Common use of Determination of Loss Amount Clause in Contracts

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 9.02 or Section 9.03 shall be calculated net of (i) any Tax Benefit actually received by the Indemnitee or any of its Affiliates on account of such Loss within one (1) year of such Loss and (ii) any insurance proceeds or any indemnity, contribution or other similar payment received by the Indemnitee from any third party with respect thereto (including under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant to which or under which such Indemnitee or any of its Affiliates is a party or has rights) (the “Alternative Arrangements”), in each case net of the costs of collection and any increases in premiums or Taxes with respect to such proceeds. If the Indemnitee receives a Tax Benefit within one (1) year after an indemnification payment is made to it, the Indemnitee shall promptly pay to the Indemnitor the amount of such Tax Benefit (up to the amount of the indemnification payments previously made in respect of such Loss) at such time or times as and to the extent that such Tax Benefit is actually realized by the Indemnitee. For purposes hereof, “Tax Benefit” shall mean any refund of Taxes paid or reduction in the amount of Taxes which otherwise would have been paid, in either case realized in cash, net of any related Tax Losses. The Indemnitee shall use commercially reasonable efforts to seek full recovery under all Alternative Arrangements covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other recovery is made by any Indemnitee with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (up to the amount of the indemnification payments previously made in respect of such Loss) shall be made promptly to the Indemnitor.

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 9.02 13.2.1 or Section 9.03 13.4.1 shall be calculated net of (ia) any Tax Benefit actually received by the Indemnitee inuring to Buyer or Shareholder, as applicable, and/or any of its their respective Affiliates on account of such Loss within one (1) year of such Loss Loss, and (iib) any insurance proceeds or any indemnity, contribution or other similar payment received by the Indemnitee from any third party with respect thereto (including under indemnification or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement proceeds actually recovered on account of such Loss. If Buyer or contract pursuant to which or under which such Indemnitee or Shareholder and/or any of its their respective Affiliates is a party or has rights) (the “Alternative Arrangements”), in each case net of the costs of collection and any increases in premiums or Taxes with respect to such proceeds. If the Indemnitee receives realizes a Tax Benefit on account of such Loss and such Tax Benefit was not included in the computation of the Loss, Buyer or Shareholder, as applicable, shall within one ten (110) year after an indemnification payment days of filing the Tax Return claiming the Tax Benefit (or, to the extent the Tax Benefit is made to itin the form of a refund, within ten (10) days of receiving the Indemnitee shall promptly refund from the Governmental Entity) pay to the Indemnitor other party the amount of such Tax Benefit. Each party shall take all commercially reasonable actions (and shall cause its Affiliates to take all commercially reasonable actions) to timely claim any Tax Benefit (up to that shall reduce the amount of a Loss, or give rise to a payment to or for the indemnification payments previously made in respect benefit of such Loss) at such time or times as the other party, under this Section 13.7. Buyer and to the extent that such Tax Benefit is actually realized by the Indemnitee. For purposes hereofShareholder shall, “Tax Benefit” and shall mean any refund of Taxes paid or reduction in the amount of Taxes which otherwise would have been paidcause their respective Affiliates to, in either case realized in cash, net of any related Tax Losses. The Indemnitee shall use commercially reasonable efforts to seek full recovery under all Alternative Arrangements insurance policies and other third-party agreements covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In the event that an insurance recovery or a recovery under any other recovery third-party agreement is made by Buyer or the Shareholder and/or any Indemnitee of their respective Affiliates with respect to any Loss for which any such Person Buyer Indemnified Party or any Shareholder Indemnified Party, as applicable, has been indemnified hereunder, then a refund payment equal to the aggregate amount of the recovery (up to the amount of the indemnification payments previously made in respect of such Loss) shall be made promptly by Buyer or the Shareholder, as applicable to the Indemnitorother party for the benefit of the other party. The Shareholder shall be subrogated to all rights of Buyer, the Companies and the Companies’ Subsidiaries in respect of any Losses indemnified by the Shareholder. The Buyer shall be subrogated to all rights of the Shareholder in respect of any Losses indemnified by the Buyer.

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 9.02 or Section 9.03 shall be calculated net of (i) any Tax Benefit actually received realized by the Indemnitee or any of its Affiliates on account of such Loss within one (1) year of such Loss and (ii) any insurance proceeds or any indemnity, contribution or other similar payment received recovered by the Indemnitee from any third party with respect thereto (including thereto; provided that the amount deemed to be so recovered under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant to which or under which such Indemnitee or any of its Affiliates is a party or has rights) (the “Alternative Arrangements”), in each case policy shall be net of (i) the costs of collection applicable deductible for such policies and (ii) any increases increase in premiums or Taxes with respect the premium for such policies directly attributable to such proceedsLosses. If the a Purchaser Indemnitee receives a Tax Benefit within one (1) year after an indemnification payment is made to it, the such Purchaser Indemnitee shall promptly pay to the Indemnitor Seller the amount of such Tax Benefit (up to the amount of the indemnification payments previously made in respect of such Loss) at such time or times as and to the extent that such Tax Benefit is actually realized by the Indemnitee. For purposes hereofof this Section 9.06, “Tax Benefit” shall mean any refund of Taxes paid or reduction in the amount of Taxes which that otherwise would have been paid, in either each case realized in cash, net computed at the highest marginal tax rates applicable to the recipient of any related Tax Lossessuch benefit. The Indemnitee shall use commercially reasonable efforts to seek full recovery under all Alternative Arrangements insurance policies covering any Loss to the same extent as they it would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other recovery is made by any Indemnitee with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (up to after deducting therefrom the full amount of the indemnification payments previously made expenses incurred by such Indemnitee in respect of procuring such Lossrecovery) shall be made promptly to the Indemnitor; provided that (a) any such refund shall not be in excess of the amount previously so paid to or on behalf of such Indemnitee by the Indemnitor in respect of such matter, and (b) prior to the termination of the Escrow Account, any such amount recovered by a Purchaser Indemnitee shall be deposited into the Escrow Account to fund the indemnification obligations under Section 9.02(a) (rather than be paid over to the Seller) if the amount previously so paid to or on behalf of such Indemnitee by the Indemnitor in respect of such matters was funded out of the Escrow Account. Each party hereby waives, to the extent permitted under its applicable insurance policies, any subrogation rights that its insurer may have with respect to any indemnifiable Losses.

