Common use of Other Limitations on Indemnification Clause in Contracts

Other Limitations on Indemnification. (A) The amount of any Losses sustained by an indemnified party shall be reduced (i) by any amount received by such indemnified party with respect thereto under any insurance coverage relating thereto (other than insurance coverage provided by an Affiliate of such indemnified party) or from any third party (not a party to this Agreement) alleged to be responsible therefor, and (ii) by the amount of any Tax benefit actually realized with respect to the Loss. Each of Alleghany and HTI Acquisition agrees to use commercially reasonable efforts to collect any amounts available under such insurance coverage and from any such third party alleged to have responsibility and to realize any Tax benefit with respect to the Loss. If an indemnified party realizes a Tax benefit or receives an amount under insurance coverage or from any such third party with respect to Losses sustained at any time subsequent to any indemnification provided pursuant to this Section 12, then such indemnified party shall promptly reimburse the indemnifying party for any payment made by such indemnifying party in connection with providing such indemnification up to such amount realized or received by such indemnified party. Nothing in this Section 12.6(A) shall limit in any way the ability of Alleghany or HTI Acquisition to (i) take (or refrain from taking, as the case may be) any reasonable position for Tax purposes that it determines to take (or refrain from taking) in its sole discretion, or (ii) refrain from pursuing any third party insurance recovery that Alleghany or HTI Acquisition, as the case may be, determines would be commercially inadvisable to pursue. (B) Each indemnified party shall be obligated to use its reasonable best efforts to mitigate to the fullest extent practicable the amount of any Loss for which its it entitled to seek indemnification hereunder, and the indemnifying party shall not be required to make any payment to an indemnified party in respect of such Loss to the extent such indemnified party has failed to comply with the foregoing obligation. (C) Upon making any indemnification payment, the indemnifying party will, to the extent of such payment, be subrogated to all rights of the indemnified party against any third party in respect of the Loss to which the payment relates; provided, however, that until the indemnified party recovers full payment of its Loss, any and all claims of the indemnifying party against any such third party on account of said payment are hereby made expressly subordinated and subjected in right of payment to the indemnified party's rights against such third party. Without limiting the generality of any other provision hereof, each such indemnified party and indemnifying party will duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation and subordination rights. (D) Neither Alleghany nor HTI Acquisition shall have any right to set off any Losses against any payments to be made by such party pursuant to this Agreement.

Other Limitations on Indemnification. The following principles, terms and limitations shall apply to any claims for indemnification with respect to Seller-Indemnified On-Site Environmental Liabilities or related claims for breach of the representations set forth in Section 2.15: (i) If the cost of investigation or remediation of actual or alleged contamination of the Business Real Properties, or the cost of correcting a non-compliance with Environmental Law that is subject to indemnity, is increased due to the actions or omissions by or on behalf of any Person other than Seller, its Affiliates, their respective Representatives or any Person for which or whom Seller or any of its Affiliates or Representatives is responsible, Seller shall not be responsible to the extent of any such increase in costs incurred. (ii) Seller shall only be obligated to indemnify Purchaser Indemnitees for fines or penalties arising out of actual or alleged noncompliance with Environmental Laws accruing during the period prior to the Closing Date or for expenditures made or actions taken by Purchaser Indemnitees to achieve compliance with applicable Environmental Laws, to the extent the operations at the Business Real Property were not in compliance on the Closing Date, and shall in no event be liable (A) The amount for any Losses arising out of any Losses sustained by an indemnified party shall be reduced (i) expenditures made or actions taken by any amount received by such indemnified party Purchaser Indemnitee to maintain compliance with respect thereto under any insurance coverage relating thereto applicable Environmental Laws based on circumstances arising after the Closing Date; (other than insurance coverage provided by an Affiliate of such indemnified partyB) or from any third party (for expenditures that are not a party commercially reasonable, taking into account the obligation to this Agreement) alleged to be responsible thereforcome into compliance with applicable Environmental Law or, and (ii) by the amount of any Tax benefit actually realized with respect subject to the Loss. Each express written consent of Alleghany and HTI Acquisition agrees to use commercially reasonable efforts to collect any amounts available under such insurance coverage and from any such third party alleged to have responsibility and to realize any Tax benefit with respect to the Loss. If an indemnified party realizes a Tax benefit or receives an amount under insurance coverage or from any such third party with respect to Losses sustained Seller at any time subsequent to any indemnification provided pursuant to this Section 12, then such indemnified party shall promptly reimburse the indemnifying party for any payment made by such indemnifying party in connection with providing such indemnification up to such amount realized or received by