Common use of Calculation of Losses Clause in Contracts

Calculation of Losses. For the purposes of calculating Losses to which an Indemnified Party is entitled under this Section 9, such Losses (i) shall not include (x) any punitive, special or exemplary damages or (y) any consequential, incidental, indirect, or multiple damages or any lost profits, opportunity costs or similar items; provided, however, (A) that in the case of clauses (x) and (y) the Indemnified Party shall not be precluded from claiming as Losses any such damage or loss paid by the Indemnified Party to a third party, (B) that in case of clause (y) the Indemnified Party shall not be precluded from claiming as Losses any such damage or loss (excluding multiple damages) to the extent reasonably foreseeable by the parties as of the date hereof as a direct or indirect and probable result of the breach or the event otherwise giving rise to the right of indemnification and (C) that in the case of clause (y) that the Indemnified Party shall not be precluded from claiming Losses for multiple damages to the extent the Indemnified Party can prove that the Losses pertain to underlying damages indemnifiable hereunder and pertain to items representing impairments that will continue for the foreseeable future or result in impairments of future cash flows that would reasonably be expected to continue for the foreseeable future (including because of an increase in future expenses or a decrease in future revenue that, in each case, would reasonably be expected to be continue for the foreseeable future); (ii) shall be determined without duplication of amount recovered by reason of the state of facts giving rise to such Loss constituting a breach of more than one representation, warranty, covenant or agreement; (iii) shall be reduced by the amount of any proceeds that any Indemnified Party receives pursuant to the terms of any insurance policies; provided, however, such Indemnified Party shall promptly reimburse the Indemnifying Party for any subsequent recoveries from such sources if previously indemnified hereunder so as to avoid a double recovery; (v) shall be reduced by the amount of any prior or subsequent recovery by an Indemnified Party from any other Person (other than a Seller) with respect to such Losses; (vi) shall not include Losses to the extent reserved for or reflected on the Final Closing Date Net Working Capital (as finally determined pursuant to Section 2.2 above); and (vii) shall be determined net of any Tax deduction or Tax credit benefits actually realized by the Indemnified Party as a result of any Losses in any tax year in which or prior to which such Losses were incurred or, if later, any tax year in which an indemnification payment is made. An Indemnified Party shall diligently pursue recovery for Losses under any available insurance coverage and shall use commercially reasonable efforts (taking into account the existence of any customer relationships and the merits of the claim) to pursue payment from any third party under any agreement, contract, arrangement or commitment pursuant to which the Company, the Subsidiary or an Indemnified Party is entitled to indemnification for any Loss for which an Indemnified Party seeks indemnification pursuant to this Section 9.

Calculation of Losses. For the purposes (a) The amount of calculating any Losses to which an Indemnified Party is entitled payable under this Section 9, such Losses Article X by the Indemnifying Person shall be net of (i) shall not include any amounts actually received by the Indemnified Person under applicable insurance policies or from any other Person alleged to be responsible therefore or pursuant to any indemnity, contribution or other similar payment by any Person with respect thereto, net of any expenses reasonably incurred in connection with the collection thereof, including deductibles and self-insured retentions or from any other source; and (xii) any punitive, special or exemplary damages or (y) related Tax benefit actually realized by the Indemnified Person in connection with such Losses. If the Indemnified Person receives any consequential, incidental, indirectamounts under applicable insurance policies, or multiple damages from any other source, or a Person alleged to be responsible for any lost profitsLosses, opportunity costs subsequent to an indemnification payment by the Indemnifying Person, then such Indemnified Person shall promptly reimburse the Indemnifying Person for any payment made or similar itemsexpense incurred by such Indemnifying Person in connection with providing such indemnification payment up to the amount received by the Indemnified Person, net of any expenses reasonably incurred by such Indemnified Person in collecting such amount (including deductibles and self-insured retentions). The Indemnified Person shall use reasonable efforts to collect any amounts available under such insurance coverage or from such other Person alleged to have responsibility therefor; provided, however, that (Ai) that in the case of clauses (x) doing so is commercially reasonable and (yii) the Indemnified Party such obligation shall not be precluded from claiming as Losses any such damage or loss paid by the Indemnified Party to a third partycondition to, (B) that in case of clause (y) the Indemnified Party shall not be precluded from claiming as Losses any such damage or loss (excluding multiple damages) to the extent reasonably foreseeable by the parties as of the date hereof as a direct or indirect and probable result of the breach or the event otherwise giving rise to the right of indemnification and (C) that in the case of clause (y) that the Indemnified Party shall not be precluded from claiming Losses for multiple damages to the extent the Indemnified Party can prove that the Losses pertain to underlying damages indemnifiable hereunder and pertain to items representing impairments that will continue for the foreseeable future or result in impairments of future cash flows that would reasonably be expected to continue for the foreseeable future (including because of an increase in future expenses or a decrease in future revenue thatlimitation on, in each case, would reasonably be expected to be continue for the foreseeable future); (ii) shall be determined without duplication of amount recovered by reason of the state of facts giving rise to such Loss constituting a breach of more than one representation, warranty, covenant or agreement; (iii) shall be reduced by the amount of any proceeds that any Indemnified Party receives pursuant to the terms of any insurance policies; provided, however, such Indemnified Party shall promptly reimburse the Indemnifying Party for any subsequent recoveries from such sources if previously indemnified indemnification rights hereunder so as to avoid a double recovery; (v) shall be reduced by the amount of any prior or subsequent recovery by an Indemnified Party from any other Person (other than a Seller) with respect to such Losses; (vi) shall not include Losses to the extent reserved for or reflected on the Final Closing Date Net Working Capital (as finally determined pursuant to Section 2.2 above); and (vii) shall be determined net of any Tax deduction or Tax credit benefits actually realized by the Indemnified Party as a result of any Losses in any tax year in which or prior to which such Losses were incurred or, if later, making any tax year in which an claim for indemnification payment is made. An Indemnified Party shall diligently pursue recovery for Losses under any available insurance coverage and shall use commercially reasonable efforts (taking into account the existence of any customer relationships and the merits of the claim) to pursue payment from any third party under any agreement, contract, arrangement or commitment pursuant to which the Company, the Subsidiary or an Indemnified Party is entitled to indemnification for any Loss for which an Indemnified Party seeks indemnification pursuant to this Section 9.Article X.

