Common use of Determination of Losses Clause in Contracts

Determination of Losses. The amount of any Losses subject to indemnification shall be reduced by the amounts of any Tax Benefits inuring to the Indemnified Party on account of such Loss and any insurance proceeds received by the Indemnified Party in connection therewith. If the Indemnified Party receives a Tax Benefit after an indemnification payment is made to it, the Indemnified Party shall promptly pay to the Indemnifying Party that made or directed such indemnification payment the amount of such Tax Benefit at such time or times as and to the extent that such Tax Benefit is realized by the Indemnified Party. For purposes hereof, “Tax Benefit” shall mean any refund of Taxes paid or reduction in the amount of Taxes which otherwise would have been paid. The Indemnified Party shall use commercially reasonable efforts to seek full recovery under all insurance policies covering any Losses to the same extent as they would if such Losses were not subject to indemnification hereunder. In the event that an insurance is received by any Indemnified Party with respect to any Losses for which any such Person has been indemnified hereunder, then a refund equal to the amount of the recovery shall be made promptly to the Indemnifying Party that made or directed and provided such indemnification payments to such Indemnified Party. In the case of any Third Party Claim, unless the Indemnifying Party consents otherwise (which consent shall not be unreasonably withheld), the final amount of Losses subject to indemnification shall not be determined until, and the Indemnifying Party shall not be obligated to make a payment to the Indemnified Party until, the matter underlying the Third Party Claim becomes non-appealable or is not appealed.

Determination of Losses. The amount of any Losses Loss subject to indemnification under Section 6.1 or Section 6.2 shall be reduced by calculated net of (i) any Tax Benefit actually realized (or the amounts present value of any Tax Benefits inuring Benefit to be realized) by the Indemnified Party on account of such Loss and (ii) any insurance proceeds actually received by the Indemnified Party in connection therewithon account of such Loss. If the Indemnified Party receives a Tax Benefit after an indemnification payment is made to it, then, to the extent such payment did not take into account such Tax Benefit, the Indemnified Party shall promptly pay to the Indemnifying Party Person or Persons that made or directed such indemnification payment the amount of such Tax Benefit at such time or times as and to the extent that such 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 actually applicable to the recipient of such benefit, and any dispute as to the amount of a Tax Benefit, the present value thereof, or whether it is to be realized shall be resolved by binding arbitration by a nationally recognized public accounting firm reasonably acceptable to each party. The Indemnified Party shall use commercially reasonable efforts to seek full recovery recover under all any insurance policies policy covering any Losses Loss, if reasonably requested by the Indemnifying Party and provided that the Indemnifying Party pays all costs and expenses of the same, including instituting litigation or otherwise pursuing any dispute in respect of any such insurance recovery, if reasonably requested by the Indemnifying Party and provided that the Indemnifying Party pays all costs and expenses of the same; provided, that no Indemnified Party shall be required to obtain or maintain any insurance for this purpose and provided, further, that for purposes of this Section 6.6, any insurance proceeds actually received by the Indemnified Party will be deemed reduced by any premium increase that results from such Loss during the three-year period following the claim and costs incurred by the Indemnified Party with respect to the same extent as they would if collection of such Losses were not subject to indemnification hereunderinsurance proceeds. In the event that an insurance recovery is actually received by any Indemnified Party with respect to any Losses Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the such recovery (as adjusted pursuant to this Section 6.6) shall be made promptly to the Indemnifying Party Person or Persons that made or directed and provided such indemnification indemnity payments to such Indemnified Party. In the case of Indemnitee; provided, that any Third Party Claim, unless the Indemnifying Party consents otherwise (which consent such Person or Persons who receives a refund shall not be unreasonably withheld), the final amount of Losses subject to indemnification shall not be determined until, and the Indemnifying Party shall not be obligated to make a payment to promptly reimburse the Indemnified Party untilfor the amount of any reduction in the insurance recovery occasioned by premium increases or collection costs during the three-year period following the claim, as contemplated in this Section 6.6, that arise after any such refund. No Indemnifying Party may delay the matter underlying payment of any amount owing in respect of any Claim for indemnification pursuant to this Article VI due to the Third pendency of any Tax Benefit or insurance recovery, nor may any Indemnifying Party offset against any amount owing in respect of any Claim becomes non-appealable any pending Tax Benefit or is not appealedinsurance recovery.

Determination of Losses. (a) The amount of Losses giving rise to any Losses subject to indemnification Obligation hereunder shall be reduced by the amounts of any Tax Benefits inuring to the Indemnified Party on account of such Loss and any insurance proceeds actually received by the Indemnified Party in connection therewithas a result of the events giving rise to the claim for indemnification, net of any expenses related to the receipt of such proceeds, including retrospective premium adjustments, if any. If The amount of the indemnity payment shall be computed by taking into account the timing of the loss or payment, as applicable, at the Applicable Rate from the date the Indemnified Party receives a Tax Benefit after an indemnification payment is made provides notice of the Loss to itthe Indemnifying Party until the date paid. Upon the request of the Indemnifying Party, the Indemnified Party shall promptly pay to provide the Indemnifying Party that made or directed such indemnification payment with information sufficient to allow the Indemnifying Party to calculate the amount of such Tax Benefit at such time or times as and to the extent that such Tax Benefit is realized by the Indemnified Party. For purposes hereof, “Tax Benefit” shall mean any refund of Taxes paid or reduction indemnity payment in the amount of Taxes which otherwise would have been paid. The accordance with this Section 5.05. (b) An Indemnified Party shall take all reasonable steps to mitigate damages in respect of any claim for which it is seeking indemnification and shall use commercially reasonable efforts to seek full recovery under all insurance policies covering avoid any Losses to the same extent as they would costs or expenses associated with such claim and, if such Losses were costs and expenses cannot subject be avoided, to indemnification hereunder. In minimize the event amount thereof; provided, that an insurance is received by Indemnified Party shall have no Obligation to make a claim for recovery against any insurer of such Indemnified Party with respect to any Losses such Losses. (c) For purposes of determining whether a breach has occurred and calculating a Loss in connection with a claim for which indemnification under this Article V, each of the representations and warranties that contains any qualifications as to materiality or “Material Adverse Effect” will be determined with regard to such Person has been indemnified hereundermateriality or “Material Adverse Effect” qualifier contained in the terms of such representation and warranty; provided, however, that if the representation or warranty is breached (after taking into consideration such materiality or “Material Adverse Effect” qualifier) then a refund equal to the amount of the recovery shall Losses arising out of such breach will be made promptly to the Indemnifying Party that made or directed and provided such indemnification payments determined without regards to such Indemnified Party. In the case of any Third Party Claim, unless the Indemnifying Party consents otherwise (which consent shall not be unreasonably withheld), the final amount of Losses subject to indemnification shall not be determined until, and the Indemnifying Party shall not be obligated to make a payment to the Indemnified Party until, the matter underlying the Third Party Claim becomes non-appealable materiality or is not appealed“Material Adverse Effect” qualifier.

