Common use of Determination of Losses Clause in Contracts

Determination of Losses. (a) The amount of any Indemnifiable Losses shall be reduced or reimbursed, as the case may be, by any amount received by Buyers Indemnified Parties or Sellers Indemnified Parties, as applicable, with respect thereto under any insurance coverage or from any other party alleged to be responsible therefor. Buyers Indemnified Parties and Sellers Indemnified Parties, as applicable, shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Buyers Indemnified Party or Sellers Indemnified Party, as applicable, receives an amount under insurance coverage or from such other party with respect to Indemnifiable Losses at any time subsequent to any indemnification provided by Sellers pursuant to Section 11.1 or by Buyers pursuant to Section 11.2, then such Buyers Indemnified Party or Sellers Indemnified Party, as applicable, shall promptly reimburse Sellers or Buyers, as applicable, for any payment made or expense incurred by such Person in connection with providing such indemnification up to such amount received (less any costs or expenses incurred in recovering such amounts) by the Buyers Indemnified Party or Sellers Indemnified Party, as applicable; (b) For purposes of calculating the amount of Indemnifiable Losses to which a Buyers Indemnified Party or Sellers Indemnified Party is entitled under this Article 11, the terms “material,” “materiality,” and similar qualifiers, modifiers or limitations (including monetary values and qualifiers as to “knowledge”) shall be disregarded; and (c) Any Indemnifiable Losses for which Buyers Indemnified Parties or Sellers Indemnified Parties are entitled to indemnification under Section 11.1 or Section 11.2, as applicable, shall be determined without duplication of recovery by reason of the state of facts giving rise to such Indemnifiable Losses constituting a breach of more than one representation, warranty or covenant. No Buyers Indemnified Parties shall be entitled to indemnification under this Agreement for any Indemnifiable Losses arising from a breach of any representation, warranty or covenant set forth herein (and the amount of any Indemnifiable Losses incurred in respect of such breach shall not be included in the calculation of any limitations on indemnification set forth herein) to the extent such Indemnifiable Losses were already taken into account in calculating the Final Net Working Capital and Indebtedness Adjustment Amount.

Determination of Losses. As used herein, “Losses” means all Taxes, damages, losses, diminution in value, expenses, costs and liabilities (a) The including reasonable attorney’s fees and costs of collection), but excluding all punitive and exemplary damages (except to the extent payable to third parties). In determining the amount of any Indemnifiable Losses for which a Buyer Indemnified Party is entitled to assert a claim for indemnification hereunder, the amount of any such Losses shall be reduced determined after deducting therefrom the amount of any insurance proceeds (after giving effect to any applicable deductible or reimbursedretention, as the case may be, by any amount reasonable costs of recovery or increase in insurance rates due to such claim) and other third party recoveries actually received by Buyers the Buyer Indemnified Parties or Sellers Indemnified Partiesthe Company in respect of such Losses (after giving effect to any reasonable costs of recovery), as applicable, with respect thereto under any insurance coverage or from any other party alleged which proceeds and recoveries the Buyer agrees to be responsible therefor. Buyers Indemnified Parties and Sellers Indemnified Parties, as applicable, shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged obtain, except that Buyer shall not be obligated to have responsibilitypursue litigation. If a Buyers Indemnified Party or Sellers Indemnified Party, as applicable, receives an amount under insurance coverage or from such other party with respect to Indemnifiable Losses at any time subsequent to any indemnification provided by Sellers pursuant to Section 11.1 or by Buyers pursuant to Section 11.2, then such Buyers Indemnified Party or Sellers Indemnified Party, as applicable, shall promptly reimburse Sellers or Buyers, as applicable, for any payment made or expense incurred by such Person in connection with providing such indemnification up to such amount received (less any costs or expenses incurred in recovering such amounts) by the Buyers Indemnified Party or Sellers Indemnified Party, as applicable; (b) For purposes of calculating the amount of Indemnifiable Losses to which a Buyers Indemnified Party or Sellers Indemnified Party is entitled under this Article 11, the terms “material,” “materiality,” and similar qualifiers, modifiers or limitations (including monetary values and qualifiers as to “knowledge”) shall be disregarded; and (c) Any Indemnifiable Losses for which Buyers Indemnified Parties or Sellers Indemnified Parties are entitled to indemnification under Section 11.1 or Section 11.2, as applicable, shall be determined without duplication of recovery by reason on an “after-tax” basis at the time of the state of facts indemnification payment using reasonable assumptions and present value concepts by taking into account any decrease in Taxes resulting from the event giving rise to such Indemnifiable Losses constituting and any increase in Taxes resulting from receipt of the indemnification payment. If an indemnification payment is received by a breach Buyer Indemnified Party, and any Buyer Indemnified Party or the Company later receives insurance proceeds or other third party recoveries in respect of more than one representationthe related Losses, warranty the Buyer shall immediately pay to the Escrow Agent, for inclusion in the Escrow Fund or, if the Escrow Fund has been released, to the Seller, for the benefit of the Seller Members, a sum equal to the lesser of (a) the actual amount of such insurance proceeds or covenantother third party recoveries (minus reasonable costs of recovery or increases in insurance rates due to such claim) or (b) the actual amount of the indemnification payment previously paid by any Seller Member or the Seller Members’ Agent, on behalf of the Seller Members, with respect to such Losses. No Buyers Indemnified Parties All parties shall use commercially reasonably efforts to mitigate the amount of Losses for which they may be entitled to indemnification under this Agreement for any Indemnifiable Losses arising from a breach of any representation, warranty or covenant set forth herein (and the amount of any Indemnifiable Losses incurred in respect of such breach shall not be included in the calculation of any limitations on indemnification set forth herein) hereunder to the extent such Indemnifiable Losses were already taken into account in calculating the Final Net Working Capital and Indebtedness Adjustment Amountrequired by applicable Legal Requirements.