such indemnified party. Nothing in this Section 12.6(A) shall limit in any way the ability of Alleghany or HTI Acquisition to (i) take (or refrain from taking, as the case may be) any reasonable position for Tax purposes that it determines to take (or refrain from taking) in its Seller’s sole discretion, improve the Business Real Property in a manner that goes beyond what is required to bring said assets into compliance with applicable Environmental Law for the purpose of providing an economic benefit to a Purchaser Indemnitee; or (iiC) refrain from pursuing any third party insurance recovery for operating costs relating to the ongoing operation of the Business at the Business Real Property, provided, for purposes of clarification, that Alleghany or HTI Acquisition, as this limitation does not apply to the case may be, determines would be commercially inadvisable costs incurred to pursuecorrect the noncompliance that is the subject to indemnification hereunder. (Biii) Each indemnified party shall be obligated to use its reasonable best efforts to mitigate to the fullest extent practicable the amount of any Loss for which its it entitled to seek indemnification hereunder, and the indemnifying party Seller shall not be required to make responsible for any payment to an indemnified party in respect Losses, including costs of such Loss investigation and remediation of properties impacted by Hazardous Materials, to the extent such indemnified party has failed Losses are incurred due to comply (A) actions that are not required by applicable Environmental Law or any demand, claim, action, suit, directive or order of a Governmental Authority or any third party, unless such actions are undertaken with the foregoing obligationexpress written consent of Seller at Seller’s sole discretion; (B) any change in Environmental Laws or written interpretation thereof by the applicable Governmental Authority, in either case, after the Closing Date; (C) the closure of any Business Real Property after the Closing Date; (D) any change in the use of the Business Real Property after the Closing Date that would trigger investigation or remediation obligations or would result in the imposition of a more stringent remediation standard; or (E) any investigation or remediation that is conducted to achieve compliance in excess of the least stringent applicable remediation standard, consistent with the manufacturing operations at the Business Real Property in effect as of the Closing Date. Seller shall not be liable for any operating costs associated with post-remedial monitoring (excluding such monitoring that is implemented to verify that a remedial activity has achieved compliance with applicable remediation standards, prior to entering into a long-term post-remedial phase) and operations and maintenance after completion of a remediation of any environmental media. To the extent necessary to implement the foregoing, Purchaser Indemnitees shall agree to appropriate deed restrictions and engineering controls that prohibit uses of the property that are inconsistent with the least stringent remediation standard and limit exposure to contaminants that are allowed to remain in place. (Civ) Upon making Seller shall not be responsible for costs for investigation, remediation, corrective actions or other Losses arising out of or related to any indemnification paymentinvestigation of soil or groundwater that any Purchaser Indemnitee voluntarily initiates, the indemnifying party willperforms or causes to be performed by any Person or Governmental Authority, to the extent of if such paymentinvestigation is not required by any Environmental Law or demanded or required by a Governmental Authority, be subrogated to all rights or is not a prudent response (without consideration of the indemnified party against any third party in respect of the Loss indemnity provided hereunder) to which the payment relates; provided, however, that until the indemnified party recovers full payment of its Loss, any and all claims of the indemnifying party against any such third party on account of said payment are hereby made expressly subordinated and subjected in right of payment to the indemnified party's rights against such a demand or claim by a third party. Without limiting the generality of any other provision hereof, each such indemnified party and indemnifying party will duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation and subordination rights. (Dv) Neither Alleghany nor HTI Acquisition Seller shall have any right to set off not be responsible for any Losses against arising as a result of any payments matter as to be made by such party which a Purchaser Indemnitee has initiated contact with a Governmental Authority if the principal, but not necessarily exclusive, reason for the contact is to identify, enhance or accelerate a claim for indemnification pursuant to this Agreement. (vi) If any Purchaser or Affiliate of Purchaser sells any Business Real Property and the right of Purchaser Indemnitees to indemnification with respect to On-Site Environmental Liabilities has not terminated in accordance with the terms of this Section 9.5 or Section 9.2(a)(i)(A) for breach of the representations set forth in Section 2.15, Purchaser shall or shall cause said Affiliate to include Section 9.5(d)(iii) or equivalent language in the purchase and sale agreement and shall indemnify, defend and hold harmless Seller Indemnitees for any Losses incurred by Seller Indemnitees due to the failure to comply with this obligation. (vii) Seller shall not be obligated to indemnify Purchaser Indemnitees for any costs and expenses associated with Purchaser Indemnitees’ oversight of Seller’s performance of its defense and indemnity obligations, and Seller shall not be obligated to indemnify Purchaser Indemnitees for any internal costs attributed to the time spent on an indemnified matter by any of Purchaser Indemnitees.