Determination of Losses. The amount of any All Losses subject to indemnification pursuant to this Article IX or the [***] shall be calculated net of the amount of any recoveries received by an Indemnified Party prior to the payment in full of such Losses under any existing insurance policies and contractual indemnification or contribution provisions incurred or paid to procure such recoveries in respect of any indemnifiable Losses suffered, paid, sustained or incurred by any Indemnified Party. Furthermore, the amount of Losses shall be reduced by any actual Tax payment or refund actually received with respect to the amounts specific indemnifiable event or item, as determined in the reasonable discretion of the Indemnified Party. In addition, all Losses subject to indemnification under this Article IX or the [***] shall be reduced by any Tax attribute (including for the avoidance of doubt, and notwithstanding anything else to the contrary herein, any existing net operating losses) that is available to offset any Tax Liability in connection with such Losses, such that the Company Group shall first be required to utilize any existing net operating losses, credits or any other Tax attributes prior to any payment of indemnification with respect to such Losses (for the avoidance of doubt, the value of any such Tax Benefits inuring to attributes utilized shall not increase the amount of Losses so indemnified), provided that such net operating losses, credits or other Tax attributes have arisen in a Pre-Closing Tax Period and have not been taking into account in calculating the Adjusted Merger Consideration as a Deferred Tax Asset. If an Indemnified Party on account recovers an amount from a third party in respect of a Loss that is the subject of indemnification hereunder after all or a portion of such Loss and any insurance proceeds received has been paid by the Indemnified an Indemnifying Party in connection therewith. If the Indemnified Party receives a Tax Benefit after an indemnification payment is made pursuant to itthis Article IX, the Indemnified Party shall promptly pay remit to the applicable Indemnifying Party the excess of (i) the amount paid by the Indemnifying Party that made or directed in respect of such indemnification payment Loss, plus the amount of such Tax Benefit at such time or times as and to received from the extent that such Tax Benefit is realized by third party in respect thereof, less (ii) 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. The Indemnified Party shall use commercially reasonable efforts to seek full recovery under all insurance policies covering any Losses to the same extent as they would if such Losses were not subject to indemnification hereunder. In the event that an insurance is received by any Indemnified Party with respect to any Losses for which any such Person has been indemnified hereunder, then a refund equal to the amount of the recovery shall be made promptly to the Indemnifying Party that made or directed and provided such indemnification payments to such Indemnified Party. In the case of any Third Party Claim, unless the Indemnifying Party consents otherwise (which consent shall not be unreasonably withheld), the final amount of Losses subject to indemnification shall not be determined until, and the Indemnifying Party shall not be obligated to make a payment to the Indemnified Party until, the matter underlying the Third Party Claim becomes non-appealable or is not appealedLoss.

Determination of Losses. (a) Parent and Purchaser acknowledge and agree that no Seller shall have any Liability under this Article VII for any Losses to the extent that such Losses are caused by or otherwise arise from any action (other than an action that is expressly permitted or required by this Agreement) taken by Parent, Purchaser or any of their Affiliates (including the Georgia LLC) after the Closing. Parent, Purchaser and the Georgia LLC, as the case may be, shall mitigate any Loss for which Parent and Purchaser could be entitled to indemnification under this Article VII upon becoming aware of any event which would reasonably be expected to, or does, give rise thereto to the extent required by applicable Law, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Losses (which costs shall constitute Losses). (b) Each Seller acknowledges and agrees that Parent and Purchaser shall not have any liability under this Article VII for any Losses to the extent that such Losses are caused by or otherwise arise from any action (other than an action that is expressly permitted or required by this Agreement) taken by such Seller after the Closing. Each Seller shall mitigate any Losses for which such Seller could be entitled to indemnification under this Article VII upon becoming aware of any event that would reasonably be expected to, or does, give rise thereto to the extent required by applicable Law, including incurring costs only to the minimum extent necessary to remedy the breach which gives rise to such Losses (which costs shall constitute Losses). (c) The amount of any Losses subject for which indemnification is provided by the Seller Indemnifying Party to indemnification the Purchaser Indemnified Party under this Article VII shall be reduced by net of (i) any accruals or reserves related to such Loss reflected on the Financial Statements, (ii) any amount for which a liability related to such Losses has been taken into account for purposes of the calculation of the Final Cash Consideration, (iii) any amounts of any Tax Benefits inuring that may be available to the a Purchaser Indemnified Party on account of such Loss pursuant to any indemnification by or indemnification agreement with any third party and (iv) any insurance proceeds received by or other cash receipts or sources of reimbursement that may be available to the Purchaser Indemnified Party in connection therewithwith such Losses, including the R&W Insurance Policy (each source of recovery referred to in clauses (iii) and (iv), a “Collateral Source”), if any, attributable to such Losses; provided, that recovery from Collateral Sources other than the R&W Insurance Policy and shall be net of (x) any reasonable and documented out-of-pocket expenses (including Taxes) incurred by the Purchaser Indemnified Party, (y) any deductibles associated with the collection of such amounts and (z) any increases in insurance premium or other costs associated with collecting such amount; provided, that the Purchaser Indemnified Parties shall have no obligation to seek any such recovery, other than under the pre-Closing insurance policies of the Companies. If the amount to be netted hereunder in connection with a Collateral Source from any payment required under this Article VII is determined after payment by the Seller Indemnifying Party of any amount otherwise required to be paid to a Purchaser Indemnified Party receives a Tax Benefit after an indemnification payment is made pursuant to itthis Article VII, then the Purchaser Indemnified Party shall promptly pay repay to the Seller Indemnifying Party, promptly after such determination, any amount that the Seller Indemnifying Party that would not have had to pay pursuant to this Article VII had such determination been made or directed such indemnification payment at the amount time of such Tax Benefit at such time or times as and to the extent that such Tax Benefit is realized by the Indemnified Party. For purposes hereof, “Tax Benefit” shall mean any refund of Taxes paid or reduction in the amount of Taxes which otherwise would have been paid. The Indemnified Party shall use commercially reasonable efforts to seek full recovery under all insurance policies covering any Losses to the same extent as they would if such Losses were not subject to indemnification hereunder. In the event that an insurance is received by any Indemnified Party with respect to any Losses for which any such Person has been indemnified hereunder, then a refund equal to the amount of the recovery shall be made promptly to the Indemnifying Party that made or directed and provided such indemnification payments to such Indemnified Party. In the case of any Third Party Claim, unless the Indemnifying Party consents otherwise (which consent shall not be unreasonably withheld), the final amount of Losses subject to indemnification shall not be determined until, and the Indemnifying Party shall not be obligated to make a payment to the Indemnified Party until, the matter underlying the Third Party Claim becomes non-appealable or is not appealedpayment.