Determination of Losses. (a) The amount of any Indemnifiable and all Losses under this Article 10 shall be reduced (i) decreased by the present value of any Tax benefits attributable to or reimbursedarising from such Losses that are reasonably expected to be realized within 36 months of the end of the Tax year in which such Losses are incurred (as reasonably determined by Buyer) by any party making a claim hereunder and (ii) increased by the present value of Tax detriments attributable to or arising from such Losses (including payments under this Article 10 in respect thereof) that are reasonably expected to be realized within 36 months of the end of the Tax year in which such Losses are incurred (as reasonably determined by Buyer) by any party making a claim hereunder. The amount of any and all Losses under this Article 10 shall be determined net of, as in the case may beof payments to the Buyer Indemnitees pursuant to Section 10.04(a), any amounts actually recovered by Buyer, the Company, or any amount received by Buyers Indemnified Parties of its Subsidiaries under insurance policies, indemnities or Sellers Indemnified Parties, as applicable, other reimbursement arrangements with respect thereto under to such Losses, adjusted for any increase in insurance coverage or from premiums as a result of making an insurance claim for such Losses. In the event that an amount is distributed to a Buyer Indemnitee pursuant to Section 10.04 prior to any such applicable recovery, then the Buyer shall use commercially reasonably efforts to, and shall cause all other party alleged Buyer Indemnitees to be responsible therefor. Buyers Indemnified Parties and Sellers Indemnified Parties, as applicable, shall use commercially reasonable efforts to, pursue any such recoveries from such insurance policies, indemnities, or other reimbursement arrangements, and, upon their receipt of any such recovery, shall promptly pay over the amount of such recovery up to collect but not exceeding the amount previously distributed to the Buyer Indemnitees pursuant to Section 10.04 with respect to such Loss (net of any amounts available applicable costs of obtaining such recoveries) to the Seller Representative (for further distribution to the Seller Representative in accordance with the terms of the Consideration Allocation and Mechanics Schedule). Buyer and the Company and its Subsidiaries hereby waive, to the extent permitted under such insurance coverage and from such other party alleged to policies, any subrogation rights that the insurer may have responsibility. If a Buyers Indemnified Party or Sellers Indemnified Party, as applicable, receives an amount under insurance coverage or from such other party with respect to Indemnifiable Losses at any time subsequent to any indemnification provided by Sellers pursuant to Section 11.1 or by Buyers pursuant to Section 11.2, then such Buyers Indemnified Party or Sellers Indemnified Party, as applicable, shall promptly reimburse Sellers or Buyers, as applicable, for any payment made or expense incurred by such Person in connection with providing such indemnification up to such amount received (less any costs or expenses incurred in recovering such amounts) by the Buyers Indemnified Party or Sellers Indemnified Party, as applicable;indemnifiable Losses. (b) For purposes The Buyer Indemnitees shall not have any right to receive proceeds from the Escrow with respect to any breach of calculating a representation or warranty in Article 4 relating to or arising out of environmental investigatory, corrective, or remedial action except to the amount extent that such action is (i) required by Environmental and Safety Requirements and undertaken in a cost-effective manner, and (ii) in the case of Indemnifiable Losses any remediation of soils, groundwater, or other environmental media, achieves cleanup standards applicable to the subject property in a cost-effective manner, assuming use of the subject property as it was used by the Company and its Subsidiaries as of the Closing Date (e.g., where applicable, industrial use), and employing risk-based standards or institutional controls where applicable, available and appropriate. The Buyer Indemnitees and the Seller Representative agree to reasonably consult with one another with respect to any such action and the Seller Representative, shall, upon reasonable advance notice of any such action, to advise the Buyer Indemnitees reasonably promptly should it conclude that, in its judgment, such action would not be cost effective. The Buyer Indemnitees shall not have any right to receive proceeds from the Escrow with respect to any Loss to the extent that such Loss results from or arises out of any sampling, testing, or investigation of ambient air, soil, surface water, or groundwater on any of the Owned Real Property or Leased Real Property, except to the extent that such sampling, testing, or investigation is (i) required by the terms of any then applicable Environmental and Safety Requirement, (ii) lawfully required by a governmental authority (which requirement has not been solicited or instigated by any Buyer Indemnitee), (iii) reasonably necessary in connection with defense of a Buyers Indemnified Third Party Claim, or Sellers Indemnified Party is entitled under this Article 11(iv) prudent in light of material facts indicating a potentially significant risk to health or the environment (including without limitation any such facts which come to light in connection with a financing or other transaction involving, or a construction project undertaken at, the terms “material,” “materiality,” and similar