Other Limitations on Indemnification. (Aa) The amount In the event that either party makes a Claim which is determined by a court of any Losses sustained by an indemnified party shall be reduced (i) by any amount received by such indemnified party with respect thereto under any insurance coverage relating thereto (other than insurance coverage provided by an Affiliate competent jurisdiction after entry of such indemnified party) or from any third party (not a party to this Agreement) alleged final and unappealable decision to be responsible thereforwithout reasonable basis in law or fact, such party will bear and (ii) by the amount of any Tax benefit actually realized with respect to the Loss. Each of Alleghany and HTI Acquisition agrees to use commercially reasonable efforts to collect any amounts available under such insurance coverage and from any such third party alleged to have responsibility and to realize any Tax benefit with respect to the Loss. If an indemnified party realizes a Tax benefit or receives an amount under insurance coverage or from any such third party with respect to Losses sustained at any time subsequent to any indemnification provided pursuant to this Section 12, then such indemnified party shall promptly reimburse the indemnifying other party for any payment made by such indemnifying party all Expenses in connection with providing such indemnification up to such amount realized or received by such indemnified party. Nothing in this Section 12.6(A) shall limit in any way the ability of Alleghany or HTI Acquisition to (i) take (or refrain from taking, as the case may be) any reasonable position for Tax purposes investigating and defending against that it determines to take (or refrain from taking) in its sole discretion, or (ii) refrain from pursuing any third party insurance recovery that Alleghany or HTI Acquisition, as the case may be, determines would be commercially inadvisable to pursueClaim. (Bb) Each indemnified party The indemnification obligations of the parties hereunder shall be obligated limited to use the obligation to make the other party whole on a dollar for dollar basis for assets lost or diminished, liabilities increased or expenses and costs actually incurred, and under no circumstances shall the Indemnifying Party be liable for claims by the Indemnified Party that as a consequence of the breach in question the Indemnified Party has incurred consequential, enhanced, punitive, special or exemplary damages. (c) To the extent that indemnity, insurance or "pass-through" warranty coverage from a seller or manufacturer or other form of recovery or reimbursement from a third party is available to Buyer or the Company to cover any item for which indemnification may be sought hereunder, Buyer will, and will cause the Company to, on a timely and expeditious basis, seek recovery under applicable contracts, insurance policies and warranties and otherwise exhaust all available remedies or causes of action to recover the maximum amount of its reasonable best efforts Claim as may be available from such other party. Seller shall be subrogated to mitigate the rights of Buyer and the Company under any such contract, policy or warranty, and to the extent Seller indemnifies Buyer on any Claim referred to in the previous sentence, Buyer will assign to Seller, to the fullest extent practicable allowable, its claim against such indemnity, insurance, warranty coverage or third-party, or in the amount event assignment is not permissible, Seller will be allowed to pursue such Claim in the name of Buyer or the Company, as appropriate, at Seller's expense. Seller will be entitled to retain all recoveries made as a result of any Loss for which its it entitled to seek indemnification hereunder, and the indemnifying party shall not be required to make any payment to an indemnified party in respect of such Loss to the extent such indemnified party has failed to comply with the foregoing obligation. (C) Upon making any indemnification payment, the indemnifying party will, action to the extent of all sums paid to Buyer by Seller. Buyer will make its and the Company's books and records relating to such payment, be subrogated Claim available to all rights of Seller and make its and the indemnified party against any third party Company's employees available for interviews and similar matters to assist Seller in respect of the Loss to which the payment relates; provided, however, that until the indemnified party recovers full payment of its Loss, any and all claims of the indemnifying party against any prosecuting such third party on account of said payment are hereby made expressly subordinated and subjected in right of payment to the indemnified party's rights against such third party. Without limiting the generality of any other provision hereof, each such indemnified party and indemnifying party will duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation and subordination