Party shall promptly pay to the Indemnifying Party the amount of such Tax Benefit to the extent of the portion of such Loss for which the Indemnified Party received an indemnification payment pursuant to this Article IX. For purposes of this Section 9.07, an Indemnified Party shall be deemed to recognize a tax benefit (a “Tax Benefit”) with respect to a taxable period if, and to the extent that, the Indemnified Party’s cumulative liability for Taxes through the end of such taxable year, calculated by excluding any Tax items attributable to the Loss, exceeds the Indemnified Party’s actual cumulative liability for Taxes through the end of such taxable year, calculated by taking into account any Tax items attributable to the Loss (to the extent permitted by applicable Law and treating the Tax items attributable to the Loss as the last items claimed for any taxable year). The Indemnified Party shall use Commercially Reasonable Efforts commercially reasonable efforts to seek full recovery under all applicable insurance policies (including under the R&W Insurance Policy) and Third Party payments covering any Losses 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 Losses Loss were not subject to indemnification hereunderhereunder or the Indemnified Party were responsible for such contribution, indemnification, advancement or reimbursement. In the event that an insurance or other recovery (including under the R&W Insurance Policy) or Third Party payment is received made by the any Indemnified Party with respect to any Losses Loss for which any such Party Person has been indemnified hereunder, then a refund equal to the aggregate lesser of (i) the amount of the recovery (net of all direct any expenses incurred by the Indemnified Party in obtaining such recovery, including collection costs and expensesreserves, deductibles, premium adjustments and retrospectively rated premiums) and (ii) the amount of the Loss for which the Indemnified Party was indemnified shall be made promptly to the Party or Parties that provided such indemnity payments to such Indemnified Indemnifying Party. The Purchaser Indemnified Group shall not be entitled to recover Losses from Sellers if such Losses would have been covered under the R&W Insurance PolicyEach party hereby waives, if not for a failure by a Purchaser Indemnified Group to promptly make a claim thereunder or to otherwise comply with the terms thereof. No member of Purchaser Indemnified Group will be indemnified for any Loss solely to the extent permitted under its applicable insurance policies, any subrogation rights that the amount of such Loss was reflected in the Final Purchase Price or the Net Working Capital Adjustment in accordance its insurer may have with this Agreementrespect to any indemnifiable Losses.

Determination of Loss Amount. (a) The amount of any Losses subject to indemnification under Section 7.02(a)(i) shall 10.02 and Section 10.03 will be calculated net of (i) the amount of any Tax Benefit realized by an Indemnified Party by reason of such Loss or the circumstances or adjustments giving rise thereto with respect to any taxable period in which such Loss was incurred (or any earlier taxable period) but only to the extent that an Indemnified Party utilizes such Tax Benefit and (ii) any amounts recovered by any Indemnified Party or any of such Indemnified Party's Affiliates under or pursuant to any insurance proceeds policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant to or under which such Indemnified Party or such Indemnified Party's Affiliates is a party or has rights (including under "Alternative Arrangements"). For purposes hereof, "Tax Benefit" means (x) any refund of Taxes paid, or (y) the R&W Insurance Policy) or Third Party payments actually realized by amount the Indemnified Party. To 's hypothetical liability for Taxes for the extent required taxable period, calculated by Section 7.02(a)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 shall use Commercially Reasonable Efforts to will seek full recovery under all applicable insurance policies (including under the R&W Insurance Policy) and Third Party payments Alternative Arrangements covering any Losses Loss to the same extent as it such Indemnified Party would if such Losses Loss were not subject to indemnification hereunder. In the event that a recovery is made under an insurance recovery (including under the R&W Insurance Policy) or Third Party payment is received Alternative Arrangement by the any Indemnified Party with respect to any Losses Loss for which any such Indemnified Party has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (net of all direct collection costs and expenses) shall will be made promptly to the Party or Parties that provided such indemnity payments to such Indemnified Indemnifying Party. The Purchaser Indemnified Group shall not be entitled to recover Losses from Sellers if such Losses would have been covered under the R&W Insurance Policy, if not for a failure by a Purchaser Indemnified Group to promptly make a claim thereunder or to otherwise comply with the terms thereof. No member of Purchaser Indemnified Group will be indemnified for any Loss solely to the extent that the amount of such Loss was reflected in the Final Purchase Price or the Net Working Capital Adjustment in accordance with this Agreement.