qualifiers, modifiers or limitations (including monetary values and qualifiers as to “knowledge”) shall be disregarded; andsubject property). (c) Any Indemnifiable The Buyer Indemnitees shall not have any right to receive proceeds from the Escrow with respect to any Loss to the extent that such Loss consists of, (i) exemplary or punitive damages (other than any such damages payable to a third party as part of any Third Party Claim), or (ii) Losses which are the general type of Losses for which Buyers Indemnified Parties reserves have been included in the Closing Statement. (d) All indemnification payments, and all payments from the Escrow (whether to Buyer or Sellers Indemnified Parties are entitled to indemnification under Section 11.1 or Section 11.2, as applicablethe Sellers), shall be determined without duplication of recovery deemed to be adjustments for Tax purposes to the aggregate purchase price paid by reason of Buyer for the state of facts giving rise Common Units and PEF Options purchased by it pursuant to such Indemnifiable Losses constituting a breach of more than one representation, warranty or covenant. No Buyers Indemnified Parties shall be entitled to indemnification under this Agreement for any Indemnifiable Losses arising from a breach of any representation, warranty or covenant (in the manner set forth herein (on the Consideration Allocation and the amount of any Indemnifiable Losses incurred in respect of such breach shall not be included in the calculation of any limitations on indemnification set forth herein) to the extent such Indemnifiable Losses were already taken into account in calculating the Final Net Working Capital and Indebtedness Adjustment AmountMechanics Schedule).

Determination of Losses. The right to recover indemnifiable Losses shall be as follows: (a) The amount of any Indemnifiable Losses shall be reduced or reimbursed, as the case may be, by any amount received by Buyers Indemnified Parties or Sellers Indemnified Parties, as applicable, with respect thereto under any insurance coverage or from any other party alleged to be responsible therefor. Buyers Indemnified Parties and Sellers Indemnified Parties, as applicable, shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Buyers Indemnified Party or Sellers Indemnified Party, as applicable, receives an amount under insurance coverage or from such other party with respect to Indemnifiable Losses at any time subsequent to any indemnification provided by Sellers pursuant to Section 11.1 or by Buyers pursuant to Section 11.2, then such Buyers Indemnified Party or Sellers Indemnified Party, as applicable, shall promptly reimburse Sellers or Buyers, as applicable, for any payment made or expense incurred by such Person in connection with providing such indemnification up to such amount received (less any costs or expenses incurred in recovering such amounts) by the Buyers Indemnified Party or Sellers Indemnified Party, as applicable; (b) For purposes of calculating the amount of Indemnifiable Losses to which a Buyers Indemnified Party or Sellers Indemnified Party is entitled under this Article 11, the terms “material,” “materiality,” and similar qualifiers, modifiers or limitations (including monetary values and qualifiers as to “knowledge”) shall be disregarded; and (c) Any Indemnifiable Losses for which Buyers Indemnified Parties or Sellers Indemnified Parties are entitled to indemnification under Section 11.1 or Section 11.2, as applicable, shall be determined without duplication of recovery by reason of the state of facts giving rise to such Indemnifiable Losses constituting a breach of more than one representation, warranty warranty, covenant or covenant. No Buyers agreement such that the Buyer Indemnified Parties shall not be entitled to seek or receive indemnification for the same Loss more than once under this Agreement Article IX even if a claim or claims for any Indemnifiable Losses arising from indemnification in respect of such Loss has been made as a result of a breach of any more than one representation, warranty warranty, covenant or covenant set forth herein agreement contained in this Agreement or in any certificate or other instrument or document delivered pursuant hereto or thereto. (and b) For the purposes of calculating Losses to which the Buyer Indemnified Parties are entitled under this Article IX, (i) such Losses shall be reduced by the amount of any Indemnifiable Losses incurred cash proceeds that any Buyer Indemnified Party actually receives (to the extent duplicative of amounts paid by the Sellers in respect of such breach Losses (i.e., a double recovery)) pursuant to the terms of any insurance policies (including the R&W Policy), adjusted to reflect any out of pocket fees, expenses and costs actually incurred in connection with such recovery; provided, however, that to the extent that a Buyer Indemnified Party actually receives any cash proceeds (to the extent duplicative of amounts paid by the Sellers in respect of such Losses (i.e., a double recovery)) pursuant to the terms of any insurance policies (including the R&W Policy) after the receipt of an indemnification payment from the Sellers in respect of such Losses, such Buyer Indemnified Party shall promptly reimburse such Sellers for such subsequent recoveries, adjusted to reflect any out of pocket fees, expenses and costs actually incurred in connection with such recovery; (ii) such Losses shall be reduced by the amount of any cash proceeds that any Buyer Indemnified Party actually receives (to the extent duplicative of amounts paid by the Sellers in respect of such Losses (i.e., a double