Determination of Losses. The amount of any Losses Loss subject to indemnification under this Article VI shall be reduced by calculated net of (i) any Tax Benefit actually realized (or the amounts present value of any Tax Benefits inuring Benefit to be realized) by the Indemnified Party on account of such Loss and (ii) any insurance proceeds actually received by the Indemnified Party in connection therewithon account of such Loss. If the Indemnified Party receives a Tax Benefit after an indemnification payment is made to it, then, to the extent such payment did not take into account such Tax Benefit, the Indemnified Party shall promptly pay to the Indemnifying Party Person or Persons that made or directed such indemnification payment the amount of such Tax Benefit at such time or times as and to the extent that such 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 actually applicable to the recipient of such benefit, and any dispute as to the amount of a Tax Benefit, the present value thereof, or whether it is to be realized shall be resolved by binding arbitration by a nationally recognized public accounting firm reasonably acceptable to each Party. The Indemnified Party shall use commercially reasonable efforts to seek full recovery recover under all any insurance policies policy covering any Losses Loss, if reasonably requested by the Indemnifying Party and provided that the Indemnifying Party pays all costs and expenses of the same, including instituting litigation or otherwise pursuing any dispute in respect of any such insurance recovery, if reasonably requested by the Indemnifying Party and provided that the Indemnifying Party pays all costs and expenses of the same; provided, that no Indemnified Party shall be required to obtain or maintain any insurance for this purpose and provided, further, that for purposes of this Section 6.6, any insurance proceeds actually received by the Indemnified Party will be deemed reduced by any premium increase that results from such Loss during the three-year period following the claim and costs incurred by the Indemnified Party with respect to the same extent as they would if collection of such Losses were not subject to indemnification hereunderinsurance proceeds. In the event that an insurance recovery is actually received by any Indemnified Party with respect to any Losses Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the such recovery (as adjusted pursuant to this Section 6.7) shall be made promptly to the Indemnifying Party Person or Persons that made or directed and provided such indemnification indemnity payments to such Indemnified Party. In the case of Indemnitee; provided, that any Third Party Claim, unless the Indemnifying Party consents otherwise (which consent such Person or Persons who receives a refund shall not be unreasonably withheld), the final amount of Losses subject to indemnification shall not be determined until, and the Indemnifying Party shall not be obligated to make a payment to promptly reimburse the Indemnified Party untilfor the amount of any reduction in the insurance recovery occasioned by premium increases or collection costs during the three-year period following the claim, as contemplated in this Section 6.7, that arise after any such refund. No Indemnifying Party may delay the matter underlying payment of any amount owing in respect of any Claim for indemnification pursuant to this Article VI due to the Third pendency of any Tax Benefit or insurance recovery, nor may any Indemnifying Party offset against any amount owing in respect of any Claim becomes non-appealable any pending Tax Benefit or is not appealedinsurance recovery.

Determination of Losses. (a) The amount of Losses giving rise to any Losses subject to indemnification Obligation hereunder shall be reduced by the amounts of any Tax Benefits inuring to the Indemnified Party on account of such Loss and any insurance proceeds actually received by the Indemnified Party in connection therewithas a result of the events giving rise to the claim for indemnification, net of any expenses related to the receipt of such proceeds, including retrospective premium adjustments, if any. If The amount of the indemnity payment shall be computed by taking into account the timing of the loss or payment, as applicable, at the Applicable Rate from the date the Indemnified Party receives a Tax Benefit after an indemnification payment is made provides notice of the Loss to itthe Indemnifying Party until the date paid. Upon the request of the Indemnifying Party, the Indemnified Party shall promptly pay to provide the Indemnifying Party that made or directed such indemnification payment with information sufficient to allow the Indemnifying Party to calculate the amount of such Tax Benefit at such time or times as and to the extent that such Tax Benefit is realized by the Indemnified Party. For purposes hereof, “Tax Benefit” shall mean any refund of Taxes paid or reduction indemnity payment in the amount of Taxes which otherwise would have been paid. The accordance with this Section 11.5. (b) An Indemnified Party shall take all reasonable steps to mitigate damages in respect of any claim for which it is seeking indemnification and shall use commercially reasonable efforts to seek full recovery under all insurance policies covering avoid any Losses to the same extent as they would costs or expenses associated with such claim and, if such Losses were costs and expenses cannot subject be avoided, to indemnification hereunder. In minimize the event amount thereof; provided, that an insurance is received by Indemnified Party shall have no Obligation to make a claim for recovery against any insurer of such Indemnified Party with respect to any Losses such Losses. (c) For purposes of determining whether a breach has occurred and calculating a Loss in connection with a claim for which indemnification under this Article XI, each of the representations and warranties that contains any qualifications as to materiality or “Material Adverse Effect” will be determined with regard to such Person has been indemnified hereundermateriality or “Material Adverse Effect” qualifier contained in the terms of such representation and warranty; provided, however, that if the representation or warranty is breached (after taking into consideration such materiality or “Material Adverse Effect” qualifier) then a refund equal to the amount of the recovery shall Losses arising out of such breach will be made promptly to the Indemnifying Party that made or directed and provided such indemnification payments determined without regards to such Indemnified Party. In the case of any Third Party Claim, unless the Indemnifying Party consents otherwise (which consent shall not be unreasonably withheld), the final amount of Losses subject to indemnification shall not be determined until, and the Indemnifying Party shall not be obligated to make a payment to the Indemnified Party until, the matter underlying the Third Party Claim becomes non-appealable materiality or is not appealed“Material Adverse Effect” qualifier.