Determination of Loss Amount. (a) The amount of any Losses subject to indemnification under Section 7.02(a)(i) pursuant to this Article 10 shall be calculated 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 10 while separately pursuing insurance proceeds (including under the R&W Insurance Policy) or Third Party payments actually realized by the Indemnified Party. To the extent required by Section 7.02(a), the Indemnified Party shall use Commercially Reasonable Efforts to seek full recovery under all applicable insurance policies (including under the R&W Insurance Policy) and Third Party payments covering any Losses related to the same extent as it would if such Losses were not subject to indemnification hereunder. In the event that an insurance recovery (including under the R&W Insurance Policy) or Third Party payment is received by the Indemnified Party with respect to any Losses for which any such Party has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (net of all direct collection costs and expenses) shall be made promptly to the Party or Parties that provided such indemnity payments to such Indemnified Party. The Purchaser Indemnified Group shall not be entitled to recover Losses from Sellers if such Losses would have been covered under the R&W Insurance Policy, if not for a failure by a Purchaser Indemnified Group to promptly make a claim thereunder or to otherwise comply with the terms thereof. No member of Purchaser Indemnified Group will be indemnified for any Loss solely to the extent that the amount of such Loss was reflected in the Final Purchase Price or the Net Working Capital Adjustment in accordance with this Agreementclaim.

Determination of Loss Amount. The amount of any Losses Loss subject to indemnification under Section 7.02(a)(i) 9.02 shall be calculated net of any insurance proceeds (including under the R&W Insurance Policy) or Third Party payments any indemnity, contribution or other similar payment actually realized recovered by the Indemnified Party. To 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 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 Section 7.02(a)reason of the deductibility of such Loss in the taxable year of the Loss or in the subsequent taxable year, and the Indemnified Party (or the Purchaser) is entitled to be, and is in fact, indemnified against such Loss pursuant to this Article IX, the Indemnified Party shall promptly pay to the Indemnifying Party the amount of such Tax Benefit to the extent of the portion of such Loss for which the Indemnified Party received an indemnification payment pursuant to this Article IX. For purposes of this Section 9.07, an Indemnified Party shall be deemed to recognize a tax benefit (a “Tax Benefit”) with respect to a taxable period if, and to the extent that, the Indemnified Party’s cumulative liability for Taxes through the end of such taxable year, calculated by excluding any Tax items attributable to the Loss, exceeds the Indemnified Party’s actual cumulative liability for Taxes through the end of such taxable year, calculated by taking into account any Tax items attributable to the Loss (to the extent permitted by applicable Law and treating the Tax items attributable to the Loss as the last items claimed for any taxable year). The Indemnified Party shall use Commercially Reasonable Efforts commercially reasonable efforts to seek full recovery under all applicable insurance policies (including under the R&W Insurance Policy) and Third Party payments covering any Losses 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 Losses Loss were not subject to indemnification hereunderhereunder or the Indemnified Party were responsible for such contribution, indemnification, advancement or reimbursement. In the event that an insurance or other recovery (including under the R&W Insurance Policy) or Third Party payment is received made by the any Indemnified Party with respect to any Losses Loss for which any such Party Person has been indemnified hereunder, then a refund equal to the aggregate lesser of (i) the amount of the recovery (net of all direct any expenses incurred by the Indemnified Party in obtaining such recovery, including collection costs and expensesreserves, deductibles, premium adjustments and retrospectively rated premiums) and (ii) the amount of the Loss for which the Indemnified Party was indemnified shall be made promptly to the Party Indemnifying Party. Each party hereby waives, to the extent permitted under its applicable insurance policies, any subrogation rights that its insurer may have with respect to any indemnifiable Losses. 