recovery)) from any other Person (including as a result of or related to any indemnification or contribution by any third party or other cash receipts or sources of reimbursement received) with respect to such Losses; provided, however, such Buyer Indemnified Party shall promptly reimburse Sellers for any subsequent recoveries from such sources if previously indemnified hereunder so as to avoid a double recovery; (iii) such Losses shall not include punitive, special or exemplary damages (unless payable to third parties); and (iv) with respect to Losses related to UAC, GTPA and HPN, such Losses shall be included reduced by any Tax benefit, credit or refund which the applicable Buyer Indemnified Party actually realizes or receives on or prior to the end of the taxable period in which the calculation applicable payment is made. (c) All of any limitations on indemnification the representations and warranties set forth hereinin this Agreement or any certificate or schedule that are so qualified as to “material,” “materiality,” “material respects,” “Material Adverse Effect” or words of similar import or effect shall be deemed to have been made without such qualification for purposes of determining: (i) whether a breach of such representation or warranty has occurred and (ii) the amount of Losses resulting from, arising out of or relating to any such breach of such representation or warranty; provided that the foregoing shall not apply (I) with respect to the terms “Material Contracts” (or any portion of the definition thereof), (II) in determining whether Fraud exists, (III) to the extent such Indemnifiable Losses were already taken into account term “Material Adverse Effect” used in calculating clause (a) of Section 3.6 or (IV) to the Final Net Working Capital and Indebtedness Adjustment Amountfirst sentence of Section 3.14(a) or in Section 3.22(b).

Determination of Losses. (a) The amount of any Indemnifiable and all Losses under this Article IX shall be reduced determined net of any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or reimbursedother reimbursement arrangements (not to include any tax benefits resulting from such Losses other than with respect to tax benefits that have the result of reducing the amount of cash tax paid for the taxable year during which the Loss giving rise to the indemnification payment is incurred) with respect to such Losses net of out-of-pocket costs of recovery. The Indemnified Party shall seek full recovery under all insurance policies (or any other contractual source of indemnity or reimbursement) covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. 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. Any indemnity payment under this Agreement shall be treated as an adjustment to the Merger Consideration for Tax purposes. If an insurance or other recovery is made by any Indemnified Party with respect to any Losses for which any such Person has previously been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be made promptly to the Person or Persons that provided such indemnity payments to such Indemnified Party. (b) Subject to Section 3.7(f), the Parent Indemnified Parties shall have no right to indemnification hereunder with respect to any Loss or alleged Loss to the extent Parent shall have requested and received a reduction in the Company Statement or the Parent Closing Statement on account of (but only to the extent of such reduction) any matter forming the basis for such Loss or alleged Loss. For the avoidance of doubt, to the extent any amount is taken into account as a current liability in the calculation of Net Working Capital (e.g., as a reserve) or included in Indebtedness, Final Pre-Closing Taxes or Transaction Costs, such amount shall not be considered a Loss hereunder to the case may beextent that the amount payable to the Stockholders and/or Optionholders by Parent pursuant to this Agreement has actually been reduced by such amount. (c) In no event shall Parent (or any Parent Indemnified Party) be entitled to recover or make a claim for any amounts in respect of punitive damages (except to the extent that punitive damages are paid to a third party) and no “multiple of profits”, “multiple of revenue”, “multiple of cash flow” or similar valuation methodology shall be used in calculating the amount of any Losses, regardless of whether or not any such multiple or similar valuation methodology was used by any amount received by Buyers Indemnified Parties Parent at the time of, or Sellers Indemnified Partiesin connection with, calculating it bid, its proposed purchase price, or its final purchase price. Furthermore, it is understood that no amounts need to be paid as applicable, indemnity hereunder with respect thereto under any insurance coverage to a Third Party Claim unless a Loss is suffered or from any incurred and the other limitations and conditions set forth in this Agreement are satisfied. Attorney, consultant, and other professional fees and disbursements incurred by an indemnifying party alleged to in connection with this Article IX shall be responsible therefor. Buyers reasonable. (d) The Indemnified Parties and Sellers Indemnified Parties, as applicable, Party shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Buyers Indemnified Party or Sellers Indemnified Party, as applicable, receives an amount under insurance coverage or from such other party with respect to Indemnifiable Losses at any time subsequent to any indemnification provided by Sellers pursuant to Section 11.1 or by Buyers pursuant to Section 11.2, then such Buyers Indemnified Party or Sellers Indemnified Party, as applicable, shall