Calculation of Losses. For the purposes The amount of calculating Losses to any Damages for which an Indemnified Party indemnification is entitled provided under this Section 9, such Losses 4.7 or Sections 4.8(b) or (ic) shall not include (x) be net of any punitive, special or exemplary damages or (y) any consequential, incidental, indirect, or multiple damages or any lost profits, opportunity costs or similar items; provided, however, (A) that in the case of clauses (x) and (y) the Indemnified Party shall not be precluded from claiming as Losses any such damage or loss paid amounts actually recovered by the Indemnified Party to a third party, (B) that in case of clause (y) the Indemnified Party shall not be precluded from claiming as Losses any such damage or loss (excluding multiple damages) to the extent reasonably foreseeable by the parties as of the date hereof as a direct or indirect and probable result of the breach or the event otherwise giving rise to the right of indemnification and (C) that in the case of clause (y) that the Indemnified Party shall not be precluded from claiming Losses for multiple damages to the extent the Indemnified Party can prove that the Losses pertain to underlying damages indemnifiable hereunder and pertain to items representing impairments that will continue for the foreseeable future or result in impairments of future cash flows that would reasonably be expected to continue for the foreseeable future (including because of an increase in future expenses or a decrease in future revenue that, in each case, would reasonably be expected to be continue for the foreseeable future); (ii) shall be determined without duplication of amount recovered by reason of the state of facts giving rise to such Loss constituting a breach of more than one representation, warranty, covenant or agreement; (iii) shall be reduced by the amount of any proceeds that any Indemnified Party receives pursuant to the terms of any under insurance policies; provided, however, such Indemnified Party shall promptly reimburse the Indemnifying Party for any subsequent recoveries from such sources if previously indemnified hereunder so as to avoid a double recovery; (v) shall be reduced by the amount of any prior or subsequent recovery by an Indemnified Party from any other Person (other than a Seller) policies with respect to such Losses; Damages and shall be (vii) shall not include Losses increased to take account of any net Tax cost incurred by the extent reserved Indemnified Party arising from the receipt of indemnity payments hereunder (grossed up for or reflected on the Final Closing Date Net Working Capital (as finally determined pursuant to Section 2.2 above); such increase) and (viiii) shall be determined net reduced to take account of any net Tax deduction or Tax credit benefits actually benefit realized by the Indemnified Party as a result arising from the incurrence or payment of any Losses such Damages, in any tax year in which each case calculated at the time of payment, using the characterization described below and assuming that all income and deductions bear (or prior to which such Losses were incurred orrelieve) Tax at an effective corporate rate based on the maximum marginal Federal rate and a state rate of 7.0%, if later, any tax year in which an indemnification payment is made. An Indemnified Party shall diligently pursue recovery for Losses under any available insurance coverage and shall use commercially reasonable efforts (taking into account the existence deductibility (if then allowed) of state tax from Federal taxable income. Any indemnity payment under this Section 4.7 or Sections 4.8(b) or (c) shall be treated as an adjustment to the Adjusted Consideration for Tax purposes, or as settlement of an obligation intended to be retained by the Company although paid by Buyer, unless a final determination (which shall include the execution of a Form 870-AD or successor form) with respect to the Indemnified Party or any of its affiliates causes any such payment not to be treated as an adjustment to the Adjusted Consideration for United States Federal income tax purposes. If any Tax Agency asserts in writing during the examination of any customer relationships and Return of Buyer or the merits Company that any indemnity payment should be characterized other than as provided in this Section 4.7(g), the Party that receives the proposed recharacterization (the "Affected Party") shall promptly notify the other Party (the "Consulted Party") in writing, with a copy of the claimproposed recharacterization. The Affected Party may control any proceedings involving the proposed recharacterization but (1) to pursue payment from any third party under any agreementshall resist, contract, arrangement or commitment pursuant to which the Companyin good faith and by appropriate proceedings, the Subsidiary proposed recharacterization, (2) shall provide the Consulted Party with copies of the portions of all communications from the relevant Tax Agency and all proposed filings and submissions regarding the proposed recharacterization, (3) shall consult with the Consulted Party regarding the conduct of the contest, and (4) shall not settle or concede the proposed recharacterization without the consent of the Consulted Party. If the Affected Party materially breaches its obligations under the preceding sentence, the Consulted Party may, in computing the amount of any indemnity payable to the Affected Party, continue to treat its indemnity payments as an Indemnified Party is entitled adjustment to indemnification for the Adjusted Consideration and not as provided in any Loss for which an Indemnified Party seeks indemnification pursuant final determination made with respect to this Section 9the Affected Party.