Determination of Losses. (a) The amount of Losses giving rise to any Losses subject to indemnification Obligation hereunder shall be reduced by the amounts of any Tax Benefits inuring to the Indemnified Party on account of such Loss and any insurance proceeds actually received by the Indemnified Party in connection therewithas a result of the events giving rise to the claim for indemnification, net of any expenses related to the receipt of such proceeds, including retrospective premium adjustments, if any. If The amount of the indemnity payment shall be computed by taking into account the timing of the loss or payment, as applicable, at the Applicable Rate from the date the Indemnified Party receives a Tax Benefit after an indemnification payment is made provides notice of the Loss to itthe Indemnifying Party until the date paid. Upon the request of the Indemnifying Party, the Indemnified Party shall promptly pay to provide the Indemnifying Party that made or directed such indemnification payment with information sufficient to allow the Indemnifying Party to calculate the amount of such Tax Benefit at such time or times as and to the extent that such Tax Benefit is realized by the Indemnified Party. For purposes hereof, “Tax Benefit” shall mean any refund of Taxes paid or reduction indemnity payment in the amount of Taxes which otherwise would have been paid. The accordance with this Section 11.5. (b) An Indemnified Party shall take all reasonable steps to mitigate damages in respect of any claim for which it is seeking indemnification and shall use commercially reasonable efforts to seek full recovery under all insurance policies covering avoid any Losses to the same extent as they would costs or expenses associated with such claim and, if such Losses were costs and expenses cannot subject be avoided, to indemnification hereunder. In minimize the event amount thereof; provided, that an insurance is received by Indemnified Party shall have no Obligation to make a claim for recovery against any insurer of such Indemnified Party with respect to any Losses such Losses. (c) For purposes of determining whether a breach has occurred and calculating a Loss in connection with a claim for which indemnification under this Article XI, each of the representations and warranties that contains any qualifications as to materiality or "Material Adverse Effect" will be determined with regard to such Person has been indemnified hereundermateriality or "Material Adverse Effect" qualifier contained in the terms of such representation and warranty; provided, however, that if the representation or warranty is breached (after taking into consideration such materiality or "Material Adverse Effect" qualifier) then a refund equal to the amount of the recovery shall Losses arising out of such breach will be made promptly to the Indemnifying Party that made or directed and provided such indemnification payments determined without regards to such Indemnified Party. In the case of any Third Party Claim, unless the Indemnifying Party consents otherwise (which consent shall not be unreasonably withheld), the final amount of Losses subject to indemnification shall not be determined until, and the Indemnifying Party shall not be obligated to make a payment to the Indemnified Party until, the matter underlying the Third Party Claim becomes non-appealable materiality or is not appealed"Material Adverse Effect" qualifier.

Determination of Losses. The amount of any Losses subject to indemnification hereunder shall be reduced by the amounts calculated net of any Tax Benefits inuring to insurance proceeds actually received by the Indemnified Party on account of such Loss Losses reduced by the Indemnified Party’s reasonable and any actual costs and expenses incurred in making such insurance recovery. The Indemnified Party shall file a claim with its insurer within a reasonable time after learning of the Loss, and shall use reasonable efforts to recover insurance proceeds for the Loss (whether before or after the indemnity payment is made hereunder); provided, however, (i) such claim filing obligation shall not prevent or delay an Indemnified Party from making an indemnification claim, (ii) the insurer’s position or non-position concerning coverage of the Loss shall not affect or delay the indemnifying party’s payment obligations unless and until payment has actually been received by the Indemnified Party (in connection therewith. If which case a credit shall be applied at the Indemnified Party receives a Tax Benefit indemnifying party’s election as provided below), and (iii) if the insurer’s payment arrives after an indemnification payment is indemnifying party has made to itan indemnity payment, the Indemnified Party shall promptly pay remit the payment to the Indemnifying Party that made or directed such indemnification payment the amount of such Tax Benefit at such time or times as and Party, subject to the extent that such Tax Benefit is 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 paidfollowing. The Indemnified Indemnifying Party shall use commercially reasonable efforts have the option (in its sole discretion) to seek full recovery under all take a credit for insurance policies covering any Losses to proceeds recovered against the same extent as they would if such Losses were not subject to indemnification hereunder. In the event claim amount, provided that an insurance is received by any Indemnified Party with respect to any Losses for which any such Person has been indemnified hereunder, then a refund equal to the amount of the recovery shall be made promptly to the Indemnifying Party that made or directed and provided such indemnification payments to such Indemnified Party. In the case of any Third Party Claim, unless the Indemnifying Party consents otherwise (which consent shall not be unreasonably withheld), the final amount of Losses subject to indemnification shall not be determined until, and the Indemnifying Party shall not be obligated to make a payment to reimburse the Indemnified Party untilfor any premium increases, attributable to the matter underlying the Third Party Claim becomes non-appealable or is not appealedparticular loss.

