Common use of Calculation of Damages Clause in Contracts

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 by the Indemnifying Party shall be net of any (i) amounts actually recovered by the Indemnified Party under applicable insurance policies, or from any other Person alleged to be responsible therefor and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs). In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into account. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages or Taxes payable under Section 11.03 9.2 by the Indemnifying Party shall be net of reduced by any (i) amounts actually recovered by the Indemnified Party under applicable insurance policies, policies or from any other Person alleged to be responsible therefor therefor, and shall be (iii) net of any Tax benefit benefits actually realized by the Indemnified Party arising from the incurrence or payment of and (ii) increased by any such Damages (taking into account any current or future Tax costs). In computing the amount of any such Tax benefit, costs incurred by the Indemnified Party shall be deemed to fully utilize(in each case, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, determined on a “with such Tax items to be the last items taken into accountand without basis”). If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such the Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such the Indemnifying Party in connection with providing such indemnification payment up to the amount actually received by the Indemnified Party, net of any expenses incurred by such the Indemnified Party in collecting such amount. The Indemnified Party shall use commercially reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Damages payable under Section 9.2.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 by the Indemnifying Party shall be net of any (i) amounts actually recovered or recoverable by the Indemnified Party under applicable insurance policies, or from any other Person alleged to be responsible therefor and (ii) any net Tax benefit actually realized by the Indemnified Party in the year of the indemnification arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs). In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into account. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 this Article 12 (or any other provision of this Agreement that expressly provides for indemnification) by the Indemnifying Party shall be net of any (i) amounts actually recovered or recoverable by the Indemnified Party under applicable insurance policiespolicies (including the Environmental Insurance Policy), or from any other Person alleged to be responsible therefor and (ii) the present value of any Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs)Damages. In computing the amount The present value of any such Tax benefit, the Indemnified Party benefit shall be deemed computed (x) using a discount rate equal to fully utilize, the mid-term applicable federal rate in effect at the highest applicable marginal tax time the relevant payment is made, (y) assuming that the Tax benefit will be used at the earliest date or dates allowable by Applicable Law and (z) using the maximum federal or state, as the case may be, corporate Tax rate then in effect, all Tax items arising from effect at the incurrence or time the relevant payment of any indemnified Damages, with such Tax items to be the last items taken into accountis made. If the Indemnified Party receives any amounts under applicable insurance policiespolicies (including the Environmental Insurance Policy), or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 10.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered or recoverable by the Indemnified Party under applicable insurance policies, or from any other Person alleged to be responsible therefor and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs)Damages. In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into account. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 11.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered by the Indemnified Party or its Affiliates under applicable third-party insurance policies, policies (other than Seller’s and its Affiliates’ respective self-insurance programs (including insurance policies issued by any Affiliate of Seller)) or from any other Person alleged to be responsible therefor therefor, and (ii) Tax benefit actually realized by the Indemnified Party or its Affiliates (in cash or as a direct reduction in Taxes otherwise due) arising from the incurrence or payment of any such Damages (taking into account and, for the avoidance of doubt, Damages shall be increased by any current Tax detriment actually realized from either the indemnifiable loss or future Tax costs). In computing the amount receipt of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into accountindemnification payments). If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or out-of-pocket expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any deductible, retention amounts, increases in insurance premiums (retroactive or otherwise) or other expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 11.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered by the Indemnified Party under applicable insurance policies, policies or from any other Person alleged to be responsible therefor (net of any (i) costs incurred in recovering such amounts including the amount of any deductible paid and increased cost of insurance and (ii) Net Tax benefit Benefit, if any, actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costsDamages). In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into account. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified PartyParty from such insurance policy or other Person, net of any expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 9.02(a), Section 9.03 or Section 9.04, as applicable, by the Indemnifying Party shall be net of any (i) amounts actually recovered by the Indemnified Party under applicable insurance policies, policies or from any other Person alleged to be responsible therefor (in each case net of any costs of collection) and (ii) Tax benefit actually realized by the Indemnified Party (in cash or as a reduction in Tax otherwise due) in the taxable year in which such Damages occur arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs). In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into account. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to after the Indemnifying Party makes an indemnification payment in respect of such Damages, and which amounts were not previously deducted from the Damages payable by the Indemnifying Party, then such the Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 10.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered by the Indemnified Party under applicable insurance policies, policies or from any other Person alleged to be responsible therefor therefor, and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs)Damages. In computing the amount of any such Tax benefit, the Each Indemnified Party shall be deemed use reasonable best efforts to fully utilizecollect any amounts available under insurance coverage, at the highest applicable marginal tax rate then in effect, all Tax items arising or from the incurrence or payment of any indemnified Damages, with such Tax items other Person alleged to be the last items taken into accountresponsible, for any Damages payable under Section 10.02. