Common use of Determination of Loss Amount Clause in Contracts

Determination of Loss Amount. (i) The amount of any Loss subject to indemnification under Section 10.3 shall be calculated net of any insurance proceeds or any indemnity, contribution or other similar payment recovered by the Indemnified Party (or its Affiliates) from any third party with respect thereto, net of any retropremiums, out-of-pocket expenses and costs of recovery, if any (“Third-Party Proceeds”). The Indemnified Party shall take all commercially reasonable actions to seek full and prompt recovery from any Third-Party Proceeds covering any Loss to the same extent as it would if such Loss were not subject to indemnification hereunder; provided, that the Indemnified Party’s inability to collect or recover any such Third-Party Proceeds shall not limit or otherwise delay the Indemnifying Party’s obligation hereunder. In the event that an insurance or other recovery is made by any 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 (net of any retropremiums, out-pocket-expenses and costs of recovery) shall be made promptly to the Indemnifying Party. 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. If the Indemnifying Party elects to control the defense of any claim pursuant to Section 10.3(d), then the Indemnifying Party shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstance in respect of which the Indemnified Party may have any right, defense or claim pursuant to the applicable insurance policies. The Indemnified Party shall cooperate with and take such actions as reasonably requested by the Indemnifying Party in a reasonable manner, and at the cost of the Indemnifying Party, in presenting any subrogated right, defense or claim and effecting any such subrogation.

Determination of Loss Amount. (ia) The Notwithstanding anything to the contrary in this Agreement, the amount of any Loss subject to indemnification under Section 10.3 Sections 8.02 or 8.03 (i) shall be calculated net of the net amount of any insurance proceeds or any indemnity, contribution or other similar payment (excluding recoveries under the Rep & Warranty Policy) actually recovered by the Indemnified Party (or its Affiliates) Indemnitee from any third party with respect theretothereto and (ii) to the extent such Loss relates to Eureka or any of its Subsidiaries, net shall be reduced by the percentage of any retropremiumsthe outstanding Eureka Common Units not held by Purchaser immediately after giving effect to the transactions contemplated by this Agreement. Each of Purchaser and its Subsidiaries (including, out-of-pocket expenses and costs of recoveryfollowing the Closing, if any (“Third-Party Proceeds”). The Indemnified Party the Acquired Entities) shall take all use its commercially reasonable actions efforts to seek full recovery and prompt recovery collect any amounts available under any insurance policies or indemnity, contribution or other similar payment recoverable by Purchaser or the Acquired Entities from any Third-Party Proceeds third party covering any Loss to the same extent as it would if such Loss were not subject to indemnification hereunder; provided, provided that none of Purchaser or any of its Subsidiaries shall have any obligation to seek recoveries under the Indemnified Party’s inability Rep & Warranty Policy prior to collect or recover any such Third-Party Proceeds shall not limit or otherwise delay the Indemnifying Party’s obligation hereunderSurvival Period Termination Date. In the event that an insurance or other recovery is made received by any Indemnified Party Purchaser or its Subsidiaries with respect to any Loss for which any such Person has been indemnified hereunderhereunder (but not including recoveries under the Rep & Warranty Policy), then a refund equal to the aggregate amount of the recovery (net of any retropremiums, out-pocket-expenses and costs of recovery) shall be made promptly to the Indemnifying PartyIndemnitor. 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. If the Indemnifying Party elects to control the defense of any claim pursuant to Section 10.3(d), then the Indemnifying Party shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstance in respect of which the Indemnified Party may have any right, defense or claim pursuant to the applicable insurance policies. The Indemnified Party shall cooperate with and take such actions as reasonably requested by the Indemnifying Party in a reasonable manner, and at the cost of the Indemnifying Party, in presenting any subrogated right, defense or claim and effecting any such subrogation.

