Common use of Determination of Losses Clause in Contracts

Determination of Losses. All Losses subject to indemnification pursuant to this Article IX or the [***] shall be calculated net of the amount of any recoveries received by an Indemnified Party prior to the payment in full of such Losses under any existing insurance policies and contractual indemnification or contribution provisions incurred or paid to procure such recoveries in respect of any indemnifiable Losses suffered, paid, sustained or incurred by any Indemnified Party. Furthermore, the amount of Losses shall be reduced by any actual Tax payment or refund actually received with respect to the specific indemnifiable event or item, as determined in the reasonable discretion of the Indemnified Party. In addition, all Losses subject to indemnification under this Article IX or the [***] shall be reduced by any Tax attribute (including for the avoidance of doubt, and notwithstanding anything else to the contrary herein, any existing net operating losses) that is available to offset any Tax Liability in connection with such Losses, such that the Company Group shall first be required to utilize any existing net operating losses, credits or any other Tax attributes prior to any payment of indemnification with respect to such Losses (for the avoidance of doubt, the value of any such Tax attributes utilized shall not increase the amount of Losses so indemnified), provided that such net operating losses, credits or other Tax attributes have arisen in a Pre-Closing Tax Period and have not been taking into account in calculating the Adjusted Merger Consideration as a Deferred Tax Asset. If an Indemnified Party recovers an amount from a third party in respect of a Loss that is the subject of indemnification hereunder after all or a portion of such Loss has been paid by an Indemnifying Party pursuant to this Article IX, the Indemnified Party shall promptly remit to the applicable Indemnifying Party the excess of (i) the amount paid by the Indemnifying Party in respect of such Loss, plus the amount received from the third party in respect thereof, less (ii) the full amount of the Loss.

Determination of Losses. All The amount of any Losses subject to indemnification pursuant to this Article IX or the [***] shall be calculated net of the amount of any recoveries received by an Indemnified Party prior to the payment in full of such Losses under any existing insurance policies and contractual indemnification or contribution provisions incurred or paid to procure such recoveries in respect of any indemnifiable Losses suffered, paid, sustained or incurred by any Indemnified Party. Furthermore, the amount of Losses shall be reduced by the amounts of any actual Tax payment or refund actually received with respect Benefits inuring to the specific indemnifiable event or item, as determined in the reasonable discretion of the Indemnified Party. In addition, all Losses subject to indemnification under this Article IX or the [***] shall be reduced by any Tax attribute (including for the avoidance of doubt, and notwithstanding anything else to the contrary herein, any existing net operating losses) that is available to offset any Tax Liability in connection with such Losses, such that the Company Group shall first be required to utilize any existing net operating losses, credits or any other Tax attributes prior to any payment of indemnification with respect to such Losses (for the avoidance of doubt, the value of any such Tax attributes utilized shall not increase the amount of Losses so indemnified), provided that such net operating losses, credits or other Tax attributes have arisen in a Pre-Closing Tax Period and have not been taking into account in calculating the Adjusted Merger Consideration as a Deferred Tax Asset. If an Indemnified Party recovers an amount from a third party in respect of a Loss that is the subject of indemnification hereunder after all or a portion on account of such Loss has been paid and any insurance proceeds received by the Indemnified Party in connection therewith. If the Indemnified Party receives a Tax Benefit after an Indemnifying Party pursuant indemnification payment is made to this Article IXit, the Indemnified Party shall promptly remit pay to the applicable Indemnifying Party the excess of (i) the amount paid by the Indemnifying Party in respect that made or directed such indemnification payment the amount of such LossTax Benefit at such time or times as and to the extent that such Tax Benefit is realized by the Indemnified Party. For purposes hereof, plus “Tax Benefit” shall mean any refund of Taxes paid or reduction in the amount of Taxes which otherwise would have been paid. The Indemnified Party shall use commercially reasonable efforts to seek full recovery under all insurance policies covering any Losses to the same extent as they would if such Losses were not subject to indemnification hereunder. In the event that an insurance is received from by any Indemnified Party with respect to any Losses for which any such Person has been indemnified hereunder, then a refund equal to the third party in respect thereof, less (ii) the full amount of the Lossrecovery shall be made promptly to the Indemnifying Party that made or directed and provided such indemnification payments to such Indemnified Party. In the case of any Third Party Claim, unless the Indemnifying Party consents otherwise (which consent shall not be unreasonably withheld), the final amount of Losses subject to indemnification shall not be determined until, and the Indemnifying Party shall not be obligated to make a payment to the Indemnified Party until, the matter underlying the Third Party Claim becomes non-appealable or is not appealed.