Determination of Losses. (a) Parent and Purchaser acknowledge and agree that no Seller shall have any Liability under this Article VIII for any Losses to the extent that such Losses are caused by or otherwise arise from any action (other than an action that is expressly permitted or required by this Agreement) taken by Parent, Purchaser or any of their Affiliates (including any Company) after the Closing. Parent, Purchaser and each Company, as the case may be, shall mitigate any Loss for which Parent and Purchaser could be entitled to indemnification under this Article VIII upon becoming aware of any event which would reasonably be expected to, or does, give rise thereto to the extent required by applicable Law, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Losses (which costs shall constitute Losses). (b) Each Seller acknowledges and agrees that Parent and Purchaser shall not have any liability under this Article VIII for any Losses to the extent that such Losses are caused by or otherwise arise from any action (other than an action that is expressly permitted or required by this Agreement) taken by such Seller after the Closing. Each Seller shall mitigate any Losses for which such Seller could be entitled to indemnification under this Article VIII upon becoming aware of any event that would reasonably be expected to, or does, give rise thereto to the extent required by applicable Law, including incurring costs only to the minimum extent necessary to remedy the breach which gives rise to such Losses (which costs shall constitute Losses). (c) The amount of any Losses subject for which indemnification is provided by the Seller Indemnifying Party to indemnification the Purchaser Indemnified Party under this Article VIII shall be reduced by net of (i) any accruals or reserves related to such Loss reflected on the Financial Statements, (ii) any amount for which a liability related to such Losses has been taken into account for purposes of the calculation of the Final Cash Consideration, (iii) any amounts of any Tax Benefits inuring that may be available to the a Purchaser Indemnified Party on account of such Loss pursuant to any indemnification by or indemnification agreement with any third party and (iv) any insurance proceeds received by or other cash receipts or sources of reimbursement that may be available to the Purchaser Indemnified Party in connection therewithwith such Losses, including the R&W Insurance Policy (each source of recovery referred to in clauses (iii) and (iv), a “Collateral Source”), if any, attributable to such Losses; provided, that recovery from Collateral Sources other than the R&W Insurance Policy and shall be net of (x) any reasonable and documented out-of-pocket expenses (including Taxes) incurred by the Purchaser Indemnified Party, (y) any deductibles associated with the collection of such amounts and (z) any increases in insurance premium or other costs associated with collecting such amount; provided, that the Purchaser Indemnified Parties shall have no obligation to seek any such recovery, other than under the pre-Closing insurance policies of the Companies. If the amount to be netted hereunder in connection with a Collateral Source from any payment required under this Article VIII is determined after payment by the Seller Indemnifying Party of any amount otherwise required to be paid to a Purchaser Indemnified Party receives a Tax Benefit after an indemnification payment is made pursuant to itthis Article VIII, then the Purchaser Indemnified Party shall promptly pay repay to the Seller Indemnifying Party, promptly after such determination, any amount that the Seller Indemnifying Party that would not have had to pay pursuant to this Article VIII had such determination been made or directed such indemnification payment at the amount time of such Tax Benefit at such time or times as and to the extent that such Tax Benefit is realized by the Indemnified Party. For purposes hereof, “Tax Benefit” shall mean any refund of Taxes paid or reduction in the amount of Taxes which otherwise would have been paid. The Indemnified Party shall use commercially reasonable efforts to seek full recovery under all insurance policies covering any Losses to the same extent as they would if such Losses were not subject to indemnification hereunder. In the event that an insurance is received by any Indemnified Party with respect to any Losses for which any such Person has been indemnified hereunder, then a refund equal to the amount of the recovery shall be made promptly to the Indemnifying Party that made or directed and provided such indemnification payments to such Indemnified Party. In the case of any Third Party Claim, unless the Indemnifying Party consents otherwise (which consent shall not be unreasonably withheld), the final amount of Losses subject to indemnification shall not be determined until, and the Indemnifying Party shall not be obligated to make a payment to the Indemnified Party until, the matter underlying the Third Party Claim becomes non-appealable or is not appealedpayment.

Determination of Losses. The (a) In calculating the amounts payable to an Indemnified Party, the amount of any indemnified Losses subject to indemnification shall be reduced by the amounts determined without duplication of any Tax Benefits inuring to the Indemnified Party on account other Loss for which an Indemnification Claim has been made or could be made under any other representation, warranty, covenant or agreement, and shall be computed net of such Loss and any insurance proceeds received payments recoverable by the Indemnified Party in connection therewith. If under any insurance policy, with respect to such Losses or pursuant to any contribution rights; and any prior or subsequent recovery by the Indemnified Party receives a Tax Benefit after an from any Person with respect to such Losses (including pursuant to any indemnification payment is made agreement or arrangement with any Third Party). (b) Notwithstanding any other provision of this Agreement, in no event shall any Indemnified Party be entitled to itindemnification to the extent any Losses were solely attributable to such Indemnified Party’s own gross negligence or willful misconduct. In respect of any Loss for which indemnification may be sought pursuant to this Article X, the Indemnified Party shall promptly pay take reasonable steps to mitigate any Losses upon becoming aware of any event which would reasonably be expected to, or does, give rise thereto; and use reasonable efforts to pursue all legal rights and remedies available (including insurance recoveries and third-party indemnification) in order to minimize the Losses to which it may be entitled to indemnification under this Agreement. Notwithstanding anything to the Indemnifying contrary contained herein, the Indemnitor shall not be required to make any payment to an Indemnified Party that made or directed such indemnification payment the amount in respect of such Tax Benefit at such time or times as and Loss to the extent that such Tax Benefit is 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. The Indemnified Party shall use commercially reasonable efforts to seek full recovery under all insurance policies covering any Losses to the same extent as they would if such Losses were not subject to indemnification hereunder. In the event that an insurance is received by any Indemnified Party with respect to any Losses for which any such Person has been indemnified hereunder, then a refund equal to the amount of the recovery shall be made promptly to the Indemnifying Party that made or directed and provided such indemnification payments to such Indemnified Party. In the case of any Third Party Claim, unless the Indemnifying Party consents otherwise (which consent shall not be unreasonably withheld), the final amount of Losses subject to indemnification shall not be determined until, and the Indemnifying Party shall not be obligated to make a payment to the Indemnified Party until, the matter underlying the Third Party Claim becomes non-appealable or is not appealedhas failed to comply with its obligations under this Section 10.6(b).

Determination of Losses. The For purposes of determining whether any inaccuracy in, or breach of, any representation or warranty in this Agreement has occurred for purposes of Article VII hereof, and for the purposes of determining the amount of any Losses subject Losses, any and all exceptions, limitations, restrictions, modifications, qualifications and exclusions contained in such representations and warranties that are based or conditioned on or refer to indemnification the terms “material adverse effect,” “material” and/or “materially” (including when “material” and “materially” are used as adjectives and/or adverbs) shall be reduced by the amounts of any Tax Benefits inuring to the Indemnified Party on account of such Loss and any insurance proceeds received by the Indemnified Party in connection therewithdisregarded. If the Indemnified Party receives a Tax Benefit after an indemnification payment is made to it, the Indemnified Party shall promptly pay to the Indemnifying Party that made or directed such indemnification payment the amount of such Tax Benefit at such time or times as and to the extent that such Tax Benefit is realized by the Indemnified Party. For purposes hereof, “Tax Benefit” shall mean any refund of Taxes paid or reduction in the amount of Taxes which otherwise would have been paid. The Each Buyer Indemnified Party shall use commercially reasonable efforts to seek full recovery under mitigate all insurance policies covering any Losses to the same extent as they would if for which such Losses were not subject Buyer Indemnified Party is or may be entitled to indemnification hereunderhereunder as required by Law. In the event that an insurance is received by If any Buyer Indemnified Party actually receives such insurance proceeds prior to being indemnified with respect to any such Losses for which any under this ARTICLE VII, the payment under this ARTICLE VII with respect to such Person has been indemnified hereunder, then a refund equal to Losses shall be reduced by the amount of the recovery shall be made promptly to the Indemnifying Party that made or directed such insurance proceeds, less reasonable attorney’s fees and provided other reasonable out-of-pocket expenses (including any retention/deductible under such indemnification payments insurance policy and any increase in premium attributable to such claim) incurred in connection with such recovery. If a Buyer Indemnified Party. In Party actually receives such insurance proceeds after any Buyer Indemnified Party is indemnified with respect to some or all of such Losses, Buyer shall pay or shall cause such Buyer Indemnified Party to pay to WSG the case lesser of any Third Party Claim, unless (i) the Indemnifying Party consents otherwise (which consent shall not be unreasonably withheld), the final amount of Losses subject such insurance proceeds, less reasonable attorney’s fees and other reasonable out-of-pocket expenses (including any retention/deductible under such insurance policy and any increase in premium attributable to indemnification shall not be determined until, such claim) incurred in connection with such recovery and (ii) the Indemnifying Party shall not be obligated amount actually paid by the Seller Parties to make a payment all Buyer Indemnified Parties with respect to the Indemnified Party until, the matter underlying the Third Party Claim becomes non-appealable or is not appealedsuch Losses.