Calculation of Losses. For the purposes of calculating Losses to which an Indemnified Party is the Buyer Indemnitees are entitled under this Section 9Article X, such Losses (i) such Losses shall not include (x) any punitivepunitive damages relating to the breach or alleged breach of this Agreement, special or exemplary damages or (y) any consequential, incidental, indirect, or multiple damages or any lost profits, opportunity costs or similar items; provided, however, (A) that in the case of clauses (x) and (y) the Indemnified Party shall not be precluded from claiming as Losses any such damage or loss paid by the Indemnified Party to a third party, (B) that in case of clause (y) the Indemnified Party shall not be precluded from claiming as Losses any such damage or loss (excluding multiple damages) except to the extent reasonably foreseeable by the parties as of the date hereof as punitive damages are awarded to a direct or indirect and probable result of the breach or the event otherwise giving rise to the right of indemnification and (C) that in the case of clause (y) that the Indemnified Third-Party shall not be precluded from claiming Losses for multiple damages to the extent the Indemnified Party can prove that the Losses pertain to underlying damages indemnifiable hereunder and pertain to items representing impairments that will continue for the foreseeable future or result in impairments of future cash flows that would reasonably be expected to continue for the foreseeable future (including because of an increase in future expenses or a decrease in future revenue that, in each case, would reasonably be expected to be continue for the foreseeable future)Claim; (ii) such Losses shall be determined without duplication of amount recovered recovery by reason of the state of facts giving rise to such Loss constituting a breach of more than one representation, warranty, covenant or agreement; (iii) such Losses shall not include Losses related to any matter that was subject to the determination of the amount of any post-Closing adjustment pursuant to Section 2.14; and (iv) such Losses shall be reduced by the amount of any net proceeds that any Indemnified Party Buyer Indemnitees actually receives pursuant to the terms of any insurance policies (taking into account any premiums, fees, expenses or other costs incurred by such Buyer Indemnitee in pursuing coverage under such insurance policies); provided, however, such Indemnified Party Buyer Indemnitee shall promptly reimburse the Indemnifying Party Sellers for any subsequent recoveries from for such sources if previously indemnified hereunder so as to avoid a double recovery; and (v) such Losses shall be reduced by the amount of any prior or subsequent recovery by an Indemnified Party a Buyer Indemnitee from any other Person (other than a Seller) with respect to such Losses; provided, however, such Buyer Indemnitee shall promptly reimburse the Sellers for any subsequent recoveries for such sources if previously indemnified hereunder so as to avoid a double recovery; and (vi) such Losses shall not include Losses to the extent reserved for or reflected on in the Final Closing Date Net Working Capital (as finally determined pursuant Reference Balance Sheet. Buyer Indemnitees shall use commercially reasonable efforts to Section 2.2 above); and (vii) shall be determined net of any Tax deduction or Tax credit benefits actually realized by the Indemnified Party as a result of any Losses in any tax year in which or prior to which such Losses were incurred or, if later, any tax year in which an indemnification payment is made. An Indemnified Party shall diligently pursue recovery for Losses under any available insurance coverage (other than the R&W Insurance Policy, which is addressed above) and shall use commercially reasonable efforts (taking into account the existence of any customer relationships and the merits of the claim) to pursue payment from any third party applicable Person under any agreement, contract, arrangement or commitment pursuant to which the Company, the Subsidiary Company Group or an Indemnified Party a Buyer Indemnitee is entitled to indemnification for any Loss for which an Indemnified Party a Buyer Indemnitee seeks indemnification pursuant to this Section 9Article X; provided, however, the pursuit of recovery under any available insurance coverage (other than the R&W Insurance Policy) or under any Contract shall not be a condition for such Buyer Indemnitee to seek recovery for Losses under this Article X. Without limiting Buyers’ obligations in the prior sentence or Sellers remedies hereunder, if Xxxxxx fail to pursue or unsuccessfully obtain recoveries under any applicable insurance policies or from such other applicable Persons, including pursuant to indemnification obligations of other applicable Persons in favor of the Company Group, then the Sellers’ Representative, without limiting the foregoing provisions or any of its other rights or remedies hereunder, shall have the right of subrogation to pursue such insurance policies or other applicable Persons on behalf of the Sellers and may take any reasonable actions necessary, at Sellers’ sole cost and expense, to pursue such rights of subrogation in a manner reasonably acceptable to Buyers (such approval not to be unreasonably withheld, conditioned or delayed) in its name or the name of the party from whom subrogation is obtained. Buyers shall use commercially reasonable efforts to cooperate with the Sellers’ Representative to pursue any such subrogation claim at Sellers’ sole cost and expense.