Determination of Losses. All Losses The amount of any Loss subject to indemnification pursuant to this Article IX under Section 6.1 or the [***] Section 6.2 shall be calculated net of the amount of (i) any recoveries received by an Indemnified Party prior to the payment in full of such Losses under any existing insurance policies and contractual indemnification or contribution provisions incurred or paid to procure such recoveries in respect of any indemnifiable Losses suffered, paid, sustained or incurred by any Indemnified Party. Furthermore, the amount of Losses shall be reduced by any actual Tax payment or refund Benefit actually received with respect to the specific indemnifiable event or item, as determined in the reasonable discretion of the Indemnified Party. In addition, all Losses subject to indemnification under this Article IX realized (or the [***] shall be reduced by any Tax attribute (including for the avoidance of doubt, and notwithstanding anything else to the contrary herein, any existing net operating losses) that is available to offset any Tax Liability in connection with such Losses, such that the Company Group shall first be required to utilize any existing net operating losses, credits or any other Tax attributes prior to any payment of indemnification with respect to such Losses (for the avoidance of doubt, the present value of any such Tax attributes utilized shall not increase Benefit to be realized) by the amount of Losses so indemnified), provided that such net operating losses, credits or other Tax attributes have arisen in a Pre-Closing Tax Period and have not been taking into account in calculating the Adjusted Merger Consideration as a Deferred Tax Asset. If an Indemnified Party recovers an amount from a third party in respect of a Loss that is the subject of indemnification hereunder after all or a portion on account of such Loss has been paid and (ii) any insurance proceeds actually received by the Indemnified Party on account of such Loss. If the Indemnified Party receives a Tax Benefit after an Indemnifying Party pursuant indemnification payment is made to this Article IXit, then, to the extent such payment did not take into account such Tax Benefit, the Indemnified Party shall promptly remit pay to the applicable Indemnifying Party the excess of (i) Person or Persons that made such indemnification payment the amount of such Tax Benefit at such time or times as and to the extent that such Tax Benefit is actually realized by the Indemnified Party. 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 each case computed at the highest marginal tax rates actually applicable to the recipient of such benefit, and any dispute as to the amount of a Tax Benefit, the present value thereof, or whether it is to be realized shall be resolved by binding arbitration by a nationally recognized public accounting firm reasonably acceptable to each party. The Indemnified Party shall use reasonable efforts to recover under any insurance policy covering any Loss, if reasonably requested by the Indemnifying Party and provided that the Indemnifying Party pays all costs and expenses of the same, including instituting litigation or otherwise pursuing any dispute in respect of any such Lossinsurance recovery, plus if reasonably requested by the Indemnifying Party and provided that the Indemnifying Party pays all costs and expenses of the same; provided, that no Indemnified Party shall be required to obtain or maintain any insurance for this purpose and provided, further, that for purposes of this Section 6.6, any insurance proceeds actually received by the Indemnified Party will be deemed reduced by any premium increase that results from such Loss during the three-year period following the claim and costs incurred by the Indemnified Party with respect to the collection of such insurance proceeds. In the event that an insurance recovery is actually received 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 such recovery (as adjusted pursuant to this Section 6.6) shall be made promptly to the Person or Persons that provided such indemnity payments to such Indemnitee; provided, that any such Person or Persons who receives a refund shall promptly reimburse the Indemnified Party for the amount received from of any reduction in the third party insurance recovery occasioned by premium increases or collection costs during the three-year period following the claim, as contemplated in this Section 6.6, that arise after any such refund. No Indemnifying Party may delay the payment of any amount owing in respect thereofof any Claim for indemnification pursuant to this Article VI due to the pendency of any Tax Benefit or insurance recovery, less (ii) the full nor may any Indemnifying Party offset against any amount owing in respect of the Lossany Claim any pending Tax Benefit or insurance recovery.