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 9.02 7.02 or Section 9.03 7.03 or Section 8.03 shall be calculated net of (i) any Tax Benefit actually (and not potentially) realized by the Indemnitee on account of such Loss, (ii) any reserves set forth in the Latest Balance Sheet relating specifically to such Loss and (iii) any insurance proceeds or other amounts under indemnification agreements actually (and not potentially) received by the Indemnitee or any on account of its Affiliates such Loss. If the Indemnitee actually realizes a Tax Benefit on account of such Loss within one (1) year of such Loss and (ii) any insurance proceeds or any indemnity, contribution or other similar payment received by the Indemnitee from any third party with respect thereto (including under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant to which or under which such Indemnitee or any of its Affiliates is a party or has rights) (the “Alternative Arrangements”), in each case net of the costs of collection and any increases in premiums or Taxes with respect to such proceeds. If the Indemnitee receives a Tax Benefit within one (1) year after an indemnification payment is made to it, the Indemnitee shall promptly pay to the Indemnitor Person or Persons that made such indemnification payment the amount of such Tax Benefit (up to the amount of the indemnification payments previously made in respect of such Loss) at such time or times as and to the extent that such Tax Benefit is actually realized by the Indemnitee. For purposes hereof, “Tax Benefit” shall mean any refund of Taxes to be paid or reduction in the amount of Taxes which otherwise would have been paidbe owed by the Indemnitee, in either each case realized in cash, net computed at the highest marginal tax rates applicable to the recipient of any related Tax Lossessuch benefit. The Indemnitee shall use commercially reasonable efforts to seek full recovery under all Alternative Arrangements any insurance policies and/or indemnification agreements potentially covering any Loss Loss. For the purposes of this Section 7.06 only, “commercially reasonable” means the Indemnitee’s actions must be commercially reasonable taking into account all relevant considerations, including the risk of increased insurance premiums, the impact on insurance claims history, the risk of insurance non-renewal, other insurance policy risks and consequences and all other foreseeable consequences related to the same extent as they would if such Loss were not subject to indemnification hereunderthird parties, including foreseeable impacts on customer, reseller, vendor, distributor, supplier, strategic alliance, partner or other relationships. In the event that an insurance or other recovery is made by any Indemnitee with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (up to the amount of the indemnification payments previously made in respect of such Lossafter deducting related costs and Expenses and any resulting increased premium costs) shall be made promptly to the IndemnitorPerson or Persons that provided such indemnity payments to such Indemnitee. The Indemnitors shall be subrogated to all rights of the Indemnitees in respect of any Losses indemnified by the Indemnitors. For Tax purposes, the parties agree that all payments made under this Article VII and Section 8.03 constitute adjustments to the Purchase Price and shall report any payments as such on their Tax Returns, unless otherwise required by applicable Law.

Determination of Loss Amount. (a) The amount of any Loss Losses subject to indemnification under pursuant to Section 9.02 or Section 9.03 8.2(a), shall be calculated net of reduced by (i) any Tax Benefit actually insurance proceeds previously received by the Indemnitee Acquired Entities with respect to such Losses (net of any deductible or co-payment, the Buyer’s reasonable estimate of any increase in insurance premiums attributable to such recovery and all out of its Affiliates on account pocket costs related to such recovery) from any insurance carrier pursuant to any insurance coverage in place as of such Loss within one (1) year the date of such Loss this Agreement and (ii) the amount of any Tax benefit recognized by the Acquired Entities, Buyer or any of Buyer’s Affiliates in, or prior to, or within the first two (2) Tax years following the Tax year in which the indemnification payment related to such Losses is first required to be made (but, for the avoidance of doubt, future Tax benefit shall not delay any indemnification payment). For purposes of this Section 8.8(a), Buyer or any of Buyer’s Affiliates shall be deemed to recognize a Tax benefit in a Tax year related to Losses to the extent that (A) their actual Tax liability for such Tax year determined without taking such Losses and all Tax consequences of the related indemnification payment into account is greater than (B) their actual Tax liability for such Tax year. If any insurance proceeds or any indemnity, contribution or other similar payment received are subsequently recovered by the Indemnitee Acquired Entities from any third party an insurance carrier after payment has been made by the Seller Parties to the Buyer Indemnified Parties in accordance with this ARTICLE VIII with respect thereto (including under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant the Losses to which or under which such Indemnitee or any of its Affiliates is a party or has rights) insurance recoveries relate, then the Buyer shall promptly cause the Acquired Entities to remit to the Seller Parties such insurance recoveries (the “Alternative Arrangements”), in each case net of any deductible or co-payment, Buyer’s reasonable estimate of any increase in insurance premiums attributable to such recovery and all out of pocket costs related to such recovery); provided that in no event shall the costs Buyer have any obligation hereunder to cause the Acquired Entities to remit to the Seller Parties any portion of collection and any increases such insurance recoveries in premiums excess of the indemnification payment or Taxes payments actually received from the Seller Parties with respect to such proceeds. If the Indemnitee receives a Tax Benefit within one (1) year after an indemnification payment is made to it, the Indemnitee shall promptly pay to the Indemnitor the amount of such Tax Benefit (up to the amount of the indemnification payments previously made in respect of such Loss) at such time or times as and to the extent that such Tax Benefit is actually realized by the Indemnitee. For purposes hereof, “Tax Benefit” shall mean any refund of Taxes paid or reduction in the amount of Taxes which otherwise would have been paid, in either case realized in cash, net of any related Tax Losses. The Indemnitee shall use commercially reasonable efforts to seek full recovery under all Alternative Arrangements covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other recovery is made by any Indemnitee with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (up to the amount of the indemnification payments previously made in respect of such Loss) shall be made promptly to the Indemnitor.

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 9.02 or Section 9.03 10.02(a) shall be calculated net of (ia) any Tax Benefit actually received realized by Parent, the Indemnitee or Surviving Corporation, the Company Subsidiaries and/or any of its their respective Affiliates on account of such Loss within one (1) with respect to the Tax year of such Loss or either of the two (2) Tax years immediately following such Tax year, and (iib) any insurance proceeds or any indemnity, contribution other third party indemnification or other similar payment reimbursement proceeds received by the Indemnitee from any third party with respect thereto (including under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant to which or under which such Indemnitee or any of its Affiliates is a party or has rights) them on account of such Loss (the “Alternative Arrangements”), in each case net of any expense incurred in connection with obtaining such proceeds). If Parent, the costs Surviving Corporation, the Company Subsidiaries and/or any of collection and any increases in premiums or Taxes their respective Affiliates realize a Tax Benefit with respect to the Tax year of the Loss or either of the two (2) immediately succeeding Tax years and such proceeds. If the Indemnitee receives a Tax Benefit was not included in the computation of the Loss, Parent shall within one ten (110) year days after an indemnification payment filing the Tax Return claiming the Tax Benefit (or, to the extent the Tax Benefit is made to itin the form of a refund, within ten (10) days after receiving the Indemnitee shall promptly refund from the Governmental Authority) pay to the Indemnitor Representative for distribution to the Holders the amount of such Tax Benefit (up to the amount of the indemnification payments previously made in respect of such Loss) at such time or times as and to the extent that such Tax Benefit is actually realized by the IndemniteeBenefit. For purposes hereof, “Tax Benefit” shall mean any refund of Taxes paid or reduction in the amount of Taxes which otherwise would have been paid, in either case realized in cash, net of any related Tax Losses. The Indemnitee Parent shall use commercially reasonable actions (and shall cause the Surviving Corporation and the Company Subsidiaries to use commercially reasonable actions) to timely claim any Tax Benefit that shall reduce the amount of a Loss, or give rise to a payment to or for the benefit of the Holders, under this Section 10.07. Parent shall use commercially reasonable efforts, and shall cause the Surviving Corporation, the Company Subsidiaries and their respective Affiliates to use commercially reasonable efforts to to, seek full recovery under all Alternative Arrangements insurance policies and other third-party agreements covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder; provided, that such commercially reasonable efforts shall not include the commencement of litigation. In the event that an insurance recovery or a recovery under any other recovery third-party agreement is made by Parent, the Surviving Corporation, the Company Subsidiaries and/or any Indemnitee of their respective Affiliates with respect to any Loss for which any such Person Parent Indemnified Party has been indemnified hereunder, then a refund payment equal to the aggregate amount of the recovery (up to the amount of the indemnification payments previously made in respect of such Loss) shall be made promptly by Parent to the IndemnitorRepresentative for the benefit of the Holders pursuant to the Distribution Waterfall. The Holders shall be subrogated to all rights of Parent, the Surviving Corporation and the Company Subsidiaries against their respective applicable insurers to the extent (but only to the extent) of any Losses indemnified by the Holders.