rightsclaim. (Dd) Neither Alleghany nor HTI Acquisition shall have Any amount recoverable by Buyer from Seller under this Article XI will be net of any right actual tax benefit realized by Buyer or the Company in connection with federal, state and foreign tax deductions pertaining to set off the item for which indemnification may be sought hereunder. To the extent the actual tax benefit realized by the Buyer or the Company is incurred after any Losses against any payments to be made by such party recovery pursuant to this AgreementArticle XI, there will be a corresponding adjustment between the parties without regard to the time limitations imposed under this Article XI. All indemnification payments under this Article XI shall be deemed adjustments to Purchase Price.

Other Limitations on Indemnification. (Aa) The amount of any Losses sustained by an indemnified party a Parent Indemnitee or a Stockholder Indemnitee shall be reduced (i) by any amount actually received by such indemnified party Parent Indemnitee or Stockholder Indemnitee (net of any costs of such recovery out-of pocket prosecution costs and similar costs) with respect thereto under any insurance coverage relating thereto (other than insurance coverage provided by an Affiliate of such indemnified party) or from any third party (not a party to this Agreement) alleged to be responsible therefor, thereto. The Parent Indemnitee and (ii) by the amount of any Tax benefit actually realized with respect to the Loss. Each of Alleghany and HTI Acquisition agrees to Stockholder Indemnitees shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from any such third party alleged to have responsibility and to realize any Tax benefit with respect to the Losscoverage. If an indemnified party realizes a Tax benefit Parent Indemnitee or a Stockholder Indemnitee actually receives an amount under insurance coverage or from any such a third party with respect to Losses sustained at any time subsequent to such Indemnitee’s receipt of any indemnification provided pursuant to this Section 12Article VIII, then such indemnified party Parent Indemnitee or Stockholder Indemnitee, as applicable, shall promptly reimburse the indemnifying party applicable Indemnifying Party for any payment made by such indemnifying party Indemnifying Party in connection with providing such indemnification up to such amount realized or received by the Parent Indemnitee or the Stockholder Indemnitee, as applicable. (b) Indemnification payments under this Article VIII 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 any Losses, the Indemnified Party shall pay the amount of such indemnified partyTax Benefits (but not in excess of the indemnification payment or payments actually received from the Indemnifying Party with respect to such Losses) to the Indemnifying Party as such Tax Benefits are actually recognized by the Indemnified Party. Nothing For this purpose the Indemnified Party shall be deemed to recognize a tax benefit (“Tax Benefit”) with respect to a taxable period if, and to the extent that, the Indemnified Party’s cumulative liability for Taxes through the end of such taxable period, calculated by excluding any Tax items attributable to the Losses from all taxable periods, exceeds the Indemnified Party’s actual cumulative liability for Taxes through the end of such taxable period, calculated by taking into account any Tax items attributable to the Losses for all taxable years (to the extent permitted by relevant Tax law and treating such Tax items as the last items claimed for any taxable year). The Stockholders, the Company, and Parent agree to treat any payment made pursuant to this Article VIII as an adjustment to the Purchase Price for federal, state and local income tax purposes. (c) In no event shall any party hereto be liable for consequential, indirect, treble or punitive damages, Losses based on either the reduced current or future profitability or earnings of the Company or Losses based on a multiple of such profitability, earnings or other factor, or reduction therein (it being understood that all Losses shall for purposes of this Article VIII be determined and calculated on a direct, dollar-for-dollar basis), or other Losses not provided for in this Section 12.6(A) shall limit in Article VIII, other than any way the ability such Losses actually finally determined by a court of Alleghany competent jurisdiction to be owed by a Parent Indemnitee or HTI Acquisition to (i) take (or refrain from taking, as the case may be) any reasonable position for Tax purposes that it determines to take (or refrain from taking) in its sole discretion, or (ii) refrain from pursuing any third party insurance recovery that Alleghany or HTI AcquisitionStockholder Indemnitee, as the case may be, determines would be commercially inadvisable to pursueany unaffiliated Third Party Claimant. (Bd) Each indemnified party With respect to Losses arising out of the breach of any