Determination of Losses. All Losses The amount of any Loss subject to indemnification pursuant to this Article IX under Section 6.1 or the [***] Section 6.2 shall be calculated net of the amount of (i) any recoveries received by an Indemnified Party prior to the payment in full of such Losses under any existing insurance policies and contractual indemnification or contribution provisions incurred or paid to procure such recoveries in respect of any indemnifiable Losses suffered, paid, sustained or incurred by any Indemnified Party. Furthermore, the amount of Losses shall be reduced by any actual Tax payment or refund Benefit actually received with respect to the specific indemnifiable event or item, as determined in the reasonable discretion of the Indemnified Party. In addition, all Losses subject to indemnification under this Article IX realized (or the [***] shall be reduced by any Tax attribute (including for the avoidance of doubt, and notwithstanding anything else to the contrary herein, any existing net operating losses) that is available to offset any Tax Liability in connection with such Losses, such that the Company Group shall first be required to utilize any existing net operating losses, credits or any other Tax attributes prior to any payment of indemnification with respect to such Losses (for the avoidance of doubt, the present value of any such Tax attributes utilized shall not increase Benefit to be realized) by the amount of Losses so indemnified), provided that such net operating losses, credits or other Tax attributes have arisen in a Pre-Closing Tax Period and have not been taking into account in calculating the Adjusted Merger Consideration as a Deferred Tax Asset. If an Indemnified Party recovers an amount from a third party in respect of a Loss that is the subject of indemnification hereunder after all or a portion on account of such Loss has been paid and (ii) any insurance proceeds actually received by the Indemnified Party on account of such Loss. If the Indemnified Party receives a Tax Benefit after an Indemnifying Party pursuant indemnification payment is made to this Article IXit, then, to the extent such payment did not take into account such Tax Benefit, the Indemnified Party shall promptly remit pay to the applicable Indemnifying Party the excess of (i) Person or Persons that made such indemnification payment the amount of such Tax Benefit at such time or times as and to the extent that such Tax Benefit is actually realized by the Indemnified Party. 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 each case computed at the highest marginal tax rates actually applicable to the recipient of such benefit, and any dispute as to the amount of a Tax Benefit, the present value thereof, or whether it is to be realized shall be resolved by binding arbitration by a nationally recognized public accounting firm reasonably acceptable to each party. The Indemnified Party shall use reasonable efforts to recover under any insurance policy covering any Loss, if reasonably requested by the Indemnifying Party and provided that the Indemnifying Party pays all costs and expenses of the same, including instituting litigation or otherwise pursuing any dispute in respect of any such Lossinsurance recovery, plus if reasonably requested by the Indemnifying Party and provided that the Indemnifying Party pays all costs and expenses of the same; provided, that no Indemnified Party shall be required to obtain or maintain any insurance for this purpose and provided, further, that for purposes of this Section 6.7, any insurance proceeds actually received by the Indemnified Party will be deemed reduced by any premium increase that results from such Loss during the three (3) year period following the claim and costs incurred by the Indemnified Party with respect to the collection of such insurance proceeds. In the event that an insurance recovery is actually received 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 such recovery (as adjusted pursuant to this Section 6.7) shall be made promptly to the Person or Persons that provided such indemnity payments to such Indemnitee; provided, that any such Person or Persons who receives a refund shall promptly reimburse the Indemnified Party for the amount received from of any reduction in the third party insurance recovery occasioned by premium increases or collection costs during the three (3) year period following the claim, as contemplated in this Section 6.7, that arise after any such refund. No Indemnifying Party may delay the payment of any amount owing in respect thereofof any Claim for indemnification pursuant to this Article VI due to the pendency of any Tax Benefit or insurance recovery, less (ii) the full nor may any Indemnifying Party offset against any amount owing in respect of the Lossany Claim any pending Tax Benefit or insurance recovery.