Calculation of Losses. For the purposes of calculating Losses to which an Indemnified Party is entitled under this Section 9, such Losses (i) shall not include (x) any punitive, special or exemplary damages or (y) any consequential, incidental, indirect, or multiple damages or any lost profits, opportunity costs or similar items; provided, however, (A) that No Indemnified Person is required hereunder to pursue recovery under a contract for insurance prior to exercising its rights under an applicable indemnity set forth in the case of clauses (x) this Agreement. If and (y) the Indemnified Party shall not be precluded from claiming as Losses any such damage or loss paid by the Indemnified Party to a third party, (B) that in case of clause (y) the Indemnified Party shall not be precluded from claiming as Losses any such damage or loss (excluding multiple damages) to the extent reasonably foreseeable an Indemnified Person elects to make a claim to its insurer for such Losses hereunder or as a result of a Third Party Claim subject to indemnification hereunder, is not making such claim as an additional insured under the Indemnifying Person’s insurance policy, and recovers monies pursuant to a contract for insurance for a Third Party Claim or Loss for which it has also received or is also pursuing or may be entitled to payment pursuant to an indemnity under this Agreement, the Indemnified Person will promptly pay the Indemnifying Person the amounts of such insurance recoveries that such Indemnified Person collects within 12 months of when such Losses were incurred or suffered by such Indemnified Person (up to the parties as amounts the Indemnifying Person has already paid in fulfilling its indemnification obligations) and shall modify and reduce the outstanding claims under such indemnity against the Indemnifying Person by any and all remaining amounts *** Portions of this page have been omitted pursuant to a request for Confidential Treatment filed separately with the Commission. of the date hereof as a direct or indirect and probable result of the breach or the event otherwise giving rise insurance recoveries in order to prevent any duplicative recovery. Notwithstanding anything to the right of indemnification and (Ccontrary in this Section 8.5(e) that or otherwise in the case of clause (y) that the Indemnified Party shall not be precluded from claiming Losses for multiple damages to the extent the Indemnified Party can prove that the Losses pertain to underlying damages indemnifiable hereunder and pertain to items representing impairments that will continue for the foreseeable future or result in impairments of future cash flows that would reasonably be expected to continue for the foreseeable future (including because of an increase in future expenses or a decrease in future revenue thatthis Agreement, in each case, would reasonably be expected to be continue for the foreseeable future); (ii) shall be determined without duplication of amount recovered by reason of the state of facts giving rise to such Loss constituting a breach of more than one representation, warranty, covenant or agreement; (iii) shall be reduced by the amount of any proceeds that any Indemnified Party receives pursuant to the terms of any insurance policies; provided, however, such Indemnified Party shall promptly reimburse the Indemnifying Party for any subsequent recoveries from such sources if previously indemnified hereunder so as to avoid a double recovery; (v) shall be reduced by the amount of any prior or subsequent no recovery by an Indemnified Person under any insurance policy shall limit the Indemnifying Person’s indemnification obligations under this Agreement for any Third Party from Claim or Loss not covered by any other Person (other than a Seller) with respect to such Losses; (vi) shall not include Losses to the extent reserved for or reflected on the Final Closing Date Net Working Capital (as finally determined pursuant to Section 2.2 above); and (vii) shall be determined net of any Tax deduction or Tax credit benefits actually realized recovery by the Indemnified Person under a contract for insurance for a Third Party as a result of any Losses in any tax year in which Claim or prior to which such Losses were incurred or, if later, any tax year in which an indemnification payment is made. An Indemnified Party shall diligently pursue recovery for Losses under any available insurance coverage and shall use commercially reasonable efforts (taking into account the existence of any customer relationships and the merits of the claim) to pursue payment from any third party under any agreement, contract, arrangement or commitment pursuant to which the Company, the Subsidiary or an Indemnified Party is entitled to indemnification for any Loss for which an Indemnified Party seeks indemnification pursuant to this Section 9Loss.”

Calculation of Losses. For The amount of any Loss for which indemnification is provided to any Party pursuant to this Article VIII shall be net of (each, a “Loss Reduction Amount”) (i) any amounts actually recovered by the purposes indemnified party under any insurance policies with respect to such Loss; provided, that no Party shall be obligated to obtain or maintain insurance for such purpose, (ii) with respect to a Parent Indemnified Party, any amounts actually recovered thereby from the landlord relating to the leased real property at Fredericksburg, Virginia, (iii) with respect to claims made pursuant to Section 8.2(iii), the amount of calculating the Specific Reserves allocable to such Loss, (iv) with respect to claims made 50 pursuant to Section 8.2(ii), the amount of any specific reserves established with respect to such Loss as reflected on the Recent Financial Statements and set forth on Schedule 8.7 and (v) the amount of the Tax benefits actually received; provided, that no Indemnifying Party shall be entitled to approve, review or otherwise participate in the analysis or determination of any such Tax benefits and no Indemnified Party shall have any obligation to maximize any such Tax benefit. If the amount of any Losses to which incurred by an Indemnified Party at any time subsequent to the making of a payment by an Indemnifying Party pursuant to this Article VIII is entitled under this Section 9reduced by a Loss Reduction Amount, the amount of such Losses Loss Reduction Amount (iless any costs, expenses (including Taxes) or premiums incurred in connection therewith) shall not include (x) any punitive, special or exemplary damages or (y) any consequential, incidental, indirect, or multiple damages or any lost profits, opportunity costs or similar items; provided, however, (A) that in the case of clauses (x) and (y) the Indemnified Party shall not promptly be precluded from claiming as Losses any such damage or loss paid repaid by the Indemnified Party to the Indemnifying Party. Except with respect to indemnification for Losses pursuant to Section 8.2(iii), upon making a third partyfull indemnity payment, (B) that in case the Indemnifying Party shall, to the extent of clause (y) such indemnity payment, be subrogated to all rights of the Indemnified Party shall not be precluded from claiming as Losses any such damage or loss (excluding multiple damages) to the extent reasonably foreseeable by the parties as of the date