Common use of Losses Net of Insurance, Etc Clause in Contracts

Losses Net of Insurance, Etc. (a) The amount of any Loss for which indemnification is provided under this Article IX shall be net of any amounts actually recovered by the Indemnified Person, or which the Indemnified Party is entitled to recover, under insurance policies with respect to such Loss and of any related reserve in respect thereof reflected on the Closing Statement. (b) Notwithstanding anything to the contrary elsewhere in this Agreement, no Indemnifying Person shall, in any event, be liable to the other party for any damages not proximately caused by its breach hereunder, any damages for loss of business reputation, or any punitive or exemplary damages. The foregoing shall not be interpreted, however, to limit indemnification for Losses incurred as a result of the assertion by a claimant (other than the parties hereto and their successors and assigns) in a Third-Party Claim of claims for damages of the foregoing type. (c) The parties hereto agree that any matter that is subject to resolution by the Accounting Arbitrator pursuant to Section 2.5 shall not be the basis of an indemnification claim under this Article IX, it being the intent of the parties that the Purchase Price adjustment provided in Section 2.5 shall be the sole and exclusive remedy therefor. (d) Except as expressly set forth in Section 10.5 as to equitable remedies, the parties hereto agree that the indemnification provisions of this Article IX are intended to provide the exclusive remedy as to all Losses either may incur arising from or relating to the Transactions, and each party hereby waives, to the extent they may do so, any other rights or remedies that may arise under any applicable statute, rule or regulation.

Losses Net of Insurance, Etc. (a) The amount of any Loss Losses or Environmental Losses for which indemnification is provided under this Article IX Agreement shall be net of any amounts actually recovered by the Indemnified Person, or which the Indemnified Party is entitled to recover, from third parties (including amounts actually recovered under insurance policies policies, but only to the extent any recovered insurance proceeds exceed costs of collecting such proceeds and premium increases, whether retrospective or prospective, that are certified by the underwriter to result from the claim for such proceeds) with respect to such Loss and of any related reserve in respect thereof reflected on the Closing Statement. (b) Notwithstanding anything Losses. Any Indemnifying Party hereunder shall be subrogated to the contrary elsewhere rights of the Indemnified Party upon payment in this Agreement, no Indemnifying Person shall, in full of the amount of the relevant indemnifiable loss. An insurer who would otherwise be obligated to pay any event, be liable to the other party for any damages not proximately caused by its breach hereunder, any damages for loss of business reputation, or any punitive or exemplary damages. The foregoing claim shall not be interpreted, however, to limit indemnification for Losses incurred as a result relieved of the assertion responsibility with respect thereto or, solely by a claimant (other than the parties hereto and their successors and assigns) in a Third-Party Claim of claims for damages virtue of the foregoing type. (c) The parties hereto agree that indemnification provision hereof, have any matter that is subject to resolution by the Accounting Arbitrator pursuant to Section 2.5 shall not be the basis subrogation rights with respect thereto. If any Indemnified Party recovers an amount from a third-party in respect of an indemnifiable loss for which indemnification claim under is provided in this Article IXAgreement after the full amount of such indemnifiable loss has been paid by an Indemnifying Party or after an Indemnifying Party has made a partial payment of such indemnifiable loss and the amount received from the third-party exceeds the remaining unpaid balance of such indemnifiable loss, it being then the intent Indemnified Party shall promptly remit to the Indemnifying Party the excess of (A) the sum of the parties that amount theretofore paid by such Indemnifying Party in respect of such indemnifiable loss plus the Purchase Price adjustment provided amount received from the third-party in Section 2.5 shall be respect thereof, less (B) the sole and exclusive remedy thereforfull amount of such Losses. (d) Except as expressly set forth in Section 10.5 as to equitable remedies, the parties hereto agree that the indemnification provisions of this Article IX are intended to provide the exclusive remedy as to all Losses either may incur arising from or relating to the Transactions, and each party hereby waives, to the extent they may do so, any other rights or remedies that may arise under any applicable statute, rule or regulation.