promptly reimburse Sellers or Buyers, as applicable, for any payment made or expense incurred by such Person in connection with providing such indemnification up to such amount received (less any costs or expenses incurred in recovering such amounts) by the Buyers Indemnified Party or Sellers Indemnified Party, as applicable; (b) For purposes of calculating the amount of Indemnifiable Losses to which a Buyers Indemnified Party or Sellers Indemnified Party is entitled under this Article 11, the terms “material,” “materiality,” and similar qualifiers, modifiers or limitations (including monetary values and qualifiers as to “knowledge”) shall be disregarded; and (c) Any Indemnifiable Losses for which Buyers Indemnified Parties or Sellers Indemnified Parties are entitled to indemnification under Section 11.1 or Section 11.2, as applicable, shall be determined without duplication of recovery by reason of the state of facts giving rise to such Indemnifiable Losses constituting a breach of more than one representation, warranty or covenant. No Buyers Indemnified Parties shall be entitled to indemnification under this Agreement for any Indemnifiable Losses arising from a breach of any representation, warranty or covenant set forth herein (and the amount of any Indemnifiable Losses incurred in respect of such breach shall not be included in the calculation of any limitations on indemnification set forth herein) to the extent such Indemnifiable Losses were already taken into account in calculating the Final Net Working Capital and Indebtedness Adjustment Amountmitigate all Losses.

Determination of Losses. (a) The amount 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 any Indemnifiable Losses shall be reduced or reimbursedtheir Affiliates (including the Georgia C-Corporation) after the Closing. Parent, Purchaser and the Georgia C-Corporation, as the case may be, by shall mitigate any amount received by Buyers Indemnified Parties or Sellers Indemnified Parties, as applicable, with respect thereto under any insurance coverage or from any other party alleged to be responsible therefor. Buyers Indemnified Parties and Sellers Indemnified Parties, as applicable, shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Buyers Indemnified Party or Sellers Indemnified Party, as applicable, receives an amount under insurance coverage or from such other party with respect to Indemnifiable Losses at any time subsequent to any indemnification provided by Sellers pursuant to Section 11.1 or by Buyers pursuant to Section 11.2, then such Buyers Indemnified Party or Sellers Indemnified Party, as applicable, shall promptly reimburse Sellers or Buyers, as applicable, for any payment made or expense incurred by such Person in connection with providing such indemnification up to such amount received (less any costs or expenses incurred in recovering such amounts) by the Buyers Indemnified Party or Sellers Indemnified Party, as applicable; (b) For purposes of calculating the amount of Indemnifiable Losses to which a Buyers Indemnified Party or Sellers Indemnified Party is entitled under this Article 11, the terms “material,” “materiality,” and similar qualifiers, modifiers or limitations (including monetary values and qualifiers as to “knowledge”) shall be disregarded; and (c) Any Indemnifiable Losses Loss for which Buyers Indemnified Parties or Sellers Indemnified Parties are entitled to indemnification under Section 11.1 or Section 11.2, as applicable, shall be determined without duplication of recovery by reason of the state of facts giving rise to such Indemnifiable Losses constituting a breach of more than one representation, warranty or covenant. No Buyers Indemnified Parties shall Parent and Purchaser could be entitled to indemnification under this Agreement 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 Indemnifiable Losses arising to the extent that such Losses are caused by or otherwise arise from a breach 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 representationevent that would reasonably be expected to, warranty or covenant set forth herein 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 (and the which costs shall constitute Losses). (c) The amount of any Indemnifiable Losses incurred in respect for which indemnification is provided by the Seller Indemnifying Party to the Purchaser Indemnified Party under this Article VIII shall be net of (i) any accruals or reserves related to such breach shall not be included in 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 limitations on amounts that may be available to a Purchaser Indemnified Party pursuant to any indemnification set forth hereinby or indemnification agreement with any third party and (iv) any insurance proceeds or other cash receipts or sources of reimbursement that may be available to the extent Purchaser Indemnified Party in connection with such Indemnifiable Losses were already taken into account Losses, including the R&W Insurance Policy (each source of recovery referred to in calculating clauses (iii) and (iv), a “Collateral Source”), if any, attributable to such Losses; provided, that recovery from Collateral Sources other than the Final Net Working Capital R&W Insurance Policy and Indebtedness Adjustment Amountshall 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 pursuant to this Article VIII, then the Purchaser Indemnified Party shall repay to the Seller Indemnifying Party, promptly after such determination, any amount that the Seller Indemnifying Party would not have had to pay pursuant to this Article VIII had such determination been made at the time of such payment.