representation, warranty, covenant or agreement contained herein, the Indemnifying Party shall be obligated to indemnify the Indemnified Party only for those claims for which the Indemnified Party has given the Indemnifying Party written notice within the Applicable Survival Period relating to such breach. (e) The Indemnified Party shall be obligated to use its commercially reasonable best efforts to mitigate any and all Losses arising out of, resulting from or relating to the fullest extent practicable the amount of any Loss matter for which its it such party is entitled to seek indemnification hereunder, and the indemnifying party shall not be required to make any payment to an indemnified party in respect of such Loss to the extent such indemnified party has failed to comply with the foregoing obligationpursuant hereto. (Cf) Upon making any Any liability for indemnification payment, the indemnifying party will, to the extent under this Article VIII shall be determined without duplication of such payment, be subrogated to all rights recovery by reason of the indemnified party against any third party in respect state of the Loss facts giving rise to which the payment relates; providedsuch liability constituting a breach of more than one representation, howeverwarranty, that until the indemnified party recovers full payment of its Loss, any and all claims of the indemnifying party against any such third party on account of said payment are hereby made expressly subordinated and subjected in right of payment to the indemnified party's rights against such third party. Without limiting the generality of any other provision hereof, each such indemnified party and indemnifying party will duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation and subordination rightscovenant or agreement. (D) Neither Alleghany nor HTI Acquisition shall have any right to set off any Losses against any payments to be made by such party pursuant to this Agreement.

Other Limitations on Indemnification. (Aa) The amount of any Losses sustained by an indemnified party a Purchaser Indemnitee or a Seller Indemnitee shall be reduced (i) by any amount received by such indemnified party Purchaser Indemnitee or Seller Indemnitee with respect thereto under any insurance coverage relating thereto (other than insurance coverage provided by an Affiliate of such indemnified partyindemnitee) or from any third other party (not a party to this Agreement) alleged to be responsible therefor, and (ii) by the amount of any Tax benefit actually realized with respect to the Loss. Each of Alleghany The Purchaser Indemnitees and HTI Acquisition agrees to the Seller Indemnitees shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from any such third other party alleged to have responsibility and to realize any Tax benefit with respect to the Loss. If an indemnified party a Purchaser Indemnitee or a Seller Indemnitee realizes a Tax benefit or receives an amount under insurance coverage or from any such third other party with respect to Losses sustained at any time subsequent to any indemnification provided pursuant to this Section 12Article XV, then such indemnified party Purchaser Indemnitee or Seller Indemnitee shall promptly reimburse the indemnifying party applicable Indemnifying Party for any payment made by such indemnifying party Indemnifying Party in connection with providing such indemnification up to such amount realized or received by such indemnified partyPurchaser Indemnitee or Seller Indemnitee, as applicable. Nothing in this Section 12.6(A15.5(a) shall limit in any way the ability of Alleghany Seller, RSUI or HTI Acquisition Purchaser to (i) take (or refrain from taking, as the case may be) any reasonable position for Tax purposes that it Seller, RSUI or Purchaser determines to take (or refrain from taking) in its sole discretion, or (ii) refrain from pursuing any third party insurance recovery that Alleghany Seller, RSUI or HTI AcquisitionPurchaser, as the case may be, determines would be commercially inadvisable to pursue. (Bb) With respect to Losses arising out of the breach of any representation or warranty contained herein, the Indemnifying Party shall be obligated to indemnify the Indemnified Party only for those claims for which the Indemnified Party has given the Indemnifying Party written notice within the Survival Period relating to such breached representation or warranty. (c) Each indemnified party Indemnified Party shall be obligated to use its reasonable best efforts to mitigate to the fullest extent practicable the amount of any Loss for which its it entitled to seek indemnification hereunder, and the indemnifying party Indemnifying Party shall not be required to make any payment to an indemnified party Indemnified Party in respect of such Loss to the extent such indemnified party Indemnified Party has failed to comply with the foregoing obligation. (Cd) Upon making any indemnification payment, the indemnifying party