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount, and without interest.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 11.02 by the Indemnifying Party shall be net of any (i) any amounts actually recovered by the Indemnified Party under applicable insurance policies, policies or from any other Person alleged to be responsible therefor (net of any deductible or any expenses incurred in securing such recovery), and (ii) any Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages, but shall be netted against any Damages (taking into account any current payable under Section 11.02 by the Indemnifying Party, or future Tax costs). In computing repaid by the amount of any Indemnified Party, only if, as and when such Tax benefitbenefit is actually realized in cash or a reduction in Taxes otherwise due. For purposes of clause (ii) of the preceding sentence, the Indemnified Party second through eighth sentences of Section 9.07(b) shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into accountapply mutatis mutandis. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount 148 received by the Indemnified Party, net of any deductible or expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 9.02 by the Indemnifying Party shall (i) be net of any (i) amounts actually recovered by the Indemnified Party under applicable insurance policies, policies or from any other Person alleged to be responsible therefor and for such Damages, (ii) Tax be reduced by any tax benefit actually realized by or other reduction of the tax liability of the Indemnified Party arising from as a result of the incurrence facts and circumstances giving rise to any Damages hereunder and (iii) not include any indirect, special, consequential or payment punitive Damages or Damages for lost profits, except in the case of any such Damages (taking into account any current or future Tax costs). In computing the amount of any such Tax benefit, the Indemnified Third Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into accountClaims. If the Indemnified Party receives any amounts under applicable insurance policies, policies or from any other Person alleged to be responsible for any DamagesDamages or obtains any tax benefit referred to in Section 9.05(ii), in each case, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 11.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered by the Indemnified Party under applicable insurance policiespolicies (taking into account, however, the amount by which the premiums for any such policies increase as a result of such recovery) or from any other Person alleged to be responsible therefor therefore and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future for this purpose, Tax costs). In benefits shall be calculated by computing the amount of Taxes before and after inclusion of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with attributable to such Losses for which indemnification was made and treating such Tax items to be as the last items taken into accountclaimed for any taxable period and shall be reduced by the amount of any related Tax detriment suffered by the Indemnified Party). If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses and any other liabilities incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages damages payable under Section 11.03 7.01(a) by the Indemnifying Party shall be net of any (i) amounts actually recovered by the Indemnified Party under applicable insurance policies, policies or from any other Person alleged to be responsible therefor and (ii) Tax benefit actually realized by the Indemnified Party arising from in the taxable year of the incurrence or payment of any such Damages (taking into account any current or future Tax costs)damages. In computing the amount of any Any such Tax benefit, the Indemnified Party benefit shall be deemed to fully utilize, at reduced by any Tax costs incurred as a result of the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or corresponding indemnity payment of any indemnified Damages, and calculated on a “with such Tax items to be the last items taken into accountand without” basis. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, damages subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any out-of-pocket costs and expenses incurred by such Indemnified Party in collecting such amount. Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any damages payable under Section 7.01.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 9.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered by the Indemnified Party under applicable insurance policies, or from any other Person alleged to be responsible therefor and for any such Damages or (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs)Damages. In computing the amount of any such Tax benefitBenefit actually realized, the Indemnified Party such Tax benefit shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all net of any Tax items detriment arising from the incurrence or payment receipt of any indemnified Damages, with such Tax items to be the last items taken into accountindemnification payment. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall must promptly reimburse notify the Indemnifying Party for any payment made or expense incurred by such and pay to the Indemnifying Party in connection with providing such indemnification payment up to the amount extent of the value of the benefit received by the Indemnified Party, net of any expenses Party (less the reasonable costs incurred by such the Indemnified Party in collecting such amount) within two Business Days after the benefit is received. Solely for purposes of calculating the amount of Damages incurred arising out of or relating to any breach of a representation or warranty (and not for purposes of determining whether or not a breach has occurred), the exceptions and qualifications referring to “Material Adverse Effect” or other materiality qualifications (or correlative terms) shall be disregarded.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 11.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered by the Indemnified Party under applicable insurance policiespolicies that were maintained by Seller prior to the Closing for the benefit of the Business, or from any other Person alleged to be responsible therefor and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs). In computing the amount of any such Tax benefit, Damages; provided that nothing herein shall require the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all commence litigation to recover or realize any such amounts or Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into accountbenefits. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount, but, in the case of amounts received under applicable insurance policies, only to the extent such payments, together with all similar amounts previously received, are in excess of the aggregate deductibles or retentions under such insurance policies.