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 9.02 or Section 9.03 this Article 11 shall be calculated net of (ia) any net Tax Benefit actually received realized by an Indemnified Party prior to the Indemnitee Survival Date as a result of incurrence or any of its Affiliates on account of such Loss within one (1) year payment of such Loss and (iib) any insurance proceeds (net of deductibles) or any indemnity, contribution or other similar payment received actually recovered by the Indemnitee Indemnified Party from any third party with respect thereto thereto. In computing the amount of any Tax Benefit, an Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the incurrence or payment of such Loss giving rise to indemnity under this Agreement. Any indemnification payment under this Article 11 shall be reduced to reflect any net Tax Benefit as set forth in (including under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant to which or under which such Indemnitee or any of its Affiliates is a party or has rights) (the “Alternative Arrangements”a), above, after the Indemnified Party has actually realized such Tax Benefit. For purposes of this Agreement, an Indemnified Party shall be deemed to have “actually realized” a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable by such Indemnified Party is actually reduced below the amount of Taxes that such Indemnified Party would be required to pay but for the incurrence or payment of such Loss or the Indemnified Party actually receives a refund of Taxes. The determination of whether the Indemnified Party has actually realized any net Tax Benefit shall be made in each case net of good faith by the costs of collection and any increases in premiums or Taxes with respect to such proceedsIndemnified Party. If the any Buyer Indemnitee receives actually realizes a net Tax Benefit within one (1) year after an indemnification payment is made to itit but prior to the Survival Date, the such Buyer Indemnitee shall promptly pay to increase the Indemnitor the outstanding principal amount of the Buyer PIK Note by an amount equal to such net Tax Benefit (up including net of costs to the amount of the indemnification payments previously made in respect of such Loss) at such time or times as and Buyer to the extent that obtain such Tax Benefit Benefit). Buyer will, if the Sellers’ Representative so requests, cause the relevant Buyer Indemnitee to file for any tax benefit (including through the filing of any amended Tax Return) that the Sellers’ Representative reasonably believes such Buyer Indemnitee is actually realized by the entitled to receive after an indemnification payment is made to such Buyer Indemnitee. For purposes hereof, “Tax Benefit” The Indemnified Party shall mean any refund of Taxes paid or reduction in the amount of Taxes which otherwise would have been paid, in either case realized in cash, net of any related Tax Losses. The Indemnitee shall use commercially reasonable efforts to seek full recovery under all Alternative Arrangements insurance policies purchased by the Company covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other recovery is made by any Indemnitee Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (up to the amount of the indemnification payments previously made in respect of such Loss) shall be made promptly to the IndemnitorIndemnifying Party. Except in the case of fraud or intentional breach of any covenant or agreement set forth in this Agreement, in no event shall any Indemnified Party be entitled to recover or make a claim for any amounts in respect of lost revenues or profits (except that, with respect to Losses for lost revenues or profits, to the extent a court of competent jurisdiction determines that lost revenues or profits is the appropriate measure of Losses for the matter giving rise to the claim for Losses or if payable pursuant to a Third Party Claim) or punitive damages (except for Losses payable pursuant to a Third Party Claim). In no event shall any Buyer Indemnitee be entitled to recover or make a claim for any Taxes attributable to actions not contemplated by this Agreement and not taken in the Ordinary Course of Business, in either case, taken by any of the Buyer or any of the Target Companies after the Closing on the Closing Date.

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 9.02 8.02 or Section 9.03 8.03 shall be calculated net of (i) any Tax Benefit actually received by the an Indemnitee or any of its Affiliates on account of such Loss within one (1) year of such Loss and (ii) any insurance proceeds or any indemnity, contribution or other similar payment received actually recovered by the an Indemnitee from any third party with respect thereto (including under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant to which or under which such Indemnitee or any of its Affiliates is a party or has rights) (the “Alternative Arrangements”), in each case net of the costs of collection and any increases in premiums or Taxes with respect to such proceedsthereto. If the an Indemnitee receives a Tax Benefit within one (1) year on account of a Loss after an indemnification payment is made to itit with respect to such Loss, the such Indemnitee shall promptly pay to the Indemnitor the amount of promptly, but in no event later than 30 calendar days after such time that such Tax Benefit (up to the amount of the indemnification payments previously made in respect of is actually realized by such Loss) at such time or times Indemnitee, as and to the extent that such Tax Benefit is actually realized by such Indemnitee, pay to the IndemniteeIndemnitor (or, if the Indemnitee is a Purchaser Indemnified Party, to the Representative (on behalf of the Unitholders)) the amount of such Tax Benefit. For purposes hereof, “Tax Benefit” shall mean for any Indemnitee means (i) any refund of Taxes paid or (ii) the amount such Indemnitee’s liability for Taxes for the taxable period, calculated by excluding the relevant amount of credit, deduction, or Loss, would exceed such Indemnitee’s actual liability for Taxes for such period, calculated by taking into account the relevant amount of credit, deduction, or Loss, in each case computed at the highest marginal Tax rates applicable to the recipient of such benefit. A Tax Benefit shall be actually received, in the case of any refund of Taxes paid, upon the later of the receipt of the refund and the filing of the final Tax Return required to be filed and showing entitlement to such refunds, and in the case of a reduction of a liability for Taxes, upon the filing of a Tax Return showing such reduction in the Tax liability. The amount of Taxes which otherwise would have been paidany increase or reduction hereunder shall be adjusted to reflect any final determination with respect to the Indemnitee’s liability for Taxes, in either case realized in cash, net of any related Tax Lossesand payments between the parties to this Agreement to reflect such adjustment shall be made if necessary. The Each Indemnitee shall use commercially reasonable efforts to seek full recovery under all Alternative Arrangements insurance policies covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other recovery from a third party is made received by any Indemnitee with respect to any Loss for which any such Person Indemnitee has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (up net of any expenses (consisting of collection costs and increased premiums directly related to such recovery) incurred by the Indemnitor in collecting such amount) shall promptly, but in no event later than 30 calendar days after receipt thereof, be paid to the amount Indemnitor (or, if the Indemnitee is a Purchaser Indemnified Party, to the Representative (on behalf of the indemnification payments previously made Unitholders)). In no event shall the Purchaser Indemnified Parties be entitled to recover or make a claim for any amounts in respect of such Loss) shall be made promptly consequential, punitive or exemplary damages, except to the Indemnitorextent awarded or imposed by a court or other Governmental Authority pursuant to a third party claim.