Indemnifying Party will, to the extent of such payment, be subrogated to all rights of the indemnified party Indemnified Party against any third party in respect of the Loss to which the payment relates; provided, however, that until the indemnified party Indemnified Party recovers full payment of its Loss, any and all claims of the indemnifying party Indemnifying Party against any such third party on account of said payment are hereby made expressly subordinated and subjected in right of payment to the indemnified partyIndemnified Party's rights against such third party. Without limiting the generality of any other provision hereof, each such indemnified party Indemnified Party and indemnifying party Indemnifying Party will duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation and subordination rights. (De) Neither Alleghany Seller nor HTI Acquisition Purchaser shall have any right to set off any Losses against any payments to be made by such party or parties pursuant to this AgreementAgreement or the Ancillary Agreements.

Other Limitations on Indemnification. (A1) The amount Notwithstanding any provision of this Agreement, S-A shall not be liable to Comverge for any Indemnifiable Damages arising out of any Losses sustained breach of any representation or warranty of which the Comverge had knowledge, as defined in this Section 7.2(g), at the time of the Closing unless Comverge discloses such breach to S-A in writing prior to the Closing. For purposes of this Section 7.2(g), Comverge shall be deemed to have "knowledge" if Comverge had actual knowledge of the untruth of such representation or warranty. In the determination of whether Comverge had such actual knowledge, each of the persons listed in Section 7.2(g) to the Disclosure Schedule shall be deemed to have read this Agreement, the Disclosure Schedule and Exhibits hereto and the actual knowledge of any such person shall be imputed to Comverge. It is understood that actual knowledge by an indemnified Comverge of a breach of a representation or warranty by S-A shall not operate as a waiver by Comverge of the obligation of S-A to satisfy the conditions to Closing set forth in Section 6.2 unless the Closing shall occur. (2) Neither indemnifying party shall be reduced (i) by have any amount received by such obligation to indemnify the indemnified party with respect thereto under to any insurance coverage relating thereto (other than insurance coverage provided by an Affiliate matter unless the indemnified party shall have taken all reasonable steps to mitigate the liabilities, losses, claims, judgments, damages, expenses and costs involved upon and after becoming aware of such indemnified partymatter. In no event shall the indemnifying party shall be liable for consequential, incidental or punitive damages, including lost profits. (3) or from Anything in this Agreement to the contrary notwithstanding, no claim may be asserted nor any third party (not a party to this Agreement) alleged to be responsible therefor, and (ii) by the amount action commenced against S-A for breach of any Tax benefit actually realized representation, warranty, covenant or agreement contained herein, unless written notice of such claim or action is received by S-A describing in reasonable detail the facts and circumstances with respect to the Loss. Each subject matter of Alleghany and HTI Acquisition agrees to use commercially reasonable efforts to collect any amounts available under such insurance coverage and from any such third party alleged to have responsibility and to realize any Tax benefit with respect claim or action on or prior to the Loss. If an indemnified party realizes a Tax benefit date on which the representation, warranty, covenant or receives an amount under insurance coverage agreement on which such claim or from any such third party with respect action is based ceases to Losses sustained at any time subsequent to any indemnification provided pursuant to this Section 12, then such indemnified party shall promptly reimburse the indemnifying party for any payment made by such indemnifying party in connection with providing such indemnification up to such amount realized or received by such indemnified party. Nothing survive as set forth in this Section 12.6(A) shall limit in any way Agreement irrespective of whether the ability of Alleghany or HTI Acquisition to (i) take (or refrain from taking, as the case may be) any reasonable position for Tax purposes that it determines to take (or refrain from taking) in its sole discretion, or (ii) refrain from pursuing any third party insurance recovery that Alleghany or HTI Acquisition, as the case may be, determines would be commercially inadvisable to pursue. (B) Each indemnified party shall be obligated to use its reasonable best efforts to mitigate to the fullest extent practicable the amount of any Loss for which its it entitled to seek indemnification hereunder, and the indemnifying party shall