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 11.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered or recoverable by the Indemnified Party under applicable insurance policies, net of any premium increases, or from any other Person alleged to be responsible therefor and (ii) Tax benefit actually Benefit realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account in the taxable year the loss resulting in such Damages is incurred or the Damages are paid or any current or future Tax costs)prior year. In computing the amount of any such Tax benefit, the No Indemnified Party shall be deemed have any obligation to fully utilizepursue recovery under any insurance policies or indemnity, at contribution or other similar contracts. The Indemnifying Party shall have the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items right to be the last items taken into accountinformed of all such efforts. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 this Article 12 (or any other provision of this Agreement that expressly provides for indemnification) by the Indemnifying Party shall be net of any (i) amounts actually recovered or recoverable by the Indemnified Party under applicable insurance policies, or from any other Person alleged to be responsible therefor and (ii) the present value of any Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs)Damages. In computing the amount The present value of any such Tax benefit, the Indemnified Party benefit shall be deemed computed (x) using a discount rate equal to fully utilize, the mid-term applicable federal rate in effect at the highest applicable marginal tax time the relevant payment is made, (y) assuming that the Tax benefit will be used at the earliest date or dates allowable by Applicable Law and (z) using the maximum federal or state, as the case may be, corporate Tax rate then in effect, all Tax items arising from effect at the incurrence or time the relevant payment of any indemnified Damages, with such Tax items to be the last items taken into accountis made. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages payable for which indemnification is provided under Section 11.03 by the Indemnifying Party this Article VIII shall be net of (a) any amounts actually received by the Indemnified Party or its Affiliates from third parties with respect to such Damages (iless any related costs and expenses, including the aggregate out-of-pocket cost of pursuing any related insurance claims and any related increases in insurance premiums) amounts and (b) any recoverable VAT actually recovered by the Indemnified Party under applicable insurance policiesas a result of such Damages with respect to the taxable year of the occurrence of the Damages giving rise to the indemnification obligation. Except as otherwise provided in this Article VIII, or from in any other Person alleged to be responsible therefor and (ii) Tax benefit actually realized by case where the Indemnified Party arising subsequently recovers from third parties any amount in respect of a matter with respect to which the incurrence or payment of any such Damages (taking into account any current or future Tax costs). In computing Indemnifying Party has indemnified the amount of any such Tax benefitIndemnified Party pursuant to this Article VIII, the Indemnified Party shall be deemed promptly pay over to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from Indemnifying Party the incurrence or payment amount so recovered (after deducting therefrom the full amount of any indemnified Damages, with such Tax items to be the last items taken into account. If applicable insurance premium increases and any costs or expenses incurred by the Indemnified Party receives in procuring such recovery), but not in excess of any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment amount previously so paid by the Indemnifying Party, then such Indemnified Party shall promptly reimburse to or on behalf of the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting respect of such amountmatter.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 11.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered or recoverable by the Indemnified Party under applicable insurance policies, or from any other Person alleged to be responsible therefor therefor, and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs). In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed use commercially reasonable efforts to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with recover such Tax items to be the last items taken into accountamounts. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amountamount (including any increased premiums under any such insurance policies). For purposes of calculating the unpaid Taxes of the Transferred Subsidiaries and HEE as of the Closing Date for which ACI is responsible pursuant to Section 8.02(d)(viii), in the case of any Taxes that are payable for a taxable period that includes (but does not end on) the Closing Date, the portion of such Tax related to the portion of such taxable period ending on the Closing Date shall, in the case of any Tax based upon or related to income, be deemed equal to the amount which would be payable if the relevant taxable period ended on the Closing Date.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 9.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered or recoverable by the Indemnified Party under applicable insurance policies, policies or from any other Person alleged to be responsible therefor and therefor, (ii) Tax tax cost incurred by the Indemnified Party arising from the receipt of indemnity payments and (iii) tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs)Damages. In computing the amount of any such Tax tax cost or tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax tax items arising from the receipt of any indemnity payment hereunder or the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into account. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 this Article 13 (or any other provision of this Agreement that expressly provides for indemnification) by the Indemnifying Party shall be net of any (i) amounts actually recovered received by the Indemnified Party under applicable non-affiliated insurance policiespolicies (including the Environmental Insurance Policy), or from any other Person alleged to be responsible therefor therefor, net of any expenses related to the receipt of such insurance proceeds, payments or recoupment, including retrospective premium adjustments, and (ii) Tax benefit actually recognized and realized by the Indemnified Party (based solely on the Indemnified Party’s determination and calculation) arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs). In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into account. If the Indemnified Party receives any amounts under applicable non-affiliated insurance policiespolicies (including the Environmental Insurance Policy), or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, Party net of any expenses incurred by related to the receipt of such Indemnified Party in collecting such amountproceeds, payments or recoupment.