75 9.08 Acknowledgment of the Purchaser and the Merger Sub. Each of the Purchaser and the Merger Sub acknowledges that it has conducted to its satisfaction an independent investigation and verification of the financial condition, results of operations, assets, liabilities, properties and projected operations of the Company and its Subsidiaries and, in making its determination to proceed with the transactions contemplated by this Agreement, each of the Purchaser and the Merger Sub has relied on the results of its own independent investigation and verification and the representations and warranties of the Company expressly and specifically set forth in Article IV, as modified by the Disclosure Schedules attached hereto. The representations and warranties of the Company in Article IV, as modified by the Disclosure Schedules, constitute the sole and exclusive representations and warranties of the Company and the Non‑Recourse Parties to the Purchaser and the Merger Sub in connection with the transactions contemplated hereby, and each of the Purchaser and the Merger Sub understands, acknowledges and agrees that all other representations and warranties of any kind or Parties nature expressed or implied (including any relating to the future or historical financial condition, results of operations, assets or liabilities of the Company or its Subsidiaries, or the quality, quantity or condition of the Company’s or its Subsidiaries’ assets or relating to any other information provided to Purchaser) are specifically disclaimed by the Company and the Stockholders. Except as expressly provided in this Agreement, none of the Stockholder Representative, the Stockholder Parties, the Company or its Subsidiaries makes or provides, and each of the Purchaser and the Merger Sub hereby waives, any warranty or representation, express or implied, as to the quality, merchantability, fitness for a particular purpose, conformity to samples, or condition of the Company’s and its Subsidiaries’ assets or any part thereof. In connection with the Purchaser’s and the Merger Sub’s investigation of the Company and its Subsidiaries, each of the Purchaser and the Merger Sub has received certain projections, including projected statements of operating revenues and income from operations of the Company and its Subsidiaries and certain business plan information. Each of the Purchaser and the Merger Sub acknowledges that provided there are uncertainties inherent in attempting to make estimates, projections and other forecasts and plans, that the Purchaser and the Merger Sub are familiar with such indemnity payments uncertainties and that each of the Purchaser and the Merger Sub is taking full responsibility for making its own evaluation of the adequacy and accuracy of all estimates, projections and other forecasts and plans so furnished to it, including the reasonableness of the assumptions underlying such estimates, projections and forecasts. Accordingly, each of the Purchaser and the Merger Sub hereby acknowledges that none of the Stockholder Representative, the Stockholders or any of their Affiliates, or their respective officers, directors, partners, members, employees, agents, representatives, successors and permitted assigns (collectively, the “Stockholder Parties”) is making any representation or warranty with respect to such Indemnified Partyestimates, projections and other forecasts and plans, including the reasonableness of the assumptions underlying such estimates, projections and forecasts, and that neither of the Purchaser or the Merger Sub has relied on any such estimates, projections or other forecasts or plans, in each case except to the extent of the representations and warranties expressly and specifically set forth in Article IV, as modified by the Disclosure Schedules attached hereto. The Purchaser Indemnified Group shall not further agrees, for itself and its Affiliates and their respective officers, directors, partners, members, employees, agents, representatives, successors and permitted assigns (collectively, the “Purchaser Parties”), that none of the Stockholder Parties or any other Person will have or be entitled subject to recover Losses any liability to any Purchaser Party or any other Person resulting from Sellers if such Losses would have been covered under the R&W Insurance Policy, if not for a failure by a Purchaser Indemnified Group to promptly make a claim thereunder or to otherwise comply with the terms thereof. No member of Purchaser Indemnified Group will be indemnified for any Loss solely distribution to the extent Purchaser or any other Purchaser Party, or the Purchaser’s use of, any information other than that the amount of such Loss was reflected contained in the Final Purchase Price representations and warranties contained in this Article IV (including the certificate of the Company delivered by the Company 76 with respect to the representations and warranties set forth in this Article IV), including any information, document or material made available to the Purchaser or any other Purchaser Party in certain “data rooms,” management presentations or any other form in expectation of the transactions contemplated by this Agreement. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall limit the recovery of the Purchaser or the Net Working Capital Adjustment liability of the Company or any of its Affiliates or any Stockholder in accordance with this Agreement.the event of actual fraud, except as expressly set forth in Sections 9.03(c) and 9.03(d). 9.09