Determination of Losses. All The Losses subject to indemnification of any Indemnitee pursuant to this Article IX or the [***] 10 shall be calculated determined net of the value of a net Tax benefit or Tax saving or increased by the cost of a net Tax cost (to the extent not included in such Losses) (the "TAX ITEMS"). The Tax Item with respect to each such Loss shall be determined by the Indemnitee in good faith in a written notice delivered to the Indemnifying Party, describing in reasonable detail the method of making such determination (the "DETERMINATION NOTICE"), using reasonable assumptions and methods of valuation, including the marginal United States, state, local and foreign income tax rate applicable (or reasonably expected to be applicable) to the Indemnitee and applying to each Tax Item a discount rate equal to 9% in order to compute such amount to the present value. Tax cost shall include any income that may be recognized by the Indemnitee upon receipt of any recoveries received by an Indemnified indemnification payment under this Article 10. In the event that the Indemnifying Party prior shall disagree with the determination of the amount, value or cost of a Tax Item, the Indemnifying Party shall notify the Indemnitee in writing of such disagreement within 30 days of the Indemnifying Party's receipt of the Determination Notice, such notice (the "NOTICE OF DISAGREEMENT") shall set forth in reasonable detail the basis for such disagreement, including the Indemnifying Party's estimate of the amount, value or cost of the subject Tax Item and the method used in arriving at such estimate. The Indemnitee 100 shall provide to the payment in full Indemnifying Party the assumptions and methods of valuation, the Tax rates utilized, and other information relating to the determination of such Losses under any existing insurance policies and contractual indemnification or contribution provisions incurred or paid to procure such recoveries in respect of any indemnifiable Losses suffered, paid, sustained or incurred by any Indemnified Party. Furthermore, the amount of Losses shall be reduced by any actual Tax payment or refund actually received with respect to the specific indemnifiable event or item, as determined in the reasonable discretion of the Indemnified Party. In addition, all Losses subject to indemnification under this Article IX or the [***] shall be reduced by any Tax attribute (including for the avoidance of doubtDetermination Notice, and notwithstanding anything else to the contrary herein, any existing net operating losses) that is available to offset any Tax Liability in connection with such Losses, such that the Company Group shall first be required to utilize any existing net operating losses, credits or any other Tax attributes prior to any payment of indemnification with respect to such Losses (for the avoidance of doubt, the value of any such Tax attributes utilized shall not increase the amount of Losses so indemnified), provided that such net operating losses, credits or other Tax attributes have arisen in a Pre-Closing Tax Period and have not been taking into account in calculating the Adjusted Merger Consideration as a Deferred Tax Asset. If an Indemnified Party recovers an amount from a third party in respect of a Loss that is the subject of indemnification hereunder after all or a portion of such Loss has been paid by an Indemnifying Party pursuant to this Article IX, the Indemnified Party shall promptly remit to the applicable Indemnifying Party the excess of (i) the amount paid information reasonably requested by the Indemnifying Party in respect preparing, or considering whether to prepare, a Notice of Disagreement. If the Indemnifying Party does not deliver a Notice of Disagreement to the Indemnitee within such Loss30-day period, plus the amount received from Indemnifying Party shall be deemed to have agreed to the third party determination set forth in respect thereofthe Determination Notice, less (ii) the full amount which shall be final and binding on each of the LossIndemnitee and the Indemnifying Party. If, within 30 days after the receipt of the Notice of Disagreement by the Indemnitee (the "CONSULTATION PERIOD"), the Indemnifying Party and the Indemnitee are unable to resolve their disagreement, the Indemnitee, on the one hand, and the Indemnifying Party, on the other hand, shall promptly instruct their respective firms of accountants to select, within 10 days of the earlier of the last day of the Consultation Period and the date on which the parties mutually acknowledge their inability to resolve their disagreement, a third such firm, which shall be one of the five major independent certified public accounting firms (the "ARBITRATOR"), to finally determine the amount, value or cost of the disputed Tax Item, which determination shall be made within 30 days of submission of the matter to the Arbitrator (the "DETERMINATION PERIOD"), and shall be final and binding on the Indemnitee and the Indemnifying Party. The Indemnifying Party and the Indemnitee shall each be entitled to submit during the first 15 days of the Determination Period such memoranda and analysis to the Arbitrator as each deems appropriate, and the Indemnifying Party and the Indemnitee shall make available to each other and the Arbitrator all working papers, tax returns, and other documents as either shall reasonably request and that relate to the disputed Tax Item. If the Arbitrator determines that the value of the disputed net Tax benefit or Tax saving is greater than 15% of the value set forth in the Determination Notice 101 or the value of the disputed net Tax cost is more than 15% less than the value or amounts set forth in the Determination Notice, then the fees, costs and expenses of the Arbitrator shall be borne by the Indemnitee; otherwise, the fees, costs and expenses of the Arbitrator shall be borne by the Indemnifying Party.