hereof as a direct or indirect and probable result of the breach or the event otherwise giving rise to the right of indemnification and (C) that in the case of clause (y) that the Indemnified Party shall not be precluded from claiming Losses for multiple damages to the extent the Indemnified Party can prove that the Losses pertain to underlying damages indemnifiable hereunder and pertain to items representing impairments that will continue for the foreseeable future or result in impairments of future cash flows that would reasonably be expected to continue for the foreseeable future (including because of an increase in future expenses or a decrease in future revenue that, in each case, would reasonably be expected to be continue for the foreseeable future); (ii) shall be determined without duplication of amount recovered by reason of the state of facts giving rise to such Loss constituting a breach of more than one representation, warranty, covenant or agreement; (iii) shall be reduced by the amount of any proceeds that any Indemnified Party receives pursuant to the terms of any insurance policies; provided, however, such Indemnified Party shall promptly reimburse the Indemnifying Party for any subsequent recoveries from such sources if previously indemnified hereunder so as to avoid a double recovery; (v) shall be reduced by the amount of any prior or subsequent recovery by an Indemnified Party from any other Person (other than a Seller) with respect to such Losses; (vi) shall not include Losses to the extent reserved for or reflected on the Final Closing Date Net Working Capital (as finally determined pursuant to Section 2.2 above); and (vii) shall be determined net of any Tax deduction or Tax credit benefits actually realized by the Indemnified Party as a result of any Losses in any tax year in which or prior to which such Losses were incurred or, if later, any tax year in which an indemnification payment is made. An Indemnified Party shall diligently pursue recovery for Losses under any available insurance coverage and shall use commercially reasonable efforts (taking into account the existence of any customer relationships and the merits of the claim) to pursue payment from against any third party under any agreement, contract, arrangement or commitment pursuant in respect of the Losses to which the Company, the Subsidiary or an Indemnified Party is entitled to indemnification for any Loss for which an Indemnified Party seeks indemnification pursuant to this Section 9indemnity payment relates.

Calculation of Losses. For Notwithstanding anything to the contrary contained herein, for purposes of determining the amount of any Losses that are the subject matter of a claim for indemnification hereunder, the Basket shall be the aggregate materiality standards for all purposes hereunder and, therefore, each representation, warranty and other provision contained in this Agreement or in any Exhibit, Schedule or certificate delivered hereunder shall be read without regard and without giving effect to any materiality or Material Adverse Effect standard or qualification contained in such representation or warranty (as if such standard or qualification were deleted from such representation and warranty) (other than in Section 3.7, but not disregarding any reference to “materiality” contained in such representation or warranty). In addition, for purposes of calculating Losses to which an Indemnified Party is entitled under this Section 9, such Losses hereunder: (i) shall not include (x) any punitive, special or exemplary damages or (y) any consequential, incidental, indirect, or multiple damages or any lost profits, opportunity costs or similar items; provided, however, (A) that in the case of clauses (x) and (ya) the Indemnified Party shall not be precluded from claiming as amount of any Losses any such damage or loss paid by the Indemnified Party to a third party, (B) that in case of clause (y) the Indemnified Party shall not be precluded from claiming as Losses any such damage or loss (excluding multiple damages) to the extent reasonably foreseeable by the parties as of the date hereof as a direct or indirect and probable result of the breach or the event otherwise giving rise to the right of indemnification and (C) that in the case of clause (y) that the Indemnified Party shall not be precluded from claiming Losses for multiple damages to the extent the Indemnified Party can prove that the Losses pertain to underlying damages indemnifiable hereunder and pertain to items representing impairments that will continue for the foreseeable future or result in impairments of future cash flows that would reasonably be expected to continue for the foreseeable future (including because of an increase in future expenses or a decrease in future revenue that, in each case, would reasonably be expected to be continue for the foreseeable future); (ii) shall be determined without duplication of amount recovered by reason of the state of facts giving rise to such Loss constituting a breach of more than one representation, warranty, covenant or agreement; (iii) shall be reduced by the amount of any proceeds that accrual or reserve (in the ordinary course of business and consistent with past practice and GAAP (taking into account, without limitation, applicable rules regarding the proper timing for inclusion of items)) reflected on the financial statements of the Transferred Companies as of the Closing Date; (b) no party shall be entitled to recover Losses in respect of any Indemnified Party receives pursuant claim or otherwise obtain reimbursement or restitution more than once with respect to any claim hereunder - without limiting the foregoing, notwithstanding anything to the terms of contrary in this Agreement, Buyer shall not be entitled to indemnification with respect to any insurance policies; providedLosses as a result of, howeveror based upon or arising from, any claim or liability to the extent such Indemnified Party shall promptly reimburse the Indemnifying Party for any subsequent recoveries from such sources if previously indemnified hereunder so as to avoid a double recovery; (v) shall be reduced by claim or liability is taken into account in determining the amount of any prior adjustment to the Purchase Price in accordance with Section 2.2; (c) if Indemnitor makes any indemnification payment pursuant to this ARTICLE 9 or subsequent recovery otherwise by an Indemnified Party reason of the transactions contemplated hereby under any theory of recovery, Indemnitor shall be subrogated, to the extent of such payment and to the extent permitted by law, to any rights and remedies of the Indemnitee to recoup amounts paid from any other Person (other than a Seller) third parties with respect to such Lossesthe matters giving rise to indemnification hereunder; (vid) shall not include the amount of any and all Losses to the extent reserved for or reflected on the Final Closing Date Net Working Capital (as finally determined pursuant to Section 2.2 above); and (vii) under this ARTICLE 9 shall be determined net of any amounts recovered by Indemnitee under the insurance policies, indemnities or other reimbursement arrangements of the Transferred Companies with respect to such Losses (calculated net of any deductibles, co-payments, increase in insurance premiums