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 9.02 8.02 or Section 9.03 8.03 shall be calculated net of (ia) any Tax Benefit that an Indemnified Party actually received by recognizes in the Indemnitee year of the indemnity payment or any of its Affiliates earlier on account of such Loss within one (1) year of such Loss and (iib) any insurance proceeds (net of direct collection expenses) or any indemnity, contribution or other similar payment actually received by the Indemnitee Indemnified Party from any third party with respect thereto thereto; provided, that for a period of three (including under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant to which or under which such Indemnitee or any of its Affiliates is a party or has rights3) (years after the “Alternative Arrangements”), in each case net incurrence of the costs of collection and any increases in premiums or Taxes with respect relevant Loss, to the extent such proceeds. If the Indemnitee receives Loss gives rise to a Tax Benefit within one (1) that is realized by the Indemnified Party after the year after an indemnification payment is made to itof the indemnity payment, then the Indemnitee Indemnified Party shall promptly pay refund to the Indemnitor Indemnifying Party the amount of such Tax Benefit (up to the amount of the indemnification payments previously made in respect of such Loss) at such time or times indemnity payment when, as and to the extent that such Tax Benefit is actually realized by the Indemnitee. For purposes hereof, “Tax Benefit” shall mean any refund of Taxes paid or reduction in the amount of Taxes which otherwise would have been paid, in either case realized in cash, net of any related Tax Lossesif realized. The Indemnitee Indemnified Party shall use commercially reasonable efforts to seek full recovery under all Alternative Arrangements insurance policies covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other recovery is 57 made by any Indemnitee Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (up less any costs or expenses to the amount of the indemnification payments previously made in respect of obtain such Lossrecovery) shall be made promptly to the IndemnitorIndemnifying Party. The Indemnifying Party shall be subrogated to all rights of the Indemnified Parties and their Affiliates in respect of any Losses indemnified by Indemnifying Party. Notwithstanding anything to the contrary contained in this Agreement, Buyer shall have no right to indemnification hereunder with respect to any Loss or alleged Loss to the extent the amount of such Loss or alleged Loss is included in the calculation of the Net Working Capital or Indebtedness.

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 9.02 9.2 or Section 9.03 9.3 shall be calculated net of (i) any Tax Benefit actually received by inuring to the Indemnitee or any of its Affiliates on account of such Loss within one (1) year of such Loss and Loss, (ii) any insurance proceeds or any indemnity, contribution or other similar payment received by the Indemnitee from any third party with respect thereto (including under a “Collateral Source”) and (iii) any specific accruals or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement reserves (or contract pursuant to which or under which such Indemnitee or any overstatement of its Affiliates is a party or has rights) (the “Alternative Arrangements”), in each case net of the costs of collection and any increases in premiums or Taxes with respect to such proceeds. If the Indemnitee receives a Tax Benefit within one (1) year after an indemnification payment is made to it, the Indemnitee shall promptly pay to the Indemnitor the amount of such Tax Benefit (up to the amount of the indemnification payments previously made liabilities in respect of such Lossactual liability) at such time or times as and to included in the extent that such Tax Benefit is actually realized by the IndemniteeFinancial Information. For purposes hereof, “Tax Benefit” shall mean any refund of Taxes paid or reduction in the amount of Taxes which otherwise would have been paid, in either each case realized in cash, net computed at the highest marginal tax rates applicable to the recipient of such benefit. The parties shall take and shall cause their Affiliates to take all reasonable steps to mitigate any Loss upon becoming aware of any related Tax Lossesevent that would reasonably be expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy a breach that gives rise to the Loss. The Indemnitee Indemnification under this Article IX shall use commercially not be available to Buyer or the Sellers, as the case may be, unless the party seeking indemnification under this Article IX first uses its reasonable best efforts to seek full recovery under from all Alternative Arrangements covering any Loss Collateral Sources. The parties acknowledge and agree that no right of subrogation shall accrue or inure as a result of the provisions hereof to the same extent as they would if such Loss were not subject to indemnification benefit of any Collateral Source hereunder. In The Indemnitor may require an Indemnitee to assign the event that an insurance or other rights to seek recovery is made by any Indemnitee with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal pursuant to the aggregate preceding sentence; provided, that the Indemnitee will then be responsible for pursuing such recovery at its own expense. If the amount to be netted hereunder from any payment required under Section 9.2 or Section 9.3 is not received until after payment by the Indemnitor of any amount otherwise required to be paid to an Indemnitee pursuant to this Article IX, the recovery (up Indemnitee shall repay to the Indemnitor, promptly after such receipt, any amount that the Indemnitor would not have had to pay pursuant to this Article IX had such receipt been made at the time of the such payment. Buyer shall not make any claim for indemnification payments previously made under this Article IX in respect of such Loss) shall be made promptly any matter that is fully taken into account in the calculation of any adjustment to the IndemnitorBase Purchase Price pursuant to Article II.

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 9.02 9.02, Section 9.03 or Section 9.03 11.03 shall be calculated net of (i) any Tax Benefit actually received by the Indemnitee or any of its Affiliates on account of such Loss within one (1) year of such Loss and Loss, (ii) any insurance proceeds or reserves for current accounts set forth in the Closing Statement to the extent such reserves were increased since the Latest Balance Sheet (to the extent not already covered by Section 9.02(d)(iii)) and (iii) any indemnity, contribution Net Insurance Proceeds or other similar payment amounts under indemnification agreements actually received by the Indemnitee from any third on account of such Loss, including without limitation that certain Stock Purchase Agreement dated November 1, 2004 by and among the Company, certain of its Subsidiaries and the sellers party with respect thereto (including under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant to which or under which such Indemnitee or any of its Affiliates is a party or has rights) (the “Alternative Arrangements”"Prior Acquisition Agreement"), in each case net of the costs of collection and any increases in premiums or Taxes with respect to such proceeds. If the Indemnitee receives a Tax Benefit within one (1) year on account of such Loss after an indemnification payment is made to it, the Indemnitee shall promptly pay to the Indemnitor Person or Persons that made such indemnification payment the amount of such Tax Benefit (up to the amount of the indemnification payments previously made in respect of such Loss) at such time or times as and to the extent that such Tax Benefit is actually realized by the Indemnitee. For purposes hereof, “"Tax Benefit” " shall mean any refund of Taxes actually paid or actual reduction in the amount of Taxes which otherwise would have been paid. To the extent that a Tax Benefit could give rise to a refund of Taxes, in either case realized in cash, net of any related Tax Lossesthe Indemnitee shall take all reasonable steps to claim such a refund. The Indemnitee shall use commercially reasonable efforts to seek full recovery under all Alternative Arrangements insurance policies and/or indemnification agreements covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other recovery is made by any Indemnitee with respect to any Loss for hereunder (which any such Person has been indemnified hereundermay, then a refund equal to the aggregate amount extent commercially reasonable, include commencing litigation against the insurer or indemnifying parties under such indemnification agreement); provided, however, (x) the Indemnitee shall obtain the prior written consent of the recovery Indemnitor (up not to be unreasonably withheld) before entering into any settlement of a claim under any indemnity agreement or provision (including, without limitation, under the Prior Acquisition Agreement) if the amount of such settlement does not fully satisfy all Losses relating to or arising from such claim, and (y) once indemnity for any Loss is sought by a Buyer Indemnified Party under any applicable indemnification provision of the indemnification payments previously made in respect Prior Acquisition Agreement and such Loss remains unsatisfied for a period of such Loss) not less than 180 days, the Buyer Indemnified Party shall be made promptly entitled to pursue indemnification under the Indemnitor.provisions of this Agreement. The fees and expenses incurred by the Company or any Subsidiary in using commercially reasonable efforts to seek recovery under all insurance policies and/or indemnification agreements covering any Loss, including under the Prior Acquisition Agreement, shall be included in the definition of Losses under this Agreement. To the extent indemnity is not available under