Determination of Losses. All Losses subject to indemnification pursuant to For purposes of determining whether any inaccuracy in, or breach of, any representation or warranty in this Agreement has occurred for purposes of Article IX or VII hereof, and for the [***] shall be calculated net purposes of determining the amount of any recoveries received by an Losses, any and all exceptions, limitations, restrictions, modifications, qualifications and exclusions contained in such representations and warranties that are based or conditioned on or refer to the terms “material adverse effect,” “material” and/or “materially” (including when “material” and “materially” are used as adjectives and/or adverbs) shall be disregarded. Each Buyer Indemnified Party shall use commercially reasonable efforts to mitigate all Losses for which such Buyer Indemnified Party is or may be entitled to indemnification hereunder as required by Law. If any Buyer Indemnified Party actually receives such insurance proceeds prior to the payment in full of being indemnified with respect to such Losses under any existing insurance policies and contractual indemnification or contribution provisions incurred or paid to procure such recoveries in respect of any indemnifiable Losses suffered, paid, sustained or incurred by any Indemnified Party. Furthermorethis ARTICLE VII, the amount of payment under this ARTICLE VII with respect to such Losses shall be reduced by any actual Tax payment or refund actually received with respect to the specific indemnifiable event or itemamount of such insurance proceeds, as determined in the less reasonable discretion of the Indemnified Party. In addition, all Losses subject to indemnification under this Article IX or the [***] shall be reduced by any Tax attribute attorney’s fees and other reasonable out-of-pocket expenses (including for the avoidance of doubt, any retention/deductible under such insurance policy and notwithstanding anything else any increase in premium attributable to the contrary herein, any existing net operating lossessuch claim) that is available to offset any Tax Liability incurred in connection with such Losses, recovery. If a Buyer Indemnified Party actually receives such that the Company Group shall first be required to utilize insurance proceeds after any existing net operating losses, credits or any other Tax attributes prior to any payment of indemnification Buyer Indemnified Party is indemnified with respect to some or all of such Losses (for the avoidance of doubtLosses, the value of any Buyer shall pay or shall cause such Tax attributes utilized shall not increase the amount of Losses so indemnified), provided that such net operating losses, credits or other Tax attributes have arisen in a Pre-Closing Tax Period and have not been taking into account in calculating the Adjusted Merger Consideration as a Deferred Tax Asset. If an Buyer Indemnified Party recovers an amount from a third party in respect of a Loss that is to pay to WSG the subject of indemnification hereunder after all or a portion of such Loss has been paid by an Indemnifying Party pursuant to this Article IX, the Indemnified Party shall promptly remit to the applicable Indemnifying Party the excess lesser of (i) the amount paid by the Indemnifying Party in respect of such Loss, plus the amount received from the third party in respect thereofinsurance proceeds, less reasonable attorney’s fees and other reasonable out-of-pocket expenses (including any retention/deductible under such insurance policy and any increase in premium attributable to such claim) incurred in connection with such recovery and (ii) the full amount of actually paid by the LossSeller Parties to all Buyer Indemnified Parties with respect to such Losses.

Determination of Losses. All Losses subject to indemnification pursuant to this Article IX or the [***] shall be calculated net of the The amount of any recoveries received by an Indemnified Party prior to the payment in full of such Losses under any existing insurance policies and contractual indemnification or contribution provisions incurred or paid to procure such recoveries in respect of any indemnifiable Losses suffered, paid, sustained or incurred by any Indemnified Party. Furthermore, the amount of Losses shall be reduced by any actual Tax payment or refund actually received with respect to the specific indemnifiable event or item, as determined in the reasonable discretion of the Indemnified Party. In addition, all Losses Loss subject to indemnification under this Article IX VI shall be calculated net of (i) any Tax Benefit actually realized (or the [***] shall be reduced by any Tax attribute (including for the avoidance of doubt, and notwithstanding anything else to the contrary herein, any existing net operating losses) that is available to offset any Tax Liability in connection with such Losses, such that the Company Group shall first be required to utilize any existing net operating losses, credits or any other Tax attributes prior to any payment of indemnification with respect to such Losses (for the avoidance of doubt, the present value of any such Tax attributes utilized shall not increase Benefit to be realized) by the amount of Losses so indemnified), provided that such net operating losses, credits or other Tax attributes have arisen in a Pre-Closing Tax Period and have not been taking into account in calculating the Adjusted Merger Consideration as a Deferred Tax Asset. If an Indemnified Party recovers an amount from a third party in respect of a Loss that is the subject of indemnification hereunder after all or a portion on account of such Loss has been paid and (ii) any insurance proceeds actually received by the Indemnified Party on account of such Loss. If the Indemnified Party receives a Tax Benefit after an Indemnifying Party pursuant indemnification payment is made to this Article IXit, then, to the extent such payment did not take into account such Tax Benefit, the Indemnified Party shall promptly remit pay to the applicable Indemnifying Party the excess of (i) Person or Persons that made such indemnification payment the amount of such Tax Benefit at such time or times as and to the extent that such Tax Benefit is actually realized by the Indemnified Party. 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 each case computed at the highest marginal tax rates actually applicable to the recipient of such benefit, and any dispute as to the amount of a Tax Benefit, the present value thereof, or whether it is to be realized shall be resolved by binding arbitration by a nationally recognized public accounting firm reasonably acceptable to each Party. The Indemnified Party shall use reasonable efforts to recover under any insurance policy covering any Loss, if reasonably requested by the Indemnifying Party and provided that the Indemnifying Party pays all costs and expenses of the same, including instituting litigation or otherwise pursuing any dispute in respect of any such Lossinsurance recovery, plus if reasonably requested by the Indemnifying Party and provided that the Indemnifying Party pays all costs and expenses of the same; provided, that no Indemnified Party shall be required to obtain or maintain any insurance for this purpose and provided, further, that for purposes of this Section 6.6, any insurance proceeds actually received by the Indemnified Party will be deemed reduced by any premium increase that results from such Loss during the three-year period following the claim and costs incurred by the Indemnified Party with respect to the collection of such insurance proceeds. In the event that an insurance recovery is actually received 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 such recovery (as adjusted pursuant to this Section 6.7) shall be made promptly to the Person or Persons that provided such indemnity payments to such Indemnitee; provided, that any such Person or Persons who receives a refund shall promptly reimburse the Indemnified Party for the amount received from of any reduction in the third party insurance recovery occasioned by premium increases or collection costs during the three-year period following the claim, as contemplated in this Section 6.7, that arise after any such refund. No Indemnifying Party may delay the payment of any amount owing in respect thereofof any Claim for indemnification pursuant to this Article VI due to the pendency of any Tax Benefit or insurance recovery, less (ii) the full nor may any Indemnifying Party offset against any amount owing in respect of the Lossany Claim any pending Tax Benefit or insurance recovery.