Determination of Losses. (a) The amount of any Indemnifiable With respect to each indemnification obligation contained in this Article VIII, all Losses shall be reduced net of any third-party insurance and indemnity proceeds that are actually recovered by the Indemnified Party in connection with the facts giving rise to the right of indemnification, less all out-of-pocket costs and expenses incurred by such Indemnified Party in connection with obtaining such insurance proceeds or reimbursedthird-party recovery (including reasonable attorneys’ fees, as any deductible, any retention and any retroactive premium adjustment directly on the case may beaccount of or directly arising from such claim or Losses, it being agreed that if third-party insurance or indemnification proceeds in respect of such facts are recovered by any amount received by Buyers the Indemnified Parties or Sellers Party subsequent to the Indemnifying Party’s making of an indemnification payment in satisfaction of its applicable indemnification obligation, such proceeds shall be promptly remitted to the Indemnifying Party to the extent of the indemnification payment made. The Indemnified Parties, as applicable, with respect thereto under any insurance coverage or from any other party alleged to be responsible therefor. Buyers Indemnified Parties and Sellers Indemnified Parties, as applicable, Party shall use commercially reasonable efforts to collect recover for Losses under any amounts available under such third-party insurance coverage and from such other party alleged to have responsibilitypolicy. If a Buyers Indemnified Party or Sellers Indemnified Party, as applicable, receives an amount under insurance coverage or from such other party with respect to Indemnifiable Losses at any time subsequent to any Any liability for indemnification provided by Sellers pursuant to Section 11.1 or by Buyers pursuant to Section 11.2, then such Buyers Indemnified Party or Sellers Indemnified Party, as applicable, shall promptly reimburse Sellers or Buyers, as applicable, for any payment made or expense incurred by such Person in connection with providing such indemnification up to such amount received (less any costs or expenses incurred in recovering such amounts) by the Buyers Indemnified Party or Sellers Indemnified Party, as applicable; (b) For purposes of calculating the amount of Indemnifiable Losses to which a Buyers Indemnified Party or Sellers Indemnified Party is entitled under this Article 11, the terms “material,” “materiality,” and similar qualifiers, modifiers or limitations (including monetary values and qualifiers as to “knowledge”) shall be disregarded; and (c) Any Indemnifiable Losses for which Buyers Indemnified Parties or Sellers Indemnified Parties are entitled to indemnification under Section 11.1 or Section 11.2, as applicable, hereunder shall be determined without duplication of recovery by reason of the state of facts giving rise to such Indemnifiable Losses constituting a breach of liability implicating more than one representation, warranty or covenantobligation for indemnification. No Buyers Indemnified Parties shall be entitled to indemnification The Xxxx Xxxxxxx may (at their election) settle any Losses owed by the Xxxx Xxxxxxx under this Agreement for (a) in cash, (b) by surrender of Navigator Ordinary Shares (at the then Fair Market Value of such Navigator Ordinary Shares), or (c) by surrender of Notes (at the then fair market value of such Notes, by reference to the Fair Market Value of the Navigator Ordinary Shares issuable thereunder). Buyers shall have the right (at their election) to offset any Indemnifiable Losses arising from owed by Xxxx Xxxxxxx under this Agreement, as finally determined by a breach court or Governmental Entity, and which have not been paid by the Xxxx Xxxxxxx within thirty (30) days of such determination (i) by redemption of Navigator Ordinary Shares owned by Xxxx Xxxxxxx or any of their Affiliates (with the redemption price thereof being paid entirely by offsetting such Losses against the value of such Navigator Ordinary Shares based on the then Fair Market Value of such Navigator Ordinary Shares), (ii) by redemption of Notes (with the redemption price thereof being paid entirely by offsetting such Losses against the value of such Notes based on the then fair market value of such Notes owned by Xxxx Xxxxxxx or any of their Affiliates, by reference to the Fair Market Value of the Navigator Ordinary Shares issuable thereunder) or (iii) against the distributions or payments owed to the Class II Limited Partners (as such term is defined in the Operating Agreements) under the Operating Agreements. As a condition to the transfer of any representationNavigator Ordinary Shares or Notes to any Xxxx Seller or any of their respective Affiliates, warranty or covenant set forth herein such transferee shall agree (and the amount of any Indemnifiable Losses incurred in respect of such breach shall not be included in the calculation of any limitations on indemnification set forth hereinx) to the extent setoff rights contained in the preceding sentence, (y) that each Buyer Indemnitee is an express third party beneficiary thereof and (z) that such Indemnifiable Losses were already taken into account setoff and third party beneficiary rights may not be amended or modified without Navigator’s prior written consent in calculating the Final Net Working Capital and Indebtedness Adjustment Amountits sole discretion.