or other payment obligations (including attorneys’ fees and other costs of collection) resulting from the related claims under applicable insurance policies); and (e) The amount of any Loss claimed by an Indemnitee hereunder shall be reduced to the extent of any Tax deduction savings or Tax credit benefits actually realized by the Indemnified Party as Indemnitee that is attributable to any deduction, loss, credit or other Tax benefit resulting from or arising out of such Loss. The Indemnitee shall be deemed to realize, with respect to any taxable year, a result Tax benefit (“Tax Benefit”) attributable to a Loss if, and to the extent that, the Indemnitee’s cumulative liability for Taxes through the end of such taxable year, calculated by excluding any Losses in any tax year in which or prior Tax items attributable to which the Loss from all taxable years, exceeds the Indemnitee’s cumulative liability for Taxes through the end of such Losses were incurred ortaxable year, if later, any tax year in which an indemnification payment is made. An Indemnified Party shall diligently pursue recovery for Losses under any available insurance coverage and shall use commercially reasonable efforts (calculated by taking into account any Tax items attributable to the existence Loss for all taxable years. 61 (f) In no event will any party be entitled to recover or make a claim for any amounts in respect of consequential, incidental or indirect damages, lost profits or punitive damages and, in particular, no “multiple of profits” or “multiple of cash flow” or similar valuation methodology shall be used in calculating the amount of any customer relationships and the merits of the claim) to pursue payment from any third party under any agreement, contract, arrangement or commitment pursuant to which the Company, the Subsidiary or an Indemnified Party is entitled to indemnification for any Loss for which an Indemnified Party seeks indemnification pursuant to this Losses. Section 9.9.11

Calculation of Losses. For the purposes The amount of calculating any Losses subject to which an Indemnified Party is entitled indemnification under this Section 9, such Losses (i9.2(a) shall be calculated net of any amounts recovered by the Acquiror or its Affiliates (including the Surviving Corporation after the Closing) under applicable insurance policies held by the Acquiror or its Affiliates (net of all direct unreimbursed collection expenses). The Acquiror and its Affiliates shall seek full recovery under all insurance policies covering any Loss to the same extent as they would if such Loss were not include (x) subject to indemnification hereunder, and the Acquiror, Merger Sub and the Company shall not terminate or cancel any punitive, special or exemplary damages or (y) any consequential, incidental, indirect, or multiple damages or any lost profits, opportunity costs or similar itemsinsurance policies maintained by the Company for periods prior to the Closing; provided, however, (A) that none of the Acquiror nor its Affiliates shall be obligated to resort to litigation against insurance carriers in order to pursue any insurance claims except in the case of clauses claims in excess of $500,000 where (x) and (yi) the Indemnified Party shall not be precluded from claiming as Losses any such damage Acquiror and its Affiliates conclude in good faith after discussing the matter with the Stockholder Representative that they have a reasonable chance of success on the merits or loss paid by the Indemnified Party to a third party, (B) that in case of clause (y) the Indemnified Party shall not be precluded from claiming as Losses any such damage or loss (excluding multiple damages) to the extent reasonably foreseeable by the parties as of the date hereof as a direct or indirect and probable result of the breach or the event otherwise giving rise to the right of indemnification and (C) that in the case of clause (y) that the Indemnified Party shall not be precluded from claiming Losses for multiple damages to the extent the Indemnified Party can prove that the Losses pertain to underlying damages indemnifiable hereunder and pertain to items representing impairments that will continue for the foreseeable future or result in impairments of future cash flows that would reasonably be expected to continue for the foreseeable future (including because of an increase in future expenses or a decrease in future revenue that, in each case, would reasonably be expected to be continue for the foreseeable future); (ii) shall be determined without duplication the Principal Stockholders direct the Acquiror in writing to proceed with litigation and agree in writing to indemnify the Acquiror and its Affiliates for fifty percent (50%) of any unreimbursed collection expenses relating thereto that exceed the amount recovered from the insurance company. In the event that an insurance recovery is made by reason the Acquiror, Merger Sub, the Surviving Corporation or any of their Affiliates with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the state recovery (net of facts giving rise to such Loss constituting a breach of more than one representation, warranty, covenant or agreement; (iiiall direct unreimbursed collection expenses) shall be reduced by made promptly to the Stockholder Representative (on behalf of the Principal Stockholders). The amount of any proceeds that any Indemnified Party receives claims or Losses subject to indemnification pursuant to the terms of any insurance policies; provided, however, such Indemnified Party shall promptly reimburse the Indemnifying Party for any subsequent recoveries from such sources if previously indemnified hereunder so as to avoid a double recovery; (v) Article VII or Article IX shall be reduced by the amount of any prior or subsequent recovery by an Indemnified Party from any other Person (other than a Seller) with respect to such Losses; (vi) shall not include Losses to the extent reserved for or reflected on the Final Closing Date Net Working Capital (as finally determined pursuant to Section 2.2 above); and (vii) shall be determined calculated net of any net Tax deduction or Tax credit benefits actually realized by the Indemnified Party as a result in the year of any Losses in any tax year in which or prior the Loss resulting from the matter giving rise to which such Losses were incurred or, if later, any tax year in which an the indemnification payment is madeclaim hereunder. An Indemnified Party shall diligently pursue recovery Except for Losses under any available insurance coverage and shall use commercially reasonable efforts (taking into account the existence included in a final, nonappealable order or decision issued by a court of any customer relationships and the merits of the claim) competent jurisdiction relating to pursue payment from any third party under any agreementa Third Party Claim, contractin no event will Losses include claims for consequential, arrangement punitive or commitment pursuant incidental damages, including consequential damages for business interruption, lost profits, lost business opportunity or damage to which the Company, the Subsidiary or an Indemnified Party is entitled to indemnification for any Loss for which an Indemnified Party seeks indemnification pursuant to this Section 9business reputation.