Determination of Losses. All The amount of any Losses subject to indemnification pursuant to this Article IX or the [***] hereunder shall be calculated net of the amount of any recoveries insurance proceeds actually received by the Indemnified Party on account of such Losses reduced by the Indemnified Party’s reasonable and actual costs and expenses incurred in making such insurance recovery. The Indemnified Party shall file a claim with its insurer within a reasonable time after learning of the Loss, and shall use reasonable efforts to recover insurance proceeds for the Loss (whether before or after the indemnity payment is made hereunder); provided, however, (i) such claim filing obligation shall not prevent or delay an Indemnified Party prior to from making an indemnification claim, (ii) the insurer’s position or non-position concerning coverage of the Loss shall not affect or delay the indemnifying party’s payment obligations unless and until payment has actually been received by the Indemnified Party (in full of such Losses under any existing insurance policies and contractual indemnification or contribution provisions incurred or paid to procure such recoveries in respect of any indemnifiable Losses suffered, paid, sustained or incurred by any Indemnified Party. Furthermore, the amount of Losses which case a credit shall be reduced by any actual Tax payment or refund actually received with respect to applied at the specific indemnifiable event or item, indemnifying party’s election as determined in the reasonable discretion of the Indemnified Party. In addition, all Losses subject to indemnification under this Article IX or the [***] shall be reduced by any Tax attribute (including for the avoidance of doubtprovided below), and notwithstanding anything else to (iii) if the contrary herein, any existing net operating losses) that is available to offset any Tax Liability in connection with such Losses, such that the Company Group shall first be required to utilize any existing net operating losses, credits or any other Tax attributes prior to any insurer’s payment of indemnification with respect to such Losses (for the avoidance of doubt, the value of any such Tax attributes utilized shall not increase the amount of Losses so indemnified), provided that such net operating losses, credits or other Tax attributes have arisen in a Pre-Closing Tax Period and have not been taking into account in calculating the Adjusted Merger Consideration as a Deferred Tax Asset. If arrives after an Indemnified Party recovers indemnifying party has made an amount from a third party in respect of a Loss that is the subject of indemnification hereunder after all or a portion of such Loss has been paid by an Indemnifying Party pursuant to this Article IXindemnity payment, the Indemnified Party shall promptly remit the payment to the applicable Indemnifying Party, subject to the following. The Indemnifying Party shall have the excess of option (iin its sole discretion) to take a credit for insurance proceeds recovered against the amount paid by indemnification claim amount, provided that the Indemnifying Party in respect of such Lossshall reimburse the Indemnified Party for any premium increases, plus attributable to the amount received from the third party in respect thereof, less (ii) the full amount of the Lossparticular loss.