Determination of Loss Amount. (ia) The amount of any Loss Losses subject to indemnification under Section 10.3 shall 9.02 and Section 9.03 will be calculated net of any insurance proceeds amounts actually recovered in cash by any Indemnified Party or any of such Indemnified Party’s Affiliates under or pursuant to any insurance policy (excluding any recovery received under the R&W Insurance Policy), title insurance policy, indemnity, contribution reimbursement arrangement or other similar payment recovered by the contract pursuant to or under which such Indemnified Party (or its Affiliates) from any third such Indemnified Party’s Affiliates is a party with respect theretoor has rights, net of any retropremiumsdeductible amounts, costs of collection or recovery, increases in premiums and reasonable and documented out-of-pocket expenses and costs of recoveryrelated thereto (collectively, if any (“Third-Party ProceedsAlternative Arrangements”). Without limiting the foregoing, the Buyer Related Parties will have no right to assert any claims, and the Buyer Related Parties will not be entitled to indemnification, with respect to any Losses that are covered by an Alternative Arrangement or would have been covered by an Alternative Arrangement had the Buyer Related Parties maintained for their benefit and the benefit of the Target Companies the same rights or coverage under an Alternative Arrangement following the Closing that was in effect for the Target Companies immediately prior to the Closing. The Indemnified Party shall take all will use its commercially reasonable actions efforts to seek full and prompt recovery from any Third-Party Proceeds under all Alternative Arrangements covering any Loss to the same extent as it such Indemnified Party would if such Loss were not subject to indemnification hereunder; provided, that the Indemnified Party’s inability to collect or recover any such Third-Party Proceeds shall not limit or otherwise delay the Indemnifying Party’s obligation hereunder. In the event that an insurance or other a recovery is made under an Alternative Arrangement (excluding the R&W Insurance Policy) by any Indemnified Party with respect to any Loss for which any such Person Indemnified Party has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (net of collection costs and net of any retropremiums, out-pocket-expenses and costs of recovery) shall be made promptly to the Indemnifying Party. 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. If the Indemnifying Party elects to control the defense of any claim pursuant to Section 10.3(d), then the Indemnifying Party shall be subrogated to and shall stand in the place portion of the Indemnified Party as to any events or circumstance in respect of which the Indemnified Party may have any right, defense or claim pursuant to the applicable insurance policies. The Indemnified Party shall cooperate with and take such actions as reasonably requested Loss borne by the Indemnifying Party in a reasonable manner, and at the cost of the Indemnifying Party, in presenting any subrogated right, defense or claim and effecting any such subrogation.57 LEGAL02/39540989v11

Determination of Loss Amount. (i) The amount of any Loss Losses subject to indemnification under Section 10.3 this Article VIII shall (i) not include any punitive damages (except in each case to the extent such damages shall actually be awarded to a third party and be payable by an Acquiror Indemnified Party) and (ii) be calculated net of any insurance proceeds other than from the RWI Policy (net of any costs of such recovery such as increased premiums, deductibles and self-insured amounts) or any indemnity, contribution or other similar payment actually recovered by the Acquiror Indemnified Party (or its Affiliates) from any third party with respect thereto, net of any retropremiums, out-of-pocket expenses and costs of recovery, if any (“Third-Party Proceeds”). The Indemnified Party shall take all commercially reasonable actions to seek full and prompt recovery from any Third-Party Proceeds covering any Loss to the same extent as it would if such Loss were not subject to indemnification hereunder; provided, that the Indemnified Party’s inability to collect or recover any such Third-Party Proceeds shall not limit or otherwise delay the Indemnifying Party’s obligation hereunder. In the event that an insurance or other recovery from a third party is made by any Acquiror Indemnified Party with respect to any Loss the specific Losses for which any such Person has been indemnified received an indemnification payment hereunder, then a refund equal to the aggregate amount of the recovery (net of any retropremiums, out-pocket-expenses and costs of recoverysuch recovery such as legal fees, as well as increased premiums, deductibles, and self-insured amounts) shall be made promptly to (a) the Indemnifying PartyEscrow Agent for replenishment of the Indemnity Escrow Fund, if during the Survival Period, or (b) the Paying Agent if after the expiration of the Survival Period, for distribution to the Selling Equityholders, and the portion of such amount owed to each Selling Equityholder will be determined in accordance with its respective Percentage (less Taxes withheld, if any, pursuant to Section 1.16). Each party hereby waivesNotwithstanding the foregoing, an Acquiror Indemnified Party shall not be required to refund amounts actually received from an insurer to the extent permitted under its applicable insurance policies, any subrogation rights that its insurer may have with respect to any indemnifiable Losses. If such indemnified Person's total Losses exceed the Indemnifying Party elects to control the defense of any claim pursuant to Section 10.3(d), then the Indemnifying Party shall be subrogated to and shall stand limits in the place of the Indemnified Party as to any events or circumstance in respect of which the Indemnified Party may have any right, defense or claim pursuant to the applicable insurance policies. The Indemnified Party shall cooperate with and take such actions as reasonably requested by policy (including the Indemnifying Party in a reasonable manner, and at the cost of the Indemnifying Party, in presenting any subrogated right, defense or claim and effecting any such subrogationRWI Policy).

