Common use of Insurance; Tax Benefits Clause in Contracts

Insurance; Tax Benefits. (a) Notwithstanding anything set forth in this Agreement to the contrary, Losses of the CBNA Indemnified Parties shall be determined without duplication of any 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 net of any insurance or other prior or subsequent recoveries (including under or pursuant to any insurance policy, indemnity, reimbursement agreement or contract pursuant to which or under which any CBNA Indemnified Party is a party or has rights) actually received by the CBNA Indemnified Parties in connection with the facts giving rise to the right of indemnification, and Losses of the Buyer Indemnified Parties shall be determined without duplication of any 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 net of any insurance or other prior or subsequent recoveries (including under or pursuant to any insurance policy, indemnity, reimbursement agreement or contract pursuant to which or under which any Buyer Indemnified Party is a party or has rights) actually received by the Buyer Indemnified Parties in connection with the facts giving rise to the right of indemnification. Each Indemnified Party shall use its reasonable best efforts to take all actions reasonably necessary to file claims pursuant to any applicable insurance policies. If, after using such reasonable best efforts, the Buyer Indemnified Parties are unable to obtain recovery Buyer or CBNA reasonably believes is available under an applicable insurance policy, then at CBNA’s request, Buyer shall, and shall cause its Affiliates to, reasonably cooperate with CBNA to take such actions as CBNA may reasonably request (in each case at CBNA’s expense), including filing lawsuits or facilitating subrogation to the extent permitted by applicable Law, in order to obtain recovery under the applicable insurance policies.

Insurance; Tax Benefits. (a) Notwithstanding anything set forth contained in this Agreement to the contrary, Losses of the CBNA Indemnified Parties shall be determined without duplication of any 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 net of any insurance or other prior or subsequent recoveries (including under or pursuant to any insurance policy, indemnity, reimbursement agreement or contract pursuant to which or under which any CBNA Indemnified Party is a party or has rights) actually received by the CBNA Indemnified Parties Party or its Affiliates in connection with the facts giving rise to the right of claim for indemnification. If an Indemnified Party shall have used commercially reasonable efforts to recover any amounts recoverable under insurance policies and shall not have recovered the applicable Losses, and Losses of the Buyer Indemnified Parties Indemnifying Party shall be determined without duplication liable for the amount by which such Losses exceeds the amounts actually recovered. (b) Any indemnity payments made pursuant to this Article IX by any Indemnifying Party to an Indemnified Party shall be increased to account for any Tax cost incurred by the Indemnified Party upon the receipt of any other Loss such payment (grossed up for which an indemnification claim has been made or could be made under any other representation, warranty, covenant, or agreement such payment) and shall be made net of any insurance or other prior or subsequent recoveries (including under or pursuant Tax Benefit available to any insurance policy, indemnity, reimbursement agreement or contract pursuant to which or under which any Buyer the Indemnified Party is a party or has rights) actually received by any of its Affiliates resulting from the Buyer Indemnified Parties in connection with payments of the facts amounts indemnified against giving rise to such indemnity payments. For purposes of determining the right amount of indemnification. Each any Tax Benefit available or Tax cost incurred, the Indemnified Party shall use its reasonable best efforts be deemed to take pay Tax at the highest United States federal income tax corporate marginal rate in effect in the year such indemnifiable Loss is incurred and the recipient of the Tax Benefit shall be deemed to realize or utilize any Tax Benefit in the first taxable year that such Tax Benefit may be realized or utilized under Law after taking into account all actions reasonably necessary to file claims pursuant other Tax Attributes of such Indemnified Party and the projected utilization of such Tax Attributes as computed by the recipient of such Tax Benefit. If a Tax Benefit resulting from the incurrence or payment of Losses is available to any applicable insurance policies. If, after using such reasonable best effortsIndemnified Party or its Affiliates in multiple Tax years, the Buyer Indemnified Parties are unable to obtain recovery Buyer or CBNA reasonably believes is amount of such Tax Benefit for purposes of this Section 9.7(b) shall be the net present value of all of such available under an applicable insurance policyTax Benefits, then at CBNA’s request, Buyer shall, and shall cause its Affiliates to, reasonably cooperate with CBNA to take such actions as CBNA may reasonably request (in each case at CBNA’s expense), including filing lawsuits or facilitating subrogation calculated by using a discount rate equal to the extent permitted by applicable Law, in order to obtain recovery under the applicable insurance policies.long-term. E-17 Section 9.8