not be required to make any payment to an indemnified party in respect subject matter of such Loss to the extent such indemnified party has failed to comply with the foregoing obligation. (C) Upon making any indemnification payment, the indemnifying party will, to the extent of such payment, be subrogated to all rights of the indemnified party against any third party in respect of the Loss to which the payment relates; provided, however, that until the indemnified party recovers full payment of its Loss, any and all claims of the indemnifying party against any such third party on account of said payment are hereby made expressly subordinated and subjected in right of payment to the indemnified party's rights against such third party. Without limiting the generality of any other provision hereof, each such indemnified party and indemnifying party will duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation and subordination rights. (D) Neither Alleghany nor HTI Acquisition claim or action shall have any right to set off any Losses against any payments to be made by occurred before or after such party pursuant to this Agreementdate.

Other Limitations on Indemnification. The following principles, terms and limitations shall apply to any claims for indemnification with respect to Seller-Indemnified On-Site Environmental Liabilities or related claims for breach of the representations set forth in Section 2.15: (i) If the cost of investigation or remediation of actual or alleged contamination of the Business Real Properties, or the cost of correcting a non-compliance with Environmental Law that is subject to indemnity, is increased due to the actions or omissions by or on behalf of any Person other than Seller, its Affiliates, their respective Representatives or any Person for which or whom Seller or any of its Affiliates or Representatives is responsible, Seller shall not be responsible to the extent of any such increase in costs incurred. (ii) Seller shall only be obligated to indemnify Purchaser Indemnitees for fines or penalties arising out of actual or alleged noncompliance with Environmental Laws accruing during the period prior to the Closing Date or for expenditures made or actions taken by Purchaser Indemnitees to achieve compliance with applicable Environmental Laws, to the extent the operations at the Business Real Property were not in compliance on the Closing Date, and shall in no event be liable (A) The amount for any Losses arising out of any Losses sustained by an indemnified party shall be reduced (i) expenditures made or actions taken by any amount received by such indemnified party Purchaser Indemnitee to maintain compliance with respect thereto under any insurance coverage relating thereto applicable Environmental Laws based on circumstances arising after the Closing Date; (other than insurance coverage provided by an Affiliate of such indemnified partyB) or from any third party (for expenditures that are not a party commercially reasonable, taking into account the obligation to this Agreement) alleged to be responsible thereforcome into compliance with applicable Environmental Law or, and (ii) by the amount of any Tax benefit actually realized with respect subject to the Loss. Each express written consent of Alleghany and HTI Acquisition agrees to use commercially reasonable efforts to collect any amounts available under such insurance coverage and from any such third party alleged to have responsibility and to realize any Tax benefit with respect to the Loss. If an indemnified party realizes a Tax benefit or receives an amount under insurance coverage or from any such third party with respect to Losses sustained Seller at any time subsequent to any indemnification provided pursuant to this Section 12, then such indemnified party shall promptly reimburse the indemnifying party for any payment made by such indemnifying party in connection with providing such indemnification up to such amount realized or received by such indemnified party. Nothing in this Section 12.6(A) shall limit in any way the ability of Alleghany or HTI Acquisition to (i) take (or refrain from taking, as the case may be) any reasonable position for Tax purposes that it determines to take (or refrain from taking) in its Seller’s sole discretion, improve the Business Real Property in a manner that goes beyond what is required to bring said assets into compliance with applicable Environmental Law for the purpose of providing an economic benefit to a Purchaser Indemnitee; or (iiC) refrain from pursuing any third party insurance recovery for operating costs relating to the ongoing operation of the Business at the Business Real Property, provided, for purposes of clarification, that Alleghany or HTI Acquisition, as this limitation does not apply to the case may be, determines would be commercially inadvisable costs incurred to pursuecorrect the noncompliance that is the subject to indemnification