Determination of Losses. The Losses payable to or received by an Indemnified Party under this Agreement will be reduced on a dollar-for-dollar basis by the amount of any Losses subject insurance proceeds with respect to indemnification shall be reduced by the amounts such Losses, net of any Tax Benefits inuring to increase in premiums or other out-of-pocket costs of the Indemnified Party on account of such Loss and any insurance proceeds (collectively, “Third-Party Recovery Proceeds”), in each case, actually received by the any Indemnified Party Party, it being understood that in connection therewith. If the Indemnified Party receives a Tax Benefit after an no event will any indemnification payment is made to it, under this Article 6 be delayed in anticipation of the Indemnified receipt of any Third-Party shall promptly pay to the Indemnifying Party that made or directed such indemnification payment the amount of such Tax Benefit at such time or times as and to the extent that such Tax Benefit is realized by the Indemnified Party. For purposes hereof, “Tax Benefit” shall mean any refund of Taxes paid or reduction in the amount of Taxes which otherwise would have been paid. The Indemnified Party shall use commercially reasonable efforts to seek full recovery under all insurance policies covering any Losses to the same extent as they would if such Losses were not subject to indemnification hereunderRecovery Proceeds. In the event that an insurance is received by any Indemnified Party with respect to any Losses receives Third-Party Recovery Proceeds for which any such Person a matter that an indemnification payment under this Article 6 has been indemnified hereundermade, then a refund equal to the amount of the recovery such Indemnified Party shall be made promptly pay to the Indemnifying Party that made or directed and provided such indemnification payments to such Indemnified Party. In the case amount on a dollar-for-dollar basis of the Third-Party Recovery Proceeds, net of any Third Party Claim, unless the Indemnifying Party consents otherwise (which consent shall not be unreasonably withheld), the final amount out-of-pocket costs of Losses subject to indemnification shall not be determined until, and the Indemnifying Party shall not be obligated to make a payment to the Indemnified Party untilincurred by such Indemnified Party in collecting such Third-Party Recovery Proceeds, but not more than the matter underlying amount of indemnification payment made pursuant to this Article 6. The amount of any indemnity payable under this Agreement on account of a Loss will be subject to adjustment to avoid “double counting.” For purposes of determining (i) whether there is an inaccuracy or breach of any representation or warranty and (ii) the Third Party Claim becomes non-appealable amount of any Loss, any qualifications in the representations, warranties and covenants with respect to a “Material Adverse Change,” materiality, material, or similar terms will be disregarded and will not have any effect with respect to whether there is not appealedan inaccuracy or breach of any representation or warranty and the calculation of the amount of any Losses.

Determination of Losses. The amount Losses of any Losses subject Indemnitee pursuant to indemnification this Article 10 shall be reduced determined net of the value of a net Tax benefit or Tax saving or increased by the amounts cost of any a net Tax Benefits inuring cost (to the Indemnified Party on account of extent not included in such Losses) (the "TAX ITEMS"). The Tax Item with respect to each such Loss and any insurance proceeds received shall be determined by the Indemnified Party Indemnitee in connection therewith. If the Indemnified Party receives good faith in a Tax Benefit after an indemnification payment is made to it, the Indemnified Party shall promptly pay written notice delivered to the Indemnifying Party Party, describing in reasonable detail the method of making such determination (the "DETERMINATION NOTICE"), using reasonable assumptions and methods of valuation, including the marginal United States, state, local and foreign income tax rate applicable (or reasonably expected to be applicable) to the Indemnitee and applying to each Tax Item a discount rate equal to 9% in order to compute such amount to the present value. Tax cost shall include any income that made or directed such may be recognized by the Indemnitee upon receipt of any indemnification payment the amount of such Tax Benefit at such time or times as and to the extent that such Tax Benefit is realized by the Indemnified Party. For purposes hereof, “Tax Benefit” shall mean any refund of Taxes paid or reduction in the amount of Taxes which otherwise would have been paid. The Indemnified Party shall use commercially reasonable efforts to seek full recovery under all insurance policies covering any Losses to the same extent as they would if such Losses were not subject to indemnification hereunderthis Article 10. In the event that an insurance is received by any Indemnified the Indemnifying Party shall disagree with respect to any Losses for which any such Person has been indemnified hereunder, then a refund equal to the amount determination of the recovery amount, value or cost of a Tax Item, the Indemnifying Party shall be made promptly notify the Indemnitee in writing of such disagreement within 30 days of the Indemnifying Party's receipt of the Determination Notice, such notice (the "NOTICE OF DISAGREEMENT") shall set forth in reasonable detail the basis for such disagreement, including the Indemnifying Party's estimate of the amount, value or cost of the subject Tax Item and the method used in arriving at such estimate. The Indemnitee 100 shall provide to the Indemnifying Party that made or directed the assumptions and provided methods of valuation, the Tax rates utilized, and other information relating to the determination of such indemnification payments to such Indemnified Party. In Losses in the case of any Third Party ClaimDetermination Notice, unless and other information reasonably requested by the Indemnifying Party consents otherwise in preparing, or considering whether to prepare, a Notice of Disagreement. If the Indemnifying Party does not deliver a Notice of Disagreement to the Indemnitee within such 30-day period, the Indemnifying Party shall be deemed to have agreed to the determination set forth in the Determination Notice, which shall be final and binding on each of the Indemnitee and the Indemnifying Party. If, within 30 days after the receipt of the Notice of Disagreement by the Indemnitee (which consent shall not be unreasonably withheldthe "CONSULTATION PERIOD"), the Indemnifying Party and the Indemnitee are unable to resolve their disagreement, the Indemnitee, on the one hand, and the Indemnifying Party, on the other hand, shall promptly instruct their respective firms of accountants to select, within 10 days of the earlier of the last day of the Consultation Period and the date on which the parties mutually acknowledge their inability to resolve their disagreement, a third such firm, which shall be one of the five major independent certified public accounting firms (the "ARBITRATOR"), to finally determine the amount, value or cost of the disputed Tax Item, which determination shall be made within 30 days of submission of the matter to the Arbitrator (the "DETERMINATION PERIOD"), and shall be final amount and binding on the Indemnitee and the Indemnifying Party. The Indemnifying Party and the Indemnitee shall each be entitled to submit during the first 15 days of Losses subject the Determination Period such memoranda and analysis to indemnification shall not be determined untilthe Arbitrator as each deems appropriate, and the Indemnifying Party and the Indemnitee shall not be obligated make available to make a payment each other and the Arbitrator all working papers, tax returns, and other documents as either shall reasonably request and that relate to the Indemnified Party untildisputed Tax Item. If the Arbitrator determines that the value of the disputed net Tax benefit or Tax saving is greater than 15% of the value set forth in the Determination Notice 101 or the value of the disputed net Tax cost is more than 15% less than the value or amounts set forth in the Determination Notice, then the fees, costs and expenses of the Arbitrator shall be borne by the Indemnitee; otherwise, the matter underlying fees, costs and expenses of the Third Party Claim becomes non-appealable or is not appealedArbitrator shall be borne by the Indemnifying Party.