Determination of Losses. All Losses The amount of any Loss subject to indemnification pursuant to this Article IX or the [***] shall be calculated net of the amount of any recoveries received by an Indemnified Party prior to the payment in full of such Losses under any existing insurance policies and contractual indemnification or contribution provisions incurred or paid to procure such recoveries in respect of any indemnifiable Losses suffered, paid, sustained or incurred by any Indemnified Party. Furthermore, the amount of Losses shall be reduced by the amounts of any actual Tax payment or refund Benefits realized by the Indemnified Party on account of such Loss and any insurance proceeds actually received with respect by the Indemnified Party in connection therewith; provided that, any Tax Benefit which is a reduction of Taxes shall be deemed realized for purposes of this Section 6.5 only when it is actually used (and not deferred) on a first-in, first-used basis, by the Indemnified Party to the specific indemnifiable event or item, as determined in the reasonable discretion of reduce the Indemnified Party. In addition, all Losses subject to indemnification under this Article IX or ’s Tax liability in the [***] then current tax year; and provided further that any Tax Benefit which is a refund of Taxes shall be reduced deemed realized only when it is received in cash or when it is applied to a future Tax liability by any Tax attribute (including for the avoidance of doubt, and notwithstanding anything else to Indemnified Party in the contrary herein, any existing net operating losses) that is available to offset any Tax Liability in connection with such Losses, such that the Company Group shall first be required to utilize any existing net operating losses, credits or any other Tax attributes prior to any payment of indemnification with respect to such Losses (for the avoidance of doubt, the value of any such Tax attributes utilized shall not increase the amount of Losses so indemnified), provided that such net operating losses, credits or other Tax attributes have arisen in a Pre-Closing Tax Period and have not been taking into account in calculating the Adjusted Merger Consideration as a Deferred Tax Assetthen current tax year. If an the Indemnified Party recovers realizes a Tax Benefit after an amount from a third party in respect of a Loss that indemnification payment is the subject of indemnification hereunder after all or a portion of such Loss has been paid by an Indemnifying Party pursuant made to this Article IXit, the Indemnified Party shall promptly remit pay to the applicable Indemnifying Party the excess of (i) the amount paid by the Indemnifying Party in respect that made or directed such indemnification payment the amount of such LossTax Benefit at such time or times as and to the extent that such Tax Benefit is so realized by the Indemnified Party. For purposes hereof, plus “Tax Benefit” shall mean any refund of Taxes paid or reduction in the amount received from of Taxes which otherwise would have been paid. The Indemnified Party shall seek full recovery under all insurance policies covering any Losses to the third party in same extent as they would if such Losses were not subject to indemnification hereunder. In the event that an insurance or other recovery is made by any Indemnified Party with respect thereofto any Losses for which any such Person has been indemnified hereunder, less (ii) then a refund equal to the full amount of the Lossrecovery shall be made promptly to the Indemnifying Party that made or directed and provided such indemnification payments to such Indemnified Party.

Determination of Losses. All Losses subject With respect to each indemnification pursuant to obligation contained in this Article IX or the [***] shall be calculated net of the amount of any recoveries received by an Indemnified Party prior to the payment in full of such Losses under any existing insurance policies and contractual indemnification or contribution provisions incurred or paid to procure such recoveries in respect of any indemnifiable Losses sufferedVIII, paid, sustained or incurred by any Indemnified Party. Furthermore, the amount of all Losses shall be reduced net of any third-party insurance and indemnity proceeds that are actually recovered by any actual Tax payment or refund actually received with respect to the specific indemnifiable event or item, as determined in the reasonable discretion of the Indemnified Party. In addition, all Losses subject to indemnification under this Article IX or the [***] shall be reduced by any Tax attribute (including for the avoidance of doubt, and notwithstanding anything else to the contrary herein, any existing net operating losses) that is available to offset any Tax Liability Party in connection with the facts giving rise to the right of indemnification, less all out-of-pocket costs and expenses incurred by such Indemnified Party in connection with obtaining such insurance proceeds or third-party recovery (including reasonable attorneys’ fees, any deductible, any retention and any retroactive premium adjustment directly on the account of or directly arising from such claim or Losses, such it being agreed that the Company Group shall first be required to utilize any existing net operating losses, credits if third-party insurance or any other Tax attributes prior to any payment of indemnification with respect to such Losses (for the avoidance of doubt, the value of any such Tax attributes utilized shall not increase the amount of Losses so indemnified), provided that such net operating losses, credits or other Tax attributes have arisen in a Pre-Closing Tax Period and have not been taking into account in calculating the Adjusted Merger Consideration as a Deferred Tax Asset. If an Indemnified Party recovers an amount from a third party in respect of a Loss that is the subject of indemnification hereunder after all or a portion of such Loss has been paid by an Indemnifying Party pursuant to this Article IX, the Indemnified Party shall promptly remit to the applicable Indemnifying Party the excess of (i) the amount paid by the Indemnifying Party proceeds in respect of such Lossfacts are recovered by