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 9.02 7.02 or Section 9.03 7.03 shall be calculated net of any Tax benefit actually realized by the Indemnitee as a result of such loss or receipt of indemnification payment and net of (i) the amount of any Tax Benefit actually received by Loss reflected as a current liability on the Indemnitee or any of its Affiliates on account of such Loss within one (1) year of such Loss Conclusive Closing Statement and (ii) any insurance proceeds or any indemnity, contribution or other similar payment amounts under indemnification agreements actually received by the Indemnitee from any third party with respect thereto on account of such Loss (including under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant to which or under which such Indemnitee or any of its Affiliates is a party or has rights) (the “Alternative Arrangements”), in each case net of the costs of collection and any increases increase in premiums or Taxes with respect retroactive premium adjustment that the Indemnitee can reasonably demonstrate through written records is directly attributable to such proceedsrecovery). If For purposes of the Indemnitee receives a Tax Benefit within one (1) year after an indemnification payment is made to itforegoing, the Indemnitee shall promptly pay be deemed to the Indemnitor the amount of such have “actually realized” a Tax Benefit (up to the amount of the indemnification payments previously made in respect of such Loss) at such time or times as and benefit to the extent that such Tax Benefit is actually realized by the Indemnitee. For purposes hereof, “Tax Benefit” shall mean any refund of Taxes paid or reduction in the amount of Taxes payable by the Indemnitee as shown on the Indemnitee’s Tax Return for the year in which otherwise the Loss is incurred or indemnification payment is made, the succeeding tax year, or any year to which a deduction or loss attributable to such Loss or payment is carried back, is reduced below the amount of Taxes that the Indemnitee would have been paid, in either case realized in cash, net of any related Tax Lossesrequired to pay but for the deduction attributable to the indemnifiable Loss or payment. The Indemnitee shall use its commercially reasonable efforts to seek full recovery under all Alternative Arrangements insurance policies and/or indemnification agreements covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other recovery is made by any Indemnitee with respect to any Loss for which any such Person has been indemnified received indemnity payments hereunder, then a refund equal to the aggregate amount of the actual recovery (up to the amount of the indemnification payments previously made in respect of such Loss) shall be made promptly to the Person or Persons that provided such indemnity payments to such Indemnitee (net of any increase in premiums or retroactive premium adjustment that the Indemnitee can reasonably demonstrate through written records is directly attributable to such recovery). The Indemnitor shall be subrogated to all rights of the Indemnitees in respect of any Losses indemnified by the Indemnitor. For Tax purposes, the Parties agree to treat all payments made under this Article VII as adjustments to the aggregate consideration contemplated under this Agreement. Subject to the other provisions of this Article VII, if the Disclosure Schedules shall disclose an estimated loss amount, the Indemnitee shall be entitled to collect any Loss in excess of such amount.

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 9.02 or Section 9.03 shall be calculated net of (i) any Tax Benefit actually received by inuring to the Indemnitee or any of its Affiliates on account of such Loss within one (1) year of such Loss and (ii) any insurance proceeds received or any indemnity, contribution or other similar payment received receivable by the Indemnitee from any third party with respect thereto (including under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant to which or under which on account of such Indemnitee or any of its Affiliates is a party or has rights) (the “Alternative Arrangements”), in each case net of the costs of collection and any increases in premiums or Taxes with respect to such proceedsLoss. If the Indemnitee receives a Tax Benefit within one (1) year on account of such Loss after an indemnification payment is made to it, the Indemnitee shall promptly pay to the Indemnitor Person or Persons that made such indemnification payment the amount of such Tax Benefit (up to the amount of the indemnification payments previously made in respect of such Loss) at such time or times as and to the extent that such Tax Benefit is actually realized by the Indemnitee. For purposes hereof, “"Tax Benefit” " shall mean any refund of Taxes paid or reduction in the amount of Taxes which are paid or otherwise would have been paid, in either each case realized in cashcomputed at the highest marginal tax rates applicable to the recipient of such benefit; for the avoidance of doubt, net "Tax Benefit" shall not include any such benefit available only as a result of any related a timing adjustment moving a tax attribute from a Pre-Closing Tax LossesPeriod to a Post-Closing Tax Period. The Indemnitee shall use commercially reasonable efforts to seek full recovery under all Alternative Arrangements insurance policies covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other recovery is made by any Indemnitee with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (up to the amount of the indemnification payments previously made in respect of such Loss) shall be made promptly to the IndemnitorPerson or Persons that provided such indemnity payments to such Indemnitee. For Tax purposes, the parties agree to treat all payments made under this Article IX as adjustments to the Purchase Price.

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 9.02 7.2 or Section 9.03 7.3 shall be calculated net of taking into account (i) any Tax Benefit actually received realized in cash by the Indemnitee or any of its Affiliates on account of such Loss within one Loss, (1ii) year of any reserves or liabilities set forth in the Financial Statements and/or Closing Statement relating to such Loss and (iiiii) any insurance proceeds or any indemnity, contribution or other similar payment amounts under indemnification agreements received by the Indemnitee from any third party with respect thereto (including under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant to which or under which on account of such Indemnitee or any of its Affiliates is a party or has rights) (the “Alternative Arrangements”), in each case net of the costs of collection and any increases in premiums or Taxes with respect to such proceedsLoss. If the Indemnitee receives a Tax Benefit within one (1net of any tax detriment) year on account of such Loss after an indemnification payment is made to it, the Indemnitee shall promptly pay to the Indemnitor Person or Persons that made such indemnification payment the amount of such Tax Benefit (up to the amount of the indemnification payments previously made in respect of such Loss) at such time or times as and to the extent that such Tax Benefit is actually realized by the Indemnitee. For purposes hereof, “Tax Benefit” shall mean any refund of Taxes paid actually received or reduction in the amount of Taxes which otherwise would have been paidbe paid by the Indemnitee, in either each case realized in cash, net computed at the highest marginal tax rates applicable to the recipient of any related Tax Lossessuch benefit. The Indemnitee shall use its commercially reasonable efforts to seek full recovery under all Alternative Arrangements insurance policies and/or indemnification agreements covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other recovery is made received by any Indemnitee with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the lesser of (a) the aggregate amount of the recovery (up to net of any reasonable third-party costs actually incurred pursuing or obtaining such recovery, including increased insurance premiums (if any) directly resulting from such recovery) or (b) the amount of the indemnification payments previously made in respect of such Loss) by the Indemnitors shall be made promptly to the IndemnitorIndemnitors that provided such indemnity payments to such Indemnitee. For Tax purposes, the parties hereto agree to treat all payments made under this Article 7 as adjustments to the final Purchase Price.