Insurance; Tax Benefits. (a) Notwithstanding anything set forth in this Agreement to the contrary, If any Losses of the CBNA sustained by an Indemnified Parties shall be determined without duplication Party are covered by an insurance policy of any other Loss for which an indemnification claim has been made or could be made under any other representationIndemnifying Party, warranty, covenant, or agreement and shall be net of any insurance or other prior or subsequent recoveries (including under or pursuant to any insurance policy, indemnity, reimbursement agreement or contract pursuant to which or under which any CBNA Indemnified Party is a party or has rights) actually received by the CBNA Indemnified Parties in connection with the facts giving rise to the right of indemnification, and Losses of the Buyer Indemnified Parties shall be determined without duplication of any 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 net of any insurance or other prior or subsequent recoveries (including under or pursuant to any insurance policy, indemnity, reimbursement agreement or contract pursuant to which or under which any Buyer Indemnified Party is a party or has rights) actually received by the Buyer Indemnified Parties in connection with the facts giving rise to the right of indemnification. Each Indemnified Party shall use its commercially reasonable best efforts to take seek recovery under such insurance policy with respect to such Losses; provided, that in no event shall any Indemnified Party have any obligation to pursue any recovery if as a result thereof the premium costs under such insurance policy shall reasonably be expected to be increased by a material amount. If the Indemnified Party receives such insurance proceeds prior to being indemnified with respect to such Losses under this ARTICLE 9, the payment under this ARTICLE 9 with respect to such Losses shall be reduced by the net amount of such insurance proceeds, less the present value of all actions reasonably necessary premium increases resulting therefrom, all attorney’s fees and other out-of-pocket fees, costs and expenses incurred in connection with collecting such proceeds and any deductible payment, reimbursement obligation or retrospective payments incurred by the Indemnified Party (such net amounts, a “Net Recovery”). In the event that a Net Recovery is actually received by an Indemnified Party subsequent to file receipt by such Indemnified Party of any indemnification payment hereunder in respect of the claims to which such Net Recovery relates, appropriate refunds in the amount of such Net Recovery (or if less, in the amount of applicable indemnification payments previously made) shall be made promptly. Notwithstanding the foregoing, (a) the Indemnifying Party may not delay payment of, or reduce the amount of, any payment in respect of any Losses in expectation of any such insurance proceeds, and (b) no obligation of a Indemnified Party under this Section 9.8 shall limit, delay or otherwise affect the rights of such Indemnified Party to recover from the Indemnifying Party pursuant to any applicable insurance policies. If, after using such reasonable best efforts, the Buyer Indemnified Parties are unable to obtain recovery Buyer or CBNA reasonably believes is available under an applicable insurance policy, then at CBNA’s request, Buyer shall, and shall cause its Affiliates to, reasonably cooperate with CBNA to take such actions as CBNA may reasonably request (in each case at CBNA’s expense), including filing lawsuits or facilitating subrogation to the extent permitted by applicable Law, in order to obtain recovery under the applicable insurance policiesthis ARTICLE 9.

Insurance; Tax Benefits. The amount of any Damages that are subject to indemnification hereunder shall be calculated net of the amount of insurance proceeds from any third party insurance maintained by the Company prior to the Effective Time or the “tail” insurance policy contemplated by Section 6.05(b), indemnity, contribution or similar payments actually paid to the Indemnified Person in connection with such Damages (a) Notwithstanding anything set forth such payments, for these purposes, to be reduced by any reasonable expenses incurred in obtaining such payments). In the event that any such insurance proceeds or other third-party indemnification, contribution or reimbursement payments are actually realized by an Indemnified Person subsequent to receipt by such Indemnified Person of any indemnification payment under this Agreement to the contrary, Losses in respect of the CBNA Indemnified Parties shall be determined without duplication claims to which such insurance proceeds or other third-party indemnification, contribution or reimbursement payments relate, refunds of any other Loss for which an indemnification claim has been made such proceeds or could be made under any other representation, warranty, covenant, or agreement and shall be payments (net of any insurance or other prior or subsequent recoveries (including under or pursuant to any insurance policy, indemnity, reimbursement agreement or contract pursuant to which or under which any CBNA Indemnified Party is a party or has rights) actually received reasonable expenses incurred by the CBNA Indemnified Parties Person in connection with the facts giving rise collecting such amounts) shall be made promptly to the right of indemnificationEscrow Fund or, and Losses if after the final release of the Buyer Indemnified Parties Escrow Fund, to the Representative for distribution in accordance with Section 1.08. The amount of any Damages subject to indemnification under this Article X also shall be determined without duplication of any 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 calculated net of any Tax Benefit actually realized by an Indemnified Person on account of such Damages in the year of the Damages. For purposes hereof, “Tax Benefit” for any Indemnified Person means (i) the receipt of any refund of Taxes paid or (ii) the amount such Indemnified Person’s liability for Taxes through a taxable period, calculated by excluding the relevant amount of credit or deduction attributable to such Damages, would exceed such Indemnified Person’s actual liability for Taxes through such period, calculated by taking into account the relevant amount of credit or deduction attributable to such Damages, and in the case of (i) and (ii), reduced by any tax detriment attributable to such Damages through such taxable period or realizable in a future period of the Indemnified Person. Nothing in this Article X regarding indemnification rights and obligations shall be deemed to override any obligations with respect to mitigation of damages existing under applicable Law. The Indemnified Person shall also use commercially reasonable efforts to seek recovery under all third party insurance or other prior or subsequent recoveries (including under or pursuant to any insurance policy, indemnity, reimbursement agreement or contract pursuant to which or under which any Buyer Indemnified Party is a party or has rights) actually received policies maintained by the Buyer Indemnified Parties in connection with the facts giving rise Company prior to the right of indemnification. Each Indemnified Party shall use its reasonable best efforts to take all actions reasonably necessary to file claims pursuant to any applicable Effective Time and the “tail” insurance policies. If, after using such reasonable best efforts, the Buyer Indemnified Parties are unable to obtain recovery Buyer or CBNA reasonably believes is available under an applicable insurance policy, then at CBNA’s request, Buyer shall, and shall cause its Affiliates to, reasonably cooperate with CBNA to take such actions as CBNA may reasonably request (in each case at CBNA’s expensepolicy contemplated by Section 6.05(b), including filing lawsuits or facilitating subrogation to the extent permitted by applicable Law, in order to obtain recovery under the applicable insurance policies.

