Common use of Determination of Loss Amount Clause in Contracts

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 7.2 shall be calculated net of (a) any tax benefit that a Company Indemnified Party actually realizes on account of such Loss (but only to the extent such benefit is actually realized by such party on or before the end of the taxable year in which such indemnity payment is made) and (b) any insurance proceeds (net of direct collection expenses) or any indemnity, contribution or other similar payment actually received by the Company Indemnified Party from any third party with respect thereto. The Company 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 Company 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 or expenses to obtain such recovery) shall be made promptly to the Investor. The Investor shall be subrogated to all rights of the Indemnified Parties and their Affiliates in respect of any Losses indemnified by the Investor. Notwithstanding anything to the contrary contained in this Agreement, the Company shall have no right to indemnification hereunder with respect to any Loss or alleged Loss to the extent the amount of such Loss or alleged Loss is included in the calculation of Manager Shutdown Liabilities.

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 7.2 Sections 11.1 and 11.2 shall be calculated net of (ai) any tax benefit that a Company Tax Benefit inuring to the Indemnified Party actually realizes on account of such Loss, (ii) any insurance proceeds received by the Indemnified Party on account of such Loss and (but only iii) any accrual with respect thereto on the Financial Statements or the Balance Sheet. If the Indemnified Party receives a Tax Benefit after an indemnification payment is made to it, the Indemnified Party shall promptly pay to the Person or Persons that made such indemnification payment the amount of such Tax Benefit at such time or times as and to the extent that such benefit Tax Benefit is actually realized by the Indemnified Party. For purposes hereof, “Tax Benefit” shall mean any refund of Taxes paid or reduction in the amount of Taxes which otherwise would have been paid, in each case computed at the highest marginal tax rates applicable to the recipient of such party on or before the end of the taxable year in which such indemnity payment is made) and (b) any insurance proceeds (net of direct collection expenses) or any indemnity, contribution or other similar payment actually received by the Company Indemnified Party from any third party with respect theretobenefit. The Company 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 Company 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 or expenses to obtain such recovery) shall be made promptly to the Investor. The Investor shall be subrogated Person or Persons that provided such indemnity payments to all rights of the such Indemnified Parties and their Affiliates in respect of any Losses indemnified by the Investor. Notwithstanding anything to the contrary contained in this Agreement, the Company shall have no right to indemnification hereunder with respect to any Loss or alleged Loss to the extent the amount of such Loss or alleged Loss is included in the calculation of Manager Shutdown LiabilitiesParty.

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 7.2 8.02 or Section 8.03 shall be calculated net of (ai) any tax benefit that a Company Indemnified Party actually realizes on account of such Loss (but only to the extent such benefit is Tax Benefit actually realized by such party on the Indemnitee or before the end of its Affiliates in the taxable year in which such indemnity payment is made) Loss occurs on account of such Loss and (bii) any insurance proceeds (net of direct collection expenses) or any indemnity, contribution or other similar payment actually received recovered by the Company Indemnified Party Indemnitee from any third party with respect thereto. If the Indemnitee receives a Tax Benefit after an indemnification payment is made to it, the Indemnitee shall promptly pay to the Representative, on behalf of the Preferred Stockholders, the amount of such Tax Benefit at such time or times as and to the extent that such Tax Benefit is realized by the Indemnitee. For purposes hereof, “Tax Benefit” shall mean any refund of Taxes paid or reduction in the amount of Taxes which otherwise would have been paid, in each case computed at the effective tax rates applicable to the recipient of such benefit in the taxable year in which such Loss occurs. The Company Indemnified Party Indemnitee 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 Company Indemnified Party Indemnitee 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 or expenses to obtain such recovery) shall be made promptly to the Investor. The Investor shall be subrogated to all rights Representative, on behalf of the Indemnified Parties and their Affiliates Preferred Stockholders. In no event shall any party hereto be entitled to recover or make a claim for any amounts in respect of any Losses indemnified by the Investor. Notwithstanding anything to the contrary contained speculative, diminution in this Agreementvalue, the Company shall have no right to indemnification hereunder with respect to any Loss incidental or alleged Loss indirect damages or punitive damages; in each case, except to the extent any such damages are awarded to a third party as damages against the amount of such Loss or alleged Loss is included in the calculation of Manager Shutdown LiabilitiesPerson seeking indemnification hereunder.