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 9.02 or Section 9.03 shall be calculated net of (i) any Tax Benefit benefit actually received realized by the Indemnitee or any of its Affiliates on account of such Loss within one (1) on or before the second anniversary of the end of the taxable year of such in which the Loss occurs and (ii) any insurance proceeds or any indemnity, contribution or other similar payment received actually recovered (net of any deductible payable with respect to the applicable insurance policy, indemnity contribution or similar payment borne and any related cost of collection, in each case by a Purchaser Party or Equityholder Party) by the Indemnitee from any third party with respect thereto (including under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant contractual rights to which or under which such Indemnitee or any of its Affiliates is a third party or has rights) (the “Alternative Arrangements”), indemnification in each case net favor of the costs of collection and any increases in premiums or Taxes with respect to such proceeds. If the Indemnitee receives a Tax Benefit within one (1) year after an indemnification payment is made to it, the Indemnitee shall promptly pay to the Indemnitor the amount of such Tax Benefit (up to the amount Company existing as of the indemnification payments previously made in respect Closing Date). A Tax benefit shall be realized upon the receipt of such Loss) at such time or times as and to the extent that such Tax Benefit is actually realized by the Indemnitee. For purposes hereof, “Tax Benefit” shall mean any a refund of Taxes paid (or reduction credit in lieu of refund) or the amount filing of Taxes which otherwise would a Tax Return, including an estimated Tax Return, showing a Tax benefit, including any increase in Tax attributes (or, if earlier, the date when such a Tax Return should have been paidtimely filed, in either case realized in cash, net including properly obtained extensions) calculated on a “with and without” basis with respect to Tax benefits arising as a result of any related Tax Losses. The Indemnitee shall use commercially reasonable efforts to seek full recovery under all Alternative Arrangements covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunderLoss. In the event that an insurance insurance, Tax benefit or other recovery specified in the first or next sentence of this Section 9.05 is made by any Indemnitee with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (up less the cost of collection of such recovery and any portion of the Loss paid by the Indemnitee or any Affiliate thereof (and not indemnified hereunder) due to the amount of limitation on liability provisions (including the indemnification payments previously made in respect of Deductible) that may be applicable to such Lossrecovery) shall be made promptly to the Indemnitor. The Purchaser Parties shall use reasonable best efforts to collect or recover from their subcontractors (including by direct collection, withholding of other payments owed, seeking indemnification and reimbursement or otherwise) with respect to any Losses actually suffered by the Purchaser Parties arising out of the Special Tax Matter, whether or not such Losses are indemnifiable hereunder. If the Purchaser Parties recover or receive any proceeds (e.g., an award of damages or amount paid in settlement) related to the matters set forth on the Specific Indemnity Schedule, such proceeds shall belong to the Equityholders, and the Purchaser shall promptly pay the amount of such proceeds to the Stockholder Representative, for the benefit of the Equityholders, within fifteen (15) days after such recovery or receipt, and the Stockholder Representative shall distribute such proceeds in accordance with Section 1.05(b) with respect to the Optionholders.

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 9.02 8.02 or Section 9.03 8.03 shall be calculated net of (i) any Tax Benefit actually received by the an Indemnitee or any of its Affiliates on account of such Loss within one (1) year of such Loss and (ii) any insurance proceeds or any indemnity, contribution or other similar payment received actually recovered by the an Indemnitee from any third party with respect thereto (including under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant to which or under which such Indemnitee or any of its Affiliates is a party or has rights) (the “Alternative Arrangements”), in each case net of the costs of collection and any increases in premiums or Taxes with respect to such proceedsthereto. If the an Indemnitee receives a Tax Benefit within one (1) year on account of a Loss after an indemnification payment is made to itit with respect to such Loss, the such Indemnitee shall promptly pay to the Indemnitor the amount of promptly, but in no event later than 30 calendar days after such time that such Tax Benefit (up to the amount of the indemnification payments previously made in respect of is actually realized by such Loss) at such time or times Indemnitee, as and to the extent that such Tax Benefit is actually realized by such Indemnitee, pay to the IndemniteeIndemnitor (or, if the Indemnitee is a Purchaser Indemnified Party, to the Representative (on behalf of the Unitholders)) the amount of such Tax Benefit. For purposes hereof, “Tax Benefit” shall mean for any Indemnitee means (i) any refund of Taxes paid or (ii) the amount such Indemnitee’s liability for Taxes for the taxable period, calculated by excluding the relevant amount of credit, deduction, or Loss, would exceed such Indemnitee’s actual liability for Taxes for such period, calculated by taking into account the relevant amount of credit, deduction, or Loss, in each case computed at the highest marginal Tax rates applicable to the recipient of such benefit. A Tax Benefit shall be actually received, in the case of any refund of Taxes paid, upon the later of the receipt of the refund and the filing of the final Tax Return required to be filed and showing entitlement to such refunds, and in the case of a reduction of a liability for Taxes, upon the filing of a Tax Return showing such reduction in the Tax liability. The amount of Taxes which otherwise would have been paidany increase or reduction hereunder shall be adjusted to reflect any final determination with respect to the Indemnitee’s liability for Taxes, in either case realized in cash, net of any related Tax Lossesand payments between the parties to this 42 Agreement to reflect such adjustment shall be made if necessary. The Each Indemnitee shall use commercially reasonable efforts to seek full recovery under all Alternative Arrangements insurance policies covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other recovery from a third party is made received by any Indemnitee with respect to any Loss for which any such Person Indemnitee has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (up net of any expenses (consisting of collection costs and increased premiums directly related to such recovery) incurred by the Indemnitor in collecting such amount) shall promptly, but in no event later than 30 calendar days after receipt thereof, be paid to the amount Indemnitor (or, if the Indemnitee is a Purchaser Indemnified Party, to the Representative (on behalf of the indemnification payments previously made Unitholders)). In no event shall the Purchaser Indemnified Parties be entitled to recover or make a claim for any amounts in respect of such Loss) shall be made promptly consequential, punitive or exemplary damages, except to the Indemnitor.extent awarded or imposed by a court or other Governmental Authority pursuant to a third party claim. 8.07 Acknowledgment of the Purchaser. Each of the Purchaser and the Merger Sub acknowledges that in making its determination to proceed with the transactions contemplated by this Agreement it has conducted to its satisfaction an independent investigation of the financial condition, results of operations, assets, liabilities, properties and projected operations of the Company and its Subsidiaries, and the Purchaser and the Merger Sub have relied on the results of their own independent investigation and the representations and warranties of the Company expressly and specifically set forth in this Agreement, including the Disclosure Schedules hereto. Such representations and warranties by the Company constitute the sole and exclusive representations and warranties of the Company, its Subsidiaries and (except as expressly set forth in the Letters of Transmittal) the Unitholders to the Purchaser and the Merger Sub in connection with the transactions contemplated hereby, and the Purchaser and the Merger Sub understand, acknowledge and agree that all other representations and warranties of any kind or nature expressed or implied (including, but not limited to, any relating to the future or historical financial condition, results of operations, assets or liabilities of the Company or its Subsidiaries, or the quality, quantity or condition of the Company’s or its Subsidiaries’ assets) are specifically disclaimed by the Company, its Subsidiaries and (except as expressly set forth in the Letters of Transmittal) the Unitholders. Except as expressly provided in this Agreement, the Company, its Subsidiaries and the Unitholders do not make or provide, and the Purchaser and the Merger Sub hereby waive, any warranty or representation, express or implied, as to the quality, merchantability, as for a particular purpose, or condition of the Company’s and its Subsidiaries’ assets or any part thereto. In connection with the Purchaser’s investigation of the Company and its Subsidiaries, the Purchaser has received certain projections, including projected statements of operating revenues and income from operations of the Company and its Subsidiaries and certain business plan information. The Purchaser acknowledges that there are uncertainties inherent in attempting to make such estimates, projections and other forecasts and plans, that the Purchaser is familiar with such uncertainties and that the Purchaser is taking full responsibility for making its own evaluation of the adequacy and accuracy of all estimates, projections and other forecasts and plans so furnished to it, including, without limitation, the reasonableness of the assumptions underlying such estimates, projections and forecasts. Accordingly, the Purchaser hereby acknowledges that none of the Company, its Subsidiaries or the Unitholders is making any representation or warranty with respect to such estimates, projections and other forecasts and plans, including, without limitation, the reasonableness of the assumptions underlying such estimates, projections and forecasts. 43 8.08