Determination of Loss Amount. (i) The amount of any Loss Losses subject to indemnification under Section 10.3 7.02(a)(i) shall be calculated net of any insurance proceeds (including under the R&W Insurance Policy) or any indemnity, contribution or other similar payment recovered Third Party payments actually realized by the Indemnified Party (or its Affiliates) from any third party with respect theretoParty. To the extent required by Section 7.02(a), net of any retropremiums, out-of-pocket expenses and costs of recovery, if any (“Third-Party Proceeds”). The the Indemnified Party shall take all commercially reasonable actions use Commercially Reasonable Efforts to seek full recovery under all applicable insurance policies (including under the R&W Insurance Policy) and prompt recovery from any Third-Third Party Proceeds payments covering any Loss Losses to the same extent as it would if such Loss Losses were not subject to indemnification hereunder; provided, that the Indemnified Party’s inability to collect or recover any such Third-Party Proceeds shall not limit or otherwise delay the Indemnifying Party’s obligation hereunder. In the event that an insurance recovery (including under the R&W Insurance Policy) or other recovery Third Party payment is made received by any the Indemnified Party with respect to any Loss Losses for which any such Person Party has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (net of any retropremiums, out-pocket-expenses all direct collection costs and costs of recoveryexpenses) shall be made promptly to the Indemnifying Party or Parties that provided such indemnity payments to such Indemnified Party. Each party hereby waivesThe Purchaser Indemnified Group shall not be entitled to recover Losses from Sellers if such Losses would have been covered under the R&W Insurance Policy, if not for a failure by a Purchaser Indemnified Group to promptly make a claim thereunder or to otherwise comply with the terms thereof. No member of Purchaser Indemnified Group will be indemnified for any Loss solely to the extent permitted under its applicable insurance policies, any subrogation rights that its insurer may have with respect to any indemnifiable Losses. If the Indemnifying Party elects to control the defense amount of any claim pursuant to Section 10.3(d), then the Indemnifying Party shall be subrogated to and shall stand such Loss was reflected in the place of Final Purchase Price or the Indemnified Party as to any events or circumstance Net Working Capital Adjustment in respect of which the Indemnified Party may have any right, defense or claim pursuant to the applicable insurance policies. The Indemnified Party shall cooperate accordance with and take such actions as reasonably requested by the Indemnifying Party in a reasonable manner, and at the cost of the Indemnifying Party, in presenting any subrogated right, defense or claim and effecting any such subrogationthis Agreement.