hereunder. (Biii) Each indemnified party shall be obligated to use its reasonable best efforts to mitigate to the fullest extent practicable the amount of any Loss for which its it entitled to seek indemnification hereunder, and the indemnifying party Seller shall not be required to make responsible for any payment to an indemnified party in respect Losses, including costs of such Loss investigation and remediation of properties impacted by Hazardous Materials, to the extent such indemnified party has failed Losses are incurred due to comply (A) actions that are not required by applicable Environmental Law or any demand, claim, action, suit, directive or order of a Governmental Authority or any third party, unless such actions are undertaken with the foregoing obligationexpress written consent of Seller at Seller’s sole discretion; (B) any change in Environmental Laws or written interpretation thereof by the applicable Governmental Authority, in either case, after the Closing Date; (C) the closure of any Business Real Property after the Closing Date; (D) any change in the use of the Business Real Property after the Closing Date that would trigger investigation or remediation obligations or would result in the imposition of a more stringent remediation standard; or (E) any investigation or remediation that is conducted to achieve compliance in excess of the least stringent applicable remediation standard, consistent with the manufacturing operations at the Business Real Property in effect as of the Closing Date. Seller shall not be liable for any operating costs associated with post-remedial monitoring (excluding such monitoring that is implemented to verify that a remedial activity has achieved compliance with applicable remediation standards, prior to entering into a long-term post- remedial phase) and operations and maintenance after completion of a remediation of any environmental media. To the extent necessary to implement the foregoing, Purchaser Indemnitees shall agree to appropriate deed restrictions and engineering controls that prohibit uses of the property that are inconsistent with the least stringent remediation standard and limit exposure to contaminants that are allowed to remain in place. (Civ) Upon making Seller shall not be responsible for costs for investigation, remediation, corrective actions or other Losses arising out of or related to any indemnification paymentinvestigation of soil or groundwater that any Purchaser Indemnitee voluntarily initiates, the indemnifying party willperforms or causes to be performed by any Person or Governmental Authority, to the extent of if such paymentinvestigation is not required by any Environmental Law or demanded or required by a Governmental Authority, be subrogated to all rights or is not a prudent response (without consideration of the indemnified party against any third party in respect of the Loss indemnity provided hereunder) to which the payment relates; provided, however, that until the indemnified party recovers full payment of its Loss, any and all claims of the indemnifying party against any such third party on account of said payment are hereby made expressly subordinated and subjected in right of payment to the indemnified party's rights against such a demand or claim by a third party. Without limiting the generality of any other provision hereof, each such indemnified party and indemnifying party will duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation and subordination rights. (Dv) Neither Alleghany nor HTI Acquisition Seller shall have any right to set off not be responsible for any Losses against arising as a result of any payments matter as to be made by such party which a Purchaser Indemnitee has initiated contact with a Governmental Authority if the principal, but not necessarily exclusive, reason for the contact is to identify, enhance or accelerate a claim for indemnification pursuant to this Agreement. (vi) If any Purchaser or Affiliate of Purchaser sells any Business Real Property and the right of Purchaser Indemnitees to indemnification with respect to On- Site Environmental Liabilities has not terminated in accordance with the terms of this Section 9.5 or Section 9.2(a)(i)(A) for breach of the representations set forth in Section 2.15, Purchaser shall or shall cause said Affiliate to include Section 9.5(d)(iii) or equivalent language in the purchase and sale agreement and shall indemnify, defend and hold harmless Seller Indemnitees for any Losses incurred by Seller Indemnitees due to the failure to comply with this obligation. (vii) Seller shall not be obligated to indemnify Purchaser Indemnitees for any costs and expenses associated with Purchaser Indemnitees’ oversight of Seller’s performance of its defense and indemnity obligations, and Seller shall not be obligated to indemnify Purchaser Indemnitees for any internal costs attributed to the time spent on an indemnified matter by any of Purchaser Indemnitees.