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 9.02 or Section 9.03 11.2.1 shall be calculated net of (ia) any Tax Benefit actually received by the Indemnitee inuring to Buyer or any of its Affiliates on account of such Loss within one (1) year of such Loss Loss, and (iib) any insurance proceeds or any indemnity, contribution or other similar payment received by the Indemnitee from any third party with respect thereto (including under indemnification or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant proceeds to which or under which such Indemnitee or any of them are entitled (regardless of whether claimed and received) on account of such Loss. If Buyer or its Affiliates is a party or has rights) (the “Alternative Arrangements”), in each case net of the costs of collection and any increases in premiums or Taxes with respect to such proceeds. If the Indemnitee receives realizes a Tax Benefit and such Tax Benefit was not included in the computation of the Loss, Buyer shall within one ten (110) year after an indemnification payment days of filing the Tax Return claiming the Tax Benefit (or, to the extent the Tax Benefit is made to itin the form of a refund, within ten (10) days of receiving the Indemnitee shall promptly refund from the Governmental Entity) pay to the Indemnitor Company the amount of such Tax Benefit. Buyer shall take all commercially reasonable actions to timely claim any Tax Benefit (up to that shall reduce the amount of a Loss, or give rise to a payment to or for the indemnification payments previously made in respect benefit of such Loss) at such time or times as the Company, under this Section 11.7. Buyer shall, and to the extent that such Tax Benefit is actually realized by the Indemnitee. For purposes hereofshall cause its Affiliates to, “Tax Benefit” shall mean any refund of Taxes paid or reduction in the amount of Taxes which otherwise would have been paid, in either case realized in cash, net of any related Tax Losses. The Indemnitee shall use commercially reasonable efforts to seek full recovery under all Alternative Arrangements insurance policies and other third-party agreements covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder. In the event that an insurance recovery or a recovery under any other recovery third-party agreement is made by any Indemnitee Buyer or its Affiliates with respect to any Loss for which any such Person Buyer Indemnified Party has been indemnified by the Company hereunder, then a refund payment equal to the aggregate amount of the recovery (up to the amount of the indemnification payments previously made in respect of such Loss) shall be made promptly by Buyer to the Indemnitor.Company. In all events, the Company shall be subrogated to all rights of Buyer in respect of any Losses indemnified by the Company. EXECUTION COPY

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 9.02 or 10.2 and Section 9.03 10.3 shall be calculated net of (i) any Tax Benefit insurance proceeds (including under the Parent RWI Policy) actually received or paid on behalf of the prospective Indemnitee covering any of the Loss that is the subject to the claim for indemnity (in each case, net of any costs and expenses incurred in connection with the investigation or collection of such amounts by or on behalf of such Indemnitee and net of any experience based premium adjustments) actually and directly caused by Losses paid under such policies of insurance for claims based upon facts and circumstances otherwise giving rise to indemnifiable Losses hereunder, (ii) any net amounts recovered from other collateral sources (such as contractual indemnities of any Person which are contained outside of this Agreement) (in each case, net of any costs and expenses incurred in connection with the investigation or collection of such amounts by or on behalf of such Indemnitee); and (iii) any Tax benefits actually realized (calculated on a “with and without” basis) by the Indemnitee or any of its Affiliates party being indemnified on account of such Loss within one (1) year of such Loss and (ii) any insurance proceeds or any indemnityLoss, contribution or other similar payment received by the Indemnitee from any third party with respect thereto (including under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant to which or under which such Indemnitee or any of its Affiliates is a party or has rights) (the “Alternative Arrangements”), in each case net of the costs of collection and any increases in premiums or Taxes with respect to such proceeds. If the Indemnitee receives a Tax Benefit within one (1) year after an indemnification payment is made to it, the Indemnitee shall promptly pay to the Indemnitor the amount of such Tax Benefit (up to the amount of the indemnification payments previously made in respect of such Loss) at such time or times as and but only to the extent such Tax benefit is realized in the year that such Tax Benefit is actually realized by Loss was incurred. In the Indemnitee. For purposes hereofevent any Losses are recoverable under insurance policies or other collateral sources, “Tax Benefit” shall mean any refund of Taxes paid or reduction in the amount of Taxes which otherwise would have been paid, in either case realized in cash, net of any related Tax Losses. The Indemnitee Parent Indemnified Parties shall use commercially reasonable efforts and proceed in good faith to seek full pursue recovery of such Losses under all Alternative Arrangements covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunderinsurance policies or other collateral sources. In the event that an insurance or other recovery is made received by any Indemnitee or a Tax benefit is realized by an Indemnitee in the year the Loss is incurred, in each case with respect to any a Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the insurance or other recovery (up to the amount of the indemnification payments previously made in respect of such Loss) or Tax benefit shall be made promptly to the Indemnitor.Indemnity Administrator that made or directed such indemnification payments to such Indemnitee; provided, that the Indemnitee shall not be obligated to pay over any such amount or benefit in excess of the amount actually received from the indemnifying Party with respect to such claim. 10.8