Determination of Loss Amount. The amount of any Loss Losses subject to indemnification under Section 7.2 7.02(a)(i) shall be calculated net of (a) any tax benefit that a Company Indemnified Party actually realizes on account of such Loss (but only to the extent such benefit is actually realized by such party on or before the end of the taxable year in which such indemnity payment is made) and (b) any insurance proceeds (net of direct collection expensesincluding under the R&W Insurance Policy) or any indemnity, contribution or other similar payment Third Party payments actually received realized by the Company Indemnified Party from any third party with respect theretoParty. The Company 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 Loss Losses to the same extent as they it would if such Loss Losses were not subject to indemnification hereunder. In the event that an insurance recovery (including under the R&W Insurance Policy) or other recovery Third Party payment is made received by any Company the Indemnified Party with respect to any Loss Losses for which any such Person Party has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (less any net of all direct collection costs or expenses to obtain such recoveryand expenses) shall be made promptly to the InvestorParty or Parties that provided such indemnity payments to such Indemnified Party. The Investor Purchaser Indemnified Group shall not be subrogated entitled to all rights 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 the Purchaser Indemnified Parties and their Affiliates in respect of any Losses Group will be indemnified by the Investor. Notwithstanding anything to the contrary contained in this Agreement, the Company shall have no right to indemnification hereunder with respect to for any Loss or alleged Loss solely to the extent that the amount of such Loss or alleged Loss is included was reflected in the calculation of Manager Shutdown LiabilitiesFinal Purchase Price or the Net Working Capital Adjustment in accordance with this Agreement.

Determination of Loss Amount. The (a) For purposes of determining the amount of any Loss subject indemnification obligation to indemnification under Section 7.2 any Indemnified Party for any Losses, appropriate reductions shall be calculated made to reflect (i) the actual recovery pursuant to any insurance policy (other than insurance proceeds received pursuant to the R&W Insurance Policy) received by any Indemnified Party in respect of such Losses (net of any deductibles or other expenses and any increase in the applicable premium/retro-premiums related to the recovery of such proceeds) and (aii) any tax benefit that a Company other recovery actually received by any Indemnified Party actually realizes on account of such Loss from a third party pursuant to any reimbursement arrangements, indemnification rights, contribution agreements, holdback, offset or set-off agreements or similar arrangements (but only other than insurance proceeds received pursuant to the R&W Insurance Policy); provided, however, that the foregoing shall not be deemed to require an Indemnified Party to seek recovery under any applicable insurance policies or otherwise prior to making a claim for indemnification hereunder, except to the extent such benefit claim would be covered by the D&O Tail Policy. If an indemnification payment pursuant to this Article X is actually realized received by any Indemnified Party, and such Indemnified Party later receives proceeds of an insurance policy or other such third party on or before the end of the taxable year in which such indemnity payment is made) and payments (b) any other than insurance proceeds (net received pursuant to the R&W Insurance Policy), in each case as described in the immediately preceding sentence, in respect of direct collection expenses) or any indemnitysuch Losses, contribution or other similar payment actually received by the Company Indemnified Party from any third party with respect thereto. The Company such Indemnified Party shall seek full recovery under all insurance policies covering promptly notify the Holder Representative, and promptly, but in any Loss event no later than five (5) Business Days after delivery of such proceeds, such Indemnified Party shall pay to the same extent as they would if such Loss were not subject to indemnification hereunder. In Paying Agent for the event that accounts of the holder of Units an insurance or other recovery is made by any Company Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund amount equal to the aggregate amount of the insurance recovery (less net of any costs deductibles or other expenses and any increase in the applicable premiums/retro-premiums related to obtain the recovery of such recoveryproceeds) or such other third party payments so as to avoid a duplication of recovery (but not to exceed the amount for which such Indemnified Party was previously indemnified for hereunder in respect of such Losses) (other than insurance proceeds received pursuant to the R&W Insurance Policy). Notwithstanding the foregoing, for an avoidance of doubt, nothing in this Section 10.6(a) shall be made promptly deemed to permit any Indemnified Party to recover for Losses from any Company Indemnifying Party to the Investor. The Investor shall be subrogated extent such Losses are recovered from insurance proceeds received pursuant to all rights of the Indemnified Parties and their Affiliates in respect of any Losses indemnified by the Investor. R&W Insurance Policy. (b) Notwithstanding anything to the contrary contained in this Agreement, the Company no Indemnified Party shall have no right to indemnification hereunder with respect be entitled to any recovery in respect of a Loss (or alleged Loss a part thereof) to the extent the amount of such matter underlying the Loss or alleged Loss is included (i) has been taken into account in the calculation determination of Manager Shutdown LiabilitiesClosing Date Net Working Capital, Adjusted Closing Date Cash, Closing Date Indebtedness or the Holder Expenses as finally determined under this Agreement and (ii) such amount actually resulted in an adjustment to the Closing Consideration.