Calculation of Losses. For (a) The amount of any Losses payable under ARTICLE IX or this ARTICLE X by the purposes Indemnifying Party shall be net of calculating Losses to which an Indemnified Party is entitled under this Section 9, such Losses any (i) shall not include (x) any punitive, special amounts recovered or exemplary damages or (y) any consequential, incidental, indirect, or multiple damages or any lost profits, opportunity costs or similar items; provided, however, (A) that in the case of clauses (x) and (y) the Indemnified Party shall not be precluded from claiming as Losses any such damage or loss paid recoverable by the Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor (including, without limitation, under any release and/or acknowledgement signed by a third partyPerson in favor of Buyer, the Company, and/or the Subsidiary), and (Bii) that in case of clause (y) the Tax benefits realizable by the Indemnified Party shall not be precluded arising from claiming as Losses the incurrence or payment of any such damage or loss (excluding multiple damages) to the extent reasonably foreseeable by the parties as of the date hereof as a direct or indirect and probable result of the breach or the event otherwise giving rise to the right of indemnification and (C) that in the case of clause (y) that Losses. If the Indemnified Party shall not be precluded receives any amounts under applicable insurance policies, or from claiming Losses for multiple damages to the extent the Indemnified Party can prove that the Losses pertain to underlying damages indemnifiable hereunder and pertain to items representing impairments that will continue for the foreseeable future or result in impairments of future cash flows that would reasonably be expected to continue for the foreseeable future (including because of an increase in future expenses or a decrease in future revenue that, in each case, would reasonably be expected any other Person alleged to be continue responsible for the foreseeable future); (ii) shall be determined without duplication of amount recovered by reason of the state of facts giving rise any Losses, subsequent to such Loss constituting a breach of more than one representation, warranty, covenant or agreement; (iii) shall be reduced an indemnification payment by the amount of any proceeds that any Indemnified Party receives pursuant to the terms of any insurance policies; providedIndemnifying Party, however, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any subsequent recoveries payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses reasonably incurred by such Indemnified Party in collecting such amount. The Indemnified Party shall use Reasonable Efforts to collect any amounts available under such insurance coverage or from such sources if previously indemnified hereunder so as other Person alleged to avoid have responsibility therefor, but shall not be required to commence or exhaust such efforts prior to making any claim for indemnification under this ARTICLE X. The Indemnifying Party shall not be liable under ARTICLE IX or this ARTICLE X for any (i) Losses relating to any matter to the extent that (A) there is included in the Latest Balance Sheet or the Closing Date Balance Sheet a double recovery; specific liability or a specific or general reserve relating to such matter, except that the foregoing limitation on an Indemnifying Party’s liability shall not apply to Losses arising out of a breach of the representation contained in Section 3.22 that exceed an otherwise unused general reserve of $200,000 or less, or (vB) shall be reduced the Indemnified Party has otherwise been adequately compensated for such matter pursuant to any Transaction Consideration adjustments under Section 2.2, or (ii) solely with respect to claims made by a Buyer Indemnified Party, Losses arising with respect to the representations and warranties relating to Taxes to the extent such Losses are attributable to periods (or portions thereof) beginning after the Closing Date, unless such Losses (A) are attributable to a breach of the representation set forth in Section 3.7(g), or (B) are attributable to a reduction in Pre-Closing Tax Period NOL’s (other than by reason of a change of a change of ownership under Code §382). In the case of a breach of the representation set forth in Section 3.7(g), the amount of the Loss will equal the reduction in the net present value of any Pre-Closing Tax Period NOL’s resulting from the change of ownership under Code §382. For purposes hereof, the net present value of the Pre-Closing Tax Period NOL’s that are subject to a Code §382 limitation arising from a change in control prior or subsequent recovery by an Indemnified Party from any other Person (other than a Seller) with respect to such Losses; (vi) shall not include Losses to the extent reserved for or reflected on the Final Closing Date Net Working Capital (as finally determined pursuant to the “Section 2.2 above); and (vii382 Loss Present Value”) shall be determined using the following assumptions: (1) the value of the losses equals 40% of such losses, (2) the available losses are deemed to be used to the extent allowable under Code §382 limitation on January 1 of each year, and (3) the discount rate is equal to the rate in effect under Code §382(f) on the date of the ownership change. The indemnification amount shall equal the excess of (A) 40% of the net operating loss shown on the tax return for the tax period ending on the Closing Date over (B) the Section 382 Loss Present Value. In the case of any reduction in Pre-Closing Tax deduction Period NOL’s (other than by reason of a change of a change of ownership under Code §382), the amount of such indemnification shall equal the actual increase in tax attributable to the reduction or disallowance of such Pre-Closing Tax credit benefits actually realized by the Indemnified Party as a result of any Losses in any tax year in which or prior to which such Losses were incurred orPeriod NOL’s, if later, any tax year in which an indemnification payment is made. An Indemnified Party shall diligently pursue recovery for Losses under any available insurance coverage and shall use commercially reasonable efforts (taking into account the existence effect of other Pre-Closing Tax Period NOL’s which remain available. No indemnity payment shall be required in respect of a breach of Section 3.7(g) or a reduction in Pre-Closing Tax Period NOL’s to the extent that Buyer or any customer relationships and the merits of the claim) Affiliate breaches its obligations relating to pursue payment from any third party Tax Returns for Post-Closing Tax Periods or tax positions under any agreement, contract, arrangement or commitment pursuant to which the Company, the Subsidiary or an Indemnified Party is entitled to indemnification for any Loss for which an Indemnified Party seeks indemnification pursuant to this Section 99.1(d).