Determination of Loss Amount. (ia) The amount of any Loss Losses subject to indemnification under Section 10.3 pursuant to this Article 10 shall be calculated reduced or reimbursed, as the case may be, by any amount actually received by any Buyer Indemnified Party or any Seller Indemnified Party, as applicable, with respect thereto under any insurance coverage provided by any third party or from any other party alleged to be responsible therefor (net of any insurance proceeds deductible or any indemnityco-payment, contribution the Buyer Indemnified Parties’ or other similar payment recovered by the Seller Indemnified Party (or its Affiliates) from any third party with respect theretoParties’, net as applicable, good faith estimate of any retropremiums, out-of-increase in insurance premiums attributable to such recovery and all out of pocket expenses and costs of related to such recovery, if any (“Third-Party Proceeds”). The Buyer Indemnified Party Parties and the Seller Indemnified Parties, as applicable, shall take all use commercially reasonable actions efforts to seek full and prompt recovery collect any amounts available under such insurance coverage or from any Third-Party Proceeds covering any Loss such other party alleged to the same extent as it would if such Loss were not subject to indemnification hereunderhave responsibility therefor; provided, that in no event shall the Buyer Indemnified Parties or the Seller Indemnified Parties have any obligation to file or commence any Proceeding to collect any such amounts. If a Buyer Indemnified Party or Seller Indemnified Party’s inability , as applicable, receives and is entitled to collect retain an amount under insurance coverage or recover any from such Third-Party Proceeds shall not limit or otherwise delay the Indemnifying Party’s obligation hereunder. In the event that an insurance or other recovery is made by any Indemnified Party party with respect to Losses at any Loss time subsequent to any indemnification provided by Seller or the Unitholders pursuant to Section 10.1 or by Buyer pursuant to Section 10.2, then such Buyer Indemnified Party or Seller Indemnified Party, as applicable, shall promptly reimburse Seller and the Unitholders or Buyer, as applicable, for which any payment made by such Person has been indemnified hereunder, then a refund equal in connection with providing such indemnification up to the aggregate amount of the recovery received (net of any retropremiumsdeductible or co-payment, out-pocket-expenses the Buyer Indemnified Parties’ or Seller Indemnified Parties’, as applicable, good faith estimate of any increase in insurance premiums attributable to such recovery and all out of pocket costs of related to such recovery) by the Buyer Indemnified Party or Seller Indemnified Party, as applicable; provided, that in no event shall be made promptly any Buyer Indemnified Party or Seller Indemnified Party, as applicable, have any obligation hereunder to remit to Buyer or Seller and the Indemnifying Party. Each party hereby waivesUnitholders, to the extent permitted under its applicable insurance policiesas applicable, any subrogation rights that its insurer may have portion of such insurance or other recoveries in excess of the indemnification payment or payments actually received from Buyer or Seller and the Unitholders, as applicable, with respect to any indemnifiable such Losses. If For the Indemnifying Party elects to control avoidance of doubt, the defense of any claim pursuant to Section 10.3(d), then the Indemnifying Party shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstance in respect of which the Indemnified Parties agree that a Party may have any right, defense or still make a claim pursuant for indemnification under this Article 10 while separately pursuing insurance proceeds related to the applicable insurance policies. The Indemnified Party shall cooperate with and take such actions as reasonably requested by the Indemnifying Party in a reasonable manner, and at the cost of the Indemnifying Party, in presenting any subrogated right, defense or claim and effecting any such subrogationsame claim.

Determination of Loss Amount. (a) For purposes of determining the amount of any indemnification obligation to any Indemnified Party for any Losses, appropriate reductions shall be made to reflect (i) The amount of any Loss subject the actual recovery pursuant to indemnification under Section 10.3 shall be calculated net of any insurance policy (other than insurance proceeds or any indemnity, contribution or other similar payment recovered by the Indemnified Party (or its Affiliates) from any third party with respect thereto, net of any retropremiums, out-of-pocket expenses and costs of recovery, if any (“Third-Party Proceeds”). The Indemnified Party shall take all commercially reasonable actions to seek full and prompt recovery from any Third-Party Proceeds covering any Loss received pursuant to the same extent as it would if such Loss were not subject to indemnification hereunder; provided, that the Indemnified Party’s inability to collect or recover any such Third-Party Proceeds shall not limit or otherwise delay the Indemnifying Party’s obligation hereunder. In the event that an insurance or other recovery is made R&W Insurance Policy) received by any Indemnified Party with in respect of such Losses (net of any deductibles or other expenses and any increase in the applicable premium/retro-premiums related to the recovery of such proceeds) and (ii) any other recovery actually received by any Indemnified Party from a third party pursuant to any Loss reimbursement arrangements, indemnification rights, contribution agreements, holdback, offset or set-off agreements or similar arrangements (other than insurance proceeds received pursuant to the R&W Insurance Policy); provided, however, that the foregoing shall not be deemed to require an Indemnified Party to seek recovery under any applicable insurance