Losses Net of Insurance, Etc. (a) The amount of any Loss for which indemnification is provided under this Article IX X shall be net of any amounts actually recovered or which could be recovered, on a commercially reasonable basis, by the Indemnified Person, or which the Indemnified Party is entitled to recover, Person under insurance policies with respect to such Loss and of any related reserve in respect thereof reflected on the Final Closing StatementBalance Sheet; PROVIDED, HOWEVER, that the amount of such Loss will not be reduced to the extent the Indemnified Person can demonstrate that a net increase in insurance premiums has occurred or is reasonably likely to occur as a result of such claim (whether by retrospective or retroactive premium adjustment, and giving effect to the present value of any such premium increase over the period for which it is reasonably anticipated to be effective) and PROVIDED, FURTHER, that this Section 10.4(a) will not be applicable to the extent it constitutes an improper waiver of the insurer's rights of subrogation against the Indemnifying Person. Notwithstanding the foregoing, Buyer will not have any obligation (i) to seek insurance recovery in respect of Losses to the extent such recovery would be precluded or would preclude other (A) pending claims or (B) claims reasonably likely, based upon past claims experience, to be submitted as a result of the applicable policy coverage limit, or (ii) to maintain insurance for the benefit or in the name of Sellers, or to make Sellers named insureds, after the Closing. (b) Notwithstanding anything to the contrary elsewhere in this Agreement, no Indemnifying Person shall, in any event, be liable to the other party for any damages consequential damages, including, but not proximately caused by its breach hereunderlimited to, any damages for loss of revenue or income, cost of capital, diminution in value, or loss of business reputationreputation or opportunity relating to the breach or alleged breach of this Agreement. Each party agrees that it will not seek punitive damages as to any matter under, relating to or any punitive or exemplary damagesarising out of the Transactions. The foregoing shall not be interpreted, however, to limit indemnification for Losses incurred as a result of the assertion by a claimant (other than the parties hereto and their successors and assigns) in a Third-Party Claim of claims for damages of the foregoing type. (c) The parties hereto agree that any matter that is subject to resolution by the Accounting Arbitrator pursuant to Section 2.5 shall not be the basis of an indemnification claim under this Article IX, it being the intent of the parties that the Purchase Price adjustment provided in Section 2.5 shall be the sole and exclusive remedy therefor. (d) Except as expressly set forth in Section 10.5 6.6(b) and Section 11.5 as to equitable remedies, the parties hereto agree that the indemnification provisions of this Article IX X are intended to provide the exclusive remedy as to all Losses either may incur arising from or relating to the Transactions, and each party hereby waives, to the extent they may do so, any other rights or remedies that may arise under any applicable statute, rule or regulation.

Losses Net of Insurance, Etc. (a) The amount of any Loss for which indemnification is provided under this Article IX VII shall be net of any (i) all amounts actually recovered by the Indemnified Person, Party from an insurer or which the Indemnified Party is entitled to recover, under insurance policies any other person with respect to such Loss (net of expenses of collection) and (ii) all Tax benefits actually realized by the Indemnified Party in connection therewith. Purchaser shall cause the Subject Company to use commercially reasonable efforts to obtain the recoveries and benefits referred to in clause (ii) of any related reserve in respect thereof reflected on the Closing Statementpreceding sentence. (b) If the Indemnifying Party (as defined in Section 7.4(a) below) makes any payment under this Article VII in respect of any Losses, the Indemnifying Party shall be subrogated, to the extent of such payment, to the rights of the Indemnified Party against any insurer or third party with respect to such Losses. (c) Notwithstanding anything to the contrary elsewhere in this Agreement, no Indemnifying Person Party shall, in any event, be liable to the any other party for any damages incidental or consequential damages, including, but not proximately caused by its breach hereunderlimited to, any damages for loss of revenue or income, cost of capital, diminution in value or loss of business reputation, reputation or any punitive opportunity relating to the breach or exemplary damages. The foregoing shall not be interpreted, however, to limit indemnification for Losses incurred as a result alleged breach of the assertion by a claimant (other than the parties hereto and their successors and assigns) in a Third-Party Claim of claims for damages of the foregoing type. (c) The parties hereto agree that any matter that is subject to resolution by the Accounting Arbitrator pursuant to Section 2.5 shall not be the basis of an indemnification claim under this Article IX, it being the intent of the parties that the Purchase Price adjustment provided in Section 2.5 shall be the sole and exclusive remedy thereforAgreement. (d) Except as expressly set forth in Section 10.5 as to equitable remedies, the The parties hereto agree that the indemnification provisions of this Article IX VII are intended to provide the exclusive remedy as to all Losses either that may incur arising be incurred, arise from or relating relate to the Transactions, transactions contemplated hereby and each party hereby waives, to the extent they it may do so, any other rights or remedies that may arise under any applicable statute, rule or regulationlaw.