Insurance; Tax Benefits. For purposes of this Section 9, the amount of Damages suffered by a Purchaser Indemnified Party in connection with an indemnifiable matter shall be reduced by (ai) Notwithstanding anything the amount of any insurance proceeds actually received by the Purchaser Indemnified Party in connection with such indemnifiable matter, including the Representation and Warranty Insurance Policy (net of any costs of collection, deductible, premium adjustment, reimbursement obligation or other cost related to the insurance claim in respect of such indemnifiable matter) and (ii) any Tax savings or benefits actually realized by any Purchaser Indemnified Party that is attributable to any deduction, loss, credit or other Tax benefit resulting from or arising out of such Damages in the year such Damages were suffered. Other than under the Representation and Warranty Insurance Policy (to the extent recoverable thereunder), with respect to which the Purchaser Indemnified Parties shall have an affirmative duty to exercise commercially reasonable efforts to collect thereunder with respect to any matter for which indemnity is sought hereunder, no Purchaser Indemnified Party shall have any obligation to affirmatively pursue the collection of any insurance proceeds prior to the bringing of an Indemnification Claim, regardless of whether such Purchaser Indemnified Party has suffered or incurred any Damages for which such Purchaser Indemnified Party has insurance coverage (it being understood, however, that a Purchaser Indemnified Party may deliver a Notice of Claim to the Sellers’ Representative concurrently with seeking recovery under the Representation and Warranty Insurance Policy for purposes of establishing such claim during the Survival Period but the applicable Sellers shall not be required to make any payment under this Section 9 until such time as Purchaser has determined the amounts recoverable under the Representation and Warranty Insurance Policy, if any, in respect thereof). The Representation and Warranty Insurance Policy shall provide that the insurer thereunder shall waive any right of subrogation against Sellers and their direct and indirect equityholders in connection with this Agreement and the transactions contemplated hereby, except in the case of Fraud. Nothing set forth in this Agreement to the contrary, Losses of the CBNA Indemnified Parties Section 9 shall be determined without duplication of construed to contractually eliminate any other Loss for which an indemnification claim has been made or could be made under duty that any other representation, warranty, covenant, or agreement and shall be net of any insurance or other prior or subsequent recoveries (including under or pursuant to any insurance policy, indemnity, reimbursement agreement or contract pursuant to which or under which any CBNA Purchaser Indemnified Party is a party or has rights) actually received by the CBNA Indemnified Parties in connection with the facts giving rise to the right of indemnification, and Losses of the Buyer Indemnified Parties shall be determined without duplication of any 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 net of any insurance or other prior or subsequent recoveries (including under or pursuant to any insurance policy, indemnity, reimbursement agreement or contract pursuant to which or under which any Buyer Indemnified Party is a party or has rights) actually received by the Buyer Indemnified Parties in connection with the facts giving rise to the right of indemnification. Each Indemnified Party shall use its reasonable best efforts to take all actions reasonably necessary to file claims pursuant to any applicable insurance policies. If, after using such reasonable best efforts, the Buyer Indemnified Parties are unable to obtain recovery Buyer or CBNA reasonably believes is available under an applicable insurance policy, then at CBNA’s request, Buyer shall, and shall cause its Affiliates to, reasonably cooperate with CBNA to take such actions as CBNA may reasonably request (in each case at CBNA’s expense), including filing lawsuits or facilitating subrogation to the extent permitted by applicable Law, in order to obtain recovery have under the applicable insurance policiescommon law to mitigate such Purchaser Indemnified Party’s Damages.