Calculation of Losses. For Any determination of Losses shall be net of a reasonable estimate of the purposes value of calculating Losses to which an Indemnified Party is entitled under this Section 9, such Losses (i) shall not include (x) any punitive, special or exemplary damages or (y) any consequential, incidental, indirect, or multiple damages or any lost profits, opportunity costs or similar items; provided, however, (A) that in the case of clauses (x) and (y) the Indemnified Party shall not be precluded from claiming as Losses any such damage or loss paid Tax benefits realizable by the Indemnified Party to a third party, (B) that in case of clause (y) the Indemnified Party shall not be precluded from claiming as Losses any such damage or loss (excluding multiple damages) to the extent reasonably foreseeable by the parties as reason of the date hereof as a direct or indirect facts and probable result of the breach or the event otherwise circumstances giving rise to the right claim for indemnification. The calculation of indemnification and (C) that in the case of clause (y) that the Indemnified Party shall not be precluded from claiming Losses for multiple damages to the extent the Indemnified Party can prove that the Losses pertain to underlying damages indemnifiable hereunder and pertain to items representing impairments that will continue for the foreseeable future or result in impairments of future cash flows that would reasonably be expected to continue for the foreseeable future (including because of an increase in future expenses or a decrease in future revenue that, in each case, would reasonably be expected to be continue for the foreseeable future); (ii) shall be determined without duplication net of amount recovered by reason of the state of facts giving rise to such Loss constituting a breach of more than one representation, warranty, covenant or agreement; (iii) shall be reduced by the amount of any insurance proceeds that any Indemnified Party receives pursuant to the terms of any insurance policies; provided, however, such Indemnified Party shall promptly reimburse the Indemnifying Party for any subsequent recoveries from such sources if previously indemnified hereunder so as to avoid a double recovery; (v) shall be reduced by the amount of any prior or subsequent recovery by an Indemnified Party from any other Person (other than a Sellerproceeds from the R&W Insurance Policy) recoverable by the Indemnified Party with respect to such Losses; (vi) . The calculation of Losses shall not include damages arising because of a change after the Closing in Law or accounting policy. To the extent that a claim for indemnification by Buyer hereunder relates to a liability incurred by Seller and there is an accrual on the Closing Balance Sheet in respect of such liability, then the determination of Losses in respect of such Claim shall be net of such accrual. In the event that Buyer, Seller, Parent or any other Indemnified Party receives a payment in reimbursement or otherwise in respect of a Loss from a third party as to which an Indemnifying Party has previously made a payment to an Indemnified Party hereunder, the applicable Indemnified Party shall promptly pay over to the extent reserved for or reflected applicable Indemnifying Parties their proportionate share (based on the Final Closing Date Net Working Capital amounts paid by the Indemnifying Parties) of such amount received from the third party (as finally determined pursuant to Section 2.2 above); and (vii) shall be determined net of any Tax deduction or Tax credit benefits actually realized reasonable expenses incurred by the Indemnified Party as a result of in obtaining such payment). The Indemnified Parties shall take all reasonable steps to mitigate any Losses in respect of a claim that is subject to indemnification hereunder. In the event an Indemnifying Party makes any tax year payment in which or prior respect of Losses under this Article 6 to which an Indemnified Party, such Losses were incurred or, if later, any tax year in which an indemnification payment is made. An Indemnified Indemnifying Party shall diligently pursue recovery for Losses under any available insurance coverage and shall use commercially reasonable efforts (taking into account the existence have a right of any customer relationships and the merits of the claim) to pursue payment from subrogation against any third party under any agreement, contract, arrangement or commitment pursuant as to which the Company, the Subsidiary or an Indemnified Party is entitled could recover some or all of such Losses so as to permit the Indemnifying Party to recover the amount of its indemnification for payment hereunder. Any determination of Losses hereunder shall not include any Loss for amount in respect of consequential, indirect, or incidental damages, including, without limitation, lost profits or Losses based on multipliers of Seller earnings or profits or otherwise in respect of a diminution value of Seller, all of which an Indemnified Party seeks indemnification pursuant to this Section 9are hereby excluded.