Determination of Loss Amount. The (a) Notwithstanding anything to the contrary in this Agreement, the amount of any Losses Loss subject to indemnification under Section 7.02(a)(iSections 8.02 or 8.03 (i) shall be calculated net of the net amount of any insurance proceeds or any indemnity, contribution or other similar payment (including excluding recoveries under the R&W Insurance Rep & Warranty Policy) or Third Party payments actually realized recovered by the Indemnified Party. To Indemnitee from any third party with respect thereto and (ii) to the extent required such Loss relates to Eureka or any of its Subsidiaries, shall be reduced by Section 7.02(a)the percentage of the outstanding Eureka Common Units not held by Purchaser immediately after giving effect to the transactions contemplated by this Agreement. Each of Purchaser and its Subsidiaries (including, following the Closing, the Indemnified Party Acquired Entities) shall use Commercially Reasonable Efforts its commercially reasonable efforts to seek full recovery and collect any amounts available under all applicable any insurance policies (including under or indemnity, contribution or other similar payment recoverable by Purchaser or the R&W Insurance Policy) and Third Party payments Acquired Entities from any third party covering any Losses Loss to the same extent as it would if such Losses Loss were not subject to indemnification hereunder; provided that none of Purchaser or any of its Subsidiaries shall have any obligation to seek recoveries under the Rep & Warranty Policy prior to the Survival Period Termination Date. In the event that an insurance or other recovery (including under the R&W Insurance Policy) or Third Party payment is received by the Indemnified Party Purchaser or its Subsidiaries with respect to any Losses Loss for which any such Party Person has been indemnified hereunderhereunder (but not including recoveries under the Rep & Warranty Policy), then a refund equal to the aggregate amount of the recovery (net of all direct collection costs and expenses) shall be made promptly to the Party or Parties that provided such indemnity payments to such Indemnified PartyIndemnitor. The Purchaser Indemnified Group shall not be entitled to recover Losses from Sellers if such Losses would have been covered under the R&W Insurance PolicyEach party hereby waives, if not for a failure by a Purchaser Indemnified Group to promptly make a claim thereunder or to otherwise comply with the terms thereof. No member of Purchaser Indemnified Group will be indemnified for any Loss solely to the extent permitted under its applicable insurance policies, any subrogation rights that the amount of such Loss was reflected in the Final Purchase Price or the Net Working Capital Adjustment in accordance its insurer may have with this Agreementrespect to any indemnifiable Losses.

Determination of Loss Amount. (a) The amount of any Losses subject to indemnification under Section 7.02(a)(i) shall 9.02 and Section 9.03 will be calculated net of any amounts actually recovered in cash by any Indemnified Party or any of such Indemnified Party’s Affiliates under or pursuant to any insurance proceeds policy (including excluding any recovery received under the R&W Insurance Policy) ), title insurance policy, indemnity, reimbursement arrangement or Third contract pursuant to or under which such Indemnified Party payments actually realized by the or such Indemnified Party’s Affiliates is a party or has rights, 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”). To Without limiting the extent required by Section 7.02(a)foregoing, the Buyer Related Parties will have no right to assert any claims, and the Buyer Related Parties will not be entitled to indemnification, with respect to any Losses that are covered by an Alternative Arrangement or would have been covered by an Alternative Arrangement had the Buyer Related Parties maintained for their benefit and the benefit of the Target Companies the same rights or coverage under an Alternative Arrangement following the Closing that was in effect for the Target Companies immediately prior to the Closing. The Indemnified Party shall will use Commercially Reasonable Efforts its commercially reasonable efforts to seek full recovery under all applicable insurance policies (including under the R&W Insurance Policy) and Third Party payments Alternative Arrangements covering any Losses Loss to the same extent as it such Indemnified