policies or otherwise prior to making a claim for which any such Person has been indemnified indemnification hereunder, then a refund except to the extent such claim would be covered by the D&O Tail Policy. If an indemnification payment pursuant to this Article X is received by any Indemnified Party, and such Indemnified Party later receives proceeds of an insurance policy or other such third party payments (other than insurance proceeds received pursuant to the R&W Insurance Policy), in each case as described in the immediately preceding sentence, in respect of such Losses, such Indemnified Party shall promptly notify the Holder Representative, and promptly, but in any event no later than five (5) Business Days after delivery of such proceeds, such Indemnified Party shall pay to the Paying Agent for the accounts of the holder of Units an amount equal to the aggregate amount of the insurance recovery (net of any retropremiums, out-pocket-deductibles or other expenses and costs any increase in the applicable premiums/retro-premiums related to the recovery of recoverysuch proceeds) or such other third party payments so as to avoid a duplication of recovery (but not to exceed the amount for which such Indemnified Party was previously indemnified for hereunder in respect of such Losses) (other than insurance proceeds received pursuant to the R&W Insurance Policy). Notwithstanding the foregoing, for an avoidance of doubt, nothing in this Section 10.6(a) shall be made promptly deemed to the permit any Indemnified Party to recover for Losses from any Company Indemnifying Party. Each party hereby waives, Party to the extent permitted under its applicable such Losses are recovered from insurance policies, any subrogation rights that its insurer may have with respect to any indemnifiable Losses. If the Indemnifying Party elects to control the defense of any claim pursuant to Section 10.3(d), then the Indemnifying Party shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstance in respect of which the Indemnified Party may have any right, defense or claim proceeds received pursuant to the applicable insurance policies. The Indemnified Party shall cooperate with and take such actions as reasonably requested by the Indemnifying Party in a reasonable manner, and at the cost of the Indemnifying Party, in presenting any subrogated right, defense or claim and effecting any such subrogationR&W Insurance Policy.

Determination of Loss Amount. (i) The amount of any Loss subject to indemnification under Section 10.3 7.02 or 7.03 shall be calculated net of (i) any Tax benefit actually realized by the Indemnitee or its Affiliates on account of such Loss on or before the second anniversary of the end of the taxable year in which the Loss occurs and (ii) any insurance proceeds or any indemnity, contribution or other similar payment 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 Seller Party) by the Indemnified Party (or its Affiliates) Indemnitee from any third party with respect theretothereto (including pursuant to any indemnities from prior acquisitions by the Surviving Company and its Subsidiaries and to any representation and warranty insurance policies). A Tax benefit shall be realized upon the receipt of a refund of Taxes paid or the filing of a Tax Return, net of any retropremiumsincluding an estimated Tax Return, out-of-pocket expenses and costs of recoveryshowing a Tax benefit (or, if any (earlier, the date when such a Tax Return should have been timely filed, including properly obtained extensions) calculated on a “Third-Party Proceeds”)with and without” basis with respect to Tax benefits arising as a result of such Loss. The Indemnified Party Indemnitee shall take seek, as its first recourse, full recovery under all commercially reasonable actions indemnities (other than this Agreement) and insurance policies (including pursuant to seek full any indemnities from prior acquisitions by the Surviving Company and prompt recovery from its Subsidiaries and to any Third-Party Proceeds representation and warranty insurance policies) covering any Loss to the same extent as it would if such Loss were not subject to indemnification hereunder; provided, that the Indemnified Party’s inability Indemnitee shall be permitted to collect make a claim for indemnification following the submission of any claim under any other indemnity or recover insurance policy (including any such Third-Party Proceeds representation and warranty insurance policy); provided, further, that, for the avoidance of doubt, the preceding proviso shall not limit or otherwise delay change the Indemnifying Party’s obligation hereunderpriority of recourse set forth in this sentence. In the event that an insurance or other recovery specified in the first sentence of this Section 7.05 is made by any Indemnified Party 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 (net less the cost of collection of such recovery and any retropremiums, out-pocket-expenses portion of the Loss paid by the Indemnitee or any Affiliate thereof (and costs of not indemnified hereunder) due to the limitation on liability provisions (including the Deductible or any deductible under any representation or warranty insurance policy) that may be applicable to such recovery) shall be made promptly to the Indemnifying PartyIndemnitor. 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. If the Indemnifying Party elects to control the defense of any claim pursuant to Section 10.3(d), then the Indemnifying Party shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstance in respect of which the Indemnified Party may have any right, defense or claim pursuant to the applicable insurance policies. The Indemnified Party shall cooperate with and take such actions as reasonably requested by the Indemnifying Party in a reasonable manner, and at the cost of the Indemnifying Party, in presenting any subrogated right, defense or claim and effecting any such subrogation.