Losses Net of Insurance, Etc. (a) The amount of any Loss for which indemnification is provided under this Article IX X shall be net of any amounts actually recovered or recoverable by the Indemnified Person, or which the Indemnified Party is entitled to recover, Person under insurance policies with respect to such Loss and of any related reserve in respect thereof reflected on the Closing StatementBalance Sheet. (b) Notwithstanding anything If the Indemnifying Person makes any payment under this Article X in respect of any Loss, the Indemnifying Person shall be subrogated, to the contrary elsewhere in this Agreementextent of such payment, no Indemnifying Person shall, in any event, be liable to the other party for any damages not proximately caused by its breach hereunder, any damages for loss of business reputation, or any punitive or exemplary damages. The foregoing shall not be interpreted, however, to limit indemnification for Losses incurred as a result rights of the assertion by a claimant (other than the parties hereto and their successors and assigns) in a Third-Party Claim of claims for damages of the foregoing typeIndemnified Person against any insurer or third party with respect to such Losses. (c) The parties hereto agree Each party agrees that it will not seek punitive damages as to any matter that is subject under, relating to resolution by the Accounting Arbitrator pursuant to Section 2.5 shall not be the basis of an indemnification claim under this Article IX, it being the intent or arising out of the parties that the Purchase Price adjustment provided in Section 2.5 shall be the sole and exclusive remedy thereforTransactions. (d) Except as expressly set forth in Section 10.5 as to equitable remedies, the The parties hereto agree that the indemnification provisions of this Article IX X are intended to provide the exclusive remedy as to all Losses either may incur arising from or relating to the Transactions, and each party hereby waives, to the extent they may do so, any other rights or remedies that may arise under any applicable statute, rule or regulation.; PROVIDED, HOWEVER, that the foregoing shall not be interpreted to limit the types of remedies, including specific performance or other equitable remedies, which may be sought by an Indemnified Person in connection with a breach of any covenant or agreement contained in this Agreement, or in respect of any third party, regardless of the monetary Loss such Indemnified Person has sustained, provided that the Losses of such person in connection with the pursuit of such remedy shall be subject to all of the provisions of this Article X.

Losses Net of Insurance, Etc. Subject to the terms and conditions of this Article 11, following the Closing: (a) The amount of any Loss Damages for which indemnification is provided under this Article IX Agreement shall be net of any amounts (i) actually recovered or (ii) which are covered by and recoverable, on a commercially reasonable basis, by the Indemnified PersonPerson under, or which the Indemnified Party is entitled to recover, under insurance policies with respect in effect and applicable to such Loss Damages or from other third parties and of any related reserve in and respect thereof reflected on the final Closing StatementFinancial Statements. (b) Notwithstanding anything Any payment or indemnity required to be made pursuant to Sections 11.2 or 11.3 shall be adjusted to take into account any reduction in Taxes realized by the contrary elsewhere in this Agreement, no Indemnifying Person Indemnified Persons (which term shall, for purposes of this Paragraph, include the ultimate payer(s) of Taxes in any event, be liable to the case of an Indemnified Person that is a branch or disregarded entity or other party pass-through entity for any damages not proximately caused by its breach hereunder, any damages for loss of business reputation, or any punitive or exemplary damages. The foregoing shall not be interpreted, however, to limit indemnification for Losses incurred Tax purposes) as a result of the assertion by a claimant (other than Damages giving rise to the parties hereto and their successors and assigns) in a Third-Party Claim of claims for damages of the foregoing typepayment or indemnity. (c) The parties hereto agree that Each party agrees it will not seek punitive, exemplary, special, incidental or consequential damages (other than such damages sought or obtained by a third party) as to any matter that is subject under, relating to resolution by or arising out of this Agreement or the Accounting Arbitrator pursuant to Section 2.5 shall not be the basis Contemplated Transactions (including under any loss of an indemnification claim under this Article IX, it being the intent of the parties that the Purchase Price adjustment provided in Section 2.5 