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 9.02 8.02, Section 8.03 or Section 9.03 8.05 shall be calculated net of (i) any Indemnity Tax Benefit actually received by inuring to the Indemnitee or any of its Affiliates on account of such Loss within one (1) the four year of such Loss period after the Closing Date and (ii) any insurance proceeds received or any indemnity, contribution or other similar payment received receivable by the Indemnitee from any third party with respect thereto (including under or pursuant on account of such Loss. Subject to any insurance policythe time limitation set forth in the preceding sentence, title insurance policy, indemnity, reimbursement arrangement or contract pursuant to which or under which such Indemnitee or any of its Affiliates is a party or has rights) (the “Alternative Arrangements”), in each case net of the costs of collection and any increases in premiums or Taxes with respect to such proceeds. If if the Indemnitee receives a Indemnity Tax Benefit within one (1) year after an indemnification payment is made to it, the Indemnitee shall promptly pay to the Indemnitor Person or Persons that made such indemnification payment the amount of such Indemnity Tax Benefit (up to the amount of the indemnification payments previously made in respect of such Loss) at such time or times as and to the extent that such Indemnity Tax Benefit is actually realized by the Indemnitee. For purposes hereof, “Indemnity Tax Benefit” shall mean any refund of Taxes paid or payable or reduction in the amount of Taxes which otherwise would have been paid, in either each case realized in cash, net computed at the highest marginal tax rates applicable to the recipient of any related Tax Lossessuch benefit. The Indemnitee shall use commercially reasonable best efforts to seek full recovery under all Alternative Arrangements insurance policies covering any Loss to the same extent as they it would if such Loss were not subject to indemnification hereunder. In the event that an insurance or other recovery is made by any Indemnitee with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (up to the amount of the indemnification payments previously made in respect of such Loss) shall be made promptly to the IndemnitorPerson or Persons that provided such indemnity payments to such Indemnitee.

Determination of Loss Amount. The amount of any Loss loss subject to indemnification under Section 9.02 or Section 9.03 8.1 shall be calculated net of (i) net of any Tax Benefit actually received by (as defined below) inuring to the Indemnitee or any of its Affiliates indemnitee on account of such Loss within one (1) year of such Loss loss and (ii) net of any insurance proceeds received or receivable by the indemnitee on account of such loss (after deduction for any indemnitycost of collection, contribution deductible, retroactive premium adjustment, reimbursement obligation or other similar payment received by the Indemnitee from any third party with respect thereto (including under or pursuant cost directly related to such insurance claim, and excluding any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant proceeds related to the Indemnity Insurance Policy which or under which such Indemnitee or any of its Affiliates is a party or has rights) (are payable in order to indemnify the “Alternative Arrangements”loss amount calculated hereunder), in each case net of the costs of collection and any increases in premiums or Taxes with respect to such proceeds. If the Indemnitee indemnitee receives a Tax Benefit within one (1) year on account of such loss after an indemnification payment is made to it, the Indemnitee indemnitee shall promptly pay to the Indemnitor Person or Persons that made such indemnification payment the amount of such Tax Benefit (up to the amount of the indemnification payments previously made in respect of such Loss) at such time or times as and to the extent that such Tax Benefit is actually realized by the Indemniteeindemnitee. For purposes hereof, “Tax Benefit” shall mean any refund of Taxes paid or reduction in the amount of Taxes which are paid or otherwise would have been paidpaid on account of such loss, for the immediate tax year in which such loss occurs, in either an aggregate amount of refund or reduction that exceeds $50,000, and in each case realized in cash, net computed at the highest marginal tax rates applicable to the recipient of any related Tax Lossessuch benefit. The Indemnitee indemnitee shall use commercially reasonable efforts to seek full recovery under all Alternative Arrangements insurance policies covering any Loss loss to the same extent as they would if such Loss loss were not subject to indemnification hereunder. In the event that an insurance or other recovery is made by any Indemnitee indemnitee with respect to any Loss loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (up to the amount of the indemnification payments previously made in respect of such Loss) shall be made promptly to the IndemnitorPerson or Persons that provided such indemnity payments to such indemnitee. For Tax purposes, the parties agree to treat all payments made under this Article 8 as adjustments to the Total Merger Consideration.

Determination of Loss Amount. The amount of any Loss subject to indemnification under Section 9.02 7.02 or Section 9.03 7.03 shall be calculated net of (i) any Tax Benefit actually received by the Indemnitee or any of its Affiliates on account of such Loss within one (1) year of such Loss and (ii) any insurance proceeds or any cash indemnity, contribution or other similar payment received recovered by the an Indemnitee from any third party with respect thereto and (including under or pursuant to ii) any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant to which or under which such Indemnitee or any of its Affiliates is a party or has rights) (the “Alternative Arrangements”), in each case net of the costs of collection and any increases in premiums or Taxes with respect to such proceeds. If the Indemnitee receives a cash Tax Benefit within one (1) year after an indemnification payment is made to it, the Indemnitee shall promptly pay to the Indemnitor the amount of such Tax Benefit (up to the amount of the indemnification payments previously made in respect of such Loss) at such time or times as and to the extent that such Tax Benefit is actually realized by an Indemnitee on account of such Loss prior to the Indemniteetime the applicable indemnity payment is made. For purposes hereof, A “Tax Benefit” shall mean for any Indemnitee means (x) any actual cash refund of Taxes paid or (y) the amount by which such Indemnitee’s cumulative liability for Taxes through a taxable period (and for purposes of this Section 7.06, taking into account as the Indemnitee’s liability the cumulative liability for Taxes through the end of such period of any consolidated, combined or other similar group of which the Indemnitee is a member), calculated by excluding the relevant amount of credit, deduction, or Loss, would exceed such Indemnitee’s actual liability for Taxes through such period, calculated by taking into account the relevant amount of credit, deduction, or Loss, in each case computed at the highest marginal Tax rates applicable to the recipient of such benefit; provided, however, that in the case of a Purchaser Indemnified Party, the relevant Tax Benefit, if any, shall be determined at the level of the Purchaser and shall take into account the reduction in the amount Purchaser’s ability to claim a credit for any foreign taxes paid or accrued by the Company and its Subsidiaries (treating any such reduction as a cash tax payment) and any reduction in the “adjusted grossed up basis” (within the meaning of Taxes which otherwise would have been paid, Section 1.338-5(a) of the Treasury Regulations) in either case realized in cash, net the assets of Company and its Subsidiaries as a consequence of any related Tax Losses. The Indemnitee shall use commercially reasonable efforts to seek full recovery under all Alternative Arrangements covering any Loss deemed adjustment to the same extent Purchase Price arising in connection with the Loss and the indemnification therefore (25% of which reduction shall be deemed to be a Tax paid by the Purchaser as they would if such Loss were not subject to indemnification hereunderof the end of the taxable period for which the determination of Tax Benefit is being made). In the event that an insurance or other recovery from a third party is made received by any Indemnitee with respect to any Loss for which any such Person Indemnitee has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall promptly, but in no event later than thirty (up 30) days after receipt thereof, be paid to the amount of Indemnitor (or, if the indemnification payments previously made in respect of such Loss) shall be made promptly Indemnitee is a Purchaser Indemnified Party, to the IndemnitorSeller). In no event shall the Purchaser Indemnified Parties be entitled to recover or make a claim for punitive or exemplary damages unless actually paid to a third party.