Party would if such Losses Loss were not subject to indemnification hereunder. In the event that a recovery is made under an insurance recovery Alternative Arrangement (including under excluding the R&W Insurance Policy) or Third Party payment is received by the any Indemnified Party with respect to any Losses Loss for which any such Indemnified Party has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (net of all direct collection costs and expenses) shall be made promptly to net of any portion of the Party or Parties that provided such indemnity payments to such Indemnified Party. The Purchaser Indemnified Group shall not be entitled to recover Losses from Sellers if such Losses would have been covered under Loss borne by the R&W Insurance Policy, if not for a failure by a Purchaser Indemnified Group to promptly make a claim thereunder or to otherwise comply with the terms thereof. No member of Purchaser Indemnified Group will be indemnified for any Loss solely to the extent that the amount of such Loss was reflected in the Final Purchase Price or the Net Working Capital Adjustment in accordance with this Agreement.57 LEGAL02/39540989v11

Determination of Loss Amount. The (a) For purposes of determining the amount of any Losses subject indemnification obligation to indemnification under Section 7.02(a)(i) any Indemnified Party for any Losses, appropriate reductions shall be calculated net of made to reflect (i) the actual recovery pursuant to any insurance policy (other than insurance proceeds (including under received pursuant to the R&W Insurance Policy) or Third Party payments actually realized received by the Indemnified Party. To the extent required by Section 7.02(a), the any Indemnified Party shall use Commercially Reasonable Efforts in respect of such Losses (net of any deductibles or other expenses and any increase in the applicable premium/retro-premiums related to seek full the recovery under all applicable of such proceeds) and (ii) any other recovery actually received by any Indemnified Party from a third party pursuant to any reimbursement arrangements, indemnification rights, contribution agreements, holdback, offset or set-off agreements or similar arrangements (other than insurance policies (including under proceeds received pursuant to the R&W Insurance Policy) and Third ); provided, however, that the foregoing shall not be deemed to require an Indemnified Party payments covering to seek recovery under any Losses applicable insurance policies or otherwise prior to making a claim for indemnification hereunder, except to the same extent as it such claim would if be covered by the D&O Tail Policy. If an indemnification payment pursuant to this Article X is received by any Indemnified Party, and such Losses were not subject to indemnification hereunder. In the event that Indemnified Party later receives proceeds of an insurance recovery policy or other such third party payments (including under other than insurance proceeds received pursuant to the R&W Insurance Policy) or Third Party payment is received by ), in each case as described in the immediately preceding sentence, in respect of such Losses, such Indemnified Party with respect shall promptly notify the Holder Representative, and promptly, but in any event no later than five (5) Business Days after delivery of such proceeds, such Indemnified Party shall pay to any Losses the Paying Agent for which any such Party has been indemnified hereunder, then a refund the accounts of the holder of Units an amount equal to the aggregate amount of the insurance recovery (net of all direct collection costs any deductibles or other expenses and expenses) shall be made promptly any increase in the applicable premiums/retro-premiums related to the Party recovery of such proceeds) or Parties that provided such indemnity other third party payments so as to avoid a duplication of recovery (but not to exceed the amount for which such Indemnified Party. The Purchaser Indemnified Group shall not be entitled Party was previously indemnified for hereunder in respect of such Losses) (other than insurance proceeds received pursuant to recover Losses from Sellers if such Losses would have been covered under the R&W Insurance Policy). Notwithstanding the foregoing, if not for a failure by a Purchaser an avoidance of doubt, nothing in this Section 10.6(a) shall be deemed to permit any Indemnified Group Party to promptly make a claim thereunder or to otherwise comply with the terms thereof. No member of Purchaser Indemnified Group will be indemnified recover for Losses from any Loss solely Company Indemnifying Party to the extent that such Losses are recovered from insurance proceeds received pursuant to the amount of such Loss was reflected in the Final Purchase Price or the Net Working Capital Adjustment in accordance with this AgreementR&W Insurance Policy.