shall be the sole and exclusive remedy thereforprofits theory or purchase price multiplier calculations). (d) Notwithstanding Section 9.2, Buyer shall not be entitled to indemnification with respect to any Damages to the extent reserved as a liability on the Closing Financial Statements. (e) Except for such equitable remedies as expressly set forth in Section 10.5 as may be available to equitable remediesenforce Sections 10.1, 10.2 and 12 of this Agreement, the parties hereto agree that the indemnification provisions of in this Article IX 11 are intended to provide include the exclusive remedy following the Closing as to all Losses Damages either may incur arising from or relating to the TransactionsProposed Transactions or this Agreement, and each party hereby waives, to the full extent they may do so, any other of the rights or remedies that may arise under any applicable statute, rule or regulation. (f) The indemnities herein are intended solely for the benefit of the person expressly identified in this Article 11 (and their permitted successors and assigns) and are in no way intended to, nor shall they, constitute an agreement for the benefit of, or be enforceable by, any other person. (g) If any party fails to deliver a payment to the other required under this Article 11 within fifteen (15) business days after the final determination or adjudication (after expiration of all applicable appeal periods) of the amount of such Damages, the amount due will bear interest from its due date to the date it is paid at a per annum rate equal to the prime rate published in the Wall Street Journal on the date such payment is due.

Losses Net of Insurance, Etc. Subject to the terms and conditions of this ARTICLE V, which terms and conditions shall not be applicable to any Losses arising from a breach of Section 4.8, Section 4.9, Section 4.11, the Thailand Trademark License Agreement or the China Trademark License Agreement, following the relevant Closing: (a) The amount of any Loss for which indemnification is provided under this Article IX ARTICLE V shall be net of any amounts (i) actually recovered or (ii) which are covered by, and recoverable, on a commercially reasonable basis, by the Indemnified Person, or which the Indemnified Party is entitled to recover, in each of (i) and (ii) under insurance policies with respect in effect and applicable to such Loss and of any related reserve in respect thereof reflected on the Closing StatementLoss. (b) Notwithstanding anything Any payment or indemnity required to be made pursuant to Section 5.1 or Section 5.2 shall be adjusted to take into account any reduction in Taxes that may be realized at any time by the contrary elsewhere in this Agreement, no Indemnifying Indemnified Person or any of such Person’s Affiliates (which term shall, for purposes of this paragraph, include the ultimate payer(s) of Taxes in any event, be liable to the case of an Indemnified Person that is a branch or a disregarded entity or other party pass-through entity for any damages not proximately caused by its breach hereunder, any damages for loss of business reputation, or any punitive or exemplary damages. The foregoing shall not be interpreted, however, to limit indemnification for Losses incurred Tax purpose) as a result of the assertion Loss giving rise to the payment or indemnity. In determining the amount necessary to be added to any payment or indemnity in order to accomplish the foregoing, the Parties hereto agree to treat all Taxes required to be paid by, and all reductions in Tax realized by any Indemnified Person or any of such Person’s Affiliates, as if such Indemnified Person or any of such Person’s Affiliates were subject to Tax at the highest marginal Tax rates (for both federal and state, as determined on a claimant (other than the parties hereto and their successors and assignscombined basis) in a Third-Party Claim applicable to such Indemnified Person or any of claims for damages of the foregoing typesuch Person’s Affiliates. (c) The parties hereto agree In connection with an Indemnified Person’s rights under this ARTICLE V, an Indemnified Person may only seek actual damages and may not seek any other damages, including but not limited to punitive, consequential (including lost profits) and incidental damages, or damages argued to be associated with a diminution in value, as to any matter under, relating to or arising out of the Transaction Documents or the Transactions. (d) Any Liability for indemnification under this ARTICLE V shall be determined without duplication of recovery by reason of the set of facts giving rise to such Liability constituting a breach of more than one representation, warranty, covenant or undertaking, or one or more rights to indemnification. Without limiting the generality of the foregoing and notwithstanding