Determination of Losses. (a) The amount of any Losses Loss subject to indemnification under Article VII and this Article X shall be reduced calculated net of (i) any insurance proceeds received (in each case calculated net of any actual collection costs and reserves and deductibles, premium adjustments and retrospectively rated premiums incurred by the amounts of any Indemnified Party in obtaining such proceeds) and (ii) Tax Benefits inuring to benefits (if any) actually realized on a current basis by the Indemnified Party on account of such Loss and any insurance proceeds received by the Indemnified Party in connection therewith. If the Indemnified Party receives a Tax Benefit after an indemnification payment is made to it, the Indemnified Party shall promptly pay to the Indemnifying Party that made or directed such indemnification payment the amount of such Tax Benefit at such time or times as and to the extent that such Tax Benefit is realized by the Indemnified Party. For purposes hereof, “Tax Benefit” shall mean any refund of Taxes paid or reduction in the amount of Taxes year in which otherwise would have been paid. The Indemnified Party shall use commercially reasonable efforts such Loss is incurred (without regard to seek full recovery under all insurance policies covering any Losses to the same extent as they would if such Losses were not subject to indemnification hereunder. Tax benefit in a subsequent year), determined on a “with” and “without” basis. (b) In the event that an insurance or other recovery is received by any Indemnified Party Party, in each case, with respect to any Losses Loss for which any such Person has been indemnified hereunder, then a refund equal to the amount of the recovery (in each case calculated net of any actual collection costs and reserves, deductibles, premium adjustments and retrospectively rated premiums incurred by such Indemnified Party in pursuing such recovery) shall be made promptly to the Indemnifying Party that made or directed and provided such indemnification payments to such Indemnified Party. In . (c) Notwithstanding anything in this Agreement to the case contrary, both for purposes of determining the amount of Losses arising from any Third Party Claimbreach of a representation or warranty and as to whether or not there has been any breach of a representation or warranty, unless each representation and warranty in this Agreement shall be read without regard and without giving effect to the Indemnifying Party consents otherwise terms “material,” “in all material respects,” “Material Adverse Effect,” or similar words or phrases contained in such representation or warranty (which consent as if such words or phrases were deleted from such representation and warranty); provided, that (i) the references to “materiality,” “material,” “in all material respects,” and “Material Adverse Effect” in the representations and warranties in Sections 4.05, 4.06(a), and 4.06(b), and (ii) the definitions of Material Contract shall continue to have their corresponding meanings set forth in this Agreement and the interpretation thereof shall not be unreasonably withheldaltered by this Section 10.05(c), the final amount of Losses subject . (d) The right to indemnification shall not be determined untilor any other remedy based on representations, warranties, covenants and the Indemnifying agreements in this Agreement, any Ancillary Document or in any certificate delivered by any Party shall not be obligated to make a payment affected by any investigation conducted at any time, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the Closing Date, with respect to the Indemnified Party untilaccuracy or inaccuracy of, or compliance with, any such representation, warranty, covenant or agreement. The waiver of any condition based on the matter underlying accuracy of any such representation or warranty, or on the Third Party Claim becomes non-appealable performance of or is compliance with any such covenant or agreement, will not appealedaffect the right to indemnification or any other remedies based on such representations, warranties, covenants and agreements.

Determination of Losses. The amount of any Losses Loss subject to indemnification shall be reduced by the amounts of any Tax Benefits inuring to realized by the Indemnified Party on account of such Loss and any insurance proceeds actually received by the Indemnified Party in connection therewith; provided that, any Tax Benefit which is a reduction of Taxes shall be deemed realized for purposes of this Section 6.5 only when it is actually used (and not deferred) on a first-in, first-used basis, by the Indemnified Party to reduce the Indemnified Party’s Tax liability in the then current tax year; and provided further that any Tax Benefit which is a refund of Taxes shall be deemed realized only when it is received in cash or when it is applied to a future Tax liability by the Indemnified Party in the then current tax year. If the Indemnified Party receives realizes a Tax Benefit after an indemnification payment is made to it, the Indemnified Party shall promptly pay to the Indemnifying Party that made or directed such indemnification payment the amount of such Tax Benefit at such time or times as and to the extent that such Tax Benefit is so 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. The Indemnified Party shall use commercially reasonable efforts to seek full recovery under all insurance policies covering any Losses to the same extent as they would if such Losses were not subject to indemnification hereunder. In the event that an insurance or other recovery is received made by any Indemnified Party with respect to any Losses for which any such Person has been indemnified hereunder, then a refund equal to the amount of the recovery shall be made promptly to the Indemnifying Party that made or directed and provided such indemnification payments to such Indemnified Party. In the case of any Third Party Claim, unless the Indemnifying Party consents otherwise (which consent shall not be unreasonably withheld), the final amount of Losses subject to indemnification shall not be determined until, and the Indemnifying Party shall not be obligated to make a payment to the Indemnified Party until, the matter underlying the Third Party Claim becomes non-appealable or is not appealed.