Determination of Losses. (a) The amount of any Indemnifiable and all Losses under this Article IX shall be reduced or reimbursed, as the case may be, by any amount received by Buyers Indemnified Parties or Sellers Indemnified Parties, as applicable, with respect thereto under any insurance coverage or from any other party alleged to be responsible therefor. Buyers Indemnified Parties and Sellers Indemnified Parties, as applicable, shall use commercially reasonable efforts to collect determined net of any amounts available actually recovered by the Indemnified Party under such insurance coverage and policies, indemnities or other reimbursement arrangements (not to include any tax benefits resulting from such Losses other party alleged to have responsibility. If a Buyers Indemnified Party or Sellers Indemnified Party, as applicable, receives an amount under insurance coverage or from such other party than with respect to Indemnifiable tax benefits that have the result of reducing the amount of cash tax paid for the taxable year during which the Loss giving rise to the indemnification payment is incurred) with respect to such Losses at net of out-of-pocket costs of recovery. The Indemnified Party shall seek full recovery under all insurance policies (or any time subsequent other contractual source of indemnity or reimbursement) covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. 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 indemnification provided indemnifiable Losses. Any indemnity payment under this Agreement shall be treated as an adjustment to the Merger Consideration for Tax purposes. If an insurance or other recovery is made by Sellers pursuant any Indemnified Party with respect to Section 11.1 or by Buyers pursuant to Section 11.2any Losses for which any such Person has previously been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be made promptly to the Person or Persons that provided such Buyers Indemnified Party or Sellers indemnity payments to such Indemnified Party, as applicable, shall promptly reimburse Sellers or Buyers, as applicable, for any payment made or expense incurred by such Person in connection with providing such indemnification up to such amount received (less any costs or expenses incurred in recovering such amounts) by the Buyers Indemnified Party or Sellers Indemnified Party, as applicable;. (b) Subject to Section 3.7(f), the Parent Indemnified Parties shall have no right to indemnification hereunder with respect to any Loss or alleged Loss to the extent Parent shall have requested and received a reduction in the Company Statement or the Parent Closing Statement on account of (but only to the extent of such reduction) any matter forming the basis for such Loss or alleged Loss. For purposes the avoidance of doubt, to the extent any amount is taken into account as a current liability in the calculation of Net Working Capital (e.g., as a reserve) or included in Indebtedness, Final Pre-Closing Taxes or Transaction Costs, such amount shall not be considered a Loss hereunder to the extent that the amount payable to the Stockholders and/or Optionholders by Parent pursuant to this Agreement has actually been reduced by such amount. (c) In no event shall Parent (or any Parent Indemnified Party) be entitled to recover or make a claim for any amounts in respect of punitive damages (except to the extent that punitive damages are paid to a third party) and no “multiple of profits”, “multiple of revenue”, “multiple of cash flow” or similar valuation methodology shall be used in calculating the amount of Indemnifiable Losses any Losses, regardless of whether or not any such multiple or similar valuation methodology was used by Parent at the time of, or in connection with, calculating it bid, its proposed purchase price, or its final purchase price. Furthermore, it is understood that no amounts need to which be paid as indemnity hereunder with respect to a Buyers Indemnified Third Party Claim unless a Loss is suffered or Sellers Indemnified Party is entitled under incurred and the other limitations and conditions set forth in this Agreement are satisfied. Attorney, consultant, and other professional fees and disbursements incurred by an indemnifying party in connection with this Article 11, the terms “material,” “materiality,” and similar qualifiers, modifiers or limitations (including monetary values and qualifiers as to “knowledge”) IX shall be disregarded; and (c) Any Indemnifiable Losses for which Buyers Indemnified Parties or Sellers Indemnified Parties are entitled to indemnification under Section 11.1 or Section 11.2, as applicable, shall be determined without duplication of recovery by reason of the state of facts giving rise to such Indemnifiable Losses constituting a breach of more than one representation, warranty or covenant. No Buyers Indemnified Parties shall be entitled to indemnification under this Agreement for any Indemnifiable Losses arising from a breach of any representation, warranty or covenant set forth herein (and the amount of any Indemnifiable Losses incurred in respect of such breach shall not be included in the calculation of any limitations on indemnification set forth herein) to the extent such Indemnifiable Losses were already taken into account in calculating the Final Net Working Capital and Indebtedness Adjustment Amountreasonable.