Section 5.1, the Buyer shall not be entitled to indemnification under this ARTICLE V with respect to any Loss to the extent that any matter that is subject to resolution by the Accounting Arbitrator such Loss would constitute a duplicative payment of amounts recovered as a Purchase Price adjustment pursuant to Section 2.5 1.9 or such Loss is reflected as a Liability on the Financial Statements. (e) No Person shall be entitled to indemnification under this ARTICLE V with respect to any Loss that is attributable to any action taken or omitted to be taken by such Person or any of its Affiliates. The Indemnified Person shall cooperate with each Indemnifying Person with respect to resolving any Liabilities with respect to which such Person is obligated to indemnify the other Person, including by making commercially reasonable efforts to mitigate or resolve any such Liabilities. In the event that the Indemnified Person shall fail to cooperate and make such efforts to mitigate or resolve any such Liabilities, then notwithstanding anything else to the contrary contained herein, each Indemnifying Person shall not be required to indemnify any Person for any Loss that could reasonably be expected to have been avoided if the Indemnified Person had made such efforts. The Indemnified Person shall act in a commercially reasonable manner in addressing any Liabilities, events or actions that may provide the basis for indemnification hereunder (that is, such Indemnified Person shall respond to such Liability, event or action in the same manner that it would respond in the absence of an the indemnification claim provided for in this Agreement, but in no event less than a commercially reasonable response). (f) No Person shall be entitled to indemnification under this Article IXARTICLE V with respect to any Loss arising from: (i) any change in Law or policy or administrative practice of any Government Entity after the relevant Closing; or (ii) any change in relevant accounting standards or the application of accounting standards or policies applicable to the Subject Companies after the relevant Closing. (g) When determining the amount of any indemnifiable Losses under this ARTICLE V, it being the intent amount subject to indemnification, including for purposes of the parties that the Purchase Price adjustment provided in Section 2.5 determining whether any dollar thresholds have been reached, shall be subject to the Pro-Rata Percentage Interest. For purposes of clarity, for each identifiable dollar of indemnifiable Loss with respect to PDITL and PD Trading, the amount to be used for purposes of determining the indemnifiable Losses and relevant dollar thresholds under this ARTICLE V shall be 75.47% of each such dollar as it relates to PDITL and 49.00% of each such dollar as it relates to PD Trading. (h) As between the Parties and any Indemnified Person and Indemnifying Person, the indemnification provisions contained in this ARTICLE V are intended to provide the sole and exclusive remedy therefor. (d) Except as expressly set forth in Section 10.5 as to equitable remedies, following the parties hereto agree that the indemnification provisions of this Article IX are intended to provide the exclusive remedy relevant Closing as to all Losses either any Party may incur arising from or relating to the Transaction Documents (or the representations, warranties or covenants contained therein) or the Transactions, and each party Party (on behalf of itself and its Affiliates) hereby waives, to the full extent they may do so, any other rights or remedies that may arise under contract, common law, or any applicable statute, rule or regulationregulation and hereby covenants that it and all of its Affiliates shall refrain from, directly or indirectly, asserting any Action or Proceeding of any kind against any Person based on any matter purported to be waived hereby. (i) Upon making any payment to an Indemnified Person for any indemnification claim pursuant to this ARTICLE V, the Indemnifying Person shall be subrogated, to the extent of such payment, to any rights which the Indemnified Person or its Affiliates may have against any other Persons with respect to the subject matter underlying such indemnification claim and the Indemnified Person shall take such actions as the Indemnifying Person may reasonably require to perfect such subrogation or to pursue such rights against such other Persons as the Indemnified Person or its Affiliates may have. (j) The indemnities herein are intended solely for the benefit of the Persons expressly identified in Section 4.8, Section 4.9, Section 4.11, Section 4.23(c) and this ARTICLE V (and their permitted successors and assigns) and are in no way intended to, nor shall they, constitute an agreement for the benefit of, or be enforceable by, any other Person.