Calculation of Damages. (a9a) The amount of any Damages payable under Section 11.03 11.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered or recoverable by the Indemnified Party under applicable insurance policies, policies or from any other Person alleged to be responsible therefor therefor, and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs)Damages. In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into account. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 11.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered or recoverable by the Indemnified Party under applicable insurance policies, policies or from any other Person alleged to be responsible therefor therefor, and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs)Damages. In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into account. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 9.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered by the Indemnified Party under applicable insurance policies, or from any other Person alleged to be responsible therefor (net of any expenses incurred by the Indemnified Party in obtaining such recovery, including any Recovery Costs) and (ii) Tax benefit reduction in Taxes actually realized by the Indemnified Party arising from person that incurred the incurrence or payment Damages, as a result of any such Damages (taking into account any current or future Tax costs). In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified such Damages, with such Tax items reduction to be the last items taken into account. determined on a “with and without basis.” If such reduction in Taxes is realized or the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, in either case, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to to, as applicable, the amount of such reduction in Taxes or the amount received by the Indemnified Party, Party (net of any expenses incurred by such the Indemnified Party in collecting such amount, including any Recovery Costs).

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 11.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered by the Indemnified Party under applicable insurance policies, policies or from any other Person alleged to be responsible therefor and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment covering Damages in respect of any such Damages (taking into account any current or future Tax costs)which indemnification may be sought under Section 11.01. In computing the amount of any such Tax benefit, the The Indemnified Party shall be deemed use reasonable efforts to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising collect any amounts available under such insurance policies and from the incurrence or payment of any indemnified Damages, with such Tax items other Person alleged to be the last items taken into accountresponsible. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount, but, in the case of amounts received under applicable insurance policies, only to the extent such payments, together with all similar amounts previously received, are in excess of the aggregate deductibles or retentions under such insurance policies.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 10.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered by the Indemnified Party under applicable insurance policiespolicies (but any such offset for amounts so recovered shall be reduced by the present value of any insurance policy increases to Indemnified Party relating thereto), from any other third party with indemnification obligations or from any other Person alleged to be responsible therefor and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs). In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into accounttherefor. If the Indemnified Party receives any amounts under applicable insurance policies, from any other third party with indemnification obligations or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount actually received by the Indemnified Party, Party (but any such offset for amounts so recovered shall be reduced by the present value (calculated at a 10% interest rate) of any insurance policy increases to Indemnified Party relating thereto) and net of any expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The i)The amount of any Damages payable under Section 11.03 10.02 by the Indemnifying Party shall be net of any (i) amounts actually recovered or recoverable by the Indemnified Party under applicable insurance policies, or from any other Person alleged to be responsible therefor and (ii) Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages (taking into account any current or future Tax costs)Damages. In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into account. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.

Calculation of Damages. (a) The amount of any Damages payable under Section 11.03 11.02 by the Indemnifying Party shall be net of any (i) any amounts actually recovered by the Indemnified Party under applicable insurance policies, policies or from any other Person alleged to be responsible therefor (net of any deductible or any expenses incurred in securing such recovery), and (ii) any Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Damages, but shall be netted against any Damages (taking into account any current payable under Section 11.02 by the Indemnifying Party, or future Tax costs). In computing repaid by the amount of any Indemnified Party, only if, as and when such Tax benefitbenefit is actually realized in cash or a reduction in Taxes otherwise due. For purposes of clause (ii) of the preceding sentence, the Indemnified Party second through eighth sentences of Section 9.07(b) shall be deemed to fully utilize, at the highest applicable marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Damages, with such Tax items to be the last items taken into accountapply mutatis mutandis. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Damages, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any deductible or expenses incurred by such Indemnified Party in collecting such amount.. 148