the Indemnified Party subsequent to the Indemnifying Party’s making of an indemnification payment in satisfaction of its applicable indemnification obligation, plus such proceeds shall be promptly remitted to the amount received from Indemnifying Party to the third extent of the indemnification payment made. The Indemnified Party shall use reasonable efforts to recover for Losses under any such third-party insurance policy. Any liability for indemnification hereunder shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability implicating more than one obligation for indemnification. The Xxxx Xxxxxxx may (at their election) settle any Losses owed by the Xxxx Xxxxxxx under this Agreement (a) in respect thereofcash, less (b) by surrender of Navigator Ordinary Shares (at the then Fair Market Value of such Navigator Ordinary Shares), or (c) by surrender of Notes (at the then fair market value of such Notes, by reference to the Fair Market Value of the Navigator Ordinary Shares issuable thereunder). Buyers shall have the right (at their election) to offset any Losses owed by Xxxx Xxxxxxx under this Agreement, as finally determined by a court or Governmental Entity, and which have not been paid by the Xxxx Xxxxxxx within thirty (30) days of such determination (i) by redemption of Navigator Ordinary Shares owned by Xxxx Xxxxxxx or any of their Affiliates (with the redemption price thereof being paid entirely by offsetting such Losses against the value of such Navigator Ordinary Shares based on the then Fair Market Value of such Navigator Ordinary Shares), (ii) by redemption of Notes (with the full amount redemption price thereof being paid entirely by offsetting such Losses against the value of such Notes based on the then fair market value of such Notes owned by Xxxx Xxxxxxx or any of their Affiliates, by reference to the Fair Market Value of the LossNavigator Ordinary Shares issuable thereunder) or (iii) against the distributions or payments owed to the Class II Limited Partners (as such term is defined in the Operating Agreements) under the Operating Agreements. As a condition to the transfer of any Navigator Ordinary Shares or Notes to any Xxxx Seller or any of their respective Affiliates, such transferee shall agree (x) to the setoff rights contained in the preceding sentence, (y) that each Buyer Indemnitee is an express third party beneficiary thereof and (z) that such setoff and third party beneficiary rights may not be amended or modified without Navigator’s prior written consent in its sole discretion.

Determination of Losses. All Losses subject payable to or received by an Indemnified Party under this Agreement will be reduced on a dollar-for-dollar basis by the amount of any insurance proceeds with respect to such Losses, net of any increase in premiums or other out-of-pocket costs of the Indemnified Party (collectively, “Third-Party Recovery Proceeds”), in each case, actually received by any Indemnified Party, it being understood that in no event will any indemnification payment under this Article 6 be delayed in anticipation of the receipt of any Third-Party Recovery Proceeds. In the event that an Indemnified Party receives Third-Party Recovery Proceeds for a matter that an indemnification payment under this Article 6 has been made, such Indemnified Party shall pay to the Indemnifying Party the amount on a dollar-for-dollar basis of the Third-Party Recovery Proceeds, net of any out-of-pocket costs of the Indemnified Party incurred by such Indemnified Party in collecting such Third-Party Recovery Proceeds, but not more than the amount of indemnification payment made pursuant to this Article IX 6. The amount of any indemnity payable under this Agreement on account of a Loss will be subject to adjustment to avoid “double counting.” For purposes of determining (i) whether there is an inaccuracy or breach of any representation or warranty and (ii) the [***] shall amount of any Loss, any qualifications in the representations, warranties and covenants with respect to a “Material Adverse Change,” materiality, material, or similar terms will be calculated net disregarded and will not have any effect with respect to whether there is an inaccuracy or breach of any representation or warranty and the calculation of the amount of any recoveries received by an Indemnified Party prior to the payment in full of such Losses under any existing insurance policies and contractual indemnification or contribution provisions incurred or paid to procure such recoveries in respect of any indemnifiable Losses suffered, paid, sustained or incurred by any Indemnified Party. Furthermore, the amount of Losses shall be reduced by any actual Tax payment or refund actually received with respect to the specific indemnifiable event or item, as determined in the reasonable discretion of the Indemnified Party. In addition, all Losses subject to indemnification under this Article IX or the [***] shall be reduced by any Tax attribute (including for the avoidance of doubt, and notwithstanding anything else to the contrary herein, any existing net operating losses) that is available to offset any Tax Liability in connection with such Losses, such that the Company Group shall first be required to utilize any existing net operating losses, credits or any other Tax attributes prior to any payment of indemnification with respect to such Losses (for the avoidance of doubt, the value of any such Tax attributes utilized shall not increase the amount of Losses so indemnified), provided that such net operating losses, credits or other Tax attributes have arisen in a Pre-Closing Tax Period and have not been taking into account in calculating the Adjusted Merger Consideration as a Deferred Tax Asset. If an Indemnified Party recovers an amount from a third party in respect of a Loss that is the subject of indemnification hereunder after all or a portion of such Loss has been paid by an Indemnifying Party pursuant to this Article IX, the Indemnified Party shall promptly remit to the applicable Indemnifying Party the excess of (i) the amount paid by the Indemnifying Party in respect of such Loss, plus the amount received from the third party in respect thereof, less (ii) the full amount of the Loss.