Losses Net of Insurance, Etc. (a) The amount of any Loss for which indemnification is provided under this Article IX X shall be net of any amounts actually recovered or recoverable by the Indemnified Person, or which the Indemnified Party is entitled to recover, Person under insurance policies with respect to such Loss and of any related reserve in respect thereof reflected on the Closing StatementBalance Sheet. (b) If the Indemnifying Person makes any payment under this Article X in respect of any Loss, the Indemnifying Person shall be subrogated, to the extent of such payment, to the rights of the Indemnified Person against any insurer or third party with respect to such Losses. The Indemnified Person shall execute any required documents or instruments, serve as a named plaintiff, or take any other similar steps necessary to effectuate such subrogation. (c) Notwithstanding anything to the contrary elsewhere in this Agreement, no Indemnifying Person shall, in any event, be liable to the other party for any damages consequential damages, including, but not proximately caused by its breach hereunderlimited to, any damages for loss of revenue or income, business interruption, cost of capital, or loss of business reputationreputation or opportunity relating to the breach or alleged breach of this Agreement. Each party agrees that it will not seek punitive damages as to any matter under, relating to or any punitive or exemplary damagesarising out of the Transactions. The foregoing shall not be interpreted, however, to limit indemnification for Losses incurred as a result of the assertion by a claimant (other than the parties hereto and their successors and assigns) ), in a Third-Party Claim (as defined below) of claims for damages of the foregoing type. (cd) The parties hereto agree that any matter that is subject to resolution by the Accounting Arbitrator pursuant to Section 2.5 shall not be the basis of an indemnification claim under this Article IX, it being the intent of the parties that the Purchase Price adjustment provided in Section 2.5 shall be the sole and exclusive remedy therefor. (d) Except as expressly set forth in Section 10.5 as to equitable remedies, the parties hereto agree that the indemnification provisions of this Article IX X are intended to provide the exclusive remedy as to all Losses either any Indemnified Person may incur arising from or relating to the Transactions, and each party hereby waives, to the extent they may do so, any other rights or remedies that may arise under any applicable statute, rule or regulation. Moreover, notwithstanding anything to the contrary in this Agreement, Buyer waives no rights it may have or come to have or to pursue against any predecessors of MagneTek or NEC.

Losses Net of Insurance, Etc. (a) The amount of any Loss for which indemnification is provided under this Article IX X shall be net of any all amounts actually recovered by the Indemnified Person, or which the Indemnified Party is entitled to recover, Person under insurance policies with respect to such Loss and shall be net of any related reserve in respect thereof reflected on the Final Closing StatementBalance Sheet. (b) If the Indemnifying Person makes any payment under this Article X in respect of any Losses, the Indemnifying Person shall be subrogated, to the extent of such payment and except to the extent that such subrogation is not permitted by the terms of any insurance policy or other document, to the rights of the Indemnified Person against any insurer or third Person with respect to such Losses. (c) Notwithstanding anything to the contrary elsewhere in this Agreement, no Indemnifying Person shall, in any event, be liable to the other party any Indemnified Person for any damages consequential damages, including, but not proximately caused by its breach hereunderlimited to, any damages for loss of revenue or income, cost of capital, diminution in value or loss of business reputationreputation or opportunity relating to the breach or alleged breach of this Agreement. Each party agrees that it will not seek punitive damages as to any matter under, relating to or any punitive or exemplary damagesarising out of the Transactions. The foregoing shall not be interpreted, however, to limit indemnification for the Losses incurred as a result of the assertion by a claimant third Person (other than the parties hereto hereto, Mexico Sub and their respective successors and assigns) in a Third-Party Claim of claims for damages of the foregoing type. (cd) The parties hereto agree that any matter that is subject to resolution by the Accounting Arbitrator pursuant to Section 2.5 shall not be the basis of an indemnification claim under this Article IX, it being the intent of the parties that the Purchase Price adjustment provided in Section 2.5 shall be the sole and exclusive remedy therefor. (d) Except as expressly set forth in Section 10.5 as to equitable remedies, the parties hereto agree that the indemnification provisions of this Article IX X are intended to provide the exclusive remedy as to all Losses that either party may incur arising from from, or relating to the Transactions, Transactions contemplated hereby and each party hereby waives, to the extent they it may do so, any other rights or remedies that may arise under any applicable statute, rule or regulation, including no limitation of any right to contribution arising under CERCLA or any other Requirement of Law, and except as set forth in Sections 5.7(b) and 12.12, respectively, in respect of equitable remedies. (e) Any indemnification payment for Taxes required under this Article X shall for purposes of federal, state and local income Taxes, be treated as a purchase price adjustment.