Determination of Loss Amount. The amount of any Losses Loss subject to indemnification under Section 7.02(a)(i) 7.02 or 7.03 shall be calculated net of (i) any insurance proceeds (including under the R&W Insurance Policy) or Third Party payments Tax benefit actually realized by the Indemnified Indemnitee or its Affiliates on account of such Loss on or before the second anniversary of the end of the taxable year in which the Loss occurs and (ii) any insurance proceeds or any indemnity, contribution or other similar payment actually recovered (net of any deductible payable with respect to the applicable insurance policy, indemnity contribution or similar payment borne and any related cost of collection, in each case by a Purchaser Party or Seller Party) by the Indemnitee from any third party with respect thereto (including pursuant to any indemnities from prior acquisitions by the Surviving Company and its Subsidiaries and to any representation and warranty insurance policies). To A Tax benefit shall be realized upon the extent required by Section 7.02(a)receipt of a refund of Taxes paid or the filing of a Tax Return, including an estimated Tax Return, showing a Tax benefit (or, if earlier, the Indemnified Party date when such a Tax Return should have been timely filed, including properly obtained extensions) calculated on a “with and without” basis with respect to Tax benefits arising as a result of such Loss. The Indemnitee shall use Commercially Reasonable Efforts to seek seek, as its first recourse, full recovery under all applicable indemnities (other than this Agreement) and insurance policies (including under pursuant to any indemnities from prior acquisitions by the R&W Insurance PolicySurviving Company and its Subsidiaries and to any representation and warranty insurance policies) and Third Party payments covering any Losses Loss to the same extent as it would if such Losses Loss were not subject to indemnification hereunder; provided, that the Indemnitee shall be permitted to make a claim for indemnification following the submission of any claim under any other indemnity or insurance policy (including any representation and warranty insurance policy); provided, further, that, for the avoidance of doubt, the preceding proviso shall not change the priority of recourse set forth in this sentence. In the event that an insurance or other recovery (including under specified in the R&W Insurance Policy) or Third Party payment first sentence of this Section 7.05 is received made by the Indemnified Party any Indemnitee with respect to any Losses Loss for which any such Party Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (net less the cost of all direct collection costs of such recovery and expensesany portion of the Loss paid by the Indemnitee or any Affiliate thereof (and not indemnified hereunder) due to the limitation on liability provisions (including the Deductible or any deductible under any representation or warranty insurance policy) that may be applicable to such recovery) shall be made promptly to the Party or Parties that provided such indemnity payments to such Indemnified PartyIndemnitor. The Purchaser Indemnified Group shall not be entitled to recover Losses from Sellers if such Losses would have been covered under the R&W Insurance PolicyEach party hereby waives, if not for a failure by a Purchaser Indemnified Group to promptly make a claim thereunder or to otherwise comply with the terms thereof. No member of Purchaser Indemnified Group will be indemnified for any Loss solely to the extent permitted under its applicable insurance policies, any subrogation rights that the amount of such Loss was reflected in the Final Purchase Price or the Net Working Capital Adjustment in accordance its insurer may have with this Agreementrespect to any indemnifiable Losses.

Determination of Loss Amount. (i) The amount of any Losses Loss subject to indemnification under Section 7.02(a)(i) 10.3 shall be calculated net of any insurance proceeds (including under the R&W Insurance Policy) or Third Party payments actually realized any indemnity, contribution or other similar payment recovered by the Indemnified PartyParty (or its Affiliates) from any third party with respect thereto, net of any retropremiums, out-of-pocket expenses and costs of recovery, if any (“Third-Party Proceeds”). To the extent required by Section 7.02(a), the The Indemnified Party shall use Commercially Reasonable Efforts take all commercially reasonable actions to seek full and prompt recovery under all applicable insurance policies (including under the R&W Insurance Policy) and Third from any Third-Party payments Proceeds covering any Losses Loss to the same extent as it would if such Losses 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 (including under the R&W Insurance Policy) or Third Party payment is received made by the any Indemnified Party with respect to any Losses Loss for which any such Party Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (net of all direct collection any retropremiums, out-pocket-expenses and costs and expensesof recovery) shall be made promptly to the Party or Parties that provided such indemnity payments to such Indemnified Indemnifying Party. The Purchaser Indemnified Group shall not be entitled to recover Losses from Sellers if such Losses would have been covered under the R&W Insurance PolicyEach party hereby waives, if not for a failure by a Purchaser Indemnified Group to promptly make a claim thereunder or to otherwise comply with the terms thereof. No member of Purchaser Indemnified Group will be indemnified for any Loss solely to the extent permitted under its applicable insurance policies, any subrogation rights that its insurer may have with respect to any indemnifiable Losses. If the amount Indemnifying Party elects to control the defense of such Loss was reflected any claim pursuant to Section 10.3(d), then the Indemnifying Party shall be subrogated to and shall stand in the Final Purchase Price place of the Indemnified Party as to any events or circumstance in respect of which the Net Working Capital Adjustment Indemnified Party may have any right, defense or claim pursuant to the applicable insurance policies. The Indemnified Party shall cooperate with and take such actions as reasonably requested by the Indemnifying Party in accordance with this Agreementa reasonable manner, and at the cost of the Indemnifying Party, in presenting any subrogated right, defense or claim and effecting any such subrogation.