Determination of Loss Amount. (i) The amount of any Loss subject to indemnification under Section 10.3 9.02 shall be calculated net of any insurance proceeds or any indemnity, contribution or other similar payment actually recovered by the Indemnified Party (or its Affiliates) from any third party Third Party with respect thereto, thereto (net of any retropremiums, out-of-pocket expenses and costs of incurred by the Indemnified Party in obtaining such recovery, if including collection costs and reserves, deductibles, premium adjustments and retrospectively rated premiums), except to the extent any such insurance proceeds are required to be paid pursuant to Sections 8.03(e) or 9.02(c). If the Indemnified Party actually realizes a Tax Benefit on account of a Loss by reason of the deductibility of such Loss in the taxable year of the Loss or in the subsequent taxable year, and the Indemnified Party (or the Purchaser) is entitled to be, and is in fact, indemnified against such Loss pursuant to this Article IX, the Indemnified Party shall promptly pay to the Indemnifying Party the amount of such Tax Benefit to the extent of the portion of such Loss for which the Indemnified Party received an indemnification payment pursuant to this Article IX. For purposes of this Section 9.07, an Indemnified Party shall be deemed to recognize a tax benefit (a “Third-Party ProceedsTax Benefit”) with respect to a taxable period if, and to the extent that, the Indemnified Party’s cumulative liability for Taxes through the end of such taxable year, calculated by excluding any Tax items attributable to the Loss, exceeds the Indemnified Party’s actual cumulative liability for Taxes through the end of such taxable year, calculated by taking into account any Tax items attributable to the Loss (to the extent permitted by applicable Law and treating the Tax items attributable to the Loss as the last items claimed for any taxable year). The Indemnified Party shall take all use commercially reasonable actions efforts to seek full and prompt recovery from any Third-Party Proceeds under all insurance policies covering any Loss or right of a current or former director or officer to contribution, indemnification, advancement or reimbursement to the same extent as it would if such Loss were not subject to indemnification hereunder; provided, that hereunder or the Indemnified Party’s inability to collect Party were responsible for such contribution, indemnification, advancement or recover any such Third-Party Proceeds shall not limit or otherwise delay the Indemnifying Party’s obligation hereunderreimbursement. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate lesser of (i) the amount of the recovery (net of any retropremiumsexpenses incurred by the Indemnified Party in obtaining such recovery, out-pocket-expenses including collection costs and costs reserves, deductibles, premium adjustments and retrospectively rated premiums) and (ii) the amount of recovery) the Loss for which the Indemnified Party was indemnified shall be made promptly to the Indemnifying Party. 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. If 75 9.08 Acknowledgment of the Indemnifying Party elects Purchaser and the Merger Sub. Each of the Purchaser and the Merger Sub acknowledges that it has conducted to control its satisfaction an independent investigation and verification of the defense financial condition, results of operations, assets, liabilities, properties and projected operations of the Company and its Subsidiaries and, in making its determination to proceed with the transactions contemplated by this Agreement, each of the Purchaser and the Merger Sub has relied on the results of its own independent investigation and verification and the representations and warranties of the Company expressly and specifically set forth in Article IV, as modified by the Disclosure Schedules attached hereto. The representations and warranties of the Company in Article IV, as modified by the Disclosure Schedules, constitute the sole and exclusive representations and warranties of the Company and the Non‑Recourse Parties to the Purchaser and the Merger Sub in connection with the transactions contemplated hereby, and each of the Purchaser and the Merger Sub understands, acknowledges and agrees that all other representations and warranties of any claim pursuant kind or nature expressed or implied (including any relating to Section 10.3(dthe 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 or relating to any other information provided to Purchaser) are specifically disclaimed by the Company and the Stockholders. Except as expressly provided in this Agreement, none of the Stockholder Representative, the Stockholder Parties, the Company or its Subsidiaries makes or provides, and each of the Purchaser and the Merger Sub hereby waives, any warranty or representation, express or implied, as to the quality, merchantability, fitness for a particular purpose, conformity to samples, or condition of the