Losses Net of Insurance, Etc. (a) The amount of any Loss for which indemnification is provided under this Article IX X shall be net of any amounts actually recovered or recoverable by the Indemnified Person, or which the Indemnified Party is entitled to recover, Person under insurance policies with respect to such Loss and of any related reserve in respect thereof reflected on the Closing StatementBalance Sheet. (b) If the Indemnifying Person makes any payment under this Article X in respect of any Loss, the Indemnifying Person shall be subrogated, to the extent of such payment, to the rights of the Indemnified Person against any insurer or third party with respect to such Losses. The Indemnified Person shall execute any required documents or instruments, serve as a named plaintiff, or take any other similar steps necessary to effectuate such subrogation. (c) Notwithstanding anything to the contrary elsewhere in this Agreement, no Indemnifying Person shall, in any event, be liable to the other party for any damages consequential damages, including, but not proximately caused by its breach hereunderlimited to, any damages for loss of revenue or income, business interruption, cost of capital, or loss of business reputationreputation or opportunity relating to the breach or alleged breach of this Agreement. Each party agrees that it will not seek punitive damages as to any matter under, relating to or any punitive or exemplary damagesarising out of the Transactions. The foregoing shall not be interpreted, however, to limit indemnification for Losses incurred as a result of the assertion by a claimant (other than the parties hereto and their successors and assigns) ), in a Third-Party Claim (as defined below) of claims for damages of the foregoing type. (cd) The parties hereto agree that any matter that is subject to resolution by the Accounting Arbitrator pursuant to Section 2.5 shall not be the basis of an indemnification claim under this Article IX, it being the intent of the parties that the Purchase Price adjustment provided in Section 2.5 shall be the sole and exclusive remedy therefor. (d) Except as expressly set forth in Section 10.5 as to equitable remedies, the parties hereto agree that the indemnification provisions of this Article IX X are intended to provide the exclusive remedy as to all Losses either any Indemnified Person may incur arising from or relating to the Transactions, and each party hereby waives, to the extent they may do so, any other rights or remedies that may arise under any applicable statute, rule or regulation. Moreover, notwithstanding anything to the contrary in this Agreement, Buyer waives no rights it may have or come to have or to pursue against any unrelated predecessors in interest of MagneTek or NEC.