Determination of Losses. (a) The Parties hereby agree that for the purposes of determining whether a representation or warranty is inaccurate and a breach has occurred, as well as in determining the amount of Warranty Losses that may be recovered for an Indemnification Claim under Section 10.2(b)(i), each such representation and warranty in this Agreement shall be read without regard, and without giving effect to, the term “material,” “Material Adverse Effect” or terms of similar import (fully as if any such word or phrase were deleted from such representation or warranty); provided, however, that this Section 10.7(a) shall not apply to any closing condition set forth in Section 8.2(a). (b) In calculating the amounts payable to an Indemnified Party (including, for the avoidance of doubt, the calculation of the Seller Deductible), the amount of any indemnified Losses subject to indemnification shall be reduced by the amounts determined without duplication of any Tax Benefits inuring to the Indemnified Party on account other Loss for which an Indemnification Claim has been made or could be made under any other representation, warranty, covenant or agreement, and shall be computed net of such Loss and any insurance proceeds received (i) payments recoverable by the Indemnified Party in connection therewith. If under any insurance policy (other than the R&W Insurance Policy), with respect to such Losses or pursuant to any contribution rights; and (ii) any prior or subsequent recovery by the Indemnified Party receives a Tax Benefit after an from any Person with respect to such Losses (including pursuant to any indemnification payment is made agreement or arrangement with any Third Party). (c) Notwithstanding any other provision of this Agreement, in no event shall any Indemnified Party be entitled to itindemnification to the extent any Losses were solely attributable to such Indemnified Party’s own gross negligence or willful misconduct. In respect of any Loss for which indemnification may be sought pursuant to this Article X, the Indemnified Party shall promptly pay (i) take reasonable steps to the Indemnifying Party that made mitigate any Losses upon becoming aware of any event which would reasonably be expected to, or directed such indemnification payment the amount of such Tax Benefit at such time or times as does, give rise thereto; and to the extent that such Tax Benefit is 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. The Indemnified Party shall (ii) use commercially reasonable efforts to seek full recovery under pursue all legal rights and remedies available (including insurance policies covering any recoveries and third-party indemnification) in order to minimize the Losses to the same extent as they would if such Losses were not subject which it may be entitled to indemnification hereunderunder this Agreement. In Notwithstanding anything to the contrary contained herein, in no event that an insurance is received by shall any Indemnified Party be required to (i) engage counsel or file suit in connection with any claim under any insurance policies (including the R&W Insurance Policy) or third party indemnity, contribution or other similar agreements, (ii) make any claim against any material customer, material supplier or other material business relationship or their respective Affiliates or (iii) mitigate any Losses in excess of those required by applicable law with respect to any Losses for which any such Person has been indemnified hereunder, then a refund equal to the amount breach of the recovery shall be made promptly to the Indemnifying Party that made or directed and provided such indemnification payments to such Indemnified Party. In the case of any Third Party Claim, unless the Indemnifying Party consents otherwise (which consent shall not be unreasonably withheld), the final amount of Losses subject to indemnification shall not be determined until, and the Indemnifying Party shall not be obligated to make a payment to the Indemnified Party until, the matter underlying the Third Party Claim becomes non-appealable or is not appealedcontract claim.

Determination of Losses. The amount of any Losses Loss subject to indemnification under Section 6.1 or Section 6.2 shall be reduced by calculated net of (i) any Tax Benefit actually realized (or the amounts present value of any Tax Benefits inuring Benefit to be realized) by the Indemnified Party on account of such Loss and (ii) any insurance proceeds actually received by the Indemnified Party in connection therewithon account of such Loss. If the Indemnified Party receives a Tax Benefit after an indemnification payment is made to it, then, to the extent such payment did not take into account such Tax Benefit, the Indemnified Party shall promptly pay to the Indemnifying Party Person or Persons that made or directed such indemnification payment the amount of such Tax Benefit at such time or times as and to the extent that such 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 actually applicable to the recipient of such benefit, and any dispute as to the amount of a Tax Benefit, the present value thereof, or whether it is to be realized shall be resolved by binding arbitration by a nationally recognized public accounting firm reasonably acceptable to each party. The Indemnified Party shall use commercially reasonable efforts to seek full recovery recover under all any insurance policies policy covering any Losses Loss, if reasonably requested by the Indemnifying Party and provided that the Indemnifying Party pays all costs and expenses of the same, including instituting litigation or otherwise pursuing any dispute in respect of any such insurance recovery, if reasonably requested by the Indemnifying Party and provided that the Indemnifying Party pays all costs and expenses of the same; provided, that no Indemnified Party shall be required to obtain or maintain any insurance for this purpose and provided, further, that for purposes of this Section 6.7, any insurance proceeds actually received by the Indemnified Party will be deemed reduced by any premium increase that results from such Loss during the three (3) year period following the claim and costs incurred by the Indemnified Party with respect to the same extent as they would if collection of such Losses were not subject to indemnification hereunderinsurance proceeds. In the event that an insurance recovery is actually received by any Indemnified Party with respect to any Losses Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the such recovery (as adjusted pursuant to this Section 6.7) shall be made promptly to the Indemnifying Party Person or Persons that made or directed and provided such indemnification indemnity payments to such Indemnified Party. In the case of Indemnitee; provided, that any Third Party Claim, unless the Indemnifying Party consents otherwise (which consent such Person or Persons who receives a refund shall not be unreasonably withheld), the final amount of Losses subject to indemnification shall not be determined until, and the Indemnifying Party shall not be obligated to make a payment to promptly reimburse the Indemnified Party untilfor the amount of any reduction in the insurance recovery occasioned by premium increases or collection costs during the three (3) year period following the claim, as contemplated in this Section 6.7, that arise after any such refund. No Indemnifying Party may delay the matter underlying payment of any amount owing in respect of any Claim for indemnification pursuant to this Article VI due to the Third pendency of any Tax Benefit or insurance recovery, nor may any Indemnifying Party offset against any amount owing in respect of any Claim becomes non-appealable any pending Tax Benefit or is not appealedinsurance recovery.