Company’s and its Subsidiaries’ assets or any part thereof. In connection with the Purchaser’s and the Merger Sub’s investigation of the Company and its Subsidiaries, each of the Purchaser and the Merger Sub 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. Each of the Purchaser and the Merger Sub acknowledges that there are uncertainties inherent in attempting to make estimates, projections and other forecasts and plans, that the Purchaser and the Merger Sub are familiar with such uncertainties and that each of the Purchaser and the Merger Sub 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 the reasonableness of the assumptions underlying such estimates, projections and forecasts. Accordingly, each of the Purchaser and the Merger Sub hereby acknowledges that none of the Stockholder Representative, the Stockholders or any of their Affiliates, or their respective officers, directors, partners, members, employees, agents, representatives, successors and permitted assigns (collectively, the “Stockholder Parties”) is making any representation or warranty with respect to such estimates, projections and other forecasts and plans, including the reasonableness of the assumptions underlying such estimates, projections and forecasts, and that neither of the Purchaser or the Merger Sub has relied on any such estimates, projections or other forecasts or plans, in each case except to the extent of the representations and warranties expressly and specifically set forth in Article IV, as modified by the Disclosure Schedules attached hereto. The Purchaser further agrees, for itself and its Affiliates and their respective officers, directors, partners, members, employees, agents, representatives, successors and permitted assigns (collectively, the “Purchaser Parties”), then that none of the Indemnifying Stockholder Parties or any other Person will have or be subject to any liability to any Purchaser Party shall be subrogated or any other Person resulting from the distribution to and shall stand the Purchaser or any other Purchaser Party, or the Purchaser’s use of, any information other than that contained in the place representations and warranties contained in this Article IV (including the certificate of the Indemnified Party as to any events or circumstance in Company delivered by the Company 76 with respect of which the Indemnified Party may have any right, defense or claim pursuant to the applicable insurance policies. The Indemnified Party shall cooperate with representations and take such actions as reasonably requested by warranties set forth in this Article IV), including any information, document or material made available to the Indemnifying Purchaser or any other Purchaser Party in a reasonable manner, and at the cost certain “data rooms,” management presentations or any other form in expectation of the Indemnifying Partytransactions contemplated by this Agreement. Notwithstanding anything in this Agreement to the contrary, nothing in presenting this Agreement shall limit the recovery of the Purchaser or the liability of the Company or any subrogated rightof its Affiliates or any Stockholder in the event of actual fraud, defense or claim except as expressly set forth in Sections 9.03(c) and effecting any such subrogation.9.03(d). 9.09

Determination of Loss Amount. (i) The amount of any Loss subject to indemnification under Section 10.3 9.02 shall be calculated net of any insurance proceeds or any indemnity, contribution or other similar payment actually recovered by the Indemnified Party (or its Affiliates) from any third party Third Party with respect thereto, thereto (net of any retropremiums, out-of-pocket expenses and costs of incurred by the Indemnified Party in obtaining such recovery, if including collection costs and reserves, deductibles, premium adjustments and retrospectively rated premiums), except to the extent any such insurance proceeds are required to be paid pursuant to Sections 8.03(e) or 9.02(c). If the Indemnified Party actually realizes a Tax Benefit on account of a Loss by reason of the deductibility of such Loss in the taxable year of the Loss or in the subsequent taxable year, and the Indemnified Party (or the Purchaser) is entitled to be, and is in fact, indemnified against such Loss pursuant to this Article IX, the Indemnified Party shall promptly pay to the Indemnifying Party the amount of such Tax Benefit to the extent of the portion of such Loss for which the Indemnified Party received an indemnification payment pursuant to this Article IX. For purposes of this Section 9.07, an Indemnified Party shall be deemed to recognize a tax benefit (a “Third-Party ProceedsTax Benefit”) with respect to a taxable period if, and to the extent that, the Indemnified Party’s cumulative liability for Taxes through the end of such taxable year, calculated by excluding any Tax items attributable to the Loss, exceeds the Indemnified Party’s actual cumulative liability for Taxes through the end of such taxable year, calculated