Losses Net of Insurance, Etc. (a) The amount of any Loss for which indemnification is provided under this Article IX X shall be net of any all amounts actually recovered by the Indemnified Person, or which the Indemnified Party is entitled to recover, Person under insurance policies with respect to such Loss and shall be net of any related reserve in respect thereof reflected on the Closing StatementBalance Sheet. (b) If the Indemnifying Person makes any payment under this Article X in respect of any Losses, the Indemnifying Person shall be subrogated, to the extent of such payment and except to the extent that such subrogation is not permitted by the terms of any insurance policy, to the rights of the Indemnified Person against any insurer or third party with respect to such Losses. (c) Notwithstanding anything to the contrary elsewhere in this Agreement, no Indemnifying Person party shall, in any event, be liable to the other party any Indemnified Person for any damages consequential damages, including, but not proximately caused by its breach hereunderlimited to, any damages for loss of revenue or income, cost of capital, diminution in value or loss of business reputationreputation or opportunity relating to the breach or alleged breach of this Agreement. Each party agrees that it will not seek punitive damages from any Indemnified Person as to any matter under, relating to or any punitive or exemplary damages. The foregoing shall not be interpreted, however, to limit indemnification for Losses incurred as a result arising out of the assertion by a claimant (other than the parties hereto and their successors and assigns) in a Third-Party Claim of claims for damages of the foregoing type. (c) The parties hereto agree that any matter that is subject to resolution by the Accounting Arbitrator pursuant to Section 2.5 shall not be the basis of an indemnification claim under this Article IX, it being the intent of the parties that the Purchase Price adjustment provided in Section 2.5 shall be the sole and exclusive remedy thereforTransactions. (d) Except as expressly set forth in Section 10.5 as to equitable remedies, the The parties hereto agree that the indemnification provisions of this Article IX X are intended to provide the exclusive remedy as to all Losses either each may incur arising from from, or relating to the Transactions, transactions contemplated hereby and each party Buyer hereby waives, to the extent they may do so, waives any other rights or remedies that may arise under any applicable statute, rule or regulation, including no limitation of any right to contribution arising under CERCLA or otherwise. (e) Any indemnification payment for Taxes required under this Article X shall for purposes of federal, state and local income Taxes, be treated as a purchase price adjustment.

Losses Net of Insurance, Etc. (a) The amount of any Loss for which indemnification is provided under this Article IX X shall be net of any amounts actually recovered or recoverable by the Indemnified Person, or which the Indemnified Party is entitled to recover, Person under insurance policies with respect to such Loss and of any related reserve in respect thereof reflected on the Closing StatementBalance Sheet. (b) If the Indemnifying Person makes any payment under this Article X in respect of any Loss, the Indemnifying Person shall be subrogated, to the extent of such payment, to the rights of the Indemnified Person against any insurer or third party with respect to such Losses. The Indemnified Person shall execute any required documents or instruments, serve as a named plaintiff, or take any other similar steps necessary to effectuate such subrogation. (c) Notwithstanding anything to the contrary elsewhere in this Agreement, no Indemnifying Person shall, in any event, be liable to the other party for any damages consequential damages, including, but not proximately caused by its breach hereunderlimited to, any damages for loss of revenue or income, business interruption, cost of capital, or loss of business reputationreputation or opportunity relating to the breach or alleged breach of this Agreement. Each party agrees that it will not seek punitive damages as to any matter under, relating to or any punitive or exemplary damagesarising out of the Transactions. The foregoing shall not be interpreted, however, to limit indemnification for Losses incurred as a result of the assertion by a claimant (other than the parties hereto and their successors and assigns) ), in a Third-Party Claim (as defined below) of claims for damages of the foregoing type. (cd) The parties hereto agree that any matter that is subject to resolution by the Accounting Arbitrator pursuant to Section 2.5 shall not be the basis of an indemnification claim under this Article IX, it being the intent of the parties that the Purchase Price adjustment provided in Section 2.5 shall be the sole and exclusive remedy therefor. (d) Except as expressly set forth in Section 10.5 as to equitable remedies, the parties hereto agree that the indemnification provisions of this Article IX X are intended to provide the exclusive remedy as to all Losses either any Indemnified Person may incur arising from or relating to the Transactions, and each party hereby waives, to the extent they may do so, any other rights or remedies that may arise under any applicable statute, rule or regulation. Moreover, notwithstanding anything to the contrary in this Agreement, Buyer waives no rights it may have or come to have or to pursue against any unrelated predecessors in interest of MagneTek or NEC. (e) No Buyer Indemnified Person shall have any right, nor shall Magnetek have any liability under this Article X in respect of, any claim for indemnification under Section 10.1 or 10.3 to the extent such claim arises from any action or omission that occurred on or after July 6, 1995 and was under the control of Buyer or its Affiliates or agents pursuant to the Management Agreement referred to in Section 7.1 hereof. (f) To the extent any Indemnified Person incurs a Loss for which a right to indemnification may be asserted under this Article X and such Loss is incurred in Mexican currency, for purposes of calculating the amount of such Loss under this Agreement, the New York selling exchange rate published in THE WALL STREET JOURNAL on the date the Loss was incurred shall govern.