Determination of Losses. (a) The amount of any Indemnifiable Losses Loss payable under this Article 9 by an Indemnifying Party shall be reduced or reimbursed, as net of any amounts actually recovered by the case may be, by any amount received by Buyers Indemnified Parties or Sellers Indemnified Parties, as applicable, with respect thereto under any Party from insurance coverage policies (other than proceeds from the R&W Policy) or from any other party Person alleged to be responsible therefor. Buyers Indemnified Parties for such Indemnifiable Loss (the “Alternative Arrangements”), in each case net of the following (collectively, the “Collection Expenses”): (i) reasonable and Sellers Indemnified Parties, as applicable, shall use commercially reasonable efforts to collect any amounts available under documented costs and expenses incurred by such insurance coverage and from such other party alleged to have responsibility. If a Buyers Indemnified Party or Sellers its Affiliates in procuring such recovery, (ii) any retro-premium obligations, increases in premiums or premium adjustments to the extent attributable to such recovery, and (iii) deductibles and other amounts incurred in connection with such recovery. If, subsequent to an indemnification payment made by an Indemnifying Party for an Indemnifiable Loss, the Indemnified Party, as applicable, Party actually receives an amount any amounts under insurance coverage or from such other party any Alternative Arrangements with respect to such Indemnifiable Losses at any time subsequent to any indemnification provided by Sellers pursuant to Section 11.1 or by Buyers pursuant to Section 11.2Loss, then such Buyers Indemnified Party or Sellers Indemnified Party, as applicable, shall promptly (but in any event within ten (10) Business Days after receipt of such amounts under such Alternative Arrangements) reimburse Sellers or Buyers, as applicable, the Indemnifying Party for any the indemnification payment actually made or expense incurred to such Indemnified Party by such Person in connection with providing Indemnifying Party for such indemnification Indemnifiable Loss up to such the amount actually received (less any costs or expenses incurred in recovering such amounts) by the Buyers Indemnified Party or Sellers Indemnified Partyunder such Alternative Arrangements, as applicable;in each case, net of all associated Collection Expenses. (b) For purposes Indemnification payments under this Article 9 shall be paid by the Indemnifying Party without reduction for any Tax Benefits available to the Indemnified Party. However, to the extent that the Indemnified Party recognizes Tax Benefits as a result of calculating any Indemnifiable Losses in any tax year in which or prior to which such Indemnifiable Losses were incurred (or in the immediately succeeding two (2) taxable years), the Indemnified Party shall pay the amount of such Tax Benefits (but not in excess of the indemnification payment or payments actually received from the Indemnifying Party with respect to such Indemnifiable Losses) to the Indemnifying Party as such Tax Benefits are actually recognized by the Indemnified Party. For this purpose, an Indemnified Party shall be deemed to recognize a tax benefit (a “Tax Benefit”) with respect to a taxable year 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 Indemnifiable Losses from all taxable years, 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 which a Buyers Indemnified Party or Sellers Indemnified Party is entitled under this Article 11, the terms “material,” “materiality,” Indemnifiable Losses for all taxable years (to the extent permitted by relevant Tax Law and similar qualifiers, modifiers or limitations (including monetary values and qualifiers treating such Tax items as to “knowledge”) shall be disregarded; andthe last items claimed for any taxable year). (c) Any Indemnifiable Losses for which Buyers Notwithstanding anything to the contrary contained in this Agreement, no Purchaser Indemnified Parties or Sellers Indemnified Parties are entitled to indemnification under Section 11.1 or Section 11.2, as applicable, shall be determined without duplication of recovery by reason of the state of facts giving rise to such Indemnifiable Losses constituting a breach of more than one representation, warranty or covenant. No Buyers Indemnified Parties shall Party will be entitled to indemnification under this Agreement Article 9 for any Indemnifiable Losses arising from a breach of any representation, warranty or covenant set forth herein (and the amount of any Indemnifiable Losses incurred in respect of such breach shall not be included in the calculation of any limitations on indemnification set forth herein) Loss to the extent such Indemnifiable Losses were already that it has been taken into account in calculating the Final Net final determination of Actual Working Capital and Capital, Actual Indebtedness Adjustment Amountor Actual Sellers’ Transaction Expenses pursuant to Section 2.10 hereof.