by taking into account any Tax items attributable to the Loss (to the extent permitted by applicable Law and treating the Tax items attributable to the Loss as the last items claimed for any taxable year). The Indemnified Party shall take all use commercially reasonable actions efforts to seek full and prompt recovery from any Third-Party Proceeds under all insurance policies covering any Loss or right of a current or former director or officer to contribution, indemnification, advancement or reimbursement to the same extent as it would if such Loss were not subject to indemnification hereunder; provided, that hereunder or the Indemnified Party’s inability to collect Party were responsible for such contribution, indemnification, advancement or recover any such Third-Party Proceeds shall not limit or otherwise delay the Indemnifying Party’s obligation hereunderreimbursement. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate lesser of (i) the amount of the recovery (net of any retropremiumsexpenses incurred by the Indemnified Party in obtaining such recovery, out-pocket-expenses including collection costs and costs reserves, deductibles, premium adjustments and retrospectively rated premiums) and (ii) the amount of recovery) the Loss for which the Indemnified Party was indemnified shall be made promptly to the Indemnifying Party. 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. If the Indemnifying Party elects to control the defense of any claim pursuant to Section 10.3(d), then the Indemnifying Party shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstance in respect of which the Indemnified Party may have any right, defense or claim pursuant to the applicable insurance policies. The Indemnified Party shall cooperate with and take such actions as reasonably requested by the Indemnifying Party in a reasonable manner, and at the cost of the Indemnifying Party, in presenting any subrogated right, defense or claim and effecting any such subrogation.

Determination of Loss Amount. (ia) The amount of any Loss Losses subject to indemnification under Section 10.3 shall 10.02 and Section 10.03 will be calculated net of (i) the amount of any Tax Benefit realized by an Indemnified Party by reason of such Loss or the circumstances or adjustments giving rise thereto with respect to any taxable period in which such Loss was incurred (or any earlier taxable period) but only to the extent that an Indemnified Party utilizes such Tax Benefit and (ii) any amounts recovered by any Indemnified Party or any of such Indemnified Party's Affiliates under or pursuant to any insurance proceeds or any policy, title insurance policy, indemnity, contribution reimbursement arrangement or other similar payment recovered by contract pursuant to or under which such Indemnified Party or such Indemnified Party's Affiliates is a party or has rights ("Alternative Arrangements"). For purposes hereof, "Tax Benefit" means (x) any refund of Taxes paid, or (y) the amount the Indemnified Party (Party's hypothetical liability for Taxes for the taxable period, calculated by excluding the relevant amount of credit, deduction, or its Affiliates) from any third party with respect theretoLoss that would exceed the Indemnified Party's actual liability for Taxes for such period, net calculated by taking into account the relevant amount of any retropremiumscredit, out-of-pocket expenses and costs of recoverydeduction, if any (“Third-Party Proceeds”)or Loss. The Indemnified Party shall take all commercially reasonable actions to will seek full and prompt recovery from any Third-Party Proceeds under all Alternative Arrangements covering any Loss to the same extent as it such Indemnified Party would if such Loss were not subject to indemnification hereunder; provided, that the Indemnified Party’s inability to collect or recover any such Third-Party Proceeds shall not limit or otherwise delay the Indemnifying Party’s obligation hereunder. In the event that an insurance or other a recovery is made under an Alternative Arrangement by any Indemnified Party with respect to any Loss for which any such Person Indemnified Party has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (net of any retropremiums, out-pocket-expenses and costs of recovery) shall will be made promptly to the Indemnifying Party. 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. If the Indemnifying Party elects to control the defense of any claim pursuant to Section 10.3(d), then the Indemnifying Party shall be subrogated to and shall stand in the place of the Indemnified Party as to any events or circumstance in respect of which the Indemnified Party may have any right, defense or claim pursuant to the applicable insurance policies. The Indemnified Party shall cooperate with and take such actions as reasonably requested by the Indemnifying Party in a reasonable manner, and at the cost of the Indemnifying Party